The Prosecutor, July-August 2010, Volume 40, No. 4

A battle at punishment

How Tarrant County prosecutors secured a stiff prison sentence in an intox assault and intox manslaughter case whose defendant had no criminal history whatsoever

Matt Lundy, age 21, and Josh Carter, 20, were heading home from Josh’s job at Chili’s. He had called Matt, whom he had known for years, for a ride when his shift ended because he had let his girlfriend take his own car. The two climbed into Matt’s white Dodge Avenger around 11 p.m.
    At about 11:15 p.m., the red light camera at Cooper and S.W. Green Oaks Boulevard in Arlington recorded a collision between Erica Kolanowski’s SUV and Matt Lundy’s sedan. The camera’s video footage showed Matt’s Dodge pull up to a red light and stop, crossing just over the white stop bar on the road. Traffic passed through the intersection normally, and the light cycled to green. After a brief pause, the Avenger slowly moved into the intersection, when suddenly, a red Chevy Blazer—going at least 77 miles an hour, it was later determined—hurtled into the intersection and broadsided Matt’s car. Sparks, pieces of metal, and car parts flew, and the Blazer lifted up and swung around from the tremendous force of impact out of camera range; the Dodge Avenger appeared to have disintegrated upon impact.
    Though both he and Matt were seat-belted, Josh Carter died almost instantly from a basilar skull fracture, which sheared arteries and led to lethal blood loss after his head struck the car’s interior. (The medical examiner later said this injury is common in vehicle collisions involving significant speed and impact.) Matt Lundy suffered a severe brain injury and was CareFlighted to John Peter Smith Hospital; first responders at the scene didn’t think he would survive the trip to the hospital, but survive he did, so that he was even able to testify later at trial. Kolanowski, also wearing her seatbelt, suffered a severe fracture of the femur. Two hours later when her blood was drawn at the hospital, she was found to have a BAC of 0.17.

Preparing for a punishment trial

From the beginning, Matt and Josh’s families made quite clear that they hoped Erica Kolanowski would serve a long stint in prison. In their minds her behavior was on par with murder. She chose to drink, and she chose to drive; therefore her actions were equivalent to intentionally taking a life and injuring another. Needless to say, the punishment they wanted was not within the statutory range for either of the charged offenses.
    Not surprisingly, the defendant wanted probation, and she was eligible because her criminal history was clean. With no one budging from either end, there was little plea bargain discussion, and we knew from talking with defense counsel that the case would likely be a guilty plea to the charged offenses of intoxication manslaughter and intoxication assault with punishment submitted to a jury.
    We then focused on preparing the family for the special nuances particular to drinking and driving cases that make them so different from any other criminal case. It was essential for these families to understand the qualities of and issues an intoxication manslaughter and intoxication assault case pose for prosecution and for purposes of punishment; getting any type of penitentiary sentence, especially when the defendant had no usable criminal history, would be tough.
    We discussed with the family that intoxication cases have no mens rea element. That the defendant was not charged with intentionally committing these offenses would distinguish these cases from others where there was death or serious injury. We emphasized that although the lack of intent did not make the results of her actions less heinous, it would be an important factor that the defense would hammer home to the jury. Juries can and often do give significant weight to a defendant’s lack of intent. Although not happy with the significant legal distinction between Kolanowski’s behavior and an intentional murder, the families did come to understand how powerful a tool the defense would have for punishment argument.
    A second issue that we broached with the families was that jurors might sympathize with this defendant. Though in a typical felony courtroom, the general public cannot (or does not want to) relate to the average murderer, sex offender, or aggravated robber sitting at the defense table, the majority of jurors will be able to reflect upon an instance (or more than one) at some point in their lives where they drank and drove, knowing then or afterwards that they shouldn’t have. The feeling that “there but for the grace of God go I” must be all too common for jurors in DWI cases.
    Third, we discussed what impact the defendant’s lack of usable criminal history would have on the State’s punishment case. We would need to rely upon the horrific lasting impact of defendant’s actions, one family’s loss of a child, and another family’s child suffering a traumatic brain injury to drive home the long-lasting effects of Kolanowski’s actions that night.
    We also outlined the potential impact of the defendant’s cooperation with police by consenting to a blood draw at the hospital, her expression of remorse when the officer told her that she had killed someone, and a subsequent suicide attempt a couple of months after the offenses. Although these factors carried little weight with Josh and Matt’s families, jurors themselves would be entitled to use these facts in assessing a punishment sentence.
    Lastly, we intensively prepared the families for the distinct possibility of the defendant receiving probation by virtue of the above issues. Based upon previous intoxication manslaughter cases and their respective verdicts, including several involving police officers, we knew that probation or even pen time on the low end of the range was a strong possibility. We wanted the families to be prepared for whatever the jury would decide.

