STATE OF NEW JERSEY v. WARREN JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1163-06T51163-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARREN JONES,

Defendant-Appellant.

________________________________________________________________

 

Argued June 5, 2007 - Decided July 13, 2007

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 0025-06.

Robert D. Herman argued the cause for appellant.

Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent, Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant, Warren Jones, appeals from the Law Division's September 8, 2006 order finding defendant guilty of driving while under the influence of alcohol (DUI) in violation of N.J.S.A. 39:4-50, after conducting a trial de novo on the record of the Atlantic City Municipal Court. We affirm.

On January 28, 2006, defendant was charged with DUI and reckless driving. Following trial before the Atlantic City Municipal Court, defendant was found guilty of DUI. The reckless driving charge was dismissed on the State's motion. Following de novo appeal to the Law Division on September 8, 2006, Judge Neustadter found defendant guilty of DUI for the reasons set forth in his August 28, 2006 written decision.

The facts giving rise to the conviction are as follows: On January 29, 2006, Officer Fair of the Atlantic City Police Department observed defendant driving his vehicle northbound on Pacific Avenue. He observed defendant suddenly slam on his brakes, skid for about twenty feet, and hit the curb. Defendant then exited the vehicle and walked across the street where Officer Fair drove near to him, asked him if he was okay, and instructed him to remain on the curb until he parked his vehicle.

Officer Fair then approached defendant and made various observations. Fair observed that defendant had a strong odor of alcohol on his breath, his eyes were watery and bloodshot, his speech was slurred, and he was swaying. The officer administered a number of sobriety tests, which defendant performed inadequately. Defendant was placed under arrest.

Two breathalyzer tests were administered by Officer O'Hala, a certified breathalyzer operator, at the Public Safety Building to which defendant was transported. O'Hala testified to the check-list steps he utilized in preparing the breathalyzer machine before administering the tests. Certifications that the machine was in proper working order were admitted into evidence. O'Hala testified defendant did not indicate he was sick, injured or taking medications in response to O'Hala's inquiries. O'Hala also observed defendant's breath had an odor of alcohol, his eyes were bloodshot and watery, and his speech was slowed and slurred.

Defendant's counsel, by letter dated February 6, 2006, made a demand of the court administrator of the Atlantic City Municipal Court, with copy to the municipal prosecutor, for discovery pursuant to Rule 7:7-7(b). The letter requested that all video and other recorded evidence be preserved and provided to defendant. A second letter of the same date, sent via facsimile and regular mail to the municipal prosecutor and the records department of the Atlantic City Police Department, requested copies of "any and all video tapes taken in the above referenced matter." The letter further stated:

For your edification, I am aware of at least one place where a video camera is maintained and recordings are generated; that being, the room containing the Breathalyzer. I should note as well and based upon my prior experience with D.W.I. cases arising out of Atlantic City, those tapes are reutilized every thirty days. As such, your attention in preserving the evidence as well as providing a copy of the tape in an expedited manner is of the utmost importance considering the potential ramifications to both sides should the evidence be lost.

On February 23, 2006, the municipal prosecutor sent discovery. The prosecutor's covering letter stated: "[i]f this is a matter that involves a surveillance tape, please contact this office to arrange an inspection of the tape." Defense counsel concedes he has no recollection of calling to arrange to review the tape.

At trial, defense counsel raised the issue of videotaping during O'Hala's testimony concerning his administration of the breathalyzer tests. O'Hala, when asked whether there was video recording in the breathalyzer room, responded, "I don't know . . . . [T]he video system is looped through the entire building and it takes, I guess you would call it a freeze frame shot maybe every few seconds. And it goes, rotates through the entire building." Counsel then followed with, "Like one of those that takes like one second or so," to which the officer responded, "Yeah. It would . . . take a still of the breath room, then it would move to the hallway, then the back door, then the lobby. I don't know how many cameras it loops through, but it's on a continuous loop." When asked by whom the tape was maintained, O'Hala responded that he assumed by security, but that he did not know. Nor did O'Hala know who monitored the tapes, but "it's not within the traffic bureau."

Following O'Hala's testimony, defense counsel indicated to the court that he was not provided the videotape as requested in discovery. The trial prosecutor stated: "We requested whatever discovery is available from the police and there was absolutely no videotape given to us." As a result of further discussion between the court, defense counsel, and the prosecutor concerning the nature of the videotape, the prosecutor agreed to have another assistant prosecutor investigate the issue while the trial continued.

The assistant prosecutor, a short time later, reported to the court that still photographs were made of the jail that could be kept for up to thirty days and that the loop of the cameras that photograph the breathalyzer room is the same loop as photographs the jail. He was unable to confirm whether the breathalyzer room photographs were kept in the same way as those of the jail. However, any still photographs that might have existed of the breathalyzer room were no longer available.

