The Franklin Reporter & Advocate Eight Villages, One Community
A Somerset woman’s appeal of her conviction for a DWI-related death in 2007 was rejected Nov. 12 by a three-member state Appellate Court panel.
In its decision, the panel rejected arguments made by Kimberly Green that the trial court judge erred in not letting her present a defense expert, in allowing into evidence a recording made of her in the back of a police patrol car after the accident, in allowing what she called an improper summation by the prosecution and in giving Green a “manifestly excessive and punitive sentence.”
The panel also denied Green’s separate claim of juror misconduct.
Green was convicted in 2010 of 2nd Degree vehicular homicide in the 2007 death of 18-year-old Kylie Pinheiro of South Brunswick and two counts of 3rd Degree assault by auto for the injuries in that accident to Pinheiro’s cousins, Heather and Melissa Pinheiro.
Green was sentenced to eight years in prison for the death of Kylie Pinheiro, a freshman at a North Carolina college, and an additional four years for injuring Heather Pinheiro. Green was also sentenced to a concurrent four-year term for the injuries to Melissa Pinheiro.
She must serve more than seven years before becoming eligible for parole.
The accident occurred at Route 1 and Black Horse Lane in South Brunswick. Police said Green, who was driving on Rt. 1, ran the red light at the intersection and broadsided a car driven by Heather Pinheiro.
Police said Green’s blood alcohol content was 0.159 percent, nearly twice the legal limit, and that Green’s car had reached speeds of 75 miles per hour prior to the accident.
During the trial, it was revealed that Green and a friend had been drinking at a local restaurant, and that Green decided to drive home even though her friend had offered to let her stay at her home.
Witnesses testified that Green was driving her car erratically on Route 1, and that it struck the concrete median prior to the accident.
In her appeal, Green argued that she should have been able to produce an expert witness to rebut the testimony of South Brunswick Police Officer Michael Rogers, who testified that it was impossible to estimate Green’s car’s speed because there were no skid marks or other identifying marks on the road.
The expert testimony was not proffered until the state had rested its case. Superior Court Judge Michael Toto refused to allow the testimony, saying that it violated a rule requiring a 30-day notice of defense experts, and that it would prejudice the state’s case because it had already rested.
The panel also rejected Green’s argument that Judge Toto erred in allowing part of a recording made after the accident, while Green was in the back seat of a police patrol car, talking on the phone to her friend, to be introduced during trial after he originally denied the request.
Toto’s original ruling came before the prosecution had the results of pharmacology tests on Green’s blood, according to the Appellate ruling. During an evidential hearing, the prosecution’s witness testified that the recording provided additional evidence as to the level of Green’s intoxication. Based on that, Toto reversed his earlier decision and allowed portions of the recording to be entered into evidence.
Green also objected to Assistant Middlesex County Prosecutor Nicholas Sewitch’s summation, saying that it “improperly evoked sympathy for Kylie Pinheiro by telling the jury that she ‘will forever be 18 years old’ because of the ‘reckless and irresponsible behavior’ “of Green, and that Green was “callous and remorseless” in making disparaging statements about Heather Pinheiro after the accident.
The panel said that argument was “without merit,” noting that Green’s defense declined Toto’s offer to instruct the jury to disregard most of the Sewicth’s comment about Pinheiro’s age, and that Toto instructed the jury that Sewitch’s comments on Green’s honesty were not evidence.
As to the fourth count of the appeal, the panel found that Toto “thoughtfully and thoroughly considered each aggravating and mitigating factor, set forth the basis of his findings, and then appropriately weighed each applicable factor” in determining Green’s sentence. “… we find no basis to disturb the sentence.”
Green also filed a pro se appeal, claiming juror misconduct because some jurors complained about the length of time of the 18-day trial.
The panel found that claim to “be without merit,” noting that Toto had questioned the jurors and found that they’d agreed to extend their service until teh trial concluded.
