Opinion
DOCKET NO. A-4945-14T1
04-28-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD HOWES, Defendant-Appellant.
Marianne F. Auriemma, attorney for appellant. Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 17-07-14. Marianne F. Auriemma, attorney for appellant. Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a May 13, 2015 Rule 3:23 trial de novo in the Law Division, defendant Richard Howes was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Appropriate fines and penalties were imposed. We affirm.
We summarize the State's proofs at the municipal trial. On May 7, 2013, Michael Burns, a police officer retired after twenty-nine years of service, was working as a security guard outside of a funeral home. At around 5:00 p.m., defendant approached the entryway and leaned up against a column. He was dressed informally and covered in red cement dust.
For about the next thirty or forty minutes, as people passed by, Burns heard defendant repeat over and over that "he had worked hard all day, he was cutting block, and he didn't know if he should go in." Burns smelled alcohol on defendant's breath from a distance of four feet. Concerned that defendant was intoxicated and might operate a motor vehicle in that condition, Burns alerted Vernon Township Police Officer Stephen Gentle. Gentle had been assigned to direct traffic during the commemorative services taking place at the funeral home.
Gentle watched defendant as he entered, then exited, the funeral home. Defendant's steps were "staggered," and his feet were wide apart as he walked away out of sight. He returned two to three minutes later, this time driving a car. Gentle signaled defendant to pull over into an adjoining parking lot. Gentle opined that defendant was confused as he attempted to park: "he stopped in what was not a good spot, so I have to go over, and it appeared that that was where he was going to leave his vehicle, so I had to go over and actually direct him into a parking spot so that he wouldn't interfere with the traffic."
Gentle immediately smelled the odor of alcoholic beverages emanating from defendant's person as he approached the vehicle. Defendant admitted to the officer that he had consumed three beers. When defendant stepped out of the car at Gentle's direction, he did not appear "very steady[,]" intermittently leaned on his vehicle for support, and kept his feet wide apart to maintain his balance.
Gentle, whose encounter with defendant was videotaped, at one point told him that if he did not cooperate, the matter could become criminal in nature. When asked on cross-examination to explain his meaning, Gentle responded that defendant's demeanor seemed "unsure[,]" and that he appeared hesitant as to whether he intended to cooperate. At first, defendant did not answer questions directly, and he repeatedly presented the officer with a PBA card. Gentle concluded that defendant was "considering his options[,]" such as running away or attacking him. Defendant kept repeating phrases such as "I'm done" or "you're going to lock me up[] anyway[.]"
After the field sobriety tests, defendant was arrested for DWI. While attempting to perform the walk and turn test, he raised his arms and failed to turn in compliance with the instructions. He did not seem to comprehend them even though Gentle repeated the directions multiple times.
Defendant also struggled to complete the one-leg stand test. He "didn't appear to be either understanding or willing to continue . . . ." Gentle demonstrated the test twice, and when defendant tried to complete it, he lost his balance. It was at that point that Gentle stopped the testing and arrested defendant. During the drive to the station, Gentle again smelled the odor of alcohol emanating from defendant's person.
Officer Harry Russo, who administered the Alcotest that produced defendant's .24 blood alcohol content (BAC) reading, also testified. The foundational documents for the admission of the Alcotest were introduced through his testimony. One of those documents, the Alcotest 7110 calibration certificate part one — control test had the printed date "01/10/2012" struck through and the year "2013" written over it. The initials "JS" were written underneath. The part two linearity tests record also indicated in print that they were conducted on January 10, 2012, and at the bottom of the first page, the year "2012" had a line drawn over it, the year "2013" was written below, and the initials "JS" added. Trooper John Surowiec had tested the machine and documented operability.
Defendant's objections to the admission of the documents because of the handwritten notations, and ultimately the Alcotest result itself, were overruled. Counsel argued that under State v. Chun the tests were unreliable and the documents inadmissible, and that, in the alternative, the documents were inadmissible hearsay not included within the scope of the business record exception. The judge nonetheless admitted all the documents regarding operability into evidence. He noted that the paperwork was completed in the beginning of the year, and it was therefore unremarkable that the trooper would have typed in the wrong year; he described it as an innocent "scrivener's error." In his view, since defendant did not claim that the machine was operating incorrectly, and all the other necessary documents were correct, the documents were admissible as a business record, and the actual year of calibration was 2013, not 2012. After convicting defendant on the Alcotest result, the judge also found him guilty based on the officers' observations and his "physical activities and the way he looked and performed the test[s.]"
