CAPE MAY COURT HOUSE — Texting while driving could join driving under the influence of alcohol and drugs as part of the case against a Lower Township man charged in the July 31, 2012, traffic deaths of two teenage girls.
First Assistant Prosecutor Rob Johnson has moved to introduce evidence that Joshua Malmgren sent numerous text messages while driving the night he allegedly ran over teenage cousins Nioami Lazicki, 15, of Middle Township, and Ashley Dauber, 13, of Philadelphia, while they walked along Bayshore Road in the Del Haven section of the township.
Malmgren, who was in court Thursday for a status conference on the case, is charged with aggravated manslaughter.
Part of the discussion in court is whether Johnson would be allowed to submit evidence that Malmgren was texting that night.
“He made six or seven texts while driving shortly before the fatal accident,” Johnson said.
Noting that proving aggravated manslaughter requires showing disregard of a known risk, Johnson said he has evidence Malmgren was pulled over by police a few days earlier for texting while driving. Johnson said Malmgren was swerving on the roadway and told the police officer he had a broken arm and was having a problem texting.
“He noticed the risk. He had been warned by police,” Johnson said.
Previous court testimony from Elizabeth Melli, Malmgren’s on-and-off girlfriend and mother of his two children, indicated Malmgren was drinking beer and taking pain pills that night. Prosecutors allege he was driving under the influence. The texting would be a new aspect to the case scheduled for trial in June.
Superior Court Judge John Porto scheduled a hearing on Johnson’s motion for 1:30 p.m. March 18.
Ed Weinstock, Malmgren’s attorney, opposes admitting the texting evidence. Weinstock said other crimes that are not part of the charges are not always admissible.
Johnson said he has an expert witness and would include a forensic analysis of Malmgren’s cellphone. The officer who pulled Malmgren over is also available to testify.
Malmgren, who is out on bail, was in court Thursday as his attorney argued to put off the June 2 trial date. Weinstock said he had just taken over the case after Malmgren’s attorney H. Parker Smith dropped it due to conflict.
“The first time I met my client is today. I haven’t gone through any discovery. I’ve done no work on getting experts. The prosecutors have their experts lined up,” Weinstock told Porto.
Johnson said he had asked for a trial in 2013.
“I’d like to go forward as quickly as possible,” he said.
Porto argued Weinstock has enough time to get ready for trial but made no decision on whether to delay it. He set up another status conference for 11 a.m. March 21.
Weinstock is Malmgren’s third attorney. He began with Brian Pelloni, who left the case for nonpayment of legal bills.
Malmgren is charged with two counts of first-degree aggravated manslaughter. Each count could lead to a prison term of 10 to 30 years.
Lazicki and Dauber were walking to get ice cream at a nearby custard stand about 9:15 p.m. July 31, 2012, when they were struck by the Ford Bronco driven by Malmgren. They both died at the scene.
Lazicki's younger sister, Farrahanne, then 14, got out of the way before the vehicle ran off the road.
Melli, in a video interview played in court, said Malmgren had been drinking 24-ounce beers and taking pain pills all day and had been on a binge for several days.
Toxicology tests taken after the accident showed Malmgren had a blood alcohol level twice the legal limit, officials say. He was also taking prescription pain pills for a broken arm suffered in a fall. The drug levels may have been within prescription limits, but the drugs were not supposed to be mixed with alcohol, officials said.
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