STATE OF NEW JERSEY VS. GEORGE v. KWEDER, JR. (13-03-0919, CAMDEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2145-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE V. KWEDER, JR.,
Defendant-Appellant.
_____________________________
Argued January 7, 2019 – Decided March 26, 2019
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 13-03-0919.
Eric R. Breslin argued the cause for appellant (Duane
Morris, LLP, attorneys; Eric R. Breslin and Amanda L.
Bassen, of counsel and on the briefs; Jovalin Dedaj, on
the brief).
Linda A. Shashoua, Assistant Prosecutor, argued the
cause for respondent (Mary Eva Colalillo, Camden
County Prosecutor, attorney; Linda A. Shashoua, of
counsel and on the brief).
PER CURIAM
On March 5, 2012, shortly after 5 p.m., defendant George Kweder was
driving his pick-up truck westbound on the Atlantic City Expressway.
Witnesses observed defendant's car darting in and out of traffic before veering
slowly from the left lane to the right shoulder, where it collided with a Lexus
parked on the shoulder with its flashers on. The collision pushed the Lexus
ninety-five feet, down an embankment, and into a tree. The driver of the Lexus
remained conscious for some time before succumbing to crush injuries.
Post-accident forensic investigation revealed that defendant's truck was
traveling at sixty-six miles per hour shortly before impact, and that defendant
never applied the brakes. Analysis of data from the Lexus revealed that the
impact caused the car to accelerate from zero to forty-two miles per hour in two-
hundredths of a second.
Defendant's truck flipped over several times before coming to a stop.
Witnesses, including an emergency medical technician (EMT) and the first New
Jersey State Police Trooper to arrive at the scene, Ricardo Delgado, all detected
the odor of alcohol on defendant's breath. Defendant told Trooper Delgado that
he did not know what happened, he was "out of it," and he was diabetic and had
not taken his medicine that day. Empty and near-empty beer cans and bottles
were found in the passenger compartment of defendant's truck. Defendant was
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taken for medical treatment at a nearby hospital, where he consented to a blood
draw; his blood alcohol concentration (BAC) level was .079.
A grand jury indicted defendant for one count of second-degree death by
auto, N.J.S.A. 2C:11-5. The jury convicted defendant at trial, and the judge
sentenced him to a seven-year term of imprisonment subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following issues for our consideration:
POINT I
DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.1
POINT II
THE TRIAL COURT IMPROPERLY PRECLUDED
[DEFENDANT] FROM INTRODUCING HIS
THEORY OF CAUSATION TO THE JURY.
POINT III
THE TRIAL COURT DENIED [DEFENDANT] HIS
CONSTITUTIONAL RIGHT TO CONFRONT THE
STATE'S EXPERT WITNESS THROUGH CROSS-
EXAMINATION.
POINT IV
THE TRIAL COURT ERRED IN ADMITTING
STATEMENTS MADE BY [DEFENDANT] TO
1
We have eliminated the sub-points of the arguments.
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HEALTHCARE PROFESSIONALS IN
CONNECTION WITH MEDICAL TREATMENT.
We have considered these arguments in light of the record and applicable legal
principles. We remand to the Law Division for a hearing to consider and
definitively rule on defendant's speedy trial argument raised in Point I. In all
other respects, we affirm defendant's conviction.
I.
We consider the substantive arguments regarding the trial in reverse order.
A.
The judge held N.J.R.E. 104 hearings outside the presence of the jury
regarding statements defendant made to EMT Cheryl Ehrman-Massey and Nurse
Stephanie Hazelton. EMT Ehrman-Massey arrived at the scene shortly after the
collision and spoke to defendant, who complained of head and arm pain. She
described defendant as cooperative and appropriately responsive, and she rode
with defendant to the hospital in an ambulance. EMT Ehrman-Massey detected
alcohol on defendant's breath and asked if he had any alcoholic beverages during
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the day. Defendant answered affirmatively, saying he had six beers prior to the
accident.2
Later at the hospital emergency room, Nurse Hazelton drew blood from
defendant after receiving a "kit" from Trooper Delgado. She recalled asking
defendant general questions, including, what happened. Defendant, who was
coherent and answered the nurse's questions appropriately, said "he didn’t
remember what happened and . . . th[ought] he fell asleep."
After the conclusion of each N.J.R.E. 104 hearing, defense counsel
objected to admission of the statements, asserting N.J.R.E. 506, the physician -
patient privilege, applied. Additionally, as to defendant's statement to Nurse
Hazelton, defendant argued the questioning took place while he was in custody.
The judge rejected these arguments, and both witnesses testified to the
2
During cross-examination of Trooper Delgado, defense counsel played the
recording from the trooper's motor vehicle recorder, which captured defendant
telling the trooper at the scene that he was returning from "[g]etting our boat
together," and he did not know what happened and was "completely out of it."
At the hospital, defendant told Trooper Delgado that he had three beers at a
tavern during lunch.
Defendant elected not to testify, but his brother told the jury that he and
defendant had three beers during lunch at the tavern after both had spent the
earlier part of the day cleaning their boat. Defendant's brother stated that the
beer cans and bottles found in defendant's truck were those removed from the
boat.
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statements in front of the jury. Defendant essentially renews the arguments
before us.
"The admission or exclusion of evidence at trial rests in the sound
discretion of the trial court." State v. Willis, 225 N.J. 85, 96 (2016) (citing State
v. Gillispie, 208 N.J. 59, 84 (2011)). "Because the invocation of privileges
results in the loss of relevant evidence, 'courts . . . have long construed them
narrowly in an attempt to promote, at once, the goals of the privilege and the
truth[-]seeking role of the courts.'" State v. L.J.P., 270 N.J. Super. 429, 440
(App. Div. 1994) (quoting State v. Schreiber, 122 N.J. 579, 582-83 (1991)).
The physician-patient privilege does not apply to statements defendant
made to EMT Ehrman-Massey. See N.J.R.E. 506(b) (preventing disclosure of a
"confidential communication between patient and physician") (emphasis
added); and N.J.R.E. 506(a) (defining "patient" and "physician"). Defendant
acknowledges this in his brief, but urges us to expand the privilege to include
all members of his "treatment team." See, e.g., State v. Smith, 307 N.J. Super.
1, 12-13 (App. Div. 1997) (suggesting physician-patient privilege may apply to
communications between hospital patient and "treatment team"); State v.
Phillips, 213 N.J. Super. 534, 543 n.5 (App. Div. 1986) (noting that the
physician-patient privilege "should also protect confidential statements made to
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a treating nurse, acting either as an agent under the supervision of a doctor or in
her professional capacity"). We decline the invitation, as did the trial judge,
because, as an intermediate court of appeal, such a significant expansion of the
privilege is more appropriately the province of our Supreme Court. Riley v.
Keenan, 406 N.J. Super. 281, 297 (App. Div. 2009).
As to defendant's statements to Nurse Hazelton, we have held that direct
communications by a patient to a nurse in a hospital emergency room (ER) do
not constitute a "confidential communication between patient and physician."
N.J.R.E. 506(b); see State v. Risden, 106 N.J. Super. 226, 237 (App. Div. 1969)
(holding physician-patient privilege did not apply to exclude testimony of nurse
in emergency room, who asked the defendant, "[h]ow did this happen?" and
noted the answers in a report), modified on other grounds, 56 N.J. 27 (1970). In
Phillips, we held that the privilege did not protect communications between the
defendant and attending physicians and a nurse drawing blood when overheard
by a police officer in attendance. 213 N.J. Super. at 541-43. Moreover, N.J.R.E.
506(a) defines a "patient" as one who "for the sole purpose of securing
preventative, palliative, or curative treatment, or a diagnosis preliminary to such
treatment, . . . consults a physician, or submits to an examination by a
physician[.]" Trooper Delgado specifically tasked Nurse Hazelton with drawing
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blood for a potential prosecution of defendant, so communications between her
and defendant were not within the scope of the privilege. Phillips, 213 N.J.
Super. at 542-43.
In sum, there was no error in admitting these statements for the jury's
consideration.
B.
Throughout several of the many pre-trial proceedings, the parties and the
judge discussed whether defendant intended to produce a medical expert who
would link his diabetic condition to the accident. Ultimately, defendant did not
retain a medical expert. During one of the pre-trial conferences, counsel said he
only intended to call the ER doctor as a witness. He expected the doctor to
testify that blood tests performed at the hospital revealed defendant was diabetic
and was suffering from hyperglycemia.
In anticipation of trial, defendant submitted proposed jury instructions on
causation that required the jury to consider whether defendant's reckless conduct
caused the accident, or whether it "was instead caused by an emergent medical
condition of [defendant] . . . ." Noting the lack of any defense expert report, the
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judge refused to give the charge until he conducted a N.J.R.E. 104 hearing to
evaluate the ER doctor's testimony. 3
The State's final witness at trial was Thomas Brettell, an expert in forensic
chemistry and forensic toxicology. Brettell opined that defendant's BAC ranged
from .07 to .09 at the time of the accident and would have been at its highest
point between 4:30 p.m. and 5:30 p.m. On cross-examination, Brettell stated
that some diseases might affect the rate of alcohol absorption, but diabetes does
not.
Defense counsel read a passage from a medical treatise that Brettell cited
in his expert report. The passage stated, "[a]ny medication that alters the rate of
metabolism can affect blood alcohol levels" and "any condition that causes 'extra
cellular' water retention (. . . diabetes, for example) will alter results." 4 The
prosecutor objected.
At side bar, defense counsel argued it was proper to ask Brettell about the
passage because, even though the expert knew from defendant's medical records
about the finding of hyperglycemia, Brettell failed to include it in his expert
3
Defendant never called the ER doctor as a witness either.
4
The treatise is not part of the appellate record. The trial transcript did not
contain quotation marks within counsel's question, but the context gives us
assurance it was a quote from the textbook.
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report. Defense counsel indicated he had no other questions for Brettell in this
regard.
The judge reasoned, "the fact that [defendant is] a diabetic, there is
nothing in the record that establishes that has anything to do with this case at
all." The judge further explained, "even if [Brettell] saw in the records that
[defendant] was a diabetic, [Brettell] does not have the qualifications [of] a
medical doctor." The judge sustained the objection and did not permit further
questions or readings from the treatise. The following day, the judge told the
jury to disregard what defense counsel had read from the textbook.
Defendant argues that the judge's ruling denied his constitutional right to
cross-examination and requires reversal. We agree the ruling was a mistaken
exercise of discretion, but any error was harmless.
Cross-examination "should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness." N.J.R.E.
611(b). N.J.R.E. 705 specifically permits questioning of an expert regarding
"underlying facts or data" considered in forming his or her opinion. Our courts
have long recognized the ability to use learned treatises as tools for cross -
examining experts. See Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486-87
(1992).
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Here, Brettell's expert opinion, i.e., that defendant's BAC was likely .09
at the time of the accident, was critical evidence. He apparently cited this
particular treatise in his expert report 5 and acknowledged that some diseases
could affect alcohol absorption rates. The learned treatise Brettell cited rebutted
his answer on cross-examination, that diabetes was not such a disease. The
proposed cross-examination was entirely proper.
Moreover, although defense counsel never sought to admit the statement
from the treatise as substantive evidence, the learned treatise exception to the
hearsay rule, N.J.R.E. 803(c)(18), provides:
To the extent called to the attention of an expert witness
upon cross-examination or relied upon by the expert in
direct examination, statements contained in published
treatises, . . . on a subject of . . . medicine, or other
science or art, established as a reliable authority by
testimony . . . . If admitted, the statements may not be
received as exhibits but may be read into evidence . . . .
Brettell himself recognized the authority of the treatise. Had counsel sought its
admission, the passage would have properly been in evidence.
Whether the erroneous limitation on cross-examination compels reversal
requires us to "decide whether the trial court's error was 'harmless beyond a
reasonable doubt.'" State v. Bass, 224 N.J. 285, 307-08 (2016) (quoting Del. v.
5
We say apparently because the report is not part of the appellate record.
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Van Arsdall, 475 U.S. 673, 684 (1986)). We disregard an error by the trial court
"unless it is of such a nature as to have been clearly capable of producing an
unjust result." Id. at 308 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).
"The possibility that the error led to an unjust result 'must be real, one sufficient
to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise
might not have reached.'" Ibid. (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).
Here, preventing the jury from hearing Brettell acknowledge that the
treatise contradicted his earlier opinion was harmless beyond a reasonable doubt
because no evidence was presented that defendant's hyperglycemic condition
actually influenced the BAC reading or otherwise affected defendant's driving.
Without such evidence, permitting defense counsel to read from the textbook
and ask a follow-up question of Brettell would have had marginal impeachment
value. Especially since defendant called his own expert at trial, Dr. Richard
Saferstein, who directly contradicted Brettell's conclusion about defendant's
BAC at the time of the crash, but was never questioned about the effect of
diabetes on BAC.
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Any error in foreclosing defense counsel's reading from the treatise does
not require reversal. 6
C.
The model jury charge on causation provides in relevant part:
Causation has a special meaning under the law.
To establish causation, the State must prove two
elements, each beyond a reasonable doubt:
First, but for the defendant's conduct, the result
in question would not have happened. In other words,
without defendant’s actions the result would not have
occurred.
....
Second, [for reckless conduct] that the actual
result must have been within the risk of which the
defendant was aware. If not, it must involve the same
kind of injury or harm as the probable result and must
also not be too remote, too accidental in its occurrence
6
Dr. Saferstein filed a supplemental report, included within the appellate
record, in support of defendant's earlier motion to dismiss the indictment. That
report noted defendant's diabetic condition. Dr. Saferstein opined, "The
symptoms associated with hyperglycemia can readily be mistaken with those
symptoms associated with alcohol-induced intoxication." The report, however,
did not address the effect of diabetes or hyperglycemia on
BAC levels. At trial, defense counsel limited his questioning of Dr. Saferstein,
who was not a medical doctor, to defendant's BAC at the time of the crash, and
why the jury should reject Brettell's opinion. The decision not to present
evidence connecting intoxication-like symptoms to defendant's diabetes was
consistent with defense counsel's closing argument, in which he contended
defendant's demeanor at the crash scene and hospital belied the State's assertion
that defendant was intoxicated and his driving impaired.
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or too dependent on another’s volitional act to have a
just bearing on the defendant's liability or on the gravity
of his/her offense.
[Model Jury Charges (Criminal), "Causation (N.J.S.A.
2C:2-3)" (approved June 10, 2013) (emphasis added).]
As already noted, defendant submitted a proposed jury charge on
causation before trial. The proposed charge anticipated the introduction of
evidence that the victim parked his car on the shoulder to answer a cellphone
call, not because of an emergency. Defense counsel argued this violated
N.J.A.C. 19:2-3.6, which generally prohibits "[p]arking . . . or stopping . . . on
the [Atlantic City] Expressway, except . . . in cases of emergency," defined as
"when the vehicle in question is physically inoperable or unable to be operated
safely, or when the driver of the vehicle is ill or fatigued . . . . " N.J.A.C. 19:2-
3.6(a) and (c). The proposed charge on causation asked the jury to consider
whether the victim's "volitional act," i.e., illegally parking on the shoulder, was
"an intervening cause of this accident that relieve[d] . . . defendant of criminal
liability . . . ."
The State objected, arguing generally that the position of the victim's car
and whether it was parked illegally was irrelevant to the issue of causation.
Relying primarily on State v. Buckley, 216 N.J. 249 (2013), the judge agreed
and entered an order memorializing his decision.
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In his opening statement, the prosecutor said the victim parked his car
"safely" on the shoulder. Defendant sought reconsideration of the judge's prior
order, claiming the State "opened the door." The judge denied the request.
In his final instructions, the judge's charge on causation was limited to the
following: "In order to find that the defendant caused [the victim's] death, you
must find that [the victim] would not have died but for defendant's conduct."
The judge never provided the portion of the model charge emphasized above,
but, instead, immediately followed by charging the jury on recklessness. See
N.J.S.A. 2C:11-5(a) (defining the crime as "[c]riminal homicide . . . caused by
driving a vehicle . . . recklessly."). Although the judge noted before he began
defense counsel's continuing objection based on the court's refusal to provide
the proposed charge, there was no contemporaneous objection from defense
counsel to the charge as given.
Defendant argues it was error to exclude evidence of the victim's
regulatory violation, particularly after the prosecutor's opening statement. He
also contends the judge's charge erroneously removed from the jury's
consideration an essential element of causation when an element of the offense
is reckless conduct.
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In Buckley, the defendant-driver was charged with death by auto after he
collided with a utility pole, causing the death of his passenger. 216 N.J. at 257 -
58. The issue before the Court, on interlocutory appeal, was whether the
defendant could introduce evidence of alleged intervening causes, i.e., the
victim was not wearing a seat belt and the placement of the utility pole, which
violated Department of Transportation standards. Id. at 259. The Court
considered whether this evidence was relevant to recklessness and causation.
Id. at 262.
The Court noted that "[w]hile '[c]ausation is a factual determination for
the jury to consider . . . the jury may consider only that which the law permits it
to consider.'" Id. at 263 (second alteration in original) (quoting State v. Pelham,
176 N.J. 448, 466 (2003)). The jury must first determine "whether the State has
established 'but for' causation . . . that the event would not have occurred absent
the defendant's conduct" of driving in the manner that he did. Ibid. (citing
N.J.S.A. 2C:2-3(a)). "In cases involving the mens rea of recklessness, the jury
then conducts a 'culpability assessment' under N.J.S.A. 2C:2-3(c)." Id. at 263-
64 (citing Pelham, 176 N.J. at 460).
N.J.S.A. 2C:2-3(c) provides in relevant part:
When the offense requires that the defendant
recklessly . . . cause a particular result, the actual result
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must be within the risk of which the actor is aware . . .
or, if not, the actual result must involve the same kind
of injury or harm as the probable result and must not be
too remote, accidental in its occurrence, or dependent
on another’s volitional act to have a just bearing on the
actor’s liability or on the gravity of his offense.
[(Emphasis added).]
"As the drafters of the Code noted, N.J.S.A. 2C:2-3(c) 'deal[s] explicitly with
variations between the actual result' and the result risked in a recklessness case,
and 'stat[es] when the variation is not material.'" Buckley, 216 N.J. at 264
(quoting II The New Jersey Penal Code: Final Report of the New Jersey Criminal
Law Revision Commission, commentary to § 2C:2-3, at 50 (1971)).
When considering
the first component of N.J.S.A. 2C:2-3(c)'s two-
pronged test for causation: whether 'the actual result'
was 'within the risk of which the actor is aware[,]'. . .
the jury will determine whether [the] defendant was
aware that, by virtue of the manner in which he drove
the vehicle, he created a risk of a fatal collision. If the
jury determines that [the] defendant was aware that his
conduct gave rise to such a risk, it need not assess the
exact degree of that risk, or the variables that could
affect its magnitude.
[Id. at 267-68 (citations omitted).]
Under the second prong, "when permitted by the law, 'it is for the jury to
determine whether intervening causes or unforeseen conditions lead to the
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conclusion that it is unjust to find that the defendant's conduct is the cause of
the actual result.'" Id. at 265 (quoting Pelham, 176 N.J. at 461) (emphasis
added). "An 'intervening cause' occurs when an event 'comes between the initial
event in a sequence and the end result, thereby altering the natural course of
events that might have connected a wrongful act to an injury.'" Ibid. (quoting
Pelham, 176 N.J. at 461).
For our purposes, we focus on the Buckley Court's discussion of whether
the placement of the utility pole was relevant to the jury's consideration of the
defendant's recklessness or causation. In this case, defendant's argument is that
the victim's illegally parked car — similar to the improperly placed pole — was
an intervening cause. The Court first noted the placement of the pole was
irrelevant to the jury's "but for" determination under N.J.S.A. 2C:2-3(c). Id. at
269.
Second, under the first prong of N.J.S.A. 2C:2-3(c), the
jury's determination of whether a fatal accident was
"within the risk of which [defendant was] aware" does
not, as a matter of law, implicate a particular utility
pole's compliance with [Department of Transportation]
recommendations. The question of defendant's
awareness that his driving posed a risk of a fatal
accident bears no nexus to the precise placement of a
single utility pole, one among many structures and
other stationary objects located near the road on which
he drove on the day of the accident.
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[Id. at 270.]
So, too, in this case, defendant's reckless driving posed the risk of accident to
all cars on the road, not only the victim's car parked on the shoulder. The cases
cited by defendant compel no different result. Therefore, the judge properly
denied admission of the evidence regarding regulatory violations.
Additionally, defendant's argument that the prosecutor's opening
statement "opened the door" to admit this evidence lacks sufficient merit to
warrant discussion. R. 2:11-3(e)(2). It follows that the judge did not err by
deciding not to provide defendant's proposed charge on causation.
We are troubled, however, by the judge's failure to provide the model jury
charge's causation instruction that explains the first prong of N.J.S.A. 2C:2-3(c),
i.e., "that the actual result must have been within the risk of which the defendant
was aware." Model Jury Charges, at 1. However, the judge followed his
truncated instruction on causation with a full and complete charge on
recklessness. The charge advised the jury that the State needed to prove beyond
a reasonable doubt that "defendant was aware that he was operating a vehicle in
such a manner or under such circumstances as to create a substantial and
unjustifiable risk of death to another." As noted, there was no objection to the
charge as given. Under these circumstances, we have no doubt the jury
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understood the essential principles of recklessness and causation. Any error did
not have the clear capacity to produce an unjust result. R. 2:10-2.
We affirm defendant's conviction.
II.
The State filed a complaint against defendant on August 23, 2012, more
than five months after the accident. A grand jury did not indict defendant until
March 2013, nearly seven months after that. At arraignment in June, the judge
set a discovery end date of August 15, 2013.
Motion practice by defendant and the State followed. Defendant moved
to dismiss the complaint, arguing the State had not provided access to the
vehicles to permit his expert's investigation, and the prosecutor failed to provide
the grand jurors with evidence of defendant's diabetes, which, according to
Saferstein's supplemental report, may have mimicked intoxication-like
behavior. By the time the motion was argued, in January 2014, defense coun sel
acknowledged his expert had inspected the vehicles. The judge denied the
motion to dismiss, as well as defendant' motion for reconsideration, by order in
March 2014.
During an April 2014 hearing, defendant moved to restore his driver's
license, which had been forfeited as a condition of bail. The judge granted that
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application. At the same hearing, the State sought a delay in trial to furnish its
expert report.7 Defendant objected, noting he had supplied the State with two
expert reports, "one on the topic of extrapolation, another on the topic of the
medical condition and hyperglycemia" as of December 2012. The prosecutor
argued the State's expert report was necessary, "given what came up in the
motion to dismiss." The judge noted the delay would not prejudice defendant,
since it was unlikely that the case could be tried for several months; he granted
the State's request to furnish its expert report in four weeks.
The parties were again before the judge in May, after the State had served
its expert report. Noting "the State ha[d] been dragging its legs in this . . .
matter" and "was lapsed [sic] in what they were doing[,]" the judge nevertheless
ruled the State could use the report at trial, noting a likely fall trial date.
Defendant asked for a two-week delay to address the State's expert report. The
judge noted that a short delay would not matter because defendant had filed an
interlocutory appeal of his decision to extend discovery and "until the Appellate
Division makes a ruling, we're in limbo. If they . . . determine I was incorrect,
7
The prosecutor never named the proposed expert nor did he identify the subject
of the report.
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then it's going to dismiss the indictment. So, I really . . . have to wait for that ."
We ultimately denied defendant's interlocutory application.
The judge conducted a pre-trial conference on May 20, 2014, during
which defendant rejected the State's plea offer, and the judge set a trial date of
October 6, 2014. The trial did not start, and the record is silent as to any court
proceedings thereafter until June 19, 2015. The State had filed a motion to
reopen discovery and compel production of defendant's medical records, and
defendant had filed a motion to bar portions of Brettell's report. The judge
originally handling the case had retired, so a second judge heard argument on
the respective motions.
The judge queried why the State had delayed seeking to compel
production of defendant's medical records. The prosecutor conceded that the
motion should have been filed two years earlier, before he began handling the
matter, but argued that defendant had placed his medical condition — diabetes
— in issue by "hir[ing] an expert[,]" Dr. Saferstein.
Defense counsel opposed the motion, claiming defendant "has been
consistently asserting his right to a speedy trial." He also told the judge
"Saferstein is not an expert on diabetes, and Saferstein is not gonna be permitted
. . . to testify about diabetes. Saferstein's report was for the purpose of
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extrapolation." Defense counsel clarified that he planned to call the ER doctor
to discuss defendant's medical condition on the date of the accident. The judge
recognized defendant's "speedy trial" rights "are real at this point," and, although
he was "[n]ot suggesting that defendant's been denied that[,]" he chastised the
prosecutor for not acting sooner. The judge reserved on the motions and invited
the parties to file further submissions.
On July 10, 2015, the judge denied the State's motion to compel
production of defendant's medical records given defense counsel's
representation that defendant would not assert his medical condition as a
defense. The judge again reserved on defendant's motion to bar portions of
Brettell's report. In a subsequent order, the judge set October 26, 2015, as the
new trial date.
On October 26, 2015, the parties were again before the judge. Citing
defendant's witness list, which included the ER doctor, the prosecutor asked the
judge to reopen discovery to permit the State to retain and call an expert at trial
"to rebut . . . any diabetes defense that may come out during trial." Despite the
judge's earlier order, the State had obtained an order in September from the
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Criminal Presiding Judge permitting it to obtain defendant's medical records. 8
The State also hired an expert, whose report, according to the prosecutor,
asserted "diabetes doesn't really have anything . . . to do with this."
Obviously exasperated, the judge stated, "we've conferenced this matter
at least a couple of times and I've been told at least once that diabetes isn't in the
case." He asked defense counsel whether he planned to ask the ER doctor
whether hyperglycemia could mimic intoxication. Counsel responded, "[I]
could ask him that." Defense counsel asserted that if the court granted the State's
motion, he would also seek to retain an expert who would opine that defendant
passed out at the wheel because he was hyperglycemic.
Noting it was now thirteen months since the first judge had ruled on the
diabetes issue, the judge said, "we're still kicking this thing around," and again
expressed concern about speedy trial rights. He granted the State's request, gave
defendant sixty days to obtain another expert, and adjourned the trial to February
2016.
The record again fails to disclose what delayed the trial in February.
However, the second judge was reassigned to another division in the interim,
8
The circumstances that led to this order are unexplained in the record, and
there is no transcript from any proceedings before the Criminal Presiding Judge.
A-2145-16T3
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and, on July 22, 2016, the parties appeared before the trial judge for the first
time. The record only reflects the results of a conference held in chambers, with
the judge setting dates for the State's motions, a date for service of defendant's
expert's report and a firm trial date of September 19. 9
Again, for reasons unexplained by the record, the case did not proceed to
trial in September. On November 17, 2016, the trial judge entered an order
reaffirming the second judge's ruling of October 2015, i.e., that the State was
permitted to rebut by expert testimony "any [d]iabetes [d]efense raised at
[t]rial." As already noted, defense counsel never retained a medical expert, nor
did defendant call the ER doctor as a witness. Trial commenced on December
6, 2016.
Defendant argues the forty-five month delay between indictment and trial
violated his constitutional right to a speedy trial. 10 The State counters by
contending much of the delay, indeed the last fourteen months befo re the start
of trial, was solely attributable to defense counsel's obfuscation regarding what
role, if any, evidence of defendant's medical condition would play at trial.
9
The transcript does not identify the nature of the State's motions.
10
The right to a speedy trial "attaches upon defendant's arrest." State v.
Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009).
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25
In State v. Cahill, the Court reiterated "that the four-factor balancing
analysis of Barker v. Wingo, 407 U.S. 514 (1972), remains the governing
standard to evaluate claims of a denial of the federal and state constitutional
right to a speedy trial . . . ." 213 N.J. 253, 258 (2013). Those four factors are:
"length of the delay, reason for the delay, assertion of the right by a defendant,
and prejudice to the defendant." Id. at 264 (citing Barker, 407 U.S. at 530).
"None of the Barker factors is determinative, and the absence of one or some of
the factors is not conclusive of the ultimate determination of whether the right
has been violated." Id. at 267 (citing Barker, 407 U.S. at 533). "[T]he factors
are interrelated, and each must be considered in light of the relevant
circumstances of each particular case." Tsetsekas, 411 N.J. Super. at 10 (citing
Barker, 407 U.S. at 533).
When a delay exceeds one year, the court presumptively should analyze
the remaining Barker factors, however, longer delays may be tolerated for
serious offenses or complex prosecutions. Cahill, 213 N.J. at 265-66. "Barker's
second prong examines the length of a delay in light of the culpability of the
parties." Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407 U.S. at 529). Trial
courts, in reviewing "the chronology of the delay," should "divid[e] the time into
discrete periods of delay" and attribute each delay to the State, the defendant or
A-2145-16T3
26
the judiciary. State v. May, 362 N.J. Super. 572, 596 (App. Div. 2003). Of
course, purposeful delay tactics weigh heavily against the State, Tsetsekas, 411
N.J. Super. at 12, while "[d]elay caused or requested by the defendant is not
considered to weigh in favor of finding a speedy trial violation." State v. Farrell,
320 N.J. Super. 425, 446 (App. Div. 1999) (citing State v. Gallegan, 117 N.J.
345, 355 (1989)).
While a defendant is under no obligation to assert his speedy trial rights,
"'[w]hether and how a defendant asserts his right is closely related' to the length
of the delay, the reason for the delay, and any prejudice suffered by the
defendant." Cahill, 213 N.J. at 266 (quoting Barker, 407 U.S. at 531). A
defendant's assertion of his right to a speedy trial is "entitled to strong weight
when determining whether the [S]tate has violated the right[,]" ibid., and,
conversely, his delay or failure to assert the right weighs "against any
determination that the right was violated . . . ." May, 362 N.J. Super. at 598.
"The only remedy" for a violation of a defendant's right to a speedy trial
"is dismissal of the charge." Cahill, 213 N.J. at 276. On appeal, "we reverse
only if the court's determination is clearly erroneous." Tsetsekas, 411 N.J.
Super. at 10 (citing State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).
A-2145-16T3
27
Here, although there was a lengthy delay between defendant's arrest and
trial, the reasons for the delay were innumerable and seemingly attributable to
both sides. As noted, both the first and second judges took note of the delays in
the context of defendant's right to a speedy trial, but neither engaged in the
analysis we outlined above or made a ruling on the issue. Indeed, the second
judge stated unequivocally that he was not making a finding that the State had
violated defendant's speedy trial rights. In short, having never made a ruling,
we have no ability to consider whether the judges exercised their discretion
appropriately, or in a clearly erroneous manner.
We are unable to review this record anew and exercise original
jurisdiction to decide the question ourselves. R. 2:10-5. As noted, the reasons
for vast chunks of time between proceedings prior to trial are unexplained by
the record.11 Defendant's appellate brief argues that he formally asserted his
right to a speedy trial, citing briefs apparently filed in the trial court. Although
Rule 2:6-1(a)(2) generally prohibits including those briefs in the appellant's
appendix, an exception is made where "the question of whether an issue was
11
Defendant's appendix contains Promis Gavel docket entries for numerous
dates that are not contained in any transcripts provided. Some of those entries
explain there was incomplete discovery or that a witness was missing, but we
have no ability to verify the reasons behind the entries.
A-2145-16T3
28
raised in the trial court is germane to the appeal . . . ." However, the appellate
record does not include those briefs. We acknowledge that defense counsel
orally referenced defendant's speedy trial rights during several of the transcribed
sessions, but none of the judges ever made a ruling if indeed a formal motion
had been made.
In short, "the difficult task of balancing all the relevant factors relating to
the respective interests of the State and the defendant[]," and applying the court's
"subjective reactions to the particular circumstances [to] arrive[] at a just
conclusion" is, in the first instance, best delegated to the trial judge. Merlino,
153 N.J. Super. at 17. We therefore remand the matter to the Law Division to
consider whether the delay in this case violated defendant's right to a speedy
trial. We leave it to the sound discretion of the trial court regarding the conduct
of those proceedings, including whether testimony is necessary.
Should the court conclude defendant's speedy trial rights were violated, it
shall vacate defendant's judgment of conviction and dismiss the indictment.
Should the court conclude otherwise, our judgment affirms defendant's
conviction.
Affirmed in part; remanded in part. We do not retain jurisdiction.
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29