Opinion
DOCKET NO. A-3980-09T1
10-28-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DELORES Y. RANDALL, Defendant-Appellant.
Law Offices of Henry G. Broome, Jr., L.L.C., attorneys for appellant (Matthew H. Powals, on the brief). Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 69-90.
Law Offices of Henry G. Broome, Jr., L.L.C., attorneys for appellant (Matthew H. Powals, on the brief).
Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial de novo in the Law Division on appeal from convictions entered by the Hamilton Township Municipal Court, Delores Y. Randall was convicted of driving while intoxicated, N.J.S.A. 39:4-50 (DWI); refusing to take a breathalyzer test, N.J.S.A. 39:4-50.2; and failing to maintain a single lane of travel, N.J.S.A. 39:4-88. Previously, defendant had been tried on criminal charges arising from the traffic stop and found guilty of aggravated assault against the arresting officer, N.J.S.A. 2C:12-1b(5)(a), and obstructing the administration of law, N.J.S.A. 2C:29-1a.
The appendix does not include the judgment of conviction in the criminal case.
Defendant appeals from convictions for the motor vehicle violations, seeking reversal on three grounds: violation of her right to a speedy trial; error in the municipal court's credibility findings; and inadequacy of the evidence supporting her convictions for violating N.J.S.A. 39:4-50 and 39:4-50.2. We affirm.
At about 5:00 a.m. on September 24, 2005, defendant was driving from Atlantic City to her home in Maryland on the Atlantic City Expressway. Trooper Roger Nicholson heard a report of a car being driven erratically that included a description of the car and its Maryland license plate number. The trooper waited for the car to pass and followed it. Twice, he saw the car cross over the center line and the shoulder line to the right of the lane. According to defendant, she was using her cell phone, which was not illegal in 2005, and did not know that the trooper was following her until she saw the flashing lights. She stopped on the side of the road. By activating the lights, the trooper had also turned on the car's video-audio system. Consequently, the actions and words of defendant and the trooper that were within the range of the camera and its sound recording device were recorded.
The parties did not provide us with the recording.
When the trooper reached the car, he detected the odor of alcohol. Defendant told him she was coming from a casino, where she had a couple of drinks. The trooper directed defendant to end her phone call, produce her license and registration, and get out of the car. She did not get out of the car on the first request, but she attempted to perform field sobriety tests as directed. She was unable to recite the alphabet from the letter B to the letter Y; on her third attempt, she recited the letter letters R, S and T before reciting the letter Q. Defendant was also unable to complete the "one-leg-stand test" and during the "walk-and-turn test," she used her arms to balance herself. She had told the trooper that she had a problem with one of her legs but did not say which one.
The trooper also administered a test known as the "horizontal gaze nystagmus," but the Law Division did not consider the officer's testimony on defendant's performance because the trooper was not qualified to perform it.
Based on all of his observations, the trooper told defendant she was under arrest and handcuffed her. Defendant then struggled with the trooper, kicking and grabbing him. She also demanded he call a female officer and thwarted his efforts to place her in the troop car by alternating between resisting and going limp. Defendant was also yelling, telling the trooper to kill her. He used Mace to subdue her and called for assistance when that effort failed. With the help of other officers, defendant was placed in the troop car.
When the trooper and defendant reached the station, she urged him to shoot her and attempted to run away. Sergeant Mertis had been monitoring the radio transmissions, and assisted the arresting trooper in bringing defendant into the station and placing her in a cell. He recalled helping the trooper but his recollection was "very vague." Although he did not remember any "specifics," he explained that the arresting officer generally handles a case from the arrest until trial and said he had not assigned another officer to this case.
According to the trooper, while defendant was in the cell, he read her the standard form to advise her of the consequences of refusing to submit to a breath test. He did that from outside the cell and through its glass door. By the trooper's account he asked defendant to take the test twice, and both times she responded by cursing at him. At that point he wrote a ticket for the motor vehicle violations he had observed and refusal to submit to a breath test. The trooper did not know whether defendant was suffering from a physical, mental or emotional condition "consistent with her behavior" on the morning of September 25, 2005.
By defendant's account, she did not see the arresting officer after he took her to the cell. He never asked her to take a breath test or read her any information about it.
Defendant also testified about her behavior following the traffic stop. She described it as "very irrational," "not appropriate" and "disorderly." Explaining that the trooper had frightened her by leaning into her car when he asked for her credentials, she said she did not want to be arrested. She admitted she "lost it" but denied that she was intoxicated. She testified that she been in Atlantic City for a week before this incident and on the night before this incident she had two drinks with dinner, went to bed at 10:00 p.m. and got up at 4:00 a.m. to return to Maryland.
