CAPE MAY COURT HOUSE - Joshua Malmgren was drinking heavily and popping prescription pain pills for several days before running over and killing two teenage girls who were walking alongside Bayshore Road, according to videotape testimony from his long-time girlfriend that was played in Superior Court on Tuesday.
Elizabeth Melli, Malmgren's on-and-off girlfriend and mother of his two children, was interviewed by authorities after the July 31, 2012 accident that took the lives of cousins Nioami Lazicki, 15, of Middle Township, and Ashley Dauber, 13, of Philadelphia.
The videotape was played before Judge John Porto at a pre-trial hearing as he decides whether to allow it as evidence. Melli described a man who battled substance abuse and had mental problems. She said when she heard about the accident across from the Green Creek firehouse she knew right away Malmgren, 31, of Lower Township, was involved. She said he had been drinking 24-ounce beers and popping pain pills all day and had been on a binge for several days.
"I'm as guilty as he is for letting him leave. I feel like it's my fault," said Melli.
The video interview conducted by Detective Sgt. Dan Holt of the Cape May County Prosecutor's Office was one of several played in court. Several witnesses who worked with Malmgren at the Villas Wawa also testified in court Tuesday. Part of their testimony was that Malmgren often drank beer when he was driving.
First Assistant Prosecutor Rob Johnson wants the testimony allowed at the upcoming trial to show Malmgren's history of drinking and driving as he tries to win a conviction on two counts of aggravated manslaughter. Each count could lead to a prison term of 10 to 30 years.
"Anything before that night might not be admissible without court approval," said Johnson after the hearing.
Defense attorney Brian Pelloni argued the court should only consider the night of the accident and go by toxicology tests taken after the accident. They showed Malmgren had a blood alcohol level twice the legal limit, but Pelloni said the pain pills he was taking for a broken arm suffered in a fall were within acceptable levels for the prescriptions he had.
"You have a lab report. It shows he took less than her (Melli) statements on what he took. These two things don't add up," said Pelloni.
Porto said he would consider all the evidence and rule within the next couple of weeks. No trial date has been set yet.
It was the second day Porto has considered pre-trial motions. On Monday Pelloni asked Porto to dismiss the case.
Johnson said this was based on some witnesses saying the two girls were jumping in and out of the roadway before the accident, but he noted the physical evidence at the scene showed Malmgren's Ford Bronco struck the girls "well off the shoulder" of the road. Porto denied the motion.
A second motion Pelloni filed tried to move the trial to another venue due to heavy news media coverage of the accident in Cape May County. Porto denied that motion as well.
Malmgren, who is out after posting $400,000 bail, was in court but did not speak. Family members of the two teenaged girls were in court and often had to wipe back tears as Melli described Malmgren as an alcoholic and said she left him because she didn't want their twin children exposed to him.
"I did not want my children around a drunk," said Melli. "He drinks to the point where he blacks out and doesn't remember anything. He's always drunk. He's never sober. He wakes up drunk."
Later in the interview she called him "a jerk."
Melli said she should have stopped him and taken his keys that night, but she was mad at him for punching a wall and screaming at her. She said he had been drinking heavily for four days and had not been working due to the arm injury.
Melli said he also was taking pain pills and at one point her friend, Monica Coley, took them away but when he complained about the arm pain she gave them back.
"He just kept popping them," said Melli.
Holt testified that Coley told him Malmgren was visibly intoxicated and was tripping over children in the house earlier in the day. Coley said he was washing down the pills with beer, Holt said.
Pelloni said the drugs in Malmgren's blood were within the levels prescribed, but the prescription instructions were read in court and they warned against mixing the pills with alcohol, especially if operating machinery.
Holt took the stand and said empty alcohol containers were found in Malmgren's car. Meghan Montgomery, who worked at Wawa with Malmgren, also took the stand. Johnson read parts of her police interview to the court.
"He was always intoxicated. In the last few days it was bad," she told police on Aug. 1, 2012.
But on the stand Tuesday, Montgomery testified she only saw him drunk at Wawa once and never saw him use pills.
Wawa gas attendant Michael Hemmingway also took the stand. He said that night Malmgren appeared to be under the influence and had alcohol containers in his car. He said he "always had beer cans in his car," though on a question from Pelloni he said he never actually saw him drinking. Hemmingway said he asked Malmgren if he needed a ride home and so did other workers at Wawa.
"You never took his keys?" asked Pelloni.
"I said I don't think you're okay. I think you should relax a little. Some cars pulled up and I went back to work and he was gone," said Hemmingway.
Pelloni said the state had not shown "evidence of habit" needed to get the testimony included at trial. Johnson disagreed.
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