State v. Chun, 194 N.J. 54, 142-43 (2008).
On the de novo appeal, the Law Division judge issued an order sua sponte to supplement the record regarding the calibration report. He also issued a subpoena to Surowiec. At the trial de novo, Surowiec testified in response to the judge's questioning that when performing the operability tests, he typed in the wrong date, noticed the error once the paperwork was completed and printed out, and simply corrected the document by hand.
On the de novo appeal, defense counsel argued that the admission of Surowiec's testimony violated double jeopardy principles, and that the municipal judge violated canons of judicial ethics by conversing with the arresting officer between that patrolman's direct and cross-examination testimony. The judge found the handwritten amendment to be an innocent error which Surowiec corrected and which had no impact on the operability of the machine. He overruled the double jeopardy objection and did not agree that the municipal court judge acted improperly. The judge held that the State had met its burden of proof beyond a reasonable doubt on a per se basis due to defendant's .24 BAC. He further found defendant guilty based on the observations of defendant's behavior, odor, and demeanor.
Now on appeal, defendant raises the following points for our consideration:
POINT ONE
THERE WAS NO REASONABLE OR ARTICULABLE SUSPICION TO STOP MR. HOWES.
a) Police Officer Gentle had no reasonable and articulable suspicion to stop Mr. Howes.
b) The [Maclay] case, having nearly identical facts, found no reasonable and articulable suspicion for a stop.
c) PO Gentle's testimony was not credible.
d) The FSTs were not properly administered.
Mr. Howes Medical Issues.
POINT TWO
THE REFUSAL OF THE MUNICIPAL COURT AND TRIAL DE NOVO COURT TO RECOGNIZE AND CONSIDER THE UNPUBLISHED OPINION OF STATE V. MACLAY WAS A VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BOTH THE STATE AND FEDERAL CONSTITUTION.
POINT THREE
THE CALIBRATION RECORD AND THE ALCOHOL INFLUENCE REPORT ARE INADMISSIBLE.
POINT FOUR
THE MUNICIPAL COURT JUDGE VIOLATED THE CANONS OF THE CODE OF JUDICIAL CONDUCT; THE PROSECUTOR ALSO MAY HAVE CROSSED SOME ETHICAL LINES.
The Act of Impropriety.
The Canons.
The Prosecutor's Ethical Issues.
POINT FIVE
COURT RULE 1:36-3 IS ANACHRONISTIC AND VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND EQUAL PROTECTION.
POINT SIX
THE DE NOVO TRIAL JUDGE ERRED IN ALLOWING THE STATE TROOPER TO TESTIFY.
The De Novo Trial.
Trooper's Testimony.
Double Jeopardy.
POINT SEVEN
BOTH JUDGES SHOULD HAVE CONSIDERED THE PROBABILITY OF DEFENDANT'S DAILY WORKPLACE EXPOSURE TO RED-COLORED CEMENT DUST AND HIS DAILY INHALATION OF THE RED-COLORED CEMEN[T] DUST AS POSSIBLY SKEWING THE ALCOTEST RESULTS AND THEREBY CREATING REASONABLE DOUBT.
In reviewing a trial court's decision following a trial de novo on appeal from municipal court, an appellate court must consider only "the action of the Law Division and not that of the municipal court." State v. Palma, 219 N.J. 584, 291-92 (2014) (citing State v. Joas, 34 N.J. 179, 184 (1961)). A trial de novo "by definition requires the trier to make his own findings of fact." State v. Hannah, 448 N.J. Super. 78, 93-94 (App. Div. 2016) (quoting State v. Kashi, 360 N.J. Super. 548, 545 (App. Div. 2003)). We review these findings of fact only to determine whether they "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
The Constitutions of both the United States and New Jersey prohibit unreasonable searches and seizures. State v. Amelio, 197 N.J. 207, 211 (2008) (citing U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7). A police officer may conduct an "investigatory stop" of an individual, however, if "based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Specifically, a "police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." Locurto, supra, 157 N.J. at 470. To satisfy this standard the State must demonstrate, by a preponderance of the evidence, that it "possessed sufficient information to give rise to the level of suspicion," that is, "some minimal level of objective justification for making the stop." Amelio, supra, 197 N.J. at 211-212.
I.
Defendant contends that no reasonable or articulable suspicion warranted the stop. We disagree. The officer in this case had substantial, detailed information about defendant's seemingly intoxicated condition. He therefore had a reasonable and articulable suspicion that defendant was operating a motor vehicle while impaired by alcohol.
