STATE OF NEW JERSEY VS. WARREN R. GERHARD (16-03-0317, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4065-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WARREN R. GERHARD,
Defendant-Appellant.
_______________________________
Submitted June 26, 2018 – Decided October 26, 2018
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law
Division, Cape May County, Indictment No.
16-03-0317.
Joseph E. Krakora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the briefs).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen A. Pickering,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Warren R. Gerhard was convicted by a jury of operating a
motor vehicle during a license suspension for a second or subsequent conviction
for driving while intoxicated, N.J.S.A. 2C:40-26(b). He appeals his conviction,
contending the court erred in refusing to instruct the jury on the defense of
necessity and in permitting the State to call a witness on rebuttal to testify as to
the temperature on the day in question. Finding no error, we affirm.
The responding officer testified at trial that early in the afternoon of
February 2, 2016, he was dispatched to the area of Gorham and Scott Avenues
in Lower Township on the report of a disoriented individual. When he arrived,
he saw the individual getting into a car. The officer stopped the car, driven by
defendant, to check on the welfare of the passenger, whom he observed to be
intoxicated. The officer was familiar with the passenger, one Shipley, from prior
encounters. The officer called the rescue squad for Shipley and learned that
defendant's license was suspended, prompting the officer to write him a
summons. Emergency medical technicians examined Shipley, who refused
further treatment, and defendant called his wife to drive him and Shipley home.
The EMTs testified for defendant. The technician who examined Shipley
explained the officer advised him that Shipley had tripped and fallen and asked
that they evaluate him. The technician testified he knew Shipley and that he had
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previously suffered a traumatic brain injury that could affect his equilibrium,
causing him to trip and fall. He testified Shipley was oriented as to person, place
and time, was not injured and refused treatment.
Defendant, who had three prior convictions for driving while intoxicated,
testified in his own behalf, initially outside the presence of the jury. He told the
judge he was outside raking leaves when Shipley telephoned him. According to
defendant, Shipley said "he had fallen, that he was very cold, and that he was
disoriented and wasn't exactly sure where he was." He told defendant "there
was a main road" and that "he was about a block from [defendant's] home, could
[defendant] please come get him."
Defendant testified that Shipley "wasn't sounding coherent" and suspected
he was in the early stages of hypothermia. Defendant explained that based on
his "previous experience in rescue" in the Coast Guard and his "EMT training"
he concluded Shipley's situation was dire and required immediate action. He
testified he rejected calling 911 because he was not exactly sure where Shipley
was located and defendant's wife was unavailable to drive him because she was
in the shower. Believing he "didn't have much time to make this decision, [he]
grabbed his keys" and drove the block to assist Shipley.
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After hearing defendant's testimony, the judge declined his request to
charge the jury on necessity. Relying on State v. Tate, 102 N.J. 64, 74 (1986),
the judge found the defense unavailable to defendant because he could not
demonstrate that driving to Shipley's rescue was the only available alternative.
The judge noted that Shipley telephoned defendant at 1:30 in the afternoon,
when there are "a lot of people in the street." Indeed, the judge noted, someone
else had already called the police to assist Shipley. Further, the judge found
defendant could have called 911 with where he suspected Shipley could be found
or have waited the few minutes to allow his wife to drive him.
Although ruling that defendant was not entitled to a charge on necessity,
the judge did not limit defendant's testimony. Defendant thus explained to the
jury why he drove to Shipley's aid, although aware he was on the suspended list.
Defendant testified Shipley, as suspected, was "disoriented" and "in the early
stages of hypothermia." Defendant also testified at length about the weather,
claiming it "was in the teens" and that Shipley was dressed in a sweatshirt and
was without a hat or gloves.
After the defense rested, the State sought to call a detective in the
prosecutor's office on rebuttal to testify to the temperature according to national
weather databases on the day defendant went to Shipley's aid. The prosecutor
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noted the court had already observed out of the presence of the jury that the prior
February had been warm, and he asserted defendant's testimony about the
temperature and hypothermia had been a surprise. Over defendant's objection,
the court permitted the State to call the detective for the limited purpose of
presenting the temperature in Cape May on that day. The detective testified that
according to the database he consulted, the temperature was forty-eight degrees.
