No. A-5392-09T3.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE C. BAUM a/k/a EUGENE C. BAUM, JR., Appellant-Defendant.

Superior Court of New Jersey, Appellate Division.

Decided July 30, 2013.

Attorney(s) appearing for the Case

Joseph E. Krakora , Public Defender, attorney for appellant ( Karen E. Truncale , Assistant Deputy Public Defender, of counsel and on the brief).

Robert A. Bianchi , Morris County Prosecutor, attorney for respondent ( Matheu D. Nunn , Assistant Prosecutor, on the brief).

Before Judges Grall, Koblitz and Accurso.



Defendant Eugene Baum was driving while intoxicated, when his car struck and killed two teenage girls who were walking on the road's shoulder. Both died as a consequence of multiple blunt force injuries and resulting internal damage.

A jury found defendant guilty of two counts of aggravated manslaughter, N.J.S.A. 2C:11-4a, a crime of the first degree punishable with a term of imprisonment between ten and thirty years, N.J.S.A. 2C:11-4c, and two counts of second-degree death by auto, N.J.S.A. 2C:11-5b. The judge found defendant guilty of driving while under the influence, N.J.S.A. 39:4-50, and he merged defendant's convictions for death by auto and driving while under the influence with his convictions for aggravated manslaughter. Defendant was sentenced to two consecutive twenty-year terms, both subject to terms of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the mandatory fines, assessments, costs, surcharges, license suspension and requisite attendance at the intoxicated driver's resource center were imposed.

On appeal defendant argues:



Robert Alesandro and his son Michael heard the accident, which occurred at 8:05 p.m. on April 20, 2006. They live on a property fronting the road defendant was traveling. The road is a major thoroughfare with a bike lane that is regularly used in the evenings by cyclists, runners and walkers. That bike lane is between the roadway and its shoulder, and a guardrail separates the shoulder from the land beyond it.

Michael went to get the mail that evening. It was dusk, and the weather was clear. The Alesandros' mailbox is at the road's shoulder, and as Michael walked down their driveway he heard the teenagers' voices. At the mailbox, Michael could see the girls walking toward him on the road's shoulder, right next to the guardrail. As he returned, Michael continued to hear their voices but did not look back until he heard a loud crash. He saw the mailbox and other "objects' flying through the air.

Robert also heard the crash and suspected someone had hit a deer. He and Michael went to see if the car's driver needed help, and Michael placed a call for assistance. The car was about 600 feet past their property in the bike lane. Defendant, the car's driver and only occupant, was stumbling. The Alesandros smelled alcohol and noticed that his eyes looked glassy and his speech was slurred. Although defendant first denied hitting anything, he went with the Alesandros to the spot where their mailbox had been. When Michael asked about the girls he had seen moments earlier, Robert told defendant to sit on the guardrail.

The Alesandros saw a cell phone near the guardrail and shoes and purses in their driveway and near their mailbox. Michael found one of the girls behind the guardrail and the other in a ditch behind it. He placed a second call for assistance, this time requesting an ambulance.

An expert in accident reconstruction employed by the county prosecutor was summoned to the scene by the first responders, and he concluded defendant was traveling at a speed between thirty-four to forty mph on the road's shoulder and struck the girls from behind, without making any discernible effort to avoid hitting them. The rented 2005 Kia Optima defendant was driving had no mechanical defects and its odometer indicated that it had been driven about 20,000 miles. In its console were two beverage containers, one of which contained liquid that was 7.7 percent ethyl alcohol.

When the police arrived, defendant was still sitting on the guardrail and neither of the girls had a pulse or was breathing. Defendant stood up as the officers approached him but had difficulty maintaining his balance and was unsteady on his feet. He told the officers he might have hit a deer. Two officers helped defendant walk to a police car, handcuffed him and placed him inside. Because the odor of alcohol was so strong, an officer put the windows down.

At headquarters, defendant was advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966). His responses were slurred and delivered slowly. They did not question him at that time or consider having him perform sobriety tests because his intoxication was apparent and they generally obtain blood tests when there is a fatal accident. Defendant was photographed and fingerprinted. Although fingerprints are generally not taken in DWI cases and no one told the officer to take defendant's prints, he thought defendant might be charged.

The officers who dealt with defendant at headquarters described the observations that supported defendant's arrest — inability to hold the placard under his chin steady while his picture was taken, bloodshot and swollen eyes and imbalance that led one officer to stand behind defendant so he would not fall. Indeed, out of concern for defendant's condition, given the accident and his apparent intoxication, they summoned members of the first aid squad, who "cleared" defendant.

