State v. Buckley, A-55 September Term 2011; Supreme Court; opinion by Patterson, J.; decided May 15, 2013. On appeal from Appellate Division. [Sat below: Judges Graves, J.N. Harris and Koblitz in the Appellate Division; Judge DeVesa in the Law Division.] DDS No. 14-1-9967 [28 pp.]

On Aug. 12, 2008, a Dodge Viper sports car carrying two North Brunswick police lieutenants drove off Route 130 and collided with a utility pole. The passenger, Christopher Zerby, died shortly after the accident. The driver, defendant Keith Buckley, was not seriously injured. He was later indicted for second-degree vehicular homicide, N.J.S.A. 2C:11-5.

Defendant proffered fact and expert evidence that Zerby was not wearing a seat belt at the time of the accident and would have survived the accident had he worn a seat belt. He also proffered evidence that the utility pole with which he collided was in front of the guardrail, rather than behind it as required by the New Jersey Department of Transportation Roadway Design Manual.

The state filed a motion in limine to exclude both proffers.

The trial court denied the state’s motion, concluding that both categories of evidence may be admissible as relevant to the jury’s determination of the issue of causation. The Appellate Division granted the state’s motion for leave to appeal and affirmed.

Held: Fact and expert testimony about the victim’s failure to wear a seat belt and evidence regarding the position of the utility pole are irrelevant to both "but for" causation under N.J.S.A. 2C:2-3(a)(1) and the jury’s causation determination under the first prong of 2C:2-3(c)’s statutory test — whether defendant was aware that the manner in which he drove posed a risk of a fatal accident. The trial court may admit evidence that Zerby’s seat belt was not fastened to help the jury understand the accident but must give an appropriate limiting instruction.

N.J.S.A. 2C:11-5 provides that "criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly." Thus, the state has the burden of proving beyond a reasonable doubt that defendant caused Zerby’s death by driving recklessly.

The statute initially requires the jury to determine whether there is "but for" causation. N.J.S.A. 2C:2-3(a)(1). If that threshold determination is made, the causation inquiry is governed by the two-pronged standard of 2C:2-3(c).

Under the first prong of 2C:2-3(c), if the jury determines that the state has proved beyond a reasonable doubt that defendant understood that the manner in which he drove created a risk of a traffic fatality, the element of causation is established under this prong. (The second prong, which requires proof that the actual result involves the same kind of injury or harm as the probable result of the defendant’s conduct, need not be considered because the state does not rely on it.)

The court says the "but for" test of 2C:2-3(a) focuses the jury entirely on the role of the defendant’s conduct — the manner in which he drove before and during the collision. The state must show nothing more than that the fatal accident would have been avoided had he not driven the Viper in the manner in which he did. Therefore, defendant’s proffered fact and expert evidence on the seat-belt issue is irrelevant to the threshold "but for" causation inquiry.

As to whether evidence regarding Zerby’s failure to wear a seat belt is relevant to the first prong of 2C:2-3(c)’s test for causation, the court says under this test, the jury will determine whether defendant was aware that, by virtue of the manner in which he drove, he created a risk of a fatal collision. If the jury determines that he was, it need not assess the exact degree of that risk, or the variables that could affect its magnitude. Fact and expert evidence that Zerby’s failure to wear a seat belt exacerbated his chance of dying in the collision is thus irrelevant to the jury’s inquiry.

However, the trial court need not bar all evidence that Zerby failed to use a seat belt. Such evidence may be necessary for the jury to thoroughly understand the investigating officers’ findings and the circumstances of the accident. If such evidence is admitted, the trial court must instruct the jury that Zerby’s failure to use a seat belt is not relevant to "but for" causation or the first prong of 2C:2-3(c).

Finally, the court holds that fact and expert testimony regarding the claimed discrepancy between the utility pole placement and the DOT guidelines is inadmissible on the issue of causation under 2C:2-3(c) since it is irrelevant to whether defendant’s driving was an antecedent but for which the accident would not have occurred. It is inadmissible under the first prong of 2C:2-3(c) because 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 among many structures located near the road on which he drove on the day of the accident.

Chief Justice Rabner, Justices LaVecchia and Hoens and Judges Rodriguez and Cuff, both temporarily assigned, join in Justice Patterson‘s opinion. Justice Albin did not participate.

For appellant — Joie D. Piderit, Assistant Prosecutor (Bruce J. Kaplan, Middlesex County Prosecutor; Piderit and Nancy A. Hulett, Assistant Prosecutor, on the briefs). For respondent — Alan L. Zegas (Zegas and Mandelbaum, Salsburg, Lazris & Discenza; Robert W. Gluck and Frank M. Gennaro on the briefs). For amicus curiae Attorney General — Carol M. Henderson, Assistant Attorney General (Jeffrey S. Chiesa, Attorney General).