Defense counsel reiterated that he had made a timely request for any videotapes and his request was not honored. The prosecutor claimed she had made a timely request from the police for any video and was told the police department did not have a video. The court stated it would not ascribe any bad faith to the prosecutor. Defense counsel concurred stating, "Neither am I, Judge, with all due candor."

However, defense counsel contended that notwithstanding the absence of bad faith there was "spoliation" of evidence because the police department's recordings are kept for thirty days. Colloquy between the court and counsel continued concerning the nature of the photography, whether it was continuous video as opposed to continuous frames in a loop of still shots. The trial prosecutor suggested having the "head" Atlantic City Prosecutor, Howard Freed, address the issue, because he was the one to whom it had been communicated that there was no videotape. Trial testimony then resumed while Freed was being located.

Freed then appeared and became involved in the colloquy about the subject. Freed consented to give testimony, but the judge did not require Freed to be sworn. Defense counsel acquiesced in the judge's decision. Freed then explained his knowledge of the still camera system:

[T]here are cameras in the hallway downstairs leading into the traffic bureau and there is one camera in the Breathalyzer room. I toured both the hallway and the Breathalyzer room and then I went to where the monitors are.

. . . .

What in essence happens is there's a 16 second cycle. What you have is every scene is shown once every 16 seconds. So you get a snapshot once every 16 seconds. And I think there were 4 or 5, maybe even 6 video screens. The[n], as to the hallway, to traverse the hallway you could do that in less than 16 seconds. So depending on the time of the cycle the defendant may or may not have even appeared in the hallway, just would be pot [luck] as to what happens there. As to the Breathalyzer room . . . . the camera is in the far top hand corner furthest away from the actual breathalyzing machine. If the court wishes me to draw a picture I will draw a picture.

When Freed agreed to attempt to make a three dimensional drawing, defense counsel requested an N.J.R.E. 104 hearing. Without specifically ruling on the request, the court instructed Freed to draw his diagram. Freed, using his hand drawn diagram, explained where in the room the camera is located, indicated that it is focused on the entire room, and that the tapes are recycled every thirty days. Freed contended that if the still photos had been available, all that would have been seen is "a long range photo of a gentleman sitting at the desk at the other end of the room every 16 seconds." Freed contended there was never a video, but a snapshot every sixteen seconds showing a still photograph.

Defense counsel sought a dismissal of the case on the basis that there was spoliation of evidence, i.e., the erasure of the photographs by taping over them thirty days after they were taken. Counsel contended the evidence might have been exculpatory if it had shown that the breathalyzer tests were administered improperly by Officer O'Hala or if defendant's demeanor in the photos would have been different from his appearance as testified to by Officers Fair and O'Hala.

The municipal court judge found no improper activity by the police or prosecutor leading to the taping over of the photos in question. The judge also found the defense had produced no material evidence that there was something present on the photos that would require the case to be dismissed. Defendant was found guilty of DUI, based on the observations of the defendant by the officers and based on the two .17% blood alcohol readings, which the judge found were properly administered.

Defendant appealed to the Law Division. The issues as framed by Judge Neustadter were: (1) whether the municipal court erred by finding probable cause for the search and seizure of defendant; and (2) whether the municipal court should have dismissed the charges, based on a discovery violation, because the State inadvertently destroyed still photographs of the breathalyzer room.

Judge Neustadter conducted a trial de novo on the record of the municipal court pursuant to Rule 3:23-8. The judge in a letter opinion dated August 28, 2006, found that Officer Fair had probable cause for the stop of defendant and based on his observation of defendant's demeanor had probable cause to arrest defendant for DUI.

As respects the second issue, the judge made the following findings:

Here, defendant did ask for video of the Breathalyzer room in a timely fashion; however, the prosecutor did not provide a videotape. Nevertheless, both the prosecutor and defendant admit that in a letter dated February 23, 2006, the prosecutor's office advised defendant that, "[i]f this is a matter that involves a surveillance tape, please contact this office to arrange an inspection of the tape." . . . Defense attorney admits that he does not have an independent recollection of calling to view the tape. So even though the prosecutor did not provide a videotape for defense, it appears that they would have allowed him to view any video footage. Despite this, defendant continues to allege misdeeds by the prosecutor's office because a videotape was not provided. In actuality, a camera in the breath room takes still photos of the room every sixteen seconds . . . . The tapes are recycled every 30 days, so at the time of trial the photos of defendant were no longer available. . . . Defendant argues that his case should have been dismissed based on a spoliation of evidence argument; however, defendant has presented no reasonable basis that the photos would assist in his defense. Although defendant hypothesizes that the photos may show inaccuracy in the administration of the Breath test - this assertion is a thin hypothesis at best. Thus, since defendant is unable to present a reasonable basis for believing that the items requested would have aided in his defense, the municipal court did not err in refusing to dismiss the charges based on a spoliation of evidence argument.