Detectives from the Morris County Prosecutor's Office took defendant to the hospital for a blood test. By stipulation, the blood was properly drawn at 10:41 p.m. At that point, defendant's blood had an ethanol level of.305 — adjusting for a five-percent margin of error in either direction, it was between.289 and.320. Because of the delay between the accident and the taking of the samples, extrapolation evidence estimating defendant's blood-alcohol level at the time of the accident was presented by the State and defendant. The State's expert opined it was between.327 and.377, and defendant's expert concluded it was.340. Every estimate was markedly higher than the.08 legal limit.

In addition to alcohol, defendant's blood contained Librium and metabolites of Librium. Although defendant had a prescription for Paxil, an anti-depressant, nothing in his blood indicated he had taken it.

The experts agreed that Librium would exacerbate the impairments defendant would have experienced as a consequence of his blood-alcohol level alone but would not have elevated the level of alcohol in his blood. Their effect is "synergistic," and according to one of defendant's experts, unpredictable.

At about 12:07 a.m. on April 21, four hours after the accident, defendant was taken to an interview room at the prosecutor's office. The recording of the interrogation, video and audio, depicts defendant being advised in conformity with Miranda and waiving his rights by printing his name and date on and signing the waiver form.

During the interview, defendant gave a detailed account of his activities on the day of the accident. He told the officers he had cereal, a banana and coffee for breakfast, took Librium to control his "shakes," purchased a liter of vodka at 9:30 a.m., went home and then to visit two clients in Monmouth County. He then went home and drank vodka mixed with diet Sprite before deciding he should not be drinking and pouring the remaining vodka out. After discarding the bottle, defendant left his home in Dover to drive to his mother's home in Kinnelon. Defendant described the route he took, naming the streets he traveled, the direction he turned at an intersection and some of the buildings on the route — the high school and a sleep center.

Defendant acknowledged knowing that drinking alcohol and taking Librium would increase the effect of the alcohol but not thinking about that when he drank. He said he should not have done that, but he was an alcoholic. By his account, he had been battling with alcoholism for about seven years and had been hospitalized with pancreatitis that month and twice before. He also explained that he had a May 1 appointment to return to the hospital to be followed-up by attending six weeks of therapy involving daily three-hour sessions in the evenings.

Defendant also described the events between the accident and the recorded interview. He said he spoke with people who lived near the accident who mentioned a child, going to a police station and the hospital and then being taken to a different station where he was being interviewed.

Defendant's admissions about his drinking changed as the interview progressed. After one of the officers advised him that it would not look good if his blood-alcohol test did not comport with his account of how much he had consumed, defendant said he had more than the two to four drinks he mentioned earlier and had consumed about half a liter of vodka. He then candidly admitted that he did not really know how many drinks he had.

Following a hearing on defendant's motion to suppress and a review of the recording, the trial judge determined that his recorded statement was admissible.

The State, however, did not introduce the recording of defendant's statement in its case in chief. The theory of the defense was that defendant lacked the capacity to form the requisite mental state, and the State held the statement until its cross-examination of Dr. Charles D. Semel, defendant's expert in psychiatry, psychopharmacology and neurology, in whose opinion defendant's "ability to comprehend" at the time of the interview was "nonexistent."

Without question, defendant had a history of alcohol dependence. On April 6, 2006, two weeks before this accident, defendant was hospitalized for "alcoholic pancreatitis," which according to the testimony of his treating physician, is an inflammation of the pancreas caused by consumption of large amounts of alcohol. After two days in the hospital, defendant was discharged.

The discharge summary states,

Patient is a [forty-four] year old white male with a past medical history significant for alcohol abuse and alcoholic pancreatitis in the past. He presented complaining of multiple episodes of vomiting and diffuse abdominal pain. Patient stated that he had stopped drinking three days prior to admission because it had been affecting his work, and stated that the pain was a little better when he was admitted but is still persistent. He admits to drinking a half a liter of vodka a day. Upon initial evaluation, his blood pressure was elevated at 151 over 107 and pulse was 121.

Thus, this was defendant's third hospitalization for pancreatitis attributable to alcohol use.