Defendant's conduct while standing outside the funeral home was explicable only as the behavior of an intoxicated person. Burns, an experienced retired police officer, correctly concluded that something was amiss from defendant's conduct, and once he smelled the odor of alcohol from a distance of four feet, that the problem was intoxication.
As Gentle observed defendant walking away from the funeral home, he saw enough unsteadiness in his gait to corroborate Burns's observations. Thus, there was abundant reason for the stop. The State met its burden of proof to demonstrate that the stop was reasonable. The officer had ample reasonable and articulable suspicion. Nothing in the record suggests the municipal court judge erred in finding Gentle was a credible witness. His descriptions of defendant's odor and walk were corroborated by Burns. During cross-examination, defendant did not establish any deviation from the norm for field sobriety tests. They were properly conducted.
The unpublished case defendant cites in support of his argument is entirely inapposite. It involves an arrest made solely on the report of an off-duty police officer and not based on any observations by the arresting officer. Additionally, defendant argues that Rule 1:36-3 generally prohibiting reliance on unpublished cases is "anachronistic" and somehow violative of defendant's constitutional rights. We consider this point to be so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(2). --------
Defendant separately challenges the municipal court judge's refusal to admit medical records regarding his dyslexia, which he contends may have affected both his performance on the field tests, as well as his appearance on the video of the stop which the court observed. The rule regarding judicial notice does not apply to defendant's medical records.
The rule, N.J.R.E. 201(b), provides a court may take judicial notice of:
(1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute,
(2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute,
(3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and
(4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.
Just as the judicial notice rule does not make defendant's medical records admissible, it does not allow for the admission of a Wikipedia article regarding the potential effect of red-colored cement dust on Alcotest results. The rule does not include internet articles in its purview.
II.
The admission of the calibration report as a business record was not error. However, the state trooper who corrected the date on the document should not have been subpoenaed by the Law Division judge.
The business records rule does not make a document inadmissible because of a handwritten change. N.J.R.E. 803(c)(6) provides that a statement is excluded from the hearsay rule and is therefore admissible if it is "contained in a writing . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, [and] if the writing . . . was made in the regular course of business and it was the regular practice of that business to make it . . . ."
In Chun, supra, 194 N.J. at 142-43, the Court held that calibration records such as the one at issue here are "business records that are ordinarily reliable" for purposes of the rule. The handwritten correction did not make it inadmissible per se. Nothing in the sections defendant quotes from Chun changes our opinion on this point. Contrary to defendant's assertion, the Court did not say that the documents are subject to manipulation by the police.
The handwritten notation in and of itself is simply not an alteration which automatically converts the document into hearsay. A business record is admissible so long as it is prepared during the regular course of business within a short time of the act, condition, or event being described. N.J.R.E. 803(c)(6). Those conditions were met here.
As the municipal court judge said, it is unsurprising that in January, a mistake would occur in the writing of the year. It is not an uncommon occurrence. Ultimately, the question of whether a business record has been altered in some fraudulent manner is a question for the trier of fact. See State v. Mazowski, 337 N.J. Super. 275, 292 (App. Div. 2001). Given the nature of the handwritten change, the municipal court judge's decision to admit the document was not an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383 (2010) (quoting State v. Harvey, 151 N.J. 117, 166 (1997)) ("appellate courts review a trial court's determination of the admissibility of evidence for an abuse of discretion."). Nothing in the record suggests that the alterations were anything other than routine corrections on a business record. The judge's conclusion that the handwritten notations were not fraudulent is reasonable.
III.
Although we generally review only orders and judgments, not legal analysis, we are constrained to briefly discuss the steps taken by the Law Division judge on his own initiative during the trial de novo which resulted in defendant's conviction. The judge sua sponte issued the subpoena to the trooper and questioned him as his witness, pursuant to his interpretation of Rule 3:23-8(a)(2). That rule states that a "court may permit the record to be supplemented for the limited purpose of correcting a legal error in the proceedings below." Since the Law Division judge believed that the municipal court judge erred in his conclusion that the handwritten notation on the calibration report was inconsequential, he read the rule as allowing him to correct the error.
