State v. Warmbrun

• Decision Date: 01 November 1994
• Citation: 277 N.J.Super. 51,648 A.2d 1153
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul WARMBRUN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 51

277 N.J.Super. 51

648 A.2d 1153

STATE of New Jersey, Plaintiff-Respondent, v. Paul WARMBRUN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 11, 1994.

Decided Nov. 1, 1994.

Susan L. Reisner, Public Defender, for appellant (Joel C. Seltzer, Designated Counsel, of counsel and on the brief).

Defendant filed a supplemental brief pro se.

Deborah T. Poritz, Atty. Gen. of New Jersey, for respondent (Craig V. Zwillman, Deputy Atty. Gen., of counsel and on the letter brief).

Before Judges VILLANUEVA, WEFING and BILDER.

The opinion of the court was delivered by

VILLANUEVA, J.A.D.

Defendant, Paul Warmbrun, appeals from a conviction of reckless manslaughter, N.J.S.A. 2C:11-4(b)(1). We affirm.

On February 17, 1989, North Brunswick Police Officer Joseph Battaglia was dispatched to Route 130 South at about 9:17 p.m. He observed the body of Dana Richmond on the shoulder of the road and indicated the victim was dead at that time. Prompt investigation disclosed that he had been struck by a station wagon driven by defendant and that defendant was apparently under the influence of alcohol at the time. Battaglia and his backup, Kenneth Hoffman, investigated the scene.

Claire Smith, Michael Wilder and Peter Tornabene testified as to defendant's erratic driving and the broken windshield on the driver's side of his vehicle. Wilder and Tornabene determined that defendant was intoxicated, and observed glass in his hair and alcohol on his breath.

Patrolman Jim Bramble of the East Windsor Police Department received a call at about 9:40 p.m. concerning a white station wagon. Bramble proceeded to Windsor Mills on Old Trenton Road and observed the defendant leaning against the station wagon and that defendant had difficulty standing and was covered with glass. Defendant told Bramble that he had driven his car from New Brunswick. Defendant was antagonistic and uncooperative, and his speech was slurred.

After detecting a strong odor of alcohol on defendant's breath, Bramble arrested defendant, read him his Miranda ¹ rights and took him to the East Windsor Police Station. Defendant was unable to walk unassisted. While traveling to the station, defendant without being questioned, said that someone shot his windshield with a gun and that he was going to sue Officer Bramble. Defendant was again read his Miranda rights at the station and he indicated that he understood those rights but refused to sign the Miranda form. Defendant was also read his DWI rights.

Defendant told the police that he had consumed a couple of glasses of chablis but no drinks after about 4:00 p.m. Bramble requested that defendant perform several balance tests and an alphabet test, both of which defendant failed. At approximately 10:42 p.m., Bramble began to ask standard breathalyzer questions of defendant. Defendant had agreed to take a breathalyzer but when he was given the test he repeatedly refused to exhale into the machine which prevented a reading from being taken.

Meanwhile, Battaglia received a communication regarding the vehicle and a possible suspect, defendant, found at Country Mill Road in East Windsor. The vehicle was impounded after Battaglia arrived at the scene. He observed that defendant's face was flushed, his eyes bloodshot, his movements slow, and he had a strong odor of alcohol and looked "disheveled."

After defendant refused to take the breathalyzer test, Bramble and other officers proceeded with the defendant to Princeton Medical Center where the officers observed a blood sample taken. Defendant was then brought to the North Brunswick Police Department where Officer Ruvolo witnessed Officer Curry read defendant his Miranda rights. This time defendant signed the Miranda card at approximately 12:55 a.m. Ruvolo stated that defendant looked coherent but noted that earlier defendant had slurred speech at the hospital.

Middlesex County Prosecutor Investigator Ken Mazza, after reading defendant his Miranda rights, questioned defendant and tape recorded defendant's statement. Defendant appeared intoxicated with slurred speech, red eyes, a flushed face and the odor of alcohol. According to Mazza's testimony at the suppression hearing, when questioned about other people at work who were at the party he attended, defendant indicated that he would not answer certain questions without an attorney. Mazza stopped questioning when defendant called his wife and said that he wanted an attorney.

At trial, Mazza testified as an expert in accident reconstruction and opined that the victim was struck and killed on the shoulder of the road based on where the tire print from defendant's car was located.

Steven Andrews, a forensic scientist for the New Jersey State Police, testified that the blood samples taken from defendant revealed a blood alcohol content of between .238 and .240 percent or between .23 and .25 percent within a reasonable degree of scientific certainty.

Charles G. Tindall, Chief Forensic Chemist for the State Police also testified and stated that wine or ethyl alcohol is a depressant and at a .238 blood alcohol level an individual is severely impaired. Tindall testified that a 150-pound man would have to drink ten four ounce glasses of table wine to have a .238 blood alcohol level. Tindall concluded that defendant was severely impaired on the night of the accident.

William Ebbinghouser testified for the defense that he had been with defendant on the date of the accident and that both men had gone to a birthday celebration at a nearby restaurant after work. He testified that between 1:30 p.m. and 5:00 p.m. he saw defendant have three or four drinks. He believed that defendant looked coherent.

John Zamparo, an engineering expert, also testified for the defense and stated that the reports he viewed did not contain a "point of impact" necessary for describing the exact spot where the accident took place. Zamparo also opined that the tire print did not match defendant's car. Zamparo therefore concluded that Mazza was incorrect in his theory that because there was no physical evidence to indicate the accident happened in the road it must have occurred on the shoulder of the road. Zamparo stated there was a high probability that the collision occurred in the "travel portion of the roadway."

Defendant was indicted by a Middlesex County Grand Jury for aggravated manslaughter, first degree, N.J.S.A. 2C:11-4a.

The judge denied a motion to dismiss the indictment based upon defendant's argument that the State had failed to provide the grand jury with proper instructions as the elements of aggravated manslaughter.

At a pretrial hearing the trial judge held that defendant's statements to police at the scene of the crime prior to receiving Miranda warnings were admissible as non-custodial investigative questioning, and that statements made after the Miranda warnings were given were admissible because they were made knowingly and voluntarily. Other statements made to the prosecutor's investigator were ruled inadmissible because the investigator did not cease questioning when defendant requested an attorney.

After the State presented its case to the jury, the judge denied defendant's motion for judgment of acquittal, and the jury convicted defendant of reckless manslaughter, N.J.S.A. 2C:11-4b(1). The jury found defendant not guilty of aggravated manslaughter.

Defendant was sentenced to a prison term of ten years with three years parole ineligibility. The court imposed a V.C.C.B penalty of $30, a fine of $1,000 and a loss of driving privileges for two years, upon release from prison. Fines in the amount of $750 plus a $100 surcharge and an aggregate eighteen months ² driver's license suspension consecutive to the two years were also imposed for driving while under the influence, leaving the scene of an accident and refusal to take a breathalyzer test. ³

On appeal defendant argues:

POINT I COURT'S FAILURE TO DISMISS INDICTMENT WAS PREJUDICIAL ERROR BY REASON OF PROSECUTOR'S FAILURE TO PROVIDE THE GRAND JURY WITH [a] PROPER ELEMENT OF AGGRAVATED MANSLAUGHTER. N.J.S.A. 2C:11-4(a).

POINT II THE COURT ERRED IN NOT DISMISSING THE INDICTMENT BY REASON OF THE STATE'S FAILURE TO CHARGE ALTERNATIVE OFFENSES. U.S. CONST. AMEND. V; N.J. CONSTITUTION ART. I § 8 (1947).

POINT III DEFENDANT'S REFUSAL TO SIGN MIRANDA RIGHTS WAIVER CARD REQUIRES SUPPRESSION OF STATEMENT MADE TO PATROLMAN BRAMBLE.

POINT IV STATE'S MANNER OF OBTAINING BLOOD SAMPLE FROM DEFENDANT VIOLATED HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

POINT V THE STATE'S FAILURE TO SUSTAIN ITS BURDEN OF PROOF REQUIRED AN ENTRY OF JUDGMENT OF ACQUITTAL IN DEFENDANT, PAUL WARMBRUN'S FAVOR; AND IN THE ALTERNATIVE, THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

I.

Defendant contends that the indictment should have been dismissed because the prosecutor failed to define for the grand jury a specific element of the crime of aggravated manslaughter: "death under circumstances manifesting extreme indifference to human life." Defendant claims this failure confused the grand jurors as to whether they were voting on aggravated manslaughter or manslaughter, and this confusion is fatal to the indictment because aggravated manslaughter is a first degree crime with a higher penalty than the second degree crime of manslaughter.

The difference between manslaughter and aggravated manslaughter is the element of aggravated manslaughter requiring that the actor recklessly committed the homicide "under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4. Defendant contends that the omission of a definition for that distinguishing phrase was misleading and fatally unclear and required dismissal of the indictment.

"Whether an indictment should be dismissed or quashed lies within the discretion of the trial court. Such discretion should not be exercised except on 'the clearest and plainest...