June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIMOTHY STUBBS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 42-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 12, 2012
Before Judges Axelrad and Parrillo.
Defendant Timothy Stubbs was found guilty in the municipal court of driving on the revoked list, N.J.S.A. 39:3-40. On appeal to the Law Division, R. 3:23-2, he was again found guilty of the same offense after a trial de novo. R. 3:23-8(a). Defendant appeals, and we affirm.
In the late afternoon of March 26, 2011, Officer Mathew Parrish of the Medford Lakes Police Department was on patrol duty and stopped at the intersection of McKendinen and Tabernacle Roads, when he saw a 2001 blue Saturn*fn1 driven by defendant pass in front of him, traveling at about twenty-five miles per hour. Officer Parrish, who was only fifteen feet from defendant's vehicle, recognized defendant "[o]nce he passed" from his "[p]ast contacts" with him.
Parrish followed defendant until the Saturn turned into a driveway on Tabernacle Road, at which time the officer drove past the house, executed a U-turn, and returned to the residence. By then, however, the driver was no longer in or by the vehicle, which at the time Parrish had no reason to stop because he did not yet know that defendant's driver license had been suspended. Subsequently, Parrish ran the license plate of a second vehicle parked in the driveway and discovered that it was registered to defendant's brother, Kenneth Stubbs, whose driver's license had been suspended. Consequently, on March 26, 2011, Parrish wrote out two summonses for Kenneth, charging him with violating N.J.S.A. 39:3-40, driving on the revoked list, and N.J.S.A. 39:3-36, failure to notify of change of address. Parrish realized his error in writing these summonses five days later when he knocked on the door of the Tabernacle Road residence and spoke to defendant's mother, who advised him that "Kenneth" no longer lived there but "Timothy" did. Having confirmed that defendant's driver's license was also suspended, Parrish voided the summonses for Kenneth before ever being served and instead reissued them on March 31, 2011 to defendant, charging him with the very same violations.
The matter proceeded to trial in the municipal court, where defendant's driving abstract and notice of suspension were admitted into evidence over defendant's objection. Parrish explained the mix-up and testified that it was defendant who was operating the 2001 Saturn in Medford Lakes Borough on March 26, 2011 and that there were no passengers in the car. Defendant testified on his own behalf and denied driving the vehicle on the date in question. He did acknowledge, however, that his driver's license had been suspended for a few different reasons, including convictions for driving while intoxicated (DWI), the most recent of which was in 2004. His brother Kenneth was called to the stand, but exercised his right not to testify.
After dismissing the N.J.S.A. 39:3-36 charge, the municipal court judge found defendant guilty of violating N.J.S.A. 39:3- 40, crediting Officer Parrish's account that he saw defendant, whom he knew from prior contacts, driving the vehicle in daylight and within fifteen feet. Finding the DWI enhancements applicable as this was defendant's fifth conviction, the judge sentenced defendant to a $1,506 fine, driver's license suspension for twenty-four months and thirty days in the Burlington County jail.
On trial de novo, the Law Division judge affirmed the conviction and the sentence imposed, finding (1) that the driving abstract was not testimonial in nature and therefore did not violate Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); (2) the notice of suspension attached to the driving abstract was not applicable to this case and therefore there was no Crawford violation; and (3) defendant operated the motor vehicle on the date in question in violation of N.J.S.A. 2C:39:3-40. As to the identification issue, the judge reasoned:
Now, the question really is of two parts here. One is the identification of the operator. The judge below heard the testimony of an officer by the name of Parrish. . . .
Parrish testified that the defendant operated the motor vehicle. He saw it. There was nobody else in the car with him that he had operated through the jurisdiction of the Medford Lakes Borough, and that he issued the summons for driving while suspended, because the information that he had received electronically, I think, first, and later supported by the abstract in question, was that . . . his license was suspended by the Court. And the defendant later on, when he did testify, acknowledged that he was suspended. . . .
The Court finds the testimony of . . . Officer Parrish to be quite credible for a variety of reasons. Number one, he was in a position to see what he saw, and testified he was within 15 feet or so. And he was close enough to see what he saw. It was daylight, and it simply makes sense.
He knew the defendant from previous contacts, and he knew that the person operating the vehicle was Timothy Stubbs, and I believe him. The credibility is bolstered by a good, accurate recollection of Officer Parrish withstanding rather difficult, although but effective cross-examination by [defense counsel].
Officer Parrish was put in a position of having to say, and he did, I screwed up regarding the situation with Kenneth, but that does not in my view detract from the credibility, or detract from the ultimate conclusion that it was, indeed. And so I find that Timothy Stubbs was operating the motor vehicle.
I didn't see discrepancies. I saw an officer who was sitting there telling the truth. And that truth had to outline how he seemingly committed an error in writing these tickets regarding Kenneth Stubbs. His memory was good, his testimony was clear, and I really have no difficulty in finding excellent credibility from Officer Parrish.
I believe him when he said he knew him from past contacts, and I believe that his identification both at time of Timothy Stubbs operating the motor vehicle on March 26th, et cetera, is worthy of belief.
As to the confrontation issue, the judge stated:
The second issue . . . is whether or not there was a violation of the Confrontation Clause due to the acceptance of the abstract and its contents for the purposes of not only finding that the defendant was suspended at the date and time of operation, but also for the purposes of sentencing.
. . . This is a driving abstract, and I don't find that . . . was part of what Crawford v. Washington [, supra,] had in mind.
The Courts in this state have found that a motor vehicle abstract is a writing made in the ordinary course of business, as I said earlier. It's prepared generally within a short time of the event being described therein. And that is the finding of a conviction for some motor vehicle offense or otherwise. And the source of the evidence and the method of preparation justify accepting it into evidence. This is a certified copy by a part of the government that is really not in the business of convicting a person. It's not part of the prosecutorial case, but it is part of the evidence . . . and it's not written out for the purposes of providing an element or a proof of an element.
There is also the other sections of New Jersey Rules of Evidence, 803(c)(6) and (c)(8), which talk about records of regular activity. There's State v. Zalta [217 N.J. Super. 209 (App. Div. 1987)], . . . which essentially agrees with this Court's conclusion that it is not testimonial and, therefore, is not subject to Crawford. It is an exception to hearsay when not testimonial.
I conclude that there's nothing in the record by these documents that is even similar to an affidavit or something that would be testimonial in nature. It is not. Therefore, the Crawford challenge, I find does not survive.
On appeal, defendant raises the following issues:
I. BECAUSE THE APPELLANT HAS CHALLENGED THE LOWER COURTS' INTERPRETATION OF THE GOVERNING LAW AND THE LEGAL CONSEQUENCES THAT FLOW FROM THE FACTS, NOT THE FACTUAL FINDINGS THEMSELVES, THE STANDARD OF REVIEW IS DE NOVO.
II. BOTH THE DRIVER'S ABSTRACT AND THE DOCUMENT APPENDED THERETO CONSTITUTE TESTIMONIAL EVIDENCE IMPLICATING THE SIXTH AMENDMENT, SINCE THEY PERTAIN SOLELY TO A PARTICULAR INDIVIDUAL AND ARE USED TO SATISFY AN ELEMENT OF THE PROSECUTION'S CASE-IN-CHIEF AGAINST THAT INDIVIDUAL.
III. THE INHERENT PROBLEMS WITH EYEWITNESS IDENTIFICATION ANALYZED IN HENDERSON AND CHEN APPLY WITH FULL FORCE TO THE PRESENT CASE, COMPELLING REVERSAL OF THE CONVICTION BELOW.
A. Patrolman Parrish's Identification Five Days After the Event was Objectively Unreliable Because He Effectively Administered a Lineup to Himself.
B. Patrolman Parrish's Identification Five Days After the Event was Objectively Unreliable Because His Prior Assumptions Equated to Improper Pre-Identification Instructions.
C. Patrolman Parrish's Identification Five Days After the Event was Objectively Unreliable Because He Constructed His Own Lineup with Just One Person.
D. Patrolman Parrish's Interaction with Timothy Stubbs' Mother Led to Impermissible Pre-Identification Remarks that Influenced the Identification.
E. Patrolman Parrish's Identification Five Days After the Event was Objectively Unreliable Because He Was Unduly Influenced by his "Past Contacts" with Defendant.
F. Patrolman Parrish's Identification Five Days After the Event was Objectively Unreliable Because of the Inherent Problems With Showups After Passage of Time.
G. The Relevant Estimator Variables Concerning Physical Characteristics of the Observation Further Establish that Patrolman Parrish's Identification Five Days After the Event was Objectively Unreliable.
We find no merit to any of these contentions, Rule 2:11- 3(e)(2), and therefore affirm substantially for the reasons stated by Judge Thomas Kelly in his oral opinion of November 3, 2011. We add only the following comments.
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); see also 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 find the evidence in this case established defendant was driving the motor vehicle while his license was suspended.
Moreover, the Law Division judge did not err on matters of law. In this regard, defendant contends the court should have applied the revised test for evaluating eyewitness identification evidence announced recently in State v. Henderson, 208 N.J. 208, 285-293 (2011). This new rule of law, however, applies to future cases only. Id. at 300-02.
Accordingly, the court properly applied the then prevailing Manson/Madison test in determining the admissibility of Parrish's identification, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); State v. Madison, 109 N.J. 223, 232 (1988), which considers the following factors in assessing the reliability of the identification challenged as suggestive:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
[Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]
We also concur in the judge's determination that the driver's abstract and notice of in-court suspension were not testimonial in nature, and therefore did not violate the Confrontation Clause, Crawford, supra, 541 U.S. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203, and moreover were properly admitted as business records under N.J.R.E. 803(c)(6). Unlike the laboratory certificates of analysis in Melendez-Diaz v. Massachusetts, 557 U.S. 305, ___, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321 (2009), the driver's abstract and attached notice of suspension were not created for the sole purpose of trial or as evidence against a defendant. Accordingly, the Law Division judge properly rejected defendant's Crawford challenge and did not abuse his discretion in admitting these documents into evidence.