On discharge, defendant's diagnoses were "alcohol dependence and dysthymia," a form of depression that his doctor explained is neither major nor debilitating for which he was prescribed Paxil. He was discharged with prescriptions for vitamins and Librium tablets to be taken in decreasing number for eight days, the dosage on the seventh and eighth days being one tablet. The Librium was prescribed to address withdrawal symptoms, which the doctor explained can include jitteriness, nausea and sometimes seizures or hallucinations. Defendant was directed to avoid drinking alcohol and to follow-up with a detox center. Although the doctor and nurse attending defendant at the time of his discharge had no independent recollection, both testified that they would have, in accordance with their respective routine practices, gone over the discharge directions with defendant. The discharge forms include an entry reflecting defendant's understanding of the instructions.

Dr. Semel did not agree with the diagnosis of the physician who treated defendant during his most recent hospitalization. In his opinion, defendant was suffering from "major depressive disorder" and "chronic alcoholism with dependence." Those conditions, combined with the Librium and the alcohol, had a synergistic effect that "massively impaired" his cognitive functions. In his opinion, defendant's cognitive impairment existed not only at the time of the accident, but for hours subsequent to it, including during his recorded statement, when his ability to comprehend was, in the doctor's view, "nonexistent" and his state of mind was "abnormal."

Dr. Semel further explained that around the time of the accident defendant's major depression was both severe and chronic and would have reduced his awareness of the risk of driving while impaired. Moreover, when defendant's car struck the teenagers, his intoxication was "in the form of a delirium," by which he meant "a loss of awareness." While defendant knew he was driving and that there was a crash, he was "confused" and did not know that humans were involved. In Dr. Semel's opinion, defendant's level of impairment was a consequence of his "amazingly high levels of alcohol" and the "synergistic effects of the Librium and to a lesser extent Paxil, and by the chronic... depressive illness that was affecting him."

Dr. Semel acknowledged that defendant had some college education and during the period of his alcoholism and alcohol dependence had worked steadily, abstained from drinking at times and had not sustained organic brain disorder or neurological impairment. He also explained that defendant's developed tolerance of alcohol allowed him to learn "state dependent" functioning — how to "function in that altered state." Accordingly, defendant could work, drive and converse despite massive cognitive impairment when persons without his tolerance could not.

After the jury was shown the recording of defendant's statement in his presence, Dr. Semel maintained that if defendant's comprehension was not nonexistent during that interview it was "certainly diminished and verging on nonexistent." He noted that defendant's alcohol level at that point in time would have been between.24 and.26. Dr. Semel did, however, admit that during that interview defendant's thoughts were not fragmented, disjointed or illogical; his speech was not rambling; his tone was calm; he knew whom he was speaking to and made eye contact; and gave details about his day and the crash. Nonetheless, Dr. Semel believed that the recording showed automatic, state-dependent behavior with impaired awareness. In his opinion, defendant was responding to prompts from the officers and attempting to please them.

By "automatic behavior," Dr. Semel meant behavior "beneath awareness." In his opinion, for a severe alcoholic automatic behavior and state-dependent behavior combine and merge. He acknowledged that defendant's drinking and driving were "volitional" but not a product of "conscious thought." When asked whether defendant's conduct was voluntary within the meaning of New Jersey law, which the prosecutor advised includes action that is either "conscious or habitual," Dr. Semel said it was not because defendant was acting automatically.1

Defendant also presented the testimony of Dr. Frederick Rotgers, a psychologist qualified as an expert in that field with specialties in cognitive and behavioral areas, alcoholism and related issues. His conclusions about defendant's alcohol and Librium consumption and their effect on his cognitive ability did not differ from those of Dr. Semel.

By diagnostic tests, Dr. Rotgers concluded that defendant's alcohol dependence was severe and his depression was major, serious and chronic. By interview, he determined that defendant's drinking became problematic about eight years prior to the accident. Based on the reports of defendant's friends and family members, he also noted that defendant's behavior had been quieter and more somber and detached after his last hospitalization.

Dr. Rotgers also discussed automatic behavior. In his opinion, because of defendant's physical and psychological dependence on alcohol, he very likely did not realize that he was putting alcohol and Librium into his system. Thus, his drinking had become automatic behavior. Dr. Rotgers explained: "[E]xtensive research over the last 25 years or so... has documented a variety of ways in which our behavior as human beings is largely — largely happens automatically without us consciously being aware of it or controlling it." He pointed to other examples of what he deemed automatic behavior — chain smoking and arriving at one's destination safely without remembering driving one's regular route. He explained that for that reason, a recovering alcoholic is referred to as having a "mindless relapse" when he or she finds a drink in his or her hand without knowing how it came to be there.

According to Dr. Rotgers, as a consequence of defendant's cognitive impairment, he would not have been aware of the effect of taking alcohol and Librium — not because he did not know it, but because he would not have access to the information he knew, which is a necessary component of the capacity to think reasonably. Pertinent to the question of defendant's cognitive functioning during the recorded statement, Dr. Rotgers noted that the tolerance of alcohol developed with excessive consumption makes it difficult for others to discern that an alcoholic's reasoning, thinking and ability to assess situations and modify their behavior accordingly is impaired.

In rebuttal, Dr. Daniel P. Greenfield testified as the State's expert in psychiatry, forensic psychiatry and addiction. In his opinion, defendant's depression was mild to moderate, not major. When he interviewed defendant, his alcohol dependence was in remission and there was no indication of cognitive impairment or brain damage. He disputed the defense experts' opinions about defendant's drinking being automatic behavior, observing that defendant made a conscious decision to purchase the alcohol and carry the alcohol found in the beverage container, which was all goal-directed behavior indicative of defendant making a decision to drink, get in his car and drive to his mother's home. Dr. Greenfield also discounted the significance of the Librium defendant had taken in the morning, based on the fact that his blood sample showed that most of it had been metabolized. In his opinion, the impact of the Librium was, as a practical matter, comparable to defendant's taking another shot of vodka.

Dr. Greenfield acknowledged that an alcoholic with a tolerance for the substance would appear normal despite a high level of alcohol in his or her blood. In his opinion, however, neither the Librium nor defendant's depression would deprive defendant of the ability to understand the simple directions about using the Librium or assess the risk of driving while intoxicated.

Based on defendant's demeanor and responses during the recorded interview, Dr. Greenfield concluded that defendant was exercising judgment. He demonstrated his understanding of the fact that he was in trouble by telling the officers that he did not know what he was being charged with and by asking about the reports on the children's condition.

Drs. Rotgers and Greenfield had also testified at a pre-trial hearing on defendant's motion to suppress his recorded statement and the State's motion to preclude defendant's pursuit of a defense based on intoxication that was neither self-induced nor pathological. With the consent of defense counsel, the judge resolved those issues together. Their expert testimony at that pre-trial hearing, N.J.R.E. 104, focused on defendant's capacity to waive his rights and give a knowing, voluntary and reliable statement, and it focused on the relevance of his automatic behavior and the synergistic effect of Librium and alcohol to his intoxication being self-induced and pathological, N.J.S.A. 2C:2-8. The doctors' respective testimonies at that hearing did not include opinions or supporting facts that were not included in their trial testimony summarized above, at least none of any import that defendant has mentioned or we have noted.


We reject defendant's claim that he was too intoxicated to validly waive his Miranda rights, which is raised in Point IV of his brief. The deference this court owes to the judge's factual findings warrants some discussion because they are based not only on the testimony presented at the pre-trial hearing on admissibility but also the recording of the interrogation presented at the pre-trial hearing, which captures not only the words but also the images of the officers and defendant throughout the interview.

Where "the trial court has based its findings on conduct or behaviors that defendant exhibited during a videotaped interrogation that may be observed and analyzed with equal precision by an appellate court, a review of the videotape of the interrogation is appropriate." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). The Court explained that in this circumstance, "there is little, if anything, to be gained from deference." Ibid. In contrast, where the "trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified." Ibid.

As we understand Diaz-Bridges, in a case such as this, where the judge has made findings based upon both testimony and the recorded interview, to the extent that the findings can be segregated, they must be assessed under the appropriate standard. Accordingly, we have, "consider[ed] the recording of the event itself," id. at 566, and afforded those findings based upon it no deference. However, where the judge's findings rest on testimony presented at the hearing and he was in a better position than we to make a determination informed by his opportunity to observe the witnesses and his "feel of the case," we have deferred to and accepted findings that could have been made on the evidence presented. See id. at 565 (relying upon State v. Locurto, 157 N.J. 463, 471 (1999), and stressing that the Court was not altering "its admonition" that this court "give due deference to the fact-finding role of the trial courts"); Locurto, supra, 157 N.J. at 471 (requiring deference for findings "`substantially influenced by'" a trial judge's "`opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy'" (quoting State v. Johnson, 42 N.J. 146, 161 (1964))).

Having considered the recording, its transcript and the record of the suppression hearing in conformity with Diaz-Bridges, we affirm substantially for the reasons the judge provided in the oral opinions delivered at the conclusion of the pre-trial hearing on January 11, 2010, and when he denied defendant's motion for reconsideration and a stay on January 19, 2010. Contrary to defendant's contention, the judge considered the impact of defendant's condition and other circumstances pertinent to the questions whether: 1) the State established beyond a reasonable doubt that defendant gave his waiver and statement knowingly, intelligently and voluntarily, State v. Nyhammer, 197 N.J. 383, 402, cert. denied, 588 U.S. 831, 130 S.Ct. 65, 175 L. Ed. 2d 48 (2009); State v. Cook, 179 N.J. 533, 552 (2004); and 2) the statement was sufficiently reliable to be admitted into evidence, N.J.R.E. 104(c); State v. Hampton, 61 N.J. 250, 272 (1972).

As previously noted, defendant had some college education and a steady history of employment as an electronics salesman. The entire interview, exclusive of two breaks, took about one hour, and defendant was offered and accepted water during the interview, which defendant drank while holding the glass with a steady hand. The interview was conducted four hours after the accident, but while defendant's blood-alcohol content was still well beyond the legal limit.

The content of the audio portion of the recording is discernible throughout. The camera captures the door to the room, a table and three chairs. Two detectives participated — one from the prosecutor's office (the detective), who took the lead and sat at the head of the small table, and one from the Kinnelon Police Department (the officer), who interjected from time to time and sat across from defendant with his back to the camera. Thus, the recording depicts the men as they enter and leave the room, the faces of the detective and defendant and the back of the officer's head as well as the respective postures and gestures of all three men throughout the interview.

From our review of the recording, there is no basis for disagreeing with the judge's findings based on his observations of the same recording. As the judge noted, defendant easily walked into the interview room and took a seat at the table. While the detective read the advisements required by Miranda, slowly and clearly with appropriate pauses, defendant looked at the form. When the detective asked defendant if he understood, defendant said he did and with apparent ease followed the detective's direction to write "yes" on the form to acknowledge his understanding.

Defendant continued to look at the form, apparently studying it, when asked if he wanted to waive his rights. He said he was not sure whether he should speak to them and mentioned that he did not "know what [he was] being accused of." The detective said there had been a motor vehicle crash in Kinnelon and defendant said, "Mm hm," as if acknowledging his awareness of the event. The detective said that was what they wanted to speak to him about.

The detective further explained that he could not tell defendant whether he should or should not talk to the police, which was "a decision" he had to make. Defendant said, "Okay." Referencing his reading of the rights and defendant's profession of understanding them, the detective said, "having [those] rights in mind, if you, you have the option to speak with us. And that's where we're at now."

Defendant posed another question, "But if I say no, what happens then?" The detective responded, "If you say no, that, that's your option. You don't have to speak to us." Defendant said, "Okay."

In a soft and conversational tone the other officer interjected, "Then we don't have your side of the story." Not hearing him, defendant said, "I'm sorry?" and the officer repeated himself. But the detective reiterated: "Now the option is yours whether or not you do want to talk to us." Defendant said, "Right."

The detective explained that he did not know what defendant had to offer and was giving him an opportunity to speak, but wanted to take care of the formality and make sure that defendant understood everything first. Defendant said, "Okay" in a manner suggestive of an interest in speaking. At that point, the detective asked defendant to print his name and date on the waiver form and sign it, which defendant, who had been looking at the form while they spoke, readily did.

Thereafter, defendant calmly gave coherent and responsive answers to the questions posed. Showing no sign of physical discomfort or impairment of any sort, defendant used his hands in a natural and appropriate way to illustrate his descriptions of the liter of vodka he bought at 9:30 a.m. on the morning of the accident, the size of the glass he used for his vodka mixed with diet-Sprite, the quantity of vodka he poured into the glass and the route he was traveling from his home in Dover to his mother's in Kinnelon when something hit his windshield, and how the windshield cracked.

After a momentary struggle to recall the name of the drug, defendant said he was prescribed Paxil for depression, and gave the drug's generic name. He also was able to explain that he was prescribed Librium for his "shakes." Defendant generally looked at the officers when he addressed them, and nothing in his words or demeanor indicated any hesitancy or change of mind about speaking with them or difficulty with his speech.

In State v. Warmbrun, 277 N.J.Super. 51, 56 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995), this court affirmed the denial of a motion to suppress statements made by a suspect whose blood-alcohol content was between.238 and.240 percent. We accepted the judge's determination, supported by the testimony of the officers he credited, noting that "although defendant was very intoxicated, he was capable of communicating and... was responsive in answering questions and could answer correctly questions such as his name, age, etc." Id. at 64.

In this case, the judge had more evidence. He credited the testimony of the State's expert, who opined that defendant had the capacity to understand and decide whether to waive his rights, and rejected testimony given by defendant's expert who reached a different conclusion. The judge had the opportunity to hear the expert testimony and observe the witnesses, which we have not had. Accordingly, we defer to those findings. Moreover, like us, the judge viewed the recording that depicts defendant reviewing, printing his name and date on and signing the waiver form, and he watched and listened to the content of the conversation.

Defendant's calm, reasoned and coherent responses demonstrate his complete ability to follow and understand everything he and the officers said. As the judge noted, defendant interrupted to correct the detective's misstatement of the time he told them he awoke on the morning of the accident, volunteered detailed information about the rental car he was driving, the route he traveled before the fatal accident, the speed limit on the road and the lower speed at which he was driving, and the fact that he did not see the teenagers or apply his brakes until something, which he thought was a deer, hit his car and cracked his windshield. Much of his account was consistent with the physical and documentary evidence and the testimony of the accident reconstruction expert and defendant's physician.

The judge thoroughly discussed the testimony and evidence, and in reaching his conclusions, considered the factors pertinent to the validity of this waiver such as defendant's age, education, ability to recall, understanding and consideration of his rights and the clarity of his writing. He also considered the location and duration of the interview, the fact that defendant was given water and the steadiness of his hands while he drank it, the nature of the questions asked and the manner in which they were posed, the absence of any threat or promise and the lack of anything even suggesting that defendant wished to end the conversation in which he was freely and ably participating.

We fully agree with the judge that the content of defendant's statements as well as the demeanor with which he delivered them simply preclude the conclusion that defendant was either unaware of his circumstances or incapable of making a decision to waive his rights and voluntarily provide his side of the story. In our view, it is highly significant that defendant executed the waiver after asking what would happen if he did not, being told more than once that it was up to him and being advised that the only consequence of his electing to remain silent was that the officer would not have his side of the story as the investigation continued. Viewed in this context, defendant's providing his version of the events was without doubt the product of a conscious and informed decision.

Defendant's early minimization of his drinking on the day of the accident and his following correction of that account also reflects decision making. He altered his account when the detective told him it would be better for him if his account conformed with the results of his blood-alcohol test, which reflects his awareness of the likelihood that his understatement of his consumption would be belied by the results of his blood test.

The most telling evidence of defendant's comprehension of the seriousness of his position and the importance of his words is his inquiry about the condition of the teenagers and his immediate reaction when the detective told him the reports were not good. Defendant immediately lowered his head and placed his face in his arms on the table, and he held that position until he raised his head, sat back and resumed the conversation with composure.

For all of the foregoing reasons, we conclude that the trial judge properly denied defendant's motion to suppress the recording of his statement.


Because defendant's statements were admissible as knowingly, voluntarily and intelligently given after a valid waiver of his right to remain silent obtained in conformity with Miranda, defendant's objection to the adequacy of the limiting instruction given lacks sufficient merit to warrant more than a brief discussion. R. 2:11-3(e)(2).

A limiting instruction is required only when evidence is "admitted as to one party for one purpose but is not admissible as to another party or for another purpose." N.J.R.E. 105 (emphasis added). As a statement of a party, defendant's recorded statement was not excludable under the hearsay rule so long as it was not obtained in violation of Miranda and was voluntarily given and reliable. See N.J.R.E. 104(c); N.J.R.E. 803(b)(1). In this circumstance, the only limiting instruction required was that the jurors disregard the statement if they deemed it not credible. N.J.R.E. 104(c); Hampton, supra, 61 N.J. at 272. As defendant acknowledges, that limiting instruction was given.

We recognize that the State raised the question of a limiting instruction on the ground that the State's decision to hold the recording until cross-examination of a defense expert precluded the State from using the recording as substantive evidence. To the extent the State concluded that this evidence was admissible only for the limited purpose of impeaching the defense expert because the State introduced it in defendant's case, the State was mistaken. True, the State could not have relied on the recorded statement it had not introduced to withstand a motion for judgment of acquittal at the close of its case, State v. Reyes, 50 N.J. 454, 458-59 (1967), but the timing of the State's introduction of the statement has nothing to do with it being admissible for a limited purpose.

This is not a case in which a limiting instruction other than the one required by N.J.R.E. 104(c) and Hampton was required. Such instruction is required in a case where a violation of Miranda precludes the use of an otherwise voluntary statement made by defendant in the State's case in chief, but does not preclude its use for the limited purpose of impeaching the defendant's testimony at trial. State v. Miller, 67 N.J. 229, 233 (1975). Nor is it a case in which a constitutionally admissible statement of the defendant includes admissions of prior bad acts requiring a limiting instruction outlining its permissible and impermissible uses. See, e.g., State v. Cofield, 127 N.J. 328, 340-41 (1992). Concluding that no limiting instruction was required, it is not necessary to address defendant's objection to the adequacy of the limiting instruction that was given.


Defendant also argues that the judge gave an instruction on mental disease or defect that effectively negated the defense by erroneously blending the law on self-induced intoxication and mental disease or defect negating an element of the offense. We disagree.

The judge directed:

Now in relation to the aggravated manslaughter charges and the death by auto or vehicular homicide charges, evidence alleging that the defendant suffered from a mental disease or defect has been produced. In considering the State's burden of proof which is to prove each element of the charged offenses beyond a reasonable doubt, you must consider and weigh all of the evidence of defendant's mental state, including that offered as evidence of mental disease or defect in determining whether or not the State has proven beyond a reasonable doubt that Eugene Baum acted recklessly which is an element of aggravated manslaughter and which is an element of death by auto or vehicular homicide. In making this decision, you must give defendant the benefit of any reasonable doubt about whether his mental functioning was such as to render him incapable of acting with the required state of mind or about whether he did in fact act with the required state of mind. In other words, you must determine whether despite the evidence of mental disease or defect, the State has proven beyond a reasonable doubt that the defendant acted recklessly as I have defined that term for you. If after considering all of the evidence, including the evidence of mental disease or defect or any other evidence or lack of evidence in the case, you have a reasonable doubt whether defendant's mental functioning was such as to render him incapable of acting with the required state of mind, or if you have reasonable doubt whether he did in fact act with the required state of mind, then the defendant is not guilty of aggravated manslaughter and death by auto or vehicular homicide. [(Emphasis added).]

Defendant's objection is to the direction that followed that instruction — a qualification the judge added concerning "self-induced" intoxication:

However, if you find that defendant was unable to perceive a risk because it was due to self-induced intoxication through his own self-induced intoxication, you may not consider that inability to perceive a risk as being a result of a mental disease or defect, or that such inability to perceive a risk rendered him incapable of acting with a reckless state of mind. You may only consider any evidence regarding the defendant's mental state or defect in considering if the State has sustained its burden of proof regarding the defendant's mental state. That is separate and distinct from his inability to perceive a risk due to self-induced intoxication. [(Emphasis added).]

The blending to which defendant objects is required by the Criminal Code. It directs, "Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4." N.J.S.A. 2C:2-8c. Chapter 4 addresses the admissibility of evidence of "mental disease" or defect relevant "to prove that the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-2. The use of evidence of mental disease authorized by N.J.S.A. 2C:4-2 was the context in which the judge provided this instruction. Thus, the two defenses are related.

In light of defendant's expert evidence, there is no need to ponder aspects of the relationship between N.J.S.A. 2C:2-8c and N.J.S.A. 2C:4-2 that are not implicated here. The experts said nothing suggesting that defendant would not have been impaired if he had not taken the prescribed dosage of Librium with alcohol sufficient to elevate his blood-alcohol count to.305. The thrust of the defense experts' testimony on defendant's cognitive impairment and his major depression and alcohol dependence was that his drinking was automatic behavior, not voluntary action qualifying as self-induced intoxication.

The instruction to which defendant objects referred to no intoxication other than "self-induced" intoxication. And, in explaining self-induced intoxication, the judge advised the jury that his drinking had to include a voluntary act for his intoxication to be "self-induced." The judge explained:

Self-induced intoxication — I'm going to define it again for you — means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication, he knows or ought to know. A person is not guilty of an offense unless his criminal liability is based on conduct which involves a voluntary act. The defendant has offered evidence that his intoxication was not self-induced, and that his alleged use of intoxicants was not voluntary. I instruct you that the law define[s] a voluntary act and that you must use this definition. Under our law, an act is voluntary when it is the product of the effort or determination of the actor. Our law considers an act to be voluntary, even if the bodily effort was the result of conscious decision or done as a matter of habit. Whether an act is voluntary is not determined by whether such bodily movements were done as a matter of choice or freewill. An act is involuntary only if it is not [sic] the result of bodily movement which is not the product of the effort or determination of the actor.

Despite the misstatement noted, this instruction incorporated the exculpatory significance of defendant's expert testimony focusing on the relationship between defendant's intoxication and mental disease. Accordingly, the instruction on the relevance of mental disease or defect does not warrant reversal of his convictions.


Defendant also objects to the timing of the judge's decision to preclude a defense of pathological intoxication, contends that the judge erroneously precluded the defense and claims that the court erred in not reconsidering its preclusion of the defense following Dr. Semel's testimony. We reject these claims based on the statutory definition of "pathological intoxication" and the evidence of defendant's blood-alcohol content that precluded that defense.

"`Pathological intoxication' means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible." N.J.S.A. 2C:2-8e(3). Because defendant's blood-alcohol level was.305, he simply could not show that his intoxication was "grossly excessive in degree, given the amount of the intoxicant [he consumed.]" Despite the expert opinion on defendant's tolerance, it did not support an inference that defendant was unaware that he was susceptible to intoxication upon consumption of that amount of alcohol. His experts testified that the Librium would not elevate his blood-alcohol content. The fact that Librium would exacerbate the impairment resulting from a blood-alcohol count of.305 is not evidence showing "intoxication grossly excessive in degree" given the quantity of alcohol he consumed.

In addition, the judge found that the expert testimony would not permit a jury to find, by clear and convincing evidence, the requisite excusing condition — that defendant "by reason of such intoxication... did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." N.J.S.A. 2C:2-8d. Considering the entirety of the evidence presented at the pre-trial hearing and trial, we agree.


Defendant contends that his twenty-year sentences for aggravated manslaughter are excessive. A conviction for aggravated manslaughter is subject to a term of imprisonment between ten and thirty years to be fixed in accordance with the judge's balancing of the aggravating and mitigating factors. N.J.S.A. 2C:11-4c; N.J.S.A. 2C:44-1a-b. A presumption of incarceration applies, N.J.S.A. 2C:44-1d, and the court must impose terms of parole ineligibility and supervision required by NERA, N.J.S.A. 2C:43-7.2. Defendant challenges only the duration of the sentences, not the fact that the judge imposed consecutive sentences.

As defendant notes, facts that are elements of the crime for which a defendant is being sentenced cannot be counted as aggravating factors. State v. Kromphold, 162 N.J. 345, 356 (2000). In Kromphold the Court explained,

[T]he sentencing court double-counted the defendant's level of intoxication by supporting the first aggravating factor with the same evidence that the jury was authorized to consider in determining whether the State had proved "recklessness" or "circumstances manifesting extreme indifference to the value of human life."... Defendant's convictions of second-degree aggravated assault [pursuant to N.J.S.A. 2C:12-1b(1)] required a jury finding of recklessness that, pursuant to the trial court's instruction, could have been based on the jury's reliance on defendant's extraordinary level of intoxication. That jury finding, however, precluded the sentencing court from using defendant's level of intoxication as an aggravating factor. [Ibid.]

In this case, the primary evidence of recklessness under circumstances manifesting extreme indifference to human life was defendant's intoxication and the fact that he was driving on the road's shoulder, and the jury instruction permitted the jurors to infer recklessness on that basis. At sentencing, the trial court found an aggravating factor set forth in N.J.S.A. 2C:44-1a(1) — "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." The judge's determination rested on this finding:

This defendant, having consumed an extraordinary amount of alcohol, not only on the day of the incident, but at a minimum, the day before, and operating on the shoulder as if it were the regular lane of travel, especially in light of its continued use by pedestrians, by students from the nearby school, and even by those who often use the school facilities, while the school is not in session. This, all in addition to the defendant, at least according to the testimony, or expert opinion, being familiar with the route to his mother's residence, should have, if it did not, alerted the defendant to the aforementioned uses of the shoulder. And although he was not speeding, it's clear he failed to brake prior to impact or immediately stop [his] vehicle after impact to investigate what occurred. At least as I recall, the testimony was that he proceeded for almost a football... field and a half before he stopped. These factors, alone, represent an especially suitable... basis for a finding of aggravating factor one, which I do find.

Because the judge's findings on aggravating factor one are in apparent conflict with Kromphold, we vacate and remand for reconsideration of defendant's sentences for aggravated manslaughter in light of the decisional law precluding double-counting of the elements of the crime. We otherwise reject defendant's objections to the judge's findings on the aggravating and mitigating factors. Because those findings are supported by the record, we are obligated to accept them. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed, except as to the remand for the limited purpose of resentencing as required by this opinion and as the judge deems appropriate in light of defendant's current circumstances and condition. See State v. Randolph, 210 N.J. 330, 354 (2012).


1. N.J.S.A. 2C:2-1 directs that "[a] bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual, is not a voluntary act."


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