An Atlantic County Superior Court judge will decide Friday whether to uphold the vehicular homicide indictment against a teen driver in a Memorial Day 2014 crash that killed three of her friends.
Melissa Rodriguez, then an 18-year-old driver on a provisional license, was driving five friends through Pleasantville on May 26. 2014, when she hit a bump on Franklin Boulevard, overcompensated and wound up crashing with a bus.
Kira Strider, 14, of Pleasantville, and Tevin Campbell, 18, of Absecon, died at the scene. Strider's 16-year-old best friend, Amber Fernandez, died later at AtlantiCare Regional Medical Center in Atlantic City.
It was a tragic accident her defense attorney says. But nearly two years later, she was indicted on three charges of vehicular homicide.
At the center of defense attorney Steve Scheffler's argument, is how Melissa Rodriguez — now 20 — used her cell phone, and whether that rises to recklessness.
In such a case that "X factor" of recklessness is needed to meet the definition of vehicular homicide, he said.
"In this case," Scheffler said, "we don't have an X factor. We have a tragic situation."
The grand jurors were not properly instructed on that or the full cell phone statute, he told Judge Patricia Wild three weeks ago.
A forensic analysis of the phone shows that Rodriguez was neither talking nor texting at the time of the crash.
Instead, the cell phone use allegation relies, Scheffler said, on the single recollection of one of the crash's survivors — identified in court records as V.S. — who first told investigators he didn't know whether Rodriguez was using her cell phone at the time of the crash.
A year later — "after civil suits were filed," Scheffler said — V.S. said that looked down and possibly pushed a button on her cell phone, and that a music app was playing through the car's speakers. The investigation could not determine whether any apps were in use because there were no time stamps, according to the detective's grand jury testimony, which was read in court.
But even if that was the case, Scheffler said, a 2011 appellate court decision found that does not violate the statute.
A motorist could use one hand to "activate, deactivate, or initiate a function of the telephone," but once engaged in the conversation, the use of the telephone must be "without the use of either hand," the appellate panel agreed in the Bergen County case.
Assistant Prosecutor Rick McKelvey, however, told the judge there is more to the case.
He said the distraction "would, in fact, tend toward recklessness." He noted that Rodriguez abrupty jerked the car, didn't break, didn't slow and didn't stop.
Scheffler also had an issue with how V.S.'s year-later recollection was presented to the grand jurors.
When interviewed in his hospital room not long after the fatal crash, V.S. answered the cell phone question with "I don't know." But, in the grand jury presentation, the detective in the case said V.S. "said he didn't recall at that time."
Scheffler argued that you can't recall something you never knew.
The judge seemed to agree that the two words were not the same. She likened it to a computer containing information that someone doesn't know how to get to, but it is in there. In the case of "I don't know," that would be like the information not ever being in the computer, Wild said.
After hearing Scheffler arguments, she decided to wait on making a decision until she had time to look into the issues. She is expected to give her decision at 1:30 p.m. Friday.
