April 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL J. SCHRECK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 38-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012 -
Before Judges Messano and Kennedy.
Defendant Daniel J. Schreck appeals from a judgment of the Law Division finding him guilty of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50(a). Defendant was arrested by New Jersey State Police on August 28, 2008, for DWI, reckless driving, contrary to N.J.S.A. 39:4-96, and speeding, contrary to N.J.S.A. 39:4-98. Defendant was initially tried over several non-consecutive days between February 19, 2010 and September 16, 2010, in the Stafford Township Municipal Court. On October 22, 2010, the municipal court judge found the defendant guilty of DWI based upon the Alcotest readings and the "observational prong" of the DWI statute.*fn1 On February 25, 2011, defendant's de novo appeal was heard in the Law Division and on February 28, 2011, the trial judge found defendant guilty of DWI on the basis of both the Alcotest reading and the observational prong of the statute.
Defendant presents the following arguments on appeal:
THE APPLICABLE STANDARD OF REVIEW IS WHETHER THE LAW DIVISION RULING WAS BASED UPON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD. THE SO-CALLED "TWO-COURT RULE" SHOULD NOT APPLY TO THIS CASE.
THE LAW DIVISION ERRED IN FAILING TO EXCLUDE THE BREATH TEST RESULT USED IN THE PER SE D.W.I. CONVICTION OF DEFENDANT. BECAUSE THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT DEFENDANT WAS CONTINUOUSLY OBSERVED FOR TWENTY MINUTES BEFORE ADMINISTRATION OF THE TEST. MOREOVER, THE LAW DIVISION ALSO ERRED IN FAILING TO APPLY THE CORRECT LEGAL STANDARD TO ITS FACTUAL FINDINGS ON THE ISSUE.
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW PUSUANT TO THE FOURTEENTH AMENDMENT AND ART. 1, PAR. 1 OF THE NEW JERSEY [CONSTITUTION] WAS VIOLATED BY THE "SPOILATION" OF EVIDENCE CAUSED BY THE PURPOSEFUL PLACEMENT OF DEFENDANT SO AS TO OBSTRUCT THE VIDEO CAMERA'S VIEW OF DEFENDANT'S FIELD SOBRIETY TESTS. THUS, ANY EVIDENCE DERIVED FROM SUCH TESTS SHOULD BE EXCLUDED.
A. The police conduct of blocking the video of defendant's field sobriety tests without justification constitutes prima facie or sufficient evidence of "bad faith" requiring exclusion of the field sobriety evidence as a due process violation.
B. If "bad faith" is not found, this court should nevertheless find a due process spoliation of evidence violation based on the State Constitution and fundamental fairness to defendant as expressed in the Arizona v. Youngblood concurring opinion of Justice Stevens and other jurisdictions.
THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF THE OBSERVATIONAL PRONG OF THE D.W.I. STATUTE. THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO CONVICT AND IT WAS ERROR TO CONVICT AND IT WAS ERROR TO CONSIDER THE PER SE READING AS PART OF THE OBSERVATIONAL PRONG.
We have considered defendant's arguments in light of the facts and applicable law and we affirm.
We briefly recite the evidence presented in the municipal court, which formed the record on appeal before the Law Division. R. 3:23-8(a). In reviewing a de novo Law Division judgment following a municipal court appeal, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). We do not "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)) (internal quotation mark omitted). However, the legal determinations of the Law Division are not entitled to any special deference and we review those decisions de novo. State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).
At approximately 7:20 p.m. on August 28, 2008, State Trooper Curtis Sand was assigned to patrol the Garden State Parkway when defendant passed him at a speed in excess of the posted limit. As he passed the stationary trooper, defendant "hit his brakes real hard and almost lost control" of his car. Sand stopped defendant's vehicle on the right shoulder of the Parkway and activated the on-board video camera in his patrol car.
In speaking with the defendant, the trooper noted a "strong odor of alcohol emanating from inside the vehicle" and observed that defendant's speech was "slow and slurred" and that his eyes were "bloodshot and watery." Defendant's hand movements were also "slow", and he was generally "very sluggish."
At Sand's request, defendant got out of his car and walked to a point just beyond the car's front-end. Sand's patrol vehicle was stopped behind defendant's car and so the video camera recorded defendant and the trooper basically from the waist up. Sand positioned defendant with his back to the camera and the trooper stood in front of him facing in the direction of oncoming traffic. He asked defendant to recite the alphabet from C to V but defendant was unable to complete the recitation as instructed. Next, Sand asked defendant to walk several paces forward and back in a heel-to-toe step but defendant "wasn't able to complete the test." He did not walk in a straight line, did not walk with his heel and toe in contact and raised his arms for balance. When asked to undertake a one-leg-stand, defendant swayed and "never lifted his foot up off the ground." In response to questions from Sand, defendant admitted initially that he had one or two beers in Point Pleasant and thereafter revised that number upward to eight or nine beers.
Sand arrested defendant for speeding, reckless driving and DWI and transported him to the Bass River State Police substation. Upon arrival, defendant was placed briefly into a holding cell while Sand secured his handgun. Thereafter, defendant was taken into a "processing room" where he was observed for twenty minutes by Sand who utilized a stop watch to time his observation. Defendant did not burp, vomit or put anything in his mouth. Sand read defendant the standard statement form about providing a breath sample and defendant agreed to give the requested sample.
Following that, Trooper Stephen J. Burns entered the room to administer the Alcotest. The first ambient air blank check was undertaken at 8:18 p.m. that evening but the machine malfunctioned. Accordingly, Burns utilized another machine on which the first ambient air blank check was read at 8:28 p.m. Burns stated he had defendant under his observation the entire time he was in the processing room. During that time, defendant did not burp, regurgitate or put anything into his mouth. The test produced two readings of .217 percent blood alcohol concentration (BAC) and .232 percent.
Defendant testified that he had been at the racetrack that day and had about six beers over a four or five hour period and left the track at 5:00 p.m. He also contended that he had had prostate surgery and leg problems and was overweight, which caused him to walk slowly. He also testified that he had trouble hearing in his left ear and, as a consequence, had difficulty understanding the officer's instructions during the field tests. Defendant also contended that he was left alone in the processing room for a period of time and that, when the initial test failed, he was placed back into a holding cell where he was left alone and unobserved. He was then brought back to the processing room for the second test.
The municipal court judge (MCJ) found the troopers to be credible and the testimony of the defendant not to be credible. He specifically found that Sand had defendant "under observation for twenty minutes continuously and that Sergeant Burns had him under constant observation for at least a period of twenty minutes until the testing on the machine was fully complete." Based upon the blood alcohol readings, the MCJ found defendant guilty of DWI and further found "beyond a reasonable doubt that, based on observations alone", defendant was guilty of operating a vehicle under the influence of alcohol. He also found the defendant not guilty of speeding or reckless driving.
Upon de novo review of the municipal court record, the Law Division judge found:
[t]he testimony is that Trooper Sands observed the defendant for twenty minutes with a stop watch and Trooper Burns, Sergeant, observed him for more than twenty minutes; twenty minutes before the first test which was aborted and then again for the second test, between the first and second test. Both of them testified that there was no regurgitation, no burping, no putting of anything in one's month. The combined observation period of the two troopers was well over the twenty minutes that the law required.
The trial judge "defer[red] to the [MCJ's] determination with regard to credibility."
The trial judge found that the troopers' testimony, both Trooper Sand and Sergeant Burns, was credible. There was observation for twenty minutes at least. There was no evidence of any burping, regurgitation, vomiting or eating. That being the case, it's my finding that the Alcotest reading, which I believe was .21, was appropriately admitted and I am going to find that there was proof on a per se beyond a reasonable doubt that the defendant is guilty of driving while intoxicated.
The judge also found sufficient evidence, predicated upon his review of the testimony before the municipal court and the videotape, to conclude based upon the "observational prong" that the defendant was driving while intoxicated.
The Alcotest has been held to be "generally scientifically reliable," and its results are admissible to support a per se violation of N.J.S.A. 39:4-50(a). State v. Chun, 194 N.J. 54, 65 (2008). As a pre-condition to the admissibility of Alcotest results, the device's operator "must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol" and to ensure that the test subject has not swallowed anything, regurgitated, or chewed gum or tobacco. Id. at 79. The State must establish compliance with the observational procedure by clear and convincing evidence. Ugrovics, supra, 410 N.J. Super. at 489-90.
Defendant initially contends that the "two-court rule" should not apply because the Law Division findings and the findings of the MCJ "are sufficiently different on the substantive issues." The rule of deference, is compelling where the municipal and Law Division judges have made concurrent findings. Locurto, supra, 157 N.J. at 474. "Under the two-court rule, appellate courts ordinarily should not overturn the concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). We do not perceive any material difference between the Law Division's determination and the determination by the MCJ sufficient to establish a "very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474. Consequently, we reject defendant's argument that the "two-court" rule should not apply.
Defendant next contends that the Law Division erred by concluding that the State satisfied the heightened standard of clear and convincing evidence that observations were made of defendant for twenty minutes before the test was administered. Appellate courts, as noted, defer to the factfindings of a trial court. Locurto, supra, 157 N.J. at 474. Clear and convincing evidence "should produce in the mind of the finder of fact a firm belief or conviction as to the truth of the allegations sought to be established." In re Purrazzella, 134 N.J. 228, 240 (1993) (internal quotations and citations omitted). It must also be "'so clear, direct and convincing as to enable [a judge] to come to a clear conviction, without hesitancy, of the truth of the precise facts and issues.'" In re Seaman, 133 N.J. 67, 74 (1993) (quoting In re Boardwalk Regency Corp., 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)).
From our review of the record, taking into account the direct and consistent testimony of Sand that defendant was observed for twenty minutes prior to the administration of the first failed test and Burns that he observed defendant for another twenty minutes prior to the second, successful test, we conclude that the determination of the Law Division is amply supported by the record. The Law Division specifically found that the State proved the charge of DWI beyond a reasonable doubt and that the troopers did observe defendant for twenty minutes on each occasion.
Moreover, we reject defendant's contention that the Law Division, by failing to reference the "clear and convincing evidence" standard, did not employ that standard. The Law Division judge specifically found defendant guilty beyond a reasonable doubt predicated upon his review of the evidence. The trial judge undertook an exacting and meticulous examination of all the evidence and explicitly agreed with the MCJ that the State proved its case beyond a reasonable doubt. Both courts made substantially similar findings of fact and credibility such that their concurrent findings should be afforded appropriate deference. Both courts specifically found Sand and Burns credible and both courts similarly found defendant's testimony to be incredible.
Further, we find that the Law Division judge's determination that defendant was guilty of DWI based upon the observational prong was supported by sufficient credible evidence. Defendant had operated his vehicle at a high rate of speed, failed to follow instructions on the walk-and-turn test, performed poorly on the alphabet test and admitted consuming nine beers. He was wholly unable to complete the one-leg-stand test. A strong odor of alcohol emanated from defendant's car and defendant slurred his speech and his movements were sluggish. These factual findings are materially consistent.
"[A] violation of N.J.S.A. 39:4-50(a), may be proven 'through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level.'" State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006)(citing State v. Kashi, 360 N.J. Super. 538, 545 (App. Div.), aff'd, 180 N.J. 45 (2004)). In order to prove defendant's intoxication, the State could rely upon such evidence as a defendant's driving, defendant's demeanor and physical appearance, as well as "the smell of alcohol, an admission of the consumption of alcohol, or a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 588-89 (2006).
The observations that Sand made of defendant's driving and of defendant himself, as well as defendant's performance on the field tests, were sufficient to allow the trial judge to determine beyond a reasonable doubt that defendant was guilty of driving while intoxicated. See State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007); State v. Cryan, 363 N.J. Super. 442, 455-56 (App. Div. 2003).
Finally, defendant contends that the State nonetheless violated his due process rights by placing defendant on the scene in such a matter as to partially obstruct the video cameras recordation of defendant's performance of the failed sobriety tests. We find this contention to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we observe that the State has no affirmative obligation to create a videotape of defendant's failed sobriety tests. State v. Gordon, 261 N.J. Super. 462, 464-66 (App. Div. 1993). The videotape was entered into evidence without any objection by defendant and did not obscure the statements and actions of either Sand or defendant.
To support a due process violation, defendant must show that the evidence had an exculpatory value that was apparent before it was destroyed and that he is unable to obtain comparable evidence by other reasonably available means. See generally State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009). If a defendant could only show that the evidence was potentially useful, and not that it had actual exculpatory value, he must establish that the evidence was destroyed in bad faith. Id. at 103. Defendant essentially speculates that an unobstructed view of his feet during field sobriety tests would have led to his acquittal on the DWI charge. The record does not support this allegation. There is no showing whatsoever that a full view of defendant would have materially affected the outcome of this case. Mustaro, supra, 411 N.J. Super. at 102-03.
Additionally, the record is devoid of any suggestion that the trooper's positioning of defendant at the scene was undertaken in order to compromise the evidentiary value of the record made by the video camera. The trooper and defendant were parked beside a busy highway. It is specious to suggest that placing two vehicles between defendant and the trooper, and oncoming traffic, was consciously planned to obscure a video recording.