The municipal court considered the recording of the traffic stop and the subsequent events, found the trooper's testimony more credible than defendant's and determined that she was guilty of DWI, refusing a breath test and failing to maintain a lane. On the appeal to the Law Division, the judge reviewed the recording and the transcript, agreed with the municipal court's assessment of credibility and found defendant guilty of the same violations.
I
After considering the record and the findings of the Law Division, we have concluded that defendant's challenges to the courts' credibility findings and the adequacy of the evidence do not warrant discussion in a written opinion. R. 2:11-(e)(2). Because there is sufficient credible evidence in the record to support the judge's findings on credibility and guilt, we may not substitute our view for that of the judge. See State v. Locurto, 157 N.J. 463, 471 (1999).
II
We turn to consider defendant's claimed deprivation of her constitutional right to a speedy trial. U.S. Const. amends. VI and XIV; N.J. Const. art. I, ¶ 10. The right to a speedy trial attaches on arrest. State v. Szima, 70 N.J. 196, 199-200, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). Our courts assess speedy-trial claims, whether arising from a prosecution for an indictable offense or a quasi-criminal violation of the motor vehicle law, by applying the four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). See Szima, supra, 70 N.J. at 200-02; State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999). The Barker factors are: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. No single factor is determinative or essential, and the remedy for a violation of a defendant's speedy-trial rights is dismissal of the prosecution. Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
The Barker factors are assessed and balanced in light of competing interests — on one side, the "'societal right to have the accused tried and punished'" and on the other, the defendant's right to be prosecuted "'fairly and not oppressively.'" State v. Dunns, 266 N.J. Super. 349, 380 (App. Div.)(quoting State v. Farmer, 48 N.J. 145, 175 (1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 235 (1967)), certif. denied, 134 N.J. 567 (1993). Accordingly, the State's deliberate delay is weighed more heavily in favor of dismissal of the prosecution than delay attributable to the State's negligence or the court procedures and calendars. Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Similarly, valid reasons for the State's delay causing only reasonable and appropriate delay add little weight in favor of dismissal. Ibid. Conversely, delay caused by the defendant, the defendant's failure to invoke the right to a speedy trial, and the absence of actual prejudice and evidence of an advantage or benefit defendant gained by the delay weigh in favor of continuing the prosecution. See State v. Misurella, 421 N.J. Super. 538, 545-46 (App. Div. 2011); see also State v. Fulford, 349 N.J. Super. 183, 194-95 (App. Div. 2002).
As the foregoing discussion should demonstrate, proper application of the Barker factors requires careful consideration of the particular circumstances of the case. Szima, supra, 70 N.J. at 201-02; see, e.g., Misurella, supra, 421 N.J. Super. at 544-45; State v. Tsetsekas, 411 N.J. Super. 1, 12-14 (App. Div. 2009); Fulford, supra, 349 N.J. Super. at 195; Farrell, supra, 320 N.J. Super. at 451-52. Because the balance depends on the circumstances of the particular case, an adequate record is critical.
The briefs on this appeal suggest some confusion about responsibility for developing the record; we attempt to dispel it. Once a defendant has shown an "uncommonly long" delay between accusation and trial, measured by comparison with the "customary promptness," a speedy-trial analysis in accordance with the Barker factors is required. Doggett v. United States, 505 U.S. 647, 651-652, 112 S. Ct. 2686, 2690-91, 120 L. Ed. 2d 520, 528 (1992). Accordingly, when that point is reached, a record on facts pertinent to the balance is important.
Both the State and the defense have an interest in presenting an adequate record. If the State has reasons that explain the delay that are not apparent, the State must present them. The State is best situated to rebut the natural inference that the delay is chargeable to the State as being attributable to court calendars and procedures or the State's negligence or indifference. See id. at 652, 112 S. Ct. at 2691, 120 L. Ed. 2d at 652-53 (rejecting the government's assertion of its diligence in its search for defendant in the absence of any evidence establishing it). That inference arises because the State, not the defendant, has the obligation to prosecute. Barker, supra, 407 U.S. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115. Similarly, a defendant who has either requested one or more adjournments must understand that the resulting delay will not be attributed to the State, and a defendant who has not invoked the right to a speedy trial must recognize that it will be difficult to establish prejudice. See id. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 117.
