On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-01-0004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2008
Before Judges Wefing, Yannotti and LeWinn.
Defendant, Timothy P. LaBarre, was indicted for second-degree eluding a law enforcement officer, in violation of N.J.S.A. 2C:29-2(b). Defendant was also charged, in motor vehicle summonses 2121-Y24-127511 through -127516, with speeding, in violation N.J.S.A. 39:4-98; failure to keep to the right, in violation of N.J.S.A. 39:4-88; reckless driving, in violation of N.J.S.A. 39:4-96; driving while intoxicated, in violation of N.J.S.A. 39:4-50; driving with a suspended license, in violation of N.J.S.A. 39:3-40; and driving without a license, in violation of N.J.S.A. 39:3-10. Tried to a jury on November 13, 14 and 15, 2006, defendant was convicted of second-degree eluding. Following the jury verdict, the trial judge, sitting as the trier of fact, found defendant guilty of speeding, driving while intoxicated and driving while suspended; the judge merged the charges of failure to keep to the right, reckless driving and driving without a license. On March 30, 2007, defendant was sentenced to a term of five years on the eluding charge; he was also assessed various fines and costs on the motor vehicle charges, as well as an aggregate thirty-month suspension of his driver's license. This appeal followed.
The pertinent factual background may be summarized as follows. Sometime between 2:30 and 3:00 a.m. on September 18, 2005, patrolmen Mark Merrill of the Washington Borough Police Department was conducting a radar patrol on Route 31 in a marked police cruiser. Merrill observed a pickup truck traveling southbound at a high rate of speed in a thirty-five miles per hour speed zone. Upon activating his radar, Merrill discovered that the truck was traveling at fifty-three miles per hour.
Merrill activated his overhead lights and siren and attempted to stop the vehicle. As the officer pulled near, the truck increased its speed to seventy miles per hour; this occurred in a zone where the posted speed limit was fifty miles per hour. Merrill noted that the truck began weaving back and forth, repeatedly crossing the double yellow center line; it eventually increased its speed to ninety miles per hour. There was no oncoming traffic at that time.
On at least two occasions, while traveling between seventy and ninety miles per hour, the truck approached other southbound vehicles. As it approached those vehicles, the truck flashed its blinking hazard lights, forcing the other cars to pull to the side of the road to allow the truck and Merrill's vehicle to pass. Eventually, the truck approached a white SUV that swerved back and forth on the road, preventing it from passing. The SUV was an unmarked police vehicle driven by Officer Stephen Sexton of the Human Services Department; Sexton was in full uniform and carried a weapon. The SUV forced the truck to stop on the side of the road. Merrill then pulled his cruiser alongside the truck, blocking it in.
Merrill exited his vehicle, approached the truck and ordered the driver, later identified as defendant, to exit at gun point. Other officers had arrived at the scene by this time and, along with Merrill and Sexton, ordered defendant several times to lie down on the ground. Defendant did not comply with this order. Therefore, officers sprayed defendant with O.C. spray*fn1 and, with considerable effort, wrestled him to the ground and handcuffed him. Merrill testified that, while placing defendant under arrest, he smelled alcohol on defendant's breath.
Defendant was transported to Washington Borough Police headquarters, where Merrill attempted to administer a breathalyzer test. However, because defendant was coughing as a result of his exposure to the spray, Merrill was unable to administer an effective test. Defendant consented to have blood samples drawn to be tested for blood alcohol content as an alternative.
Merrill thereupon accompanied defendant to the county hospital. At the hospital, Merrill witnessed a medical technician, Linda Jane Heim, draw two vials of defendant's blood, label them with the date and time of collection, sign them, and place them in a sealed evidence box. Merrill transported that box back to police headquarters and placed it in a secure evidence refrigerator.
On September 30, 2005, Washington Borough Police Detective Wendell Whitmore took the blood samples to the New Jersey State Police Laboratory for testing. An employee of the lab, Meghan Williams, received the samples from Detective Whitmore, identified them and logged them in. A lab scientist, Christine Davis Thomas, tested the samples and found the blood alcohol content to be 0.117%. At trial, Williams could not be certain whether defendant's blood samples had arrived in a heat-sealed plastic bag or in an evidence box.
On appeal, defendant raises the following issues for our consideration:
THE ERRORS IN THE COURT'S INSTRUCTIONS TO THE JURY DENIED THE DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).
A. The court improperly and inadequately charged the jury on the seventh element of second degree eluding. [Not Raised Below.]
B. The court failed to instruct the jury on the requested lesser included offense of hindering one's own apprehension.
THE COURT ERRED IN ADMITTING INTO EVIDENCE DEFENDANT'S BLOOD ALCOHOL READING BECAUSE THE STATE FAILED TO ESTABLISH AN UNTAMPERED CHAIN OF CUSTODY OF DEFENDANT'S BLOOD SAMPLE.
THE COURT ERRED IN ADMITTING INTO EVIDENCE DEFENDANT'S BLOOD ALCOHOL TEST RESULT AS THE POLICE LACKED REASONABLE GROUNDS TO BELIEVE THE DEFENDANT WAS DRIVING IN VIOLATION OF N.J.S.A. 39:4-50.
THE COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO CHARGE THE JURY PURSUANT TO STATE V. CLAWANS WITH REGARD TO THE STATE'S FAILURE TO PRODUCE THE TESTIMONY OF DETECTIVE WHITMORE.
THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.
A. The [c]court erred in its findings and analysis of the applicable aggravating and mitigating factors.
B. The court should have imposed a sentence for defendant's second degree conviction ...