Jury selection

Jury selection is a key component to trying any criminal case to a successful conclusion. We focused on preserving those panelists with backgrounds that would support a law-and-order sentence of penitentiary time even for a first offender, such as those with younger children or teenagers, those who had an established residency in Tarrant County, and those who believed that punishment ranked higher than rehabilitation or deterrence as the law’s primary goal. We also tried to identify potential jurors that might be prone to sympathizing with the defendant’s situation for purposes of challenges for-cause if that sympathy might rise to legal disqualification.

Presentating the evidence

Even though the defendant entered guilty pleas before the jury, she entered a plea of “not true” to the deadly weapon enhancement charged on both indictments. (We can only theorize that defense counsel hoped that the jury would find the deadly weapon notices “not true” and save her client from sentences with a 3g component.) We planned that our presentation would encompass all they would hear at a regular contested guilt-innocence phase but with punishment witnesses added in.
    We wanted to start with a punch and end with a punch, so right out of the gate our first witness sponsored the very powerful red light camera video that showed the defendant’s devastating and horrific collision with Matt and Josh. Our criminal investigator, Ernie VanDerLeest, is one of 45 certified forensic video technicians from the Law Enforcement and Emergency Services Video Association (LEVA), and he had created a trial exhibit from the original video that showed the collision at normal speed, then slowed to half-speed and quarter-speed. The intent to offer the video was handled pre-trial with, not surprisingly, defense objections that its probative value was substantially outweighted by its prejudicial effect. Our argument was that depriving the jury of the opportunity to see the actual collision, indeed the offense itself, would be tantamount to keeping from them some of the most substantive and probative evidence integral to determining punishment. The slow-motion portions of the video, while not enhancing the images in any artificial way, allowed the jury to actually see the path of Matt and Josh’s car upon being struck. At real-time speed, their car almost disappears. Most, if not all, of the jurors and the courtroom gallery reacted with audible gasps when we played the video in court.
    We continued with testimony from citizens who were at the intersection in their own cars; first responders from Arlington Fire Department; the emergency flight paramedic who worked on Matt Lundy on the ground and in the air and handed him over at John Peter Smith Hospital; the Arlington Police Department crash investigator who had done the reconstruction and speed calculations; the DWI enforcement officer who met with Kolanowski at the hospital, interviewed her, and requested her blood be drawn; and a well-known crash investigation expert who testified about examining Kolanowski’s vehicle and determining there were no mechanical defects that would have prevented the vehicle from operating safely (this examination is often referred to as the “vehicle autopsy”). One of our deputy medical examiners testified to Josh’s autopsy, and of course we presented testimony about Kolanowski’s blood alcohol test results. Two of Matt Lundy’s therapists, instrumental in helping with the start of his recovery soon after the collision, told jurors about the devastating injuries Matt had suffered and what type of therapy he had gone through. Jurors heard from Matt and Josh’s mothers, saw pictures of both young men, and heard about the lives of each before the collision. Watching the anguish and grief during each mother’s testimony had a powerful effect on the jurors. However, our final 1-2 punch was finishing the case with Matt Lundy himself.

A courageous survivor

Matt Lundy was a typical 21-year-old man. He loved to hang out with his friends and to be outside. He was very active and played disc golf. He enjoyed spending time at the lake with his friends, which he had done the weekend prior to this crash.
    His injuries included a skull fracture, two traumatic brain injuries (one a diffuse axonal injury and one a contusion on his brain stem plus a small brain bleed); a fractured right sinus bone in his face and fractures in his neck, collarbone, shoulder, elbow, rib, and the small bones in his back; a bruised heart and lungs; a damaged kidney, liver, and spleen; internal bleeding, and a crushed pelvis. He was in a coma for an extremely long time with a ventilator and a feeding tube. He spent almost three months in the hospital, having multiple surgeries and fighting off infections. His stomach had been cut open in the wreck, and it would not close up and heal until doctors covered it with cadaver tissue. He had to undergo a complete blood transfusion to replace all of his plasma. He also developed Guillain Barre Syndrome, an autoimmune disorder that affects the nervous system, which made him a quadriplegic.
    Since the wreck and upon waking from his coma, Matt had undergone intensive physical therapy to re-learn how to do almost everything, from speaking to swallowing to using his arms. Although he was still in a wheelchair at trial, he had regained some use of his legs and was learning how to walk with a walker. He was able to tell the jury that his main goals in life now were to someday “talk normally, walk normally, and be able to jump and run.” From the night of the wreck, Matt was able to remember only going to Chili’s to pick up Josh; his next memory was of waking up in the hospital weeks later to tell his mother, “I want to go home.” His lack of memory was not a hindrance to the jury, we believe, as the jurors had the mechanically unbiased video evidence of the collision to rely upon for how it occurred.
    The defense asked no questions of Matt.
    With Matt’s powerful testimony, the State of Texas rested its case.