The rule did not previously permit supplementation for that purpose. It was amended September 2013. As stated in the Criminal Practice Committee Report on the proposed amendments, the intent was to "align the remand procedures for municipal appeals more closely with the procedures utilized in the appellate courts." Supplemental Report of the Supreme Court Committee on Criminal Practice, 2011-2013 Term, at 20 (2013). To that point, as the Committee's report states, the rule generally allowed a remand only in order to protect the rights of a defendant substantially prejudiced during the trial, or to protect the rights of either party from a substantially unintelligible record. Id. at 22-23.
The Committee opined that double jeopardy concerns were not implicated by the amendment because
a reversal for trial error does not constitute a decision with respect to guilt or innocence or whether the government has failed to prove its case. Rather, a reversal for an error in the proceedings "is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect reception or rejection of evidence, incorrect instructions, or prosecutorial misconduct."The proposed amendments were not intended to authorize the Law Division "to remand the matter or to permit the record to be supplemented when the court finds that the State has produced insufficient evidence to prove its case." Id. at 24. The court in this case considered the State's proofs to be insufficient insofar as the calibration report. The judge considered it an error in the admission of the evidence.
[Id. at 23 (quoting Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 2149, 57 L. Ed. 2d 1, 12 (1978)).]
The judge should not have corrected the error himself. Supplementation during a trial de novo, when it occurs, should result from applications filed by the parties. Otherwise it is the judge acting as a third attorney, rather than an impartial and neutral magistrate.
Further making the judge's subpoena and questioning of the witness improper is our Supreme Court's most recent discussion of a trial de novo. The Court reiterated that during those proceedings " the State must again prove a defendant's guilt beyond a reasonable doubt." State v. Robertson, ___ N.J. ___, ___ (2017) (slip op. at 10). Thus we think a judge's authorization to supplement the record is as limited in advance of and during a trial de novo on the record as it would be in advance of or during any other bench or jury trial. This judge would no doubt agree he could not call witnesses, or question them as his own, in a plenary bench trial or jury trial. To do so crosses "that fine line that separates advocacy from impartiality." See State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002). It should not occur in a trial de novo any more than in other proceedings.
Under Robertson's characterization of a trial de novo, it likely would not have been error, or implicated double jeopardy standards, if the State had moved to supplement the record with Surowiec's testimony regarding his handwritten corrections. If that motion had been made, it likely would not have been impermissible because the State had to meet its burden as if it were doing so the first time. But that issue is not before us today.
In sum, we agree with the municipal court judge that the calibration report was admissible despite the handwritten notation. The Law Division judge certainly relied upon it—albeit as "supplemented" by Surowiec's testimony—in finding defendant guilty based on his BAC reading. Both judges found defendant guilty on his BAC reading. We agree as to the outcome.
IV.
Review of the record also supports both judges' conclusions regarding defendant's guilt based on observations by the witnesses. Burns and Gentle both testified about defendant's odor of alcohol. Burns testified about defendant's behavior prior to entering and exiting the funeral home and manner of walking as he proceeded down the street. Gentle testified as to defendant staggering as he walked, confusion when directed to park, the fact he could not stand without swaying, admitted to drinking "three beers," and failure to satisfactorily perform the field sobriety tests. Those proofs established his guilt beyond a reasonable doubt based on observations.
V.
Finally, we briefly address defendant's claim that both the municipal court judge and the prosecutor "may have crossed some ethical lines." We do not think it is proper for municipal court judges to have even casual conversations with witnesses in the midst of a hearing. That would justifiably make a litigant apprehensive regarding the impartiality of the judge. It would give us some cause for alarm as well, except for Burns's testimony and defendant's BAC reading of .24. It was error, but harmless error. See R. 2:10-2. In any event, defendant cannot point to anything the judge said or did that rises to the level of violation of a judicial canon.
We are unclear as to the precise nature of defendant's contention that the prosecutor also engaged in improper conduct. Defendant's claims that the prosecutor mischaracterized his conduct were to a great extent themselves mischaracterizations of the prosecutor's statements. The relevant sections of the brief also improperly make statements outside the record such as that "[t]he defendant and his father, who was present at every court appearance and hearing [] began to feel as if they were in a kangaroo court." See R. 2:5-4(a) (limiting appeals to the record). That the prosecutor gave defendant the name of a case he referenced regarding the handwritten correction, which later turned out to be a mistake, and his somewhat casual manner of speech, do not violate ethical standards.
Accusations of impropriety, whether as to the conduct of a judge or an attorney, should not be made lightly by counsel. When made in a legal argument, they should only be made when clearly supported by the record, and couched in accurate and careful terms.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION