August 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILBUR BUSSEY A/K/A WILLIAM BUSSY, BILL BUSSY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-02-00180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012 -
Before Judges Simonelli and Accurso.
Following a jury trial, defendant Wilbur Bussey was convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5 (count one) and third-degree assault by auto, N.J.S.A. 2C:12- 1c(1) and (2) (count two). Judge David Krell sentenced defendant to a five-year term, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the vehicular homicide conviction and a concurrent three-year term on the assault by auto conviction.
Defendant raises the following arguments on appeal:
POINT I DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSER WAS VIOLATED WHEN THE COURT PERMITTED A LABORATORY SUPERVISOR WHO DID NOT DIRECTLY OVERSEE THE BLOOD TEST TO TESTIFY IN PLACE OF THE CHEMIST WHO CONDUCTED THE TEST.
POINT II THE COURT ABUSED ITS DISCRETION WHEN IT PRECLUDED DEFENDANT FROM CROSS-EXAMINING [A WITNESS] ON HIS PENDING VIOLATION OF PROBATION CHARGE, WHICH WAS RELEVANT TO BIAS - NAMELY, [THE WITNESS'S] INTEREST IN CURRYING FAVOR WITH THE STATE - AND EXPLAINED WHY [THE WITNESS'S] SECOND STATEMENT WAS MORE DAMAGING TO DEFENDANT THAN THE FIRST.
Having considered these arguments in light of the record and existing law, we affirm.
Defendant's conviction and appeal arise out of a head-on collision he caused while attempting to pass an eighteen-wheel tractor-trailer on a two-lane road in a fifty-mile-per-hour zone in Vineland. The accident happened on September 20, 2005, shortly after ten o'clock on a clear, pleasant evening. Defendant himself was not seriously hurt in the crash. The driver of the other car, however, suffered extensive and severe injuries, and his passenger was killed.
Three eyewitnesses testified that defendant was driving a white Jeep Cherokee that had come up fast behind a slow-moving tractor-trailer with its right turn signal on, traveling south on Delsea Drive. When defendant pulled around to pass the truck on the left, he immediately crashed head-on into a black Mazda traveling in the northbound lane.
The two drivers traveling behind the tractor-trailer testified that defendant had passed both of them at a speed of between fifty-five and seventy miles per hour, weaving between them and then braking short behind the truck before pulling around to pass it as well. The third witness was pulling out of a driveway waiting to turn left across the northbound lane of Delsea Drive to go south. She testified that as she waited to let the tractor-trailer pass, the white Cherokee came up close behind the truck, hit its brakes, veered into the northbound lane and collided with the Mazda passing directly in front of her car. All three witnesses testified that the tractor-trailer never stopped or left the travel portion of the southbound lane.
No sobriety tests were administered at the scene, but blood samples were drawn from both drivers at the hospital. Defendant's blood alcohol level measured 0.06 percent at 12:40 a.m. when the sample was drawn. Defendant did not testify at trial, but statements he made to a detective from the Cumberland County Prosecutor's Office two months after the accident were admitted into evidence. Defendant claimed that the tractor-trailer had been driving on the right shoulder with its turn signal on when he began to pull around it in the southbound lane, but that he was forced to swerve sharply to the left when the truck swung back into the lane without warning. He admitted to drinking three beers between five-thirty and nine o'clock on the night of the accident, but believed that it had nothing to do with the cause of the crash. Defendant's counsel argued to the jury that the accident was likely caused by a blow-out of one of the Cherokee's tires.
The State presented two expert witnesses to testify about defendant's blood alcohol content at the time of the accident. Mark Maxwell, the forensic scientist in charge of the toxicology unit at the State Police South Regional Laboratory in Hammonton, testified to the procedures the lab follows in handling, storing, and testing a blood sample for alcohol content. Maxwell explained the workings of the head space sampling unit and the gas chromatograph the lab uses to prepare and analyze the samples. He also explained his role in supervising and reviewing the work of the analyst who conducted the analysis of defendant's blood sample.*fn1 Maxwell explained that he peer reviewed the certified lab report prepared by the analyst, the toxicology worksheets, the alcohol analysis reports generated by the computer, and the drug analysis at the time the analyst prepared the report on defendant's blood in October 2005, and that he again reviewed those same documents in preparing for trial. He testified that he found no discrepancies or errors in the work in either review, and that his independent review of the worksheets and the alcohol analysis reports led him to the same conclusion the analyst had drawn that defendant's blood alcohol level was 0.06 percent at the time the sample was taken. The State did not seek to admit into evidence the certified lab report or any of the underlying documents contained in the lab case packet but relied only on Maxwell's testimony.
The State also presented the testimony of Dr. John Brick, who holds a Ph.D in biological psychology. Relying on defendant's 0.06 percent blood alcohol reading, his personal characteristics, his statement that he consumed three beers between five-thirty and nine p.m., and certain assumptions about how his body would absorb, metabolize and eliminate alcohol, Dr. Brick testified that defendant's probable level of intoxication at the time of the accident was between 0.07 to 0.11 percent, with a margin of error of plus or minus 0.01 percent.
Defendant challenged that testimony by presenting Dr. Richard Saferstein, a forensic toxicologist with a Ph.D in chemistry and the former chief forensic scientist at the New Jersey State Police Laboratory. Dr. Saferstein did not attempt to perform his own retrograde extrapolation of defendant's blood alcohol content at the time of the accident as Dr. Brick had done. Dr. Saferstein opined that he could not draw any conclusion as to whether defendant was in an impaired state at the time of the accident to a reasonable scientific certainty because of the absence of or uncertainty surrounding several facts critical to such an analysis.
On appeal, defendant argues that he was denied his rights under the Confrontation Clause when the trial judge permitted a lab supervisor who did not directly oversee the analysis of defendant's blood sample to testify in place of the chemist who conducted the test. It is an understatement to say that the United States Supreme Court's post Crawford*fn2 Confrontation Clause jurisprudence is in a state of flux. The Justices themselves remark regularly on the condition. See, e.g., Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 2726, 180 L. Ed. 2d 610, 633 (2011) ("That the Court in the wake of Crawford has had such trouble fashioning a clear vision of that case's meaning is unsettling; for Crawford binds every judge in every criminal trial in every local, state, and federal court in the Nation.") (Kennedy, J., dissenting).
Although the United States Supreme Court has not yet plotted a clear course in this area, some waypoints are now visible. The certified lab report of defendant's blood alcohol content qualifies as testimonial evidence and thus may not be introduced against the accused at trial unless the analyst who wrote the report testifies at trial or is unavailable and the accused has had a prior opportunity to confront that witness. Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 621 (holding that "the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess 'the scientific acumen of Mme. Curie and the veracity of Mother Teresa'" (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 n.6, 129 S. Ct. 2527, 2537 n.6, 174 L. Ed. 2d 314, 327 n.6 (2009)). Our courts had already determined this to be the law in the wake of Crawford. See State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007); State v. Berezansky, 386 N.J. Super. 84, 89 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008). Acknowledging this requirement, the prosecutor here did not attempt to admit into evidence the certified lab report or any of the underlying documents contained in the lab case packet.
While the questions presented by this case are ones that Justice Sotomayor in her concurrence in Bullcoming acknowledged had not then been addressed by the Supreme Court, namely whether the State can present the testimony of " a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue," or ask an expert witness "for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence*fn3 ," Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2721-22, 180 L. Ed. 2d at 628-29 (Sotomayor, J., concurring), we believe our own precedents provide sufficient guidance to resolve these questions within the context of this case.
As we noted in State v. Rehmann, 419 N.J. Super. 451 (App. Div. 2011), experts and their opinions are not fungible.
[T]he Confrontation Clause is not satisfied by calling just anyone to the stand to testify about laboratory tests or other scientific results. A "straw man" will not do. The State must provide a witness who has made an independent determination as to the results offered. The right of cross-examination must be meaningful and is not satisfied when the State calls a witness whose knowledge is limited to the four corners of the laboratory certification produced and executed by another. [Id. at 457-58 (footnote omitted).]
But here the State did not call "just anyone" to testify about the analysis of defendant's blood sample. The State called the supervisor of the toxicology unit performing the analysis who was responsible for the administrative review of the completed report and who peer reviewed the substantive analysis before the results were certified for release to the prosecutor's office.*fn4
Maxwell testified at length about the lab's procedures for testing blood for its alcohol content and about the workings of the instruments and machines the lab employs in performing the work. He explained that he is responsible for insuring that the lab's equipment is in good working order and that it was in good order on the day the sample at issue here was drawn. Although Maxwell was not looking over the analyst's shoulder as the test was run, as in Rehmann, he contemporaneously reviewed the work product in accordance with the lab's protocol, finding no errors or discrepancies.
Finally, Maxwell testified that he undertook another review of the entire case packet before trial and that based on those materials, independently concluded that defendant's blood alcohol level was 0.06 percent at the time the sample was drawn. Given Maxwell's substantive involvement in peer reviewing the results of the analysis of defendant's blood at the time the test was run, his familiarity with the testing process and the lab's protocols in conducting the work, and his ability to independently evaluate the printouts from the gas chromatograph, the worksheets, and the analyst's bench notes to offer his own opinion that defendant's blood alcohol level was 0.06 percent at the time the sample was drawn, we conclude that Judge Krell did not err in admitting Maxwell's testimony.*fn5 Rehmann, supra, 419 N.J. Super. at 457-58.
Defendant also contends that the trial judge erred in precluding defendant from cross-examining an eyewitness on a pending violation of probation charge. We find no error.
One of the two drivers traveling behind the tractor-trailer gave a statement to police on the night of the accident. Shortly before trial, the witness gave another statement to prosecutors trying the case. In that second statement, the witness related new information that defendant appeared intoxicated after the crash. The prosecutor provided this new information to defense counsel, but elected not to elicit the testimony at trial. The prosecutor, however, did ask the witness about a criminal mischief conviction against him occurring two years after the accident.
On cross-examination, the witness admitted to four convictions. Defense counsel then inquired about a pending violation of probation, apparently lodged two days before his second statement.*fn6 The prosecutor objected, and the court excused the jury to conduct a Rule 104 hearing. After hearing argument, the court found that, with the exception of the testimony as to defendant's intoxication, which the prosecution did not elicit, the witness's two statements were entirely consistent and disallowed any reference to the pending violation of probation.
Defendant contends that he was not attempting to use the pending violation of probation to impeach the witness on the basis of his prior criminal record (an effort barred by State v. Jenkins, 299 N.J. Super. 61, 75 (App. Div. 1997)), but rather to show bias based on the expectation that he might receive a more lenient sentence in light of his cooperation with the prosecution. See State v. Spano, 69 N.J. 231, 235 (1976). Defendant contends that his inability to effectively cross-examine the witness in this fashion denied him his rights under the Confrontation Clause.
Trial courts command wide latitude to impose reasonable limits on cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986) (trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on defense counsel's inquiry into potential bias of a prosecution witness). Leaving aside the witness's recent revelation as to defendant's intoxication, which the prosecutor determined not to question him about, the only difference defense counsel could point to between the statements was some additional detail about defendant nearly clipping the witness's car as defendant passed him. As we agree that on these points, the witness's statements given five years apart were entirely consistent, we find no error in Judge Krell having limited the cross-examination to exclude any reference to the witness's pending violation of probation.