The defendant’s case

The defense called several witnesses, including Kolanowski’s mother and uncle, both of whom testified they themselves were recovering alcoholics (perhaps to show a family predisposition to the disease and, theoretically at least, less culpability) and that Kolanowski was a “gentle” person. They tried to convey how Kolanowski’s life had changed after the collision, that she had been doing community service work and had grief and remorse for her actions. Kolanowski’s life partner also testified that Kolanowski was extremely remorseful.
    The defendant herself testified that she recalled drinking three rum and Cokes and a fourth alcoholic drink but did not remember the collision itself or what else, if anything, she had had to drink. (Defense counsel had alluded in her opening statement that the defendant might have been slipped something in her drink at the second bar she visited that night, but no evidence was ever presented to that effect aside from Kolanowski’s “memory loss.”) She testified she had tried to kill herself with pills several months after the collision and ended up in the psychiatric ward of John Peter Smith Hospital. She told the jurors she was attending Alcoholics Anonymous meetings and had been sober since the day after her suicide attempt. Kolanowski made a powerful witness on her own behalf, as throughout her testimony she sobbed and appeared genuinely distressed. At one point she looked to the back of the courtroom where Matt Lundy sat in his wheelchair and apologized to him. She testified she would trade places if she could with either of the victims.
    We spent minimal time in crossing the defendant’s family members as they came across as genuine and ancillary victims of Kolanowski’s offenses. Even with Kolanowski herself, we had to take care because she presented as distraught, at one time suicidal, and extremely remorseful. She had also, to some extent, insulated herself from certain questions because she claimed to have no memory of a portion of the evening and no memory of the collision itself. We had no prior bad conduct to mention, either.
    Two issues did, however, present themselves for possible ground to gain with the defendant. First, we asked Kolanowski how she could enter a plea of not true to the deadly weapon finding—as the jury was shown two trial exhibits: a photo of Matt Lundy’s car with Josh Carter laying dead outside of it, his body covered, and a photo of her own smashed Chevy Blazer. Kolanowski tried to evade directly answering by testifying she didn’t intend for the offense to happen. Second, on redirect, we asked about her direct testimony in which she offered to trade places with the victims—if only she were able. She told the jurors if there was something she could do to make things right, she would do it. Her answer gave us an opportunity for a question and answer helped us argue for penitentiary time. We asked Kolanowski that if a lengthy prison sentence would give the Carter and Lundy families peace, would she be willing to go? She paused and said that if that’s what God wanted for her, she would do it. I then came back at her and asked if she herself would commit to do it of her own free will. After another pause, she replied “yes.” I passed the witness and the defense rested.

Argument

On closing argument, defense counsel strenuously argued Kolanowski’s lack of intent for the offense to happen and her extreme remorse and change of life since the wreck, all as a justification for a probated sentence.
    The State argued that the extreme circumstances of the offense (the high speed, running the red light, and her BAC more than twice the legal limit) differentiated this case from one with less egregious driving facts and a lower BAC. We also encouraged the jury to look at the death of Josh Carter and the disabilities Matt Lundy would suffer the rest of his life. Strangely enough, having a live victim with severe injuries and incontrovertible disabilities in the courtroom may have been the strongest factor for the jury, even surpassing that of our deceased victim.

Verdict

The jury deliberated for the remainder of the afternoon and then asked to go home. Upon returning the following morning, jurors resumed their deliberations and finally signaled they had a verdict. They found the deadly weapon notices “true” for both indictments and in Matt Lundy’s case assessed the maximum of 10 years with a $6,000 fine. For Josh Carter’s case they assessed a 16-year sentence and a $6,000 fine.
    To say that we were very pleased with the jury’s decisions would be an understatement. The families were in shock as they had been prepared for Kolanowski to receive probation, a testament to our prep work with them and witnessing firsthand the defendant’s grief and sobbing in front of the jury. Matt felt the sentence was appropriate in light of Josh’s death and his own circumstances; he would have been devastated with Kolanowski receiving probated sentences. In light of previous verdicts in similar cases, some involving police officers, we were fortunate to have obtained a jury with whom the State’s evidence resonated so strongly.

A note of thanks

We want to extend our heartfelt appreciation to the following people with our office who assisted in the case with preparation and presentation: Richard Alpert, the office’s resident DWI expert; Ernie VanDerLeest, our investigator; Pat Sursely of our Victim’s Assistance Unit; and Rhona Wedderien for help with trial exhibits. Also many thanks to the Carter and Lundy families and Matt Lundy himself, who repeatedly assured us they had faith in our ability to help obtain justice for them. It was an honor to work on behalf of a young man who is a model for courage and overcoming adversity. I would also like to thank my father, Calvin Hartmann, who is an inspiration to me by way of his own significant prosecution career and as my role model for each and every time I step into a courtroom to present a case on behalf of the State of Texas. i

Editor’s note:  Please see “Maneuvering crime victims safely through a mine field” also in this issue for more on how the prosecution worked as a team to seek justice in this case.