5-21-08 State of New Jersey v. Sky Atwater, a/k/a Tyrone
Johnson
A-3771-04T4

1. Where the jury's repeated questions indicated
confusion about the requisite mental state for vehicular
homicide, it was not sufficient for the trial court to re-charge
the jury on recklessness. Rather, the trial court should have
compared recklessness with negligence, in light of the jury's
questions. Denial of defendant's request to charge negligence in
response to the jury's questions was reversible error.

2. It was reversible error for the trial court to
preclude a defendant from cross-examining the State's expert on
the coefficient of friction, a factor the expert testified was
critical in formulating his opinion on the speed of defendant's
vehicle at the time of the accident.

3. The trial court committed plain error when it failed
to strike and give a curative instruction for the prosecutor's
repeated remarks that overstepped the bounds of propriety and
deprived defendant of a fair trial.

4. The trial court's denial of defendant's application to
argue negligence in summation under the circumstances of this
case contributed to cumulative error.

5. In a vehicular homicide case where there is evidence
that defendant may have been impaired by the use of alcohol, but
no evidence that he was driving while intoxicated (DWI) under
the statutory standard of N.J.S.A. 39:4-50, the trial court
should instruct the jury on the blood al(BAC) required for a per se DWI.