The man accused of being under of influence when striking and killing two teenage girls who were walking along a Cape Cay County road was back in court again Monday. The judge heard, and denied two different motions.
“Extreme levels of intoxication, being on two different drugs, klonopin and tramadol.” That's what prosecutors say Joshua Malmgren was on, besides having twice the legal limit of alcohol when he struck and killed two teenage cousins back in July of 2012. “That particular night, he shows up at the Wawa at around 7:03, (two hours before the fatal accident) after drinking and using drugs all day long,” said Cape May County First Assistant Prosecutor Rob Johnson, “and crashes right into a pole, as captured in the video, at the Wawa.”
The information came out during a court proceeding Monday during a motion filed by the defense to have the indictment against Malmgren dropped. He has been charged with two counts of aggravated manslaughter in the deaths of 15 year-old Nioami Lazicki and 13 year-old Ashley Dauber, who were struck and killed while walking along Bayshore Road in Middle Township.
“Specific facts that were not provided were the conditions of the scene of the time of the accident, and the actions of the victims 10-15 minutes leading up to the accident,” said Malmgren’s lawyer, Brian Pelloni.
Malmgrens lawyer says the grand jury wasn't provided with all witness accounts, and because of that, feels the charges of aggravated manslaughter, which are based on recklessness, aren't fair. “It's higher than most levels,” said Pelloni, “specifically, it has to be actions of the defendant that create the probability of certain outcome, or in this case the probability of the death of the victims,” said Pelloni, “as opposed to merely a possibility of that occurring.”
But the judge denied the motion, agreeing with the prosecution.
Malmgren’s lawyers also requested to have the trial moved outside of Cape May County, saying given the nature of the case and the attention it has gotten, it might be hard to find a fair and impartial jury, something the judge also denied, saying it’s not necessary.
Malmgren, who is free on bail, has pleaded not guilty.
They will be back in court Tuesday for a motion filed by the Prosecution to discuss Malmgren's behavior leading up to the deadly crash.
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