Opinion
DOCKET NO. A-1705-12T1
01-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARTESE G. GILLIAM, Defendant-Appellant.
Samuel Bloom argued the cause for appellant (Alan Dexter Bowman, attorney; Mr. Bowman, on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Summons No. 0702-B-598833. Samuel Bloom argued the cause for appellant (Alan Dexter Bowman, attorney; Mr. Bowman, on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, on the brief). PER CURIAM
A jury found defendant Martese Gilliam not guilty of third-degree assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The trial judge then found defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, during the same episode that led to the more serious charges. Defendant appeals from that October 24, 2012 DWI conviction, arguing that he was deprived of the right to present his defense, and that the jury acquittal barred the subsequent conviction for DWI. We reject both arguments and affirm.
On the evening of October 1, 2010, Bloomfield Police Department Officers were providing security for a Bloomfield nightclub. Defendant, an off-duty Plainfield Police Officer, was at the nightclub with several of his friends. Bloomfield Police Officer George Bambera testified that around 2 a.m. the nightclub was closing and people were leaving. Some were arguing in the parking lot. After leaving the nightclub, defendant began yelling at a group of individuals. Bambera told defendant to leave the area. Defendant began to drive away, but then stopped near the group he had been yelling at and got out of his car, contrary to police orders. Defendant was yelling at the group and appeared agitated, so the Bloomfield officers put themselves between defendant and the group.
The officers told defendant that he was under arrest. Defendant resisted and was sprayed with a pepper spray. Bambera testified that after he was handcuffed, defendant got out of the patrol car where he had been placed and used his head to hit one of the officers in the face. Defendant testified that he cooperated with the police, but was hit and sprayed with mace by the police nonetheless.
Regarding the DWI charge, Bambera testified that while defendant was still in his car, the window was down, and the smell of alcohol emanated from his vehicle. When defendant exited the car, "it was apparent" that the alcoholic smell was coming from defendant's breath. Another Bloomfield officer testified that he "believed [defendant] was intoxicated . . ." because "[defendant] was slurring some of his words. His eyes were glassy . . . ."
Bambera testified that when defendant was brought to the Bloomfield Police headquarters, he was "very angry [and] agitated." The officer who processed defendant at the police station reported that defendant refused medical attention and was "spitting blood from his mouth onto the floor and walls . . . ." Defendant slept for approximately ten to twenty minutes while handcuffed at the station. A different Bloomfield officer noted that defendant was "fighting, [had] slurred speech, sleepy, smelled of alcohol, combative." After processing, defendant was taken to the State police barracks on the Garden State Parkway where he was given the Alcotest. The test results showed that defendant's blood alcohol level was .13, above the legal limit of .08. N.J.S.A. 39:4-50(a). Defendant testified that he had consumed only two Corona beers and "a vodka drink."
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE TO THE [DWI] SUMMONS.
i. The Right to Present a Defense
ii. The Conviction Must Be Reversed
POINT II: THE ACQUITTAL OF AGGRAVATED ASSAULT AND RESISTING ARREST BAR A SUBSEQUENT PROSECUTION FOR [DWI].
In reviewing a trial judge's conclusions in a non-jury case, we must give substantial deference to the trial court's findings of fact. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). We should only disturb these findings where 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. Ibid. It is of no consequence that the reviewing court suspects that it might have reached a different result, or that all testimonial or evidentiary issues were resolved in favor of one side. State v. Johnson, 42 N.J. 146, 162 (1964). We owe no deference to the trial judge's legal conclusions. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
During opening arguments, on October 3, 2012, the State started to mention the Alcotest. Defense counsel objected and the judge said that she would instruct the jury to disregard the Alcotest unless the State brought in an expert. The following day, the judge addressed the issue of the State wanting to "put in, pretty much, all of the testimonial evidence during the trial[]" rather than withholding testimony that related to the DWI until after the jury trial. Defense counsel asserted that that was not what he had been told and that it was now the "middle of trial." He asserted that he did not think it was permitted to try a simultaneous DWI trial and an indictable jury trial.
The State asserted that it was allowed to change its strategy during trial and that defendant's intoxication explained his state of mind during the interaction with the Bloomfield police. The State also noted that the Alcotest operator was "always" on the witness list. The trial judge found that no prejudice would attach to the defendant with the addition of Alcotest operator testimony because defendant received all discovery, and the DWI charge was likely going to be addressed by the judge "while the jury was deliberating."