Defendant raises the following issues for our consideration:
POINT I
THE TRIAL COURT ERRED IN FAILING TO
CHARGE THE JURY ON THE DEFENSE OF
NECESSITY, WHICH WAS THE ONLY DEFENSE
OFFERED TO THE CHARGE OF DRIVING WITH A
SUSPENDED LICENSE. NECESSITY WAS
CLEARLY INDICATED BY DEFENDANT'S
TESTIMONY THAT HE DROVE IN RESPONSE TO
AN EMERGENCY CALL THAT HIS FRIEND, WHO
HAD A TRAUMATIC BRAIN INJURY, HAD
FALLEN AND NEEDED MEDICAL HELP. THE
TRIAL COURT FURTHER ERRED BY
PERMITTING THE STATE TO TELL THE JURY
THAT THERE WERE NO DEFENSES AVAILABLE
TO DEFENDANT.
POINT II
THE TRIAL COURT ERRED BY PERMITTING THE
STATE TO INTRODUCE IMPERMISSIBLE
HEARSAY TESTIMONY ABOUT THE
TEMPERATURE ON THE DATE OF THE
INCIDENT, GLEANED FROM A WEBSITE, AFTER
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THE DEFENDANT COMPLETED HIS CASE-IN-
CHIEF, AND WITHOUT PROVIDING NOTICE TO
THE DEFENSE OR EVEN PLACING DETECTIVE
BERG ON ITS WITNESS LIST.
Our review of the record convinces us that neither of these arguments is of
sufficient merit to warrant extended discussion in a written opinion. R. 2:11-
3(e)(2).
"The defense of necessity is strictly limited under the Code." State v.
Morris, 242 N.J. Super. 532, 541 (App. Div. 1990). Even assuming the defense
is not clearly precluded by the language of N.J.S.A. 2C:3-2,1 which we do not
acknowledge, it is plain defendant did not establish the elements of common-
law necessity, which are:
(1) There must be a situation of emergency arising
without fault on the part of the actor concerned;
(2) This emergency must be so imminent and
compelling as to raise a reasonable expectation of harm,
1
N.J.S.A. 2C:3-2(a) provides:
Necessity. Conduct which would otherwise be an
offense is justifiable by reason of necessity to the extent
permitted by law and as to which neither the code nor
other statutory law defining the offense provides
exceptions or defenses dealing with the specific
situation involved and a legislative purpose to exclude
the justification claimed does not otherwise plainly
appear.
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either directly to the actor or upon those he was
protecting;
(3) This emergency must present no reasonable
opportunity to avoid the injury without doing the
criminal act; and
(4) The injury impending from the emergency must be
of sufficient seriousness to outmeasure the criminal
wrong.
[State v. Romano, 355 N.J. Super. 21, 29 (App. Div.
2002) (citation omitted).]
Assuming the danger to Shipley was as grave as defendant perceived, the
trial court found defendant had reasonable alternatives to getting in his car and
driving to Shipley's aide, namely calling 911 or waiting for his wife to drive
him. Because "a legal alternative was available, the illegal alternative was not
'necessary,' and resort to it was not justified." Tate, 102 N.J. at 75. Accordingly,
we find no error in the trial court's refusal to charge the jury on necessity.
The court's determination to allow the State's rebuttal witness requires
only brief comment. The law is well established that rebuttal evidence is
permissible in a criminal prosecution "when necessary because of new subjects
introduced on direct or cross-examination of defense witnesses." State v. Cook,
330 N.J. Super. 395, 418 (App. Div. 2000). Where, as here, the evidence would
have been admissible in the State's case in chief, the trial court has broad
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discretion as to its admission, which will not be disturbed absent gross abuse.
State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970). As the temperature
outside on the day of Shipley's mishap was a fact that could have been judicially
noticed pursuant to N.J.R.E. 201(b)(3), we cannot find the court abused its
discretion in permitting the State to present such testimony in rebuttal to counter
defendant's unexpected testimony about the coldness of the day.
Affirmed.
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