State v. Green

197 A.3d 1136, 236 N.J. 71
Supreme Court of New Jersey·Decided November 28, 2018·No. A-39 September Term 2017; 080274·Published·Cited by 41 cases

Opinion

JUSTICE SOLOMON delivered the opinion of the Court.

**77This case comes to us on interlocutory appeal from the trial court's determination, affirmed by the Appellate Division, that the State could not present evidence of defendant Carlos B. Green's two prior driving while intoxicated (DWI) convictions in this current prosecution for vehicular homicide while intoxicated. The State sought to introduce the prior convictions as state of mind evidence -- evidence that defendant acted recklessly by "consciously disregard[ing the] substantial and unjustifiable risk" of causing harm by driving while intoxicated. See N.J.S.A. 2C:2-2(b)(3). We conclude that the trial court did not abuse its discretion in excluding defendant's two prior DWI convictions here. Although we impose no per se exclusion of prior DWI convictions in a prosecution for vehicular homicide while intoxicated, this case does not present the rare circumstances that would render their admission appropriate.

I.

On a late December night in 2014, defendant Carlos B. Green (Green) struck and killed Billy Ray Dudley (Dudley), who was lying in the road. A toxicology lab determined Green's blood alcohol concentration (BAC) to be 0.210% at the time of the accident. Pursuant to N.J.S.A. 39:4-50, a person who operates a motor vehicle with a BAC of 0.08% or more is guilty of driving while intoxicated.

**78Green had two prior DWI convictions in 1998 and 2009, for which his sentences each required completion of an educational course at the Intoxicated Driving Resource Center (IDRC). The IDRC conducts a post-conviction intervention program for those convicted of an alcohol or drug-related traffic offense. The program is designed to educate participants about alcohol and its effects on motor vehicle safety. At the IDRC, participants attend a series of educational *1140sessions and discussions in order to successfully complete the course.

As a result of Dudley's death, Green was charged in a grand jury indictment with first-degree vehicular homicide while intoxicated and within 1,000 feet of a school, contrary to N.J.S.A. 2C:11-5(b)(3)(a). Before trial, the State moved in limine to introduce Green's two prior DWI convictions, which the State argued were relevant to the issue of recklessness. According to the State, the prior convictions demonstrated that Green "had knowledge of the substantial and unjustifiable risks associated with driving while intoxicated."

The trial court denied the State's motion. Applying the factors established by this Court in State v. Cofield, 127 N.J. 328, 338, 605 A.2d 230 (1992), the trial judge ruled that the evidence was unduly prejudicial because a jury might use the prior convictions as evidence that Green acted in conformity with that behavior in this instance. Quoting United States v. Rutherford, 54 F.3d 370, 376 (7th Cir. 1995), the court noted that "[a]ny drunk driver who takes to the road should know he runs a risk of injuring another person." The court also ruled that the evidence was cumulative because the State had a toxicology report indicating that Green had a BAC of 0.210% at the time of the incident. Therefore, the State did not need to rely on defendant's prior convictions to establish recklessness.

The Appellate Division granted the State's motion for leave to file an interlocutory appeal. On appeal, the State primarily relied on State v. Bakka, 176 N.J. 533, 826 A.2d 604 (2003), for the proposition that prior unsafe conduct, like driving while intoxicated, can be highly probative of recklessness. The State also cited **79decisions from other jurisdictions that admit evidence of prior DWI convictions to establish recklessness. Finally, the State argued that because Green was instructed at the IDRC about the dangers of driving while intoxicated, evidence of his convictions would tend to prove his awareness and conscious disregard of the risks of driving while intoxicated when he chose to drink and drive again.

In response, Green argued that the motion judge correctly applied the Cofield factors to exclude his prior convictions, which were too remote and unduly prejudicial. Green stressed that other than his intoxication, there was no indication that he was operating his vehicle recklessly -- Green was not swerving or speeding, he had his lights on, and Dudley was lying in the roadway in the dark. Finally, Green contended that the State could prove his intoxication with less inflammatory evidence, such as the toxicology results and police testimony.

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State v. Green, 197 A.3d 1136, 236 N.J. 71 (N.J. 2018).

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