The following week, a N.J.R.E. 104 hearing was held during which Trooper Robert Apgar testified, laying the foundation of the Alcotest procedures as required by State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). On cross-examination, defense counsel asked Apgar about the questions defendant was asked prior to the test, his observations of defendant prior to the test, his personal experience with DWI arrests and his training on the machine. Counsel had asked Apgar to explain the Alcotest Calculator, when the judge stated: "You know the jury's coming . . . we're going to have to hone in on exactly what you're going to be challenging as to its admissibility." When reminded that documents related to the Alcotest machine and defendant's test would not be given to the jury, defense counsel asked, "Then why would they be admitted in evidence." To which the judge responded, "For me."
The Alcotest is administered by a certified Alcotest operator.
The Alcotest, consisting of a keyboard, an external printer, and the testing device itself, is positioned on a table near where the test subject is seated.
Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.
[Chun, supra, 194 N.J. at 79.]
The judge found that evidence of defendant's intoxication was relevant to the charges of resisting arrest and aggravated assault. She permitted Apgar to testify before the jury that defendant tested above the legal limit without disclosing the actual test result. Following the State's direct examination, the judge instructed the jury that "the State has just introduced evidence that the defendant may have been intoxicated on the night of the alleged incident[,]" and told the jury that this was not to be used as propensity evidence. On cross-examination, Apgar testified that defendant was polite, walking steady and could respond appropriately to instructions.
After the jury reached its verdict on October 17, 2012, during a discussion of the DWI procedures, defense counsel stated that Apgar needed to be brought back to the stand because the defense "forwent a substantial cross-examination[.]" One week later, the DWI trial before the judge reconvened and was concluded the same day. Defense counsel argued that because of his understanding that the DWI would be a completely separate trial, he did not cross-examine Apgar about the required twenty minute waiting period. The judge did not permit defendant to recall Apgar, stating:
You are entitled to oral arguments, you are entitled to supplement the record, but by no[] means am I going to have an officer come and testify through the jury trial, and then come back after the jury trial deliberates . . . and testify again. That's a misunderstanding on your part . . . .
An Alcohol Influence Report, admitted into evidence as part of the DWI trial, stated that defendant was before the operator at 4:10 a.m. and the Alcotest machine performed a control test at 4:33 a.m. The document further indicated that defendant's two breath tests were conducted at 4:34 a.m. and 4:37 a.m. Thus, documentary evidence presented by the State corroborated Apgar's testimony that he adhered to the required twenty-minute waiting period.
Defendant, the only person called as a witness the final day of the DWI trial, testified to the following. No field sobriety tests were performed. Apgar did not wait the requisite twenty minutes before administering the test, did not look inside of defendant's mouth for anything that could interfere with the test results, and did not observe defendant during the entire waiting period. When the test was administered, defendant's lips were swollen, there was blood in his mouth and nose, and his jaw and chin were swollen. It was difficult for him to keep his mouth completely closed and blow into the machine.
The day before the conclusion of the DWI trial, defense counsel gave two articles to the court and the State. One article claimed that blood in the mouth can cause an inaccurate reading; the other article stated that there was no evidence that it made any difference. Neither article was introduced into evidence.
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Defense counsel argued that, if Apgar had been recalled, counsel would have questioned him about the twenty-minute wait time and the "critical fact" of whether he inspected defendant's mouth. Counsel claimed that Apgar was not cross-examined about these topics because of counsel's understanding that these questions were not necessary for the jury trial and he believed he would recall Apgar at the subsequent DWI trial.
The judge noted that the Alcotest operator testified and produced all foundational documents. The court read back that portion of Apgar's testimony in which he stated what the test procedure was and that he had followed it in this case. The testimony included Apgar's affirmative response when asked specifically if he had waited the requisite twenty minutes.
The judge found that the trooper's assessment of the time and waiting period was more reliable than the defendant's assessment, given that defendant admitted he had "some drinks" and tested over the legal limit. She noted that Trooper Apgar was credible also because he was not a part of the police department involved in the altercation resulting in defendant's arrest. She concluded beyond a reasonable doubt that defendant had a blood alcohol level of .13 while driving and imposed a seven-month license suspension as well as the other mandatory penalties.