Defendant presents the following arguments for our consideration.

POINT I.

THE TRIAL COURT ERRED AND, IN SO DOING, DENIED DEFENDANT FUNDAMENTAL DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS BY FAILING TO CONDUCT A N.J.R.E. 104(a) HEARING REGARDING THE DESTRUCTION OF VIDEO EVIDENCE, INCLUDING WHAT THE TAPE WOULD HAVE SHOWN AND WHY IT WAS DESTROYED.

POINT II.

BASED UPON THE WILLFUL DESTRUCTION OF VIDEO EVIDENCE, THE APPELLATE DIVISION SHOULD REVERSE THE LOWER COURTS' FINDINGS AND ENTER A JUDGMENT OF ACQUITTAL BASED UPON THE STATE'S INDIFFERENCE TO DEFENDANT'S TIMELY REQUEST FOR VIDEO EVIDENCE.

Defendant argues that a videotape of a defendant in a DUI situation will provide the best indication of a defendant's condition, i.e., his conduct and demeanor and whether the officer administering the breathalyzer tests properly conducted them. Defendant asserts that videotaped evidence of the breathalyzer room was properly requested and the failure to provide the videotape was a violation of defendant's right to due process.

Relying on this court's opinion in State v. Colasurdo, 214 N.J. Super. 185 (App. Div. 1986), defendant contends the Law Division was unable to determine whether a due process violation resulted from the State's action in failing to preserve the videos, by utilization of the three factor test recited in Colasurdo, because the municipal court denied counsel's request to conduct an N.J.R.E. 104 hearing. Defendant claims at such a hearing a prototype of the still photos could have been examined to determine whether the location of defendant in the breathalyzer room would have potentially produced evidence of defendant's demeanor and of Officer O'Hala's conduct of the breathalyzer testing.

In Colasurdo, supra, the defendant was charged with DUI after being subjected to two breathalyzer tests, both of which indicated a .30% blood alcohol content. Id. at 186. After the prosecution was unable to find a videotape made of the defendant while he was performing physical agility tests at the police station shortly before his arrest, defendant moved to dismiss the complaint for failure to produce the videotape. Id. at 186-87. The defense contended the loss of the videotape constituted a suppression of exculpatory evidence, which was material to the defendant's preparation of his case and constituted a deprivation of due process under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963) so as to warrant dismissal. Id. at 189.

We noted that "[t]he test is whether the evidence could induce reasonable doubt as to the verdict or would tend to exculpate defendant." Ibid.; see State v. Carter, 69 N.J. 420, 434 (1976). We stated that:

[W]hether due process was violated when there has been suppression, loss or destruction of physical evidence in a criminal trial should focus on three factors:

(1) whether there was bad faith or connivance on the part of the government, . . . (2) whether the evidence suppressed, lost, or destroyed was sufficiently material to the defense, . . . [and] (3) whether defendant was prejudiced by the loss or destruction of the evidence."

[Colasurdo, supra, 214 N.J. Super. at 189 (quoting State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985)) (citations omitted).]

In Colasurdo, defense counsel asserted that the loss of the videotape of the defendant's performance on the balance tests deprived him of the best piece of evidence and that it was exculpatory because it would show defendant was sober and would have passed the psychophysical tests. Ibid. We rejected defendant's argument, concluding the defense failed to support the contentions made. Id. at 190-91.

Here, unlike in Colasurdo, there was no video made of defendant while performing psychophysical tests or while the breathalyzer tests were being administered to him. The municipal prosecutor, acting as an intermediary between the police department and the court, and whose representations regarding the videotaping system were accepted by the defense, stated that the Atlantic City Police Department does not operate a videotaping system in the breathalyzer room that could provide direct evidence of defendant's condition after his arrest for DUI or of the administration of the breathalyzer test. Rather, the only system is a security system that operates throughout the building and provides still shots at intervals of from one to sixteen seconds. We concur with Judge Neustadter that such a system could not provide evidence of sufficient probative value to warrant relief to defendant even if the police department and prosecutor mishandled defendant's request for production of whatever pictures this security system produced.

After a careful review of the record in light of the arguments advanced by the parties, we affirm substantially for the reasons expressed by Judge Neustadter, after de novo review, in his August 22, 2006 written decision. The findings and conclusions of the judge are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

 
Affirmed.

The Law Division's decision on this issue has not been appealed to this court.

(continued)

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A-1163-06T5

July 13, 2007