February 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWIGHT D. MITCHELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 87-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 21, 2011
Before Judges Fuentes, Graves and Harris.
After a trial de novo in the Law Division, defendant Dwight D. Mitchell appeals from his conviction for speeding, N.J.S.A. 39:4-98, and reckless driving, N.J.S.A. 39:4-96. For the reasons that follow, we affirm the conviction for speeding but reverse the conviction for reckless driving and dismiss the charge.
On June 6, 2010, at approximately 12:48 a.m., defendant was pulled over by State Trooper Vinicius Vicente while driving northbound on Route 287 in Edison Township. Elena Itcekova was a passenger in defendant's vehicle.
During defendant's trial in the Edison Township Municipal Court on September 14, 2010, Vicente testified he was traveling at approximately seventy miles per hour in the right lane when he saw defendant's vehicle ahead of him in the center lane between two other vehicles. According to Vicente, defendant's vehicle moved into the left lane and then "disappeared. He basically took off." Vicente testified that while he was pursuing defendant's vehicle, he reached a speed of 130 miles per hour, and he maintained that speed for a quarter of a mile before activating his overhead lights. After defendant pulled over and Vicente approached his vehicle, defendant said "he wasn't going one thirty." But he admitted "he was going ninety."
On the other hand, defendant testified he "was never traveling a hundred and thirty miles an hour the entire time [he] was on 287." In addition, Itcekova testified on defendant's behalf and denied that defendant's vehicle was traveling at a speed of 130 miles per hour. According to Itcekova, when she "saw the flashing lights in the rearview mirror" she looked at the speedometer and it indicated that defendant's vehicle was traveling at "seventy-seven, [or] seventy-eight miles per hour."
At the conclusion of the trial, the municipal court judge found that all three witnesses "testified in an appropriate and professional manner." Nevertheless, the court determined that Vicente's testimony was "quite credible," and defendant was found guilty of speeding, for traveling 130 miles per hour in a sixty-five mile per hour zone, and reckless driving. The municipal court imposed a fine of $272 and court costs of $33 for speeding and suspended defendant's driver's license for six months due to "the extreme nature of the speed." The court also imposed a $206 fine together with court costs for reckless driving.
Defendant appealed his convictions to the Law Division, and the Law Division granted defendant's motion to stay the suspension of his driver's license on October 27, 2010. During oral argument on January 11, 2011, defendant moved to supplement the record with a videotape of the traffic stop, which was recorded by a camera in Vicente's vehicle.
The Law Division reserved decision, but when the parties returned to court on February 1, 2011, the judge indicated that he had reviewed the videotape and it contained an admission by defendant that "he was doing 90 and some change." The Law Division then arranged for counsel to review the videotape. When the trial resumed, defendant's attorney acknowledged that she heard defendant "say the word 90," but she argued that defendant's convictions were "based on plain lies" and that the videotape may have been damaged or altered.
In a written decision on February 14, 2011, the Law Division carefully reviewed all of the evidence, and it rejected defendant's claim that he was a victim of racial profiling because he is an African American:
The defense has claimed that there was a trooper bias, and that this incident was related to "driving while black." After a review of the audio and video, it appears that no bias is present. Defense counsel correctly points out that the final interaction between the trooper and the Defendant is garbled, and mostly unintelligible. However, from what this Court could make out, there was no indication of any racial commentary. Additionally, the garbled commentary was consistent with what Trooper Vicente recollected during the municipal trial, which lends credibility to his testimony. Finally, the other Trooper in the car was himself an African American. The Court therefore, does not find that any of the alleged racial taint, bias, or profiling existed based on the material reviewed.
The Law Division found defendant guilty of speeding, traveling ninety miles per hour in a sixty-five mile per hour zone, and guilty of reckless driving due to defendant's "excessive rate of speed and rapid acceleration." The court imposed the same fines as the municipal court, but it did not suspend defendant's driver's license.
On appeal to this court, defendant presents the following arguments:
THE LAW DIVISION ERRED BY NOT DISMISSING THE COMPLAINT WHEN [THE] STATE DID NOT MEET ITS BURDEN OF PROOF BY PRESENTING SUFFICIENT CREDIBLE ARTICULABLE EVIDENCE FOR THE TRAFFIC STOP.
THE LAW DIVISION ERRED WHEN IT SAID THERE WAS NO BASIS FOR RACE DISCRIMINATORY PRACTICES TO WARRANT THE CASE DISMISSED BECAUSE THE TROOPER DID NOT SEE THE DEFENDANT UNTIL AFTER THE TRAFFIC STOP. POINT III
THE LAW DIVISION ERRED IN NOT DISMISSING THE CASE, THE TROOPER'S CONDUCT AT THE SCENE AND HIS SUBSEQUENT LIES IN THE COURTROOM PROVIDED SUFFICIENT TAINT THAT BOTH CHARGES AGAINST MR. MITCHELL SHOULD HAVE BEEN DISMISSED.
THE LAW DIVISION ERRED IN NOT ACQUITTING THE DEFENDANT WHEN THE PROSECUTOR KNOWING[LY] USED FALSE TESTIMONY IN PRESENTING THE STATE[']S CASE IN ORDER TO OBTAIN A CONVICTION.
THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S REQUEST FOR ADDITIONAL VIDEO DISCOVERY FROM THE STATE POLICE. THE SECOND HALF OF THE TRAFFIC STOP CONVERSATION WHICH IS INTRINSIC TO THE DEFENSE CASE IS GARBLED. ADDITIONALLY, REQUESTED MUNICIPAL DISCOVERY WAS NEVER PROVIDED. THIS IS A VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.
THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S REQUEST FOR ADDITIONAL VIDEO DISCOVERY FROM THE STATE POLICE. THE SECOND HALF OF THE TRAFFIC STOP CONVERSATION WHICH IS INTRINSIC TO THE DEFENSE CASE IS GARBLED. ADDITIONALLY, REQUESTED MUNICIPAL DISCOVERY WAS NEVER PROVIDED. FAILURE TO PRODUCE THE ORIGINAL UNALTERED VIDEO RECORDING AND DISCOVERY VIOLATES DEFENDANT['S] SIXTH AMENDMENT RIGHTS TO CONFRONTATION.
THE LAW DIVISION ERRED BY NOT MERGING [DEFENDANT'S] RECKLESS DRIVING CONVICTION INTO HIS SPEEDING CONVICTION.
THE LOWER COURT'S FINDINGS ARE CLEARLY NOT SUPPORTED BY THE EVIDENCE AND THE FACTS DEMONSTRATE BEHAVIOR THAT RUNS COUNTER TO THAT ESTABLISHED IN BOTH THE CODE OF JUSTICE, JUDICIAL CONDUCT AND NEW JERSEY RULES OF PROFESSIONAL CONDUCT.
We conclude from our review of the entire record that all of these arguments are clearly without merit. R. 2:11-3(e)(2).
We affirm defendant's conviction for speeding because there was substantial credible evidence to support the Law Division's finding that defendant was traveling at least ninety miles per hour. However, we reverse defendant's conviction for reckless driving and dismiss the charge because it was based entirely on the same facts as his conviction for speeding.
Our task on appeal is to determine whether there is sufficient credible evidence in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). We do not engage in an independent assessment of the evidence as if we were the court of first instance. State v. Locurto, 157 N.J. 463, 471 (1999). We give deference to the factual findings of the Law Division. Ibid. "[T]he rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." Id. at 474.
It is well-established that a police officer is justified in stopping a motor vehicle when he or she has "an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." Id. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)). Police officers are trained to estimate the speed of moving vehicles. Id. at 472. A lay witness, including a police officer, can conclude whether "a car was moving fast or slow or give an estimate of its speed," when it is based on "adequate visual observation." Pierson v. Frederickson, 102 N.J. Super. 156, 162 (App. Div. 1968).
In the present matter, Vicente testified that his vehicle and defendant's vehicle were both traveling at approximately seventy miles per hour when defendant's vehicle "changed over to the left lane and disappeared." Vicente also testified that while he was traveling at a speed of 130 miles per hour, he "paced" defendant's vehicle for a quarter of a mile before activating his overhead lights. Thus, Vicente was justified in stopping defendant's vehicle for speeding. Moreover, the videotape of the stop and the testimony by Itcekova confirm that defendant was speeding.
The Law Division found defendant guilty of reckless driving based solely on his "rapid acceleration" and his "excessive rate of speed"*fn1 ----the same evidence that supported defendant's conviction for speeding. In fact, when Vicente was asked why he issued defendant a summons for reckless driving, he responded,
"Any vehicle going over a hundred miles per hour is . . . reckless." No additional evidence was presented to establish that defendant operated his vehicle "heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-96. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d, 656, 664-65 (1969) (footnotes omitted) (stating that the double-jeopardy clause "protects against multiple punishments for the same offense"); State v. De Luca, 108 N.J. 98, 108 (1987) (holding that a second prosecution is barred if it "involve[s] the same evidence as the first").
In view of the foregoing, defendant's conviction for speeding is affirmed, but his conviction for reckless driving is reversed and the charge is dismissed.