April 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JENNIFER MULLER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued March 23, 2011
Before Judges Parrillo and Roe.
Defendant Jennifer Muller was found guilty in the Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal to the Law Division, R. 3:23-2, she was again found guilty of the same offense after a trial de novo. R. 3:23-8(a). Defendant appeals, and we affirm.
At 6:54 p.m. on March 14, 2009, Sergeant Joseph Johnson of the Jefferson Township Police Department responded to the scene of a single-car accident at 2 Ress Road in Jefferson, where he observed a Chevrolet Camaro "hung up" or lodged on a stone retaining wall on the side of a residential driveway. Upon pulling up to the scene, Sergeant Johnson noticed defendant coming out of the vehicle on the driver's side and a male underneath the vehicle trying to pull rocks out from its undercarriage.
Patrolman Robert Bush arrived soon after Sergeant Johnson. After parking his patrol car on Ridge Road, a paved road with a speed limit of forty miles per hour, the officer walked approximately fifty feet to where the accident had taken place on Ress Road, a dead-end dirt road connected to Ridge Road. Officer Bush spoke with defendant, who was standing next to the vehicle. Even before she spoke, Officer Bush detected the odor of alcohol on her from one to two feet away. Defendant identified herself as the driver of the vehicle and said that she had been drinking earlier that day. When asked to produce her credentials, her hands began fumbling.
At this point, Officer Bush walked with defendant to the front of his patrol car on Ridge Road to conduct field sobriety testing. As she walked by Officer Bush's patrol car, she put her hand on it for balance and leaned against the vehicle. While she was walking with Officer Bush, defendant explained that she was a dancer at a go-go bar called Smiles, where she had been earlier that day. Defendant admitted having had a few drinks while working, along with a few shots of Bailey's Irish Cream. She then had traveled to another bar called the Daily Planet, where she had a few drinks and met a friend whom she brought to the Ress Road residence. The accident happened as defendant was leaving the home on Ress Road when she backed out of the driveway and onto the wall.
Officer Bush then conducted a series of sobriety tests in front of his patrol car, which was parked in the roadway because there was no shoulder.*fn1 Defendant first performed the alphabet test and she recited the alphabet A to Z without any error. Next, Officer Bush conducted a counting test, instructing defendant to count backwards from 100 to 70. During this test, defendant failed to follow instructions, continually forgot what number she was supposed to stop at, and skipped the number 80. The third test conducted was the walk and turn test. Officer Bush demonstrated and explained that defendant was to take nine heel-to-toe steps away from his patrol car, turn, and take an additional nine heel-to-toe steps back to successfully complete the test. Officer Bush used his flashlight to illuminate defendant's feet and the path where defendant was expected to complete the test. During her performance of this test, defendant staggered and continually put her feet out for balance instead of walking heel-to-toe as instructed. When defendant tripped while taking only the first step of the test, Officer Bush decided to terminate the test for her safety.*fn2
During this time, Officer Bush also observed that defendant's eyes were watery, her face flushed, her hair mussed, her clothes dirty and disheveled, and her emotions "erratic," fluctuating between crying and cursing on the one hand, and polite and calm on the other. He also noticed defendant staggering while walking. At the conclusion of field sobriety testing, Officer Bush arrested defendant and transported her to police headquarters.
Upon arrival at 8:05 p.m., Officer Bush brought defendant into the interrogation room, removed her handcuffs, and began twenty minutes of observation for an accurate Alcotest reading. During this entire observation period, Officer Bush and Alcotest Officer Albert Chibookian monitored defendant. Officer Chibookian observed that defendant's eyes were bloodshot and that her speech was slurred.
According to Officer Bush, while at the Jefferson police station, defendant began exhibiting more bizarre behavior. After reiterating she was a dancer at Smiles, she proceeded to demonstrate her skills by climbing up on a desk and rocking her pelvic area back and forth in a sexual manner. When she started gyrating, the officers removed her from the top of the desk.*fn3
In the process of filling out the Breathalyzer Question/Answer Form, the officers advised defendant of her Miranda*fn4 rights, then asked her how many drinks she had consumed that day. Defendant responded that she had two Southern Comfort and lime drinks at Smiles, one at 11:00 a.m. and the second at 2:00 p.m. After it was determined that the Jefferson Police Department's Alcotest machine had malfunctioned and could not be used, Officers Bush and Chibookian transported her to the Sparta Police Department, where there was another Alcotest machine.
At Sparta police headquarters, Officers Bush and Chibookian were joined by a Sparta police officer to monitor defendant for a new twenty-minute observation period. During this observation period, Officers Bush and Chibookian observed defendant straddle the chair she was sitting on and start gyrating her hips. She volunteered that she was a stripper for a living and made about $1,000 a week in cash. She also told the officers that she did great pole dances, great lap dances, and "ha[d] the best tasting pussy around."
Officers Bush and Chibookian both maintain that this behavior lasted throughout the entire time they spent with defendant at Sparta police headquarters. Furthermore, according to Officer Chibookian, when defendant went to sit up, she almost fell over. She still had slurred speech and bloodshot eyes. Defendant reiterated to Officer Chibookian that she was the driver of the vehicle, and had been drinking that day. She further explained that she had been drinking beer at her friend's house on Ress Road, and that she was leaving his house close to 7:00 p.m. when she got stuck on the rock wall.
Based on the observational evidence,*fn5 the municipal court judge found defendant guilty of DWI, N.J.S.A. 39:4-50, and not guilty of reckless driving, N.J.S.A. 39:4-96. She was sentenced to a three month driver's license suspension; appropriate fines, costs, fees and surcharges; and twelve hours in an Intoxicated Driver Resource Center (IDRC). On a de novo review of the record, the Law Division judge found defendant guilty of DWI and imposed the same sentence as the municipal court. Specifically, in response to defendant's contrary argument, the court found "beyond a reasonable doubt that [defendant was] operating [her] vehicle . . . in close proximity to [her] drinking. And the State does not have to prove what time [defendant was] operating, but just that [her] operation was within a reasonable amount of time from [her] drinking."
On appeal, defendant argues:
I. A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED AS THE STATE FAILED TO PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT OF DRIVING UNDER THE INFLUENCE.
A. INSUFFICIENT EVIDENCE OF "OPERATION" WITHIN A REASONABLE PERIOD OF TIME FROM THE TIME OF ARREST.
B. INSUFFICIENT EVIDENCE OF DEFENDANT'S INTOXICATION.
II. THE STATE VIOLATED DISCOVERY BY FAILING TO PROVIDE DEFENDANT WITH ALL OF DEFENDANT'S ALLEGED ADMISSIONS.
We reject these contentions as without merit. R. 2:11-3(e)(2).
The function of the Law Division on an appeal from the municipal court is not to search the record for error by the municipal court, or to decide if there was sufficient credible evidence to support the municipal court conviction, but to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App.
Div. 2000). In other words, the judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)). In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.
[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [State v. Locurto, 157 N.J. 463, 474 (1999).]
When we are satisfied that the findings and conclusions of the Law Division are supported by sufficient credible evidence, our "task is complete" and [we] should not disturb the result" even if we "might have reached a different conclusion" or if the result was "a close one." Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J. Super. at 333. So measured, we are satisfied that the evidence in this case established defendant's "operation" of the vehicle "while intoxicated."
N.J.S.A. 39:4-50(a) prohibits a motorist from operating a vehicle while under the "influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or . . . with a blood alcohol concentration of 0.08% or more." The term "operates," as used in N.J.S.A. 39:4-50(a), has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478 (1987); State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). Actual operation is not required to satisfy the element. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). "Operation may be proved by any direct or circumstantial evidence - as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992).
There are three ways to prove "operation": 1) actual observation of the defendant driving while intoxicated; 2) observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or 3) admission by the defendant. Ebert, supra, 377 N.J. Super. at 10-11. Thus, "operation" may be proved by observation of the defendant in or near the vehicle under circumstances indicating that the defendant had just recently been driving while intoxicated. See Mulcahy, supra, 107 N.J. at 476; Ebert, supra, 377 N.J. Super. at 4-5, 9-12 (affirming defendant's DWI conviction based on her statements which led police to believe she had recently driven the car, which she had reported stolen, to the restaurant where police found it parked on the other side of the building); State v. Hanemann, 180 N.J. Super. 544, 547, 554 (App. Div.) (affirming defendant's DWI conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Guerrido, 60 N.J. Super. 505, 509, 513 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes.")
In Hanemann, supra, the defendant admitted that he was in the vehicle as late as 1:00 a.m., one and one-half hours before the unattended vehicle was discovered by police in its damaged condition. 180 N.J. Super. at 554. Learning that the vehicle was registered to the defendant, the police traveled to his home where they discovered him bruised and intoxicated at 4:00 a.m. Id. at 547. In affirming his conviction, we found the roughly three-hour timeframe sufficient to support the conclusion that the defendant operated the vehicle in an intoxicated condition at the time of the accident. Id. at 554.
Here, while there is a lack of actual observation of defendant operating the vehicle, there is both an admission of operation by defendant and substantial circumstantial evidence giving rise to the reasonable inference that defendant had operated the vehicle shortly before the police arrived and found her in an intoxicated condition. Defendant not only acknowledged driving her vehicle into the rock wall, but also provided the police with a time line of her drinking activity from her first round of drinking at 11:00 a.m. to a second at 2:00 p.m., to the arrival of police at the scene of the accident five hours later. In the interim, after finishing her drinks at Smiles, she traveled to another town where she continued drinking at another bar. Upon leaving that location, she drove her friend to his home on Ress Road in Jefferson, where she consumed more drinks. Although neither of the responding officers knew the exact time defendant attempted to leave the Ress Road residence, when police arrived shortly before 7:00 p.m., defendant was just exiting the driver's side of her vehicle that had been stuck on the rocks of the stone retaining wall while another person was underneath the car pulling rocks out of its undercarriage. Moreover, Officer Chibookian testified that defendant told him the accident happened around 7:00 p.m., shortly before the police arrived. Based on these facts, it may reasonably be inferred that defendant operated the vehicle proximate in time to the officers' arrival at the scene, so as to link her intoxicated state to her operation of the vehicle and therefore warrant conviction under N.J.S.A. 39:4-50.
Contrary to defendant's next contention, the observational evidence of defendant's intoxication at the time of the police arrival was substantial. As noted, defendant admitted drinking at three different locations. She was thereafter involved in a one-car accident when she smashed her car into a rock wall. The odor of alcohol on her was strong enough to be detected a couple of feet away without her even speaking. Moreover, defendant exhibited visible signs of intoxication: fumbling hands, slurred speech and bloodshot eyes. She leaned on the patrol car for balance and later at the Sparta police station, almost fell down when she went to sit up. Moreover, her performance on two of the three field sobriety tests may be considered less than satisfactory. Equally telling was defendant's erratic behavior at the Jefferson and Sparta police stations, where she talked provocatively about erotic dancing and attempted to demonstrate her skills in this area. In sum, the totality of the police observations, coupled with defendant's admissions, fully support the conclusion that defendant was intoxicated at the time she operated the vehicle.
Lastly, defendant contends that she was deprived of a fair trial because the State failed to provide discovery of all of her oral statements to the police officers, including her admission to Officer Chibookian that she was drinking beers at the Ress Road residence before her car got stuck on the rocks. We disagree.
Rule 7:7-7(b), which governs pretrial discovery in municipal court, entitles a defendant, upon written notice to the municipal prosecutor, to disclosure of a summary of any oral admissions or declarations against penal interest known to the prosecution. State v. Blake, 234 N.J. Super. 166, 168-69, 175 (App. Div. 1989). To warrant reversal because of a discovery violation, the defendant must demonstrate that the nondisclosure of her own oral admission caused a manifest injustice. State v. Harris, 181 N.J. 391, 518-19 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). To demonstrate a manifest injustice, a defendant, at a minimum, must show that, if the discovery violation had not occurred, she would have pursued "'a different trial strategy.'" See id. at 519 (quoting Blake, supra, 234 N.J. Super. at 175). Defendant made no such showing here.
Even assuming that defendant served the requisite "written notice" on the municipal prosecutor, the prosecutor's failure to disclose to defendant her unrecorded statements to police did not prejudice defendant. All of the State's testifying witnesses were identified well in advance of trial in the police reports provided to defense counsel in discovery. Moreover, as is clear from those reports and the Breathalyzer Question/Answer Form, defendant provided inconsistent statements as to her alcohol consumption on March 14, 2009, quite separate and apart from the omitted oral admissions, so as to have alerted defendant to the issues to be resolved at trial. Furthermore, defendant never requested an adjournment to address the so-called "surprise" evidence. Finally, defendant has not demonstrated how the alleged discovery violation prejudiced her in any way.