The quality of the record in this case prompts us to address some seemingly obvious realities relevant to development of an adequate record. Where motor vehicle charges and criminal charges arising from the same incident are not tried together and the municipal court trial is delayed until the criminal trial is completed, a justification for that procedure is required. See Fulford, supra, 349 N.J. Super. at 191-93 (discussing unrelated charges of DWI and possession of an unlawful weapon arising from the same incident and the implications of R. 3:15-3, double jeopardy, fundamental fairness and the speedy-trial right, and suggesting procedures that should be followed in that circumstance). Where the charges are tried separately in superior and municipal courts and the procedure is not justified, that delay counts against the State. Ibid. Nevertheless, the defendant is properly assigned responsibility for delays in either court that the defendant has caused. Thus, a proper analysis of the Barker factors requires the records of both courts. As a practical matter, the records will be critical, because the attorneys and judges involved in the separate prosecutions are likely different and will have no personal knowledge of the proceedings in which they were not involved. Attorneys should consider those realities in preparing their respective submissions on a motion to dismiss for violation of the defendant's right to a speedy trial. Id. at 193.
In this case, the delay was uncommonly long; the period between defendant's arrest and the municipal court trial was ten days short of forty-eight months, which is far longer than the sixty-day period within which "[m]unicipal courts should attempt to prosecute drunk driving cases." Id. at 190. There was an additional five-month delay between the municipal court trial and the trial de novo in the Law Division. Without doubt, this delay required an analysis of the Barker factors. Doggett, supra, 505 U.S. at 651-652, 112 S. Ct. at 2690-91, 120 L. Ed. 2d at 528. During that period, defendant did not invoke her right to a speedy trial. Accordingly, neither the State nor defendant was in a position to rely on the other to provide the facts to the superior court judge hearing this municipal appeal, who was not involved in any of the prior proceedings.
Although defendant did not raise a speedy-trial claim in municipal court, the transcript of the municipal court trial includes no competent evidence about the delay; the parties did not submit court records or other evidential material to the trial court. Acting with extraordinary diligence, the judge secured and took judicial notice of the records of the municipal court and the criminal proceedings in superior court. N.J.R.E. 201(b). Unfortunately, neither party has provided those records to this court.
There is one reference to delay in the transcript of the municipal court trial. In a non-response answer to a question from the municipal prosecutor, the trooper said: "I know that she — we had a few occasions for the trial and she would put herself in the hospital that day before on multiple occasions." From the context, however, it is not clear whether the trooper was referring to the criminal trial or the municipal trial or whether his assertion was based on personal knowledge.
Based on his review of the court records, the judge found that some of the delay in the criminal trial was caused by defendant's illness and her lawyer's unavailability and that the three-year period for this criminal trial was not uncommon. With respect to the delay between the criminal trial and municipal court trial, the judge acknowledged that he was not in a position "to know accurately what occurred," but he made findings based on what he could discern from that court's records. The judge found: the municipal court listed the case "on several occasions"; warrants were issued for defendant's arrest "on some occasions"; there were "some occasions" when the officer was unavailable; "some occasions" when defendant was "ill or in the hospital"; and no indication that defendant moved to dismiss the charge for violation of her right to a speedy trial.
Pursuant to Rule 3:23-8(a), the judge could have remanded the matter to the municipal court for clarification of those points.
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The judge concluded that defendant's right to a speedy trial had not been transgressed. He concluded that the delay attributable to the criminal trial was justifiable and that defendant was responsible for a share of that delay and the subsequent delay of the municipal court trial. He considered defendant's failure to assert her speedy-trial right, and he rejected defense counsel's argument that this failure should be attributed to the ineffective representation provided by her previous attorney. With respect to prejudice, the judge recognized the anxiety inherent in having the charges pending for four years, but found no additional disadvantage in the form of pre-trial incarceration or impairment of defendant's ability to present a defense. Balancing the interests, the judge determined a dismissal of the charges was not warranted.
On appeal, defendant asserts that the judge misapplied the balancing test. We discern no legal error and cannot conclude, as defendant argues, the judge's decision is based on the absence of prejudice alone.
Because the parties have not included the court records the judge considered in the record provided to us, we cannot determine whether the judge's findings are supported by the record. We can, however, say that defendant has failed to show factual error in the judge's decision. The argument consists of a comparison of the delay in this case with the delays reported in published and unpublished decisions, and it relies on facts asserted by counsel during argument in the Law Division and statements made by defendant after the judge's decision. It is of insufficient merit to warrant further discussion. R. 2:11-3(e)(2).
On appeal, the State submits that because defendant failed to provide the judge or this court with an adequate record, "the issue cannot be settled on the basis of the record now before this [c]ourt" and suggests the defendant should raise the issue on a petition for post-conviction relief. Our court rules preclude that course of action. See R. 3:22-4(a); R. 3:22-5. Defendant may, as the State notes, raise a claim of ineffective assistance of counsel encompassing the performance of her attorneys in municipal court and on appeal to the Law Division and this court. To the extent that the judge's decision can be understood to reject a claim of ineffective assistance of counsel in the municipal court, the record before him was not adequate to permit resolution of that issue. Defendant's appellate counsel has not, however, raised that issue on this appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION