Opinion
DOCKET NO. A-6091-12T2
06-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANNY COLLINS, Defendant-Appellant.
Jonathan A. Kessous argued the cause for appellant (Garces, Grabler & LeBrocq, attorneys; Mr. Kessous, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 59-2012. Jonathan A. Kessous argued the cause for appellant (Garces, Grabler & LeBrocq, attorneys; Mr. Kessous, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). PER CURIAM
Defendant Danny Collins appeals from the Law Division's July 3, 2013 order finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96, after a trial de novo on the record. He was also found guilty of improper passing, speeding and unsafe lane change: motor vehicle offenses that were merged into the reckless driving conviction by the municipal court. As a third-time DWI offender, defendant was sentenced to 180 days in county jail, his driver's license was suspended for ten years and an interlock device was placed on his vehicle for three years following the license suspension. He also was sentenced to various mandatory fines and penalties. We affirm.
Defendant was arrested for his fourth DWI pending sentencing.
Defendant was involved in an early-morning three-car accident. Another driver testified that at approximately 2:00 a.m. on April 2, 2011, he was driving home by himself, through a single-lane construction zone. He became aware of two cars behind him, both driving much faster than he was. A red Jaguar passed him on the left and lost control in front of him. He recalled seeing smoke emanating from the Jaguar and seeing the driver's door facing him. Having no time to stop, he struck the Jaguar. The second vehicle then struck his car from behind, which pushed his car into the Jaguar again. Both his car and the Jaguar then crashed into the highway barrier. The driver of the car that had hit him from behind got out of the car and fled the scene. The Jaguar, which was driven by defendant, was heavily damaged. Although defendant attempted to drive the car away, it came to a stop a few hundred yards down the road.
The officer who responded to the accident testified to the following. He saw three vehicles: two at the accident scene and a red Jaguar further down the road. Defendant was sitting on the highway's concrete barrier by the Jaguar. Defendant's breath smelled of alcohol and his eyes were bloodshot and watery. Defendant told the officer that he was not injured or in pain and agreed to take a field sobriety test. Defendant was swaying and sagging, and did not follow instructions. After having trouble walking a straight line, defendant stated for the first time that he was in pain and unable to complete the test. An ambulance took defendant to the hospital. When defendant left the ambulance, the inside of the ambulance smelled like alcohol. Defendant said he had just come from a pub where he had "a few beers and one shot . . . ."
At the hospital, a nurse drew two vials of defendant's blood in "a medically acceptable manner." Neither party asked the nurse if she shook or inverted the vials. At trial, after the nurse and the other witnesses had been dismissed, defense counsel sought to suppress the blood testimony because the nurse did not testify that the blood vials had been inverted or shaken as defense counsel asserted was necessary to get a reliable reading.
The judge also denied defense's request to have his expert testify concerning blood vial procedures because he did not provide a report on this issue during discovery, and it was now mid-trial.
The State called a forensic scientist and the assistant lab director of the East Regional Laboratory of the New Jersey State Police, neither of whom had certified the laboratory result. The scientist who had performed the tests was unavailable because she was on medical leave. Defense counsel's objection to these substitute witnesses based on a violation of the Confrontation Clause was overruled by the municipal judge.
"[T]he Confrontation Clause contained in the Sixth Amendment, which applies to the states by way of the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." State v. Rehmann, 419 N.J. Super. 451, 454 (App. Div. 2011).
The forensic scientist, certified in blood alcohol analysis, testified about the testing procedure generally, as well as her personal involvement with the testing of defendant's blood. She testified that the procedure was to "literally sit next to" the scientist opening the blood vial who reads the case number aloud to prevent a "mix up." She testified that she performed that function with the non-testifying scientist in this matter, and personally observed the scientist place defendant's blood sample into the machine, which, once the correct buttons were pushed, automatically generated a report. When asked, she agreed that she had no "independent recollection" of this particular test and relied upon what was normally done, as well as on the computer-generated reports and laboratory worksheets and notes, some of which she initialed, and some of which were initialed only by the non-testifying scientist.
The assistant lab director testified that the laboratory report, entitled "New Jersey State Police, Office of Forensic Sciences, Certified Laboratory Report, Toxicology Analysis," signed by the non-testifying scientist, reported that defendant's blood alcohol level was .136. She stated that her job was to determine if the conclusions of the other scientists were correct based on the data entered in the instrument. The witness was able to "correlate" the information from the instrument to the information contained in the prepared documents.
A per se violation occurs when the driver's blood alcohol content (BAC) measures at or above the prohibited level, which, pursuant to N.J.S.A. 39:4-50(a), is .08%. State v. Campbell, 436 N.J. Super. 264, 268-69 (App. Div.), certif. denied, 220 N.J. 208 (2014).
The municipal judge found defendant guilty of DWI based on both the observational evidence and the BAC. On appeal to the Law Division, defendant asserted that the municipal judge should have disqualified herself because she was married to a New Jersey state trooper and the testifying forensic scientists were employees of the New Jersey State Police. Defendant further argued that the State had shifted its burden to defendant to prove that the blood vials were properly "inverted" after defendant's blood was drawn, and that defendant's Confrontation Clause rights were violated by his inability to cross-examine the scientist who actually performed the blood analysis.
The Law Division found defendant guilty of DWI based solely on the officer's observations, indicating that it was thereby "quelling" defendant's concerns about the municipal judge's neutrality, purported violations of the Confrontation Clause, or allegedly improper blood-drawing procedures.
On appeal, defendant raises the following single issue:
POINT I: THE LAW DIVISION ERRED BY GIVING DUE DEFERENCE AND AFFIRMING THE CONVICTIONS OF [THE MUNICIPAL COURT JUDGE], A SITTING MAGISTRATE THAT WAS ETHICALLY OBLIGATED TO RECUSE HERSELF PRIOR TO TRIAL. THE APPARENT CONFLICT AND EXHIBITED BIAS OF THE SITTING MUNICIPAL COURT JUDGE TOWARDS THE STATE AND ITS VIOLATIVE DUE PROCESS APPLICATIONS REQUIRE VACATING AND DISMISSING THE CONVICTIONS.
The Law Division found defendant guilty based on observational evidence alone, even though the municipal court judge allowed the laboratory certificate into evidence, which had reflected a BAC reading above the legal minimum for a per se finding of guilt. In similar circumstances, we have indicated that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citation omitted). Our review is "limited to determining whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012), (quoting [State v. Johnson, 42 N.J. 146, 162 (1964)]), aff'd, 219 N.J. 584 (2014).
Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. [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 facts 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) (citations omitted).]
In reviewing a trial judge's conclusions in a non-jury case, substantial deference is given to the trial court's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). These findings should only be disturbed when there is no doubt that they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Id. at 412. Sufficient credible evidence in the record supported a finding of guilt based on the testimony of another driver and the observations of the police. Defendant was driving too fast and was unable to control his car. His breath smelled of alcohol and his eyes were bloodshot and watery. He was unable to follow instructions or walk a straight line, and only complained of pain when his inability to perform the field sobriety tests became apparent.
Intoxication may be proven by evidence of a defendant's physical condition. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "The statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). In State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), we upheld a DWI conviction, finding that slurred speech, disheveled appearance, bloodshot eyes, alcoholic odor on breath and abrasive demeanor were evidence of defendant's intoxication.
Similarly, in State v. Kent, 391 N.J. Super. 352, 356-57 (App. Div. 2007), we found the following observational testimony sufficient to determine that defendant had committed a DWI: an odor of alcohol on defendant's breath; defendant's watery and bloodshot eyes and his slurred speech; the violent nature of the accident; testimony that defendant had consumed five beers; and defendant's behavior, which changed from cooperative to antagonistic. We concluded:
We recognize that each of the factors indicating defendant's intoxication . . . may be singularly insufficient. However, we are satisfied that those numerous factors, when considered in combination, are more than ample to support the conclusion that defendant was driving under the influence when he flipped over his automobile . . . .Here too, more than sufficient evidence of DWI was produced, even without the BAC results.
[Id. at 384.]
Defendant further asserts that the municipal court judge had a "responsibility to disqualify" herself due to the appearance of bias because her husband was a lieutenant in the New Jersey State Police and "State Police employee[s]" were known to be testifying in this matter. We affirm the Law Division, which based its findings on the observational evidence that was independent of the testimony by employees of the state laboratory, and not the BAC which was dependent on that testimony. Thus, we need not address defendant's argument, nor do we review the findings of the municipal court. Nonetheless, we think it appropriate to note that the municipal court's reasonable evidentiary rulings do not indicate bias, nor does the fact that she was married to a state trooper appear to us to be cause for her recusal.
Judicial disqualification rules "are designed to address actual conflicts and bias as well as the appearance of impropriety." State v. McCabe, 201 N.J. 34, 43 (2010). Canon 3(C)(1) of the Code of Judicial Conduct states that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . . ." Ibid. "The mere appearance of bias in a judge — however difficult, if not impossible, to quantify — is sufficient to erode respect for the judiciary." In re Advisory Letter No. 7-11 of the Supreme Court Advisory Comm., 213 N.J. 63, 70 (2013).
Defendant relies on Advisory Letter No. 7-11, supra, which was decided approximately seven months after the conclusion of the municipal court proceeding. There, the son of a chief municipal court judge had become a police officer in the same municipality where his father presided. Id. at 66. The Court held that "because a fully informed and reasonable person, particularly a litigant, could question the judge's ability to be impartial in issuing rulings on matters concerning his son's law enforcement colleagues[,]" the municipal court judge was prohibited from hearing cases "involving police department officers and employees who serve with his son in the same municipality . . . ." Ibid. In reaching its decision, the Court stated:
[The judge] must render final judgment on the credibility of his son's colleagues, some of whom may be his supervisors, others of whom may be his partners on patrol, and many of whom may be his friends. In some instances, [the judge] might have to issue adverse rulings against the police department that would be extremely displeasing to [his son's] fellow officers. It would not be unnatural for any father to ponder the consequences of his decisions on the life and career of his son — even if he were to do his best to disregard such extraneous considerations in deciding a case. It is the appearance of the conflict between public duty and filial ties that will strain public confidence in the integrity of the judicial process.The Court also cited a case in which "an Essex County trial judge, whose son was an assistant prosecutor in the same county, was required to disqualify himself from hearing criminal cases presented by the Essex County Prosecutor's Office." Id. at 73 (citing State v. Connolly, 120 N.J. Super. 511, 514-15 (App. Div.), certif. denied, 62 N.J. 88 (1972)). The Court stated:
[Id. at 76-77.]
It made no difference that 'the judge's son never participated in any way in the preparation of the case or the conduct of the trial.' The disqualification provision of Rule 1:12-1(b) applied because '[t]he judge's son was, at least, an office associate of the attorney who tried the case for the prosecutor.'
[Ibid. (internal citation omitted).]
In those cases, unlike here, the repercussions from the judge's rulings could reasonably be expected to flow to the judges' sons, who were working in the same municipality or office as the potential witness. A much more attenuated connection exists between a municipal court judge's state trooper-husband and state laboratory forensic scientists, who review evidence samples from all over the State of New Jersey, and are not part of the uniformed branch of the state police. Thus the municipal court judge was not required to recuse herself from this trial because a scientist from the state police laboratory was expected to testify. Such an elevated standard of "purity" for judges would be impractical as well as unnecessary.
We note that the New Jersey State Police, Office of Forensic Sciences has four laboratories located across the state. At oral argument, the State represented that these laboratories process samples from local law enforcement agencies in every county other than Union County. --------
Our Supreme Court has stated that the most important question that must be answered when a claim is made challenging a judge's impartiality is: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" DeNike v. Cupo, 196 N.J. 502, 517 (2008). The Court recently added "an element of objective reasonableness." In re Reddin, 221 N.J. 221, 234 (2015). Thus, the question becomes whether there is "a reasonable basis to doubt the judge's behavior." Ibid. No such reasonable basis existed here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION