Joshua Malmgren has First Days in Court

COURT HOUSE – The tragedy that is the Joshua Malmgren case was back in a Cape May County courtroom last week for two days of hearings on three motions. It is a tragedy that instantly took two young lives, that of 15-year-old Nioami Lazicki and her 13-year-old cousin Ashley Dauber on a dark Cape May County road in late July 2012. It is a tragedy that looms over the daily life of Joshua Malmgren who has been charged with two counts of aggravated homicide. If convicted, he faces many years behind prison walls. On Sept. 16, Superior Court Judge John Porto heard two defense motions.
The first motion that defense attorney Brian Pelloni made was for a dismissal of the charges. He stated that the prosecution had, in essence, overcharged with the two counts of aggravated manslaughter. Legally, homicides range from the most serious killing, which is first-degree murder to justifiable killing. Porto denied that motion.
Then defense counsel asked for a change of venue (a change of place where the trial will be held). The defense argued that because of the extraordinary attention the case had generated, the defendant should be tried elsewhere. The defense made the point that publicity possibly generated an inordinate amount of sympathy in this small community and could taint any jury pool. If true, that would make a fair trial in Cape May County virtually impossible. The judge also denied that motion.
On Sept. 17, Assistant County Prosecutor Rob Johnson made an application on behalf of the state. That was a request by the prosecution to introduce evidence of “prior bad acts” by the defendant. In the Malmgren instance it would include prior incidents of drinking and abuse of prescriptions drugs. Malmgren had suffered an injury for which he was prescribed pain medication. The specific drugs in question are Klonopin (aka Clonazepam) and Tramadol.
Klonopin is used to control seizures and it is also used to treat panic disorder. Users are warned not to consume alcohol when using the drug. Tramadol is a long-acting opiate designed to relieve pain around the clock. It changes the way the body senses pain. Side effects include dizziness, nausea and difficulty breathing.
The prosecution alleged that Malmgren used those medications and subsequently drank alcohol. This is the heart of the state’s case. The state alleges that Malmgren’s alleged striking and killing of the girls (with his car) was the result of his reckless behavior in taking medication with alcohol. It alleges he knew, or should have known, the possible consequences of such behavior.
The judge must decide if the defendant did indeed use those or other drugs with alcohol in the past, and if he knew that the combination could cause negative behavior. If he did, he would have been put on some sort of notice as to their effects. These would be the “prior bad acts” that Johnson wants to introduce at trial. Johnson said he had enough evidence to support his allegations, including the testimony of Detective Dan Holt. On this motion Porto reserved his decision for a few weeks.
After those motions, there will probably be more motions (some probably about the condition of the road itself) and eventually a trial, unless there is a negotiated plea.
For the Herald’s previous coverage of this incident, go to:
http://www.capemaycountyherald.com/article/accidents/wildwood/94012-candlelight+vigil+held+one+year+after+death+cousins039
http://www.capemaycountyherald.com/article/accidents/rio+grande/93960-families+mourn+loss+2+cousins+one+year+after+fatal+accident
http://www.capemaycountyherald.com/article/crime/court+house/90134-driver+opts+not+plea+bargain+teens039+deaths
http://www.capemaycountyherald.com/article/crime/court+house/89203-driver+pleads+not+guilty+teens039+deaths