In his argument that he was deprived of the right to present his defense, defendant relies on general language in State v. Jenewicz, 193 N.J. 440, 451 (2008): "A defendant enjoys a fundamental constitutional right to a fair trial, which necessarily includes the right to present witnesses and evidence in his own defense." Without citation to the record on appeal, defendant claims that, prior to trial, the judge ruled "that the Alcotest and its readings would not be an issue in proceedings concerning the criminal offenses." The State did acknowledge during trial that calling Apgar, the Alcotest operator, who was on the witness list, was a change in the State's trial strategy. This change in strategy, however, came before Apgar testified at the N.J.R.E. 104 hearing, thus giving defense counsel an opportunity to cross-examine Apgar out of the jury's presence as well as before the jury.
In a criminal case, "[a]mong the primary interests protected by the right of confrontation are the opportunity for defendants to face their accusers and to cross-examine the state's witnesses. The right protects against improper restrictions on questions defense counsel may ask during cross-examination." State v. Budis, 125 N.J. 519, 530-31 (1991) (citations omitted). However, "[t]he scope of cross-examination rests within the sound discretion of the trial judge. We will not interfere with the trial judge's authority to control the scope of cross-examination unless clear error and prejudice are shown." State v. Messino, 378 N.J. Super. 559, 583 (App. Div.), certif. denied, 185 N.J. 297 (2005), (citations and internal quotation marks omitted).
"Under N.J.R.E. 611 the trial court is given broad discretion to 'exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence' to effectuate the purposes set forth in the rule, i.e., ascertaining truth, using time effectively and avoiding embarrassment of witnesses." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611 (2014).
Defendant was permitted to confront and cross-examine the Alcotest operator on two occasions. Defense counsel did not tell the judge before the witness was excused that he anticipated cross-examining Apgar a third time in the DWI bench trial.
Our Supreme Court recently discussed the issue of how to handle municipal matters arising from the same facts as indictable prosecutions, approving the procedure set forth in an Administrative Directive:
On July 12, 2011, the Administrative Office of the Courts released Directive #04-11, which requires, "[u]nless there is a compelling reason otherwise," disposition of all charges arising from a motor vehicle offense, including municipal court matters, in the Superior Court. Administrative Directive #04-11 (July 12,2011) (Directive #04-11). This mandate assures efficiency, minimizes the number of court appearances for the defendant, and avoids potential double jeopardy issues. Ibid.
[State v. Cahill, 213 N.J. 253, 271-722 (2013).]
At the beginning of the N.J.R.E. 104 hearing, defense counsel asked if this was "the first phase of a drunken driving proceeding." The judge responded that she would not call this the "first phase" because "all of the evidence that's been introduced in this trial . . . could be deemed relevant to the drunk driving." The judge also stated, "[W]e're putting on this evidence now [] [t]o see whether it could be admitted into evidence before me and what can be admitted into evidence before the jury. That's what we're doing right now." Defense was thus put on notice that his cross-examination should cover the indictable and motor vehicle charges. Defendant was given a fair opportunity to cross-examine Apgar and present his defense.
Defendant also argues that the jury's acquittal of the indictable charges is inconsistent with the judge's DWI conviction, citing to State v. De Luca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987). In DeLuca, our Supreme Court decided "whether an acquittal of death by auto, N.J.S.A. 2C:11-5, should bar a subsequent prosecution for driving while under the influence (the DWI charge), N.J.S.A. 39:4-50." De Luca, supra, 108 N.J. at 100. The Court held: "If in the death-by-auto case the sole evidence of recklessness is defendant's intoxication, the jury's determination of that issue will preclude a conviction for the DWI charge [by the trial judge]." Id. at 111.
The resisting arrest and assault on a police officer charges did not require proof of intoxication. The State offered defendant's intoxication as an explanation for his behavior. The jury, by its not guilty verdict, in no way found that the State fell short on its proofs that defendant was driving while intoxicated. Defendant denied assaulting the police or resisting arrest, claiming he was the victim of a police attack. The jury could well have found that defendant's testimony raised a reasonable doubt as to whether defendant was the aggressor during the arrest. Defendant's double jeopardy argument is not worthy of further discussion in a written opinion. R. 2:11-3(2).
Defendant admitted he was driving his car. He contested only the level of his intoxication. The judge found Apgar's testimony credible and found that the Alcotest was properly conducted. She found defendant's guilt beyond a reasonable doubt.
Affirmed. The stay pending appeal of defendant's adjudication and penalties is vacated. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION