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Superior Court of New Jersey, Appellate Division.
Decided July 30, 2013
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.
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.
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.
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.”