STATE OF NEW JERSEY v. WAYNE GIBSON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6098-07T46098-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE GIBSON,

Defendant-Appellant.

_____________________________

 

Argued May 13, 2009 - Decided

Before Judges Rodr guez and Newman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal 07-065.

John Vincent Saykanic argued the cause for appellant.

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, of counsel and on the brief).

PER CURIAM

Defendant Wayne Gibson appeals from a judgment of conviction for driving under the influence of alcohol in violation of N.J.S.A. 39:4-50. Defendant was found guilty of a per se violation for a blood alcohol content reading of 0.292 by both the Butler Municipal Court and on the de novo hearing in the Superior Court. This was his second DUI violation. The court ordered defendant to pay a fine of $500, court costs of $33, a $50 VCCB penalty, a $75 Safe Neighborhood penalty, and a $200 surcharge. The Superior Court judge also suspended defendant's driving privileges for two years and denied a motion to stay the suspension. We now affirm.

The relevant facts may be summarized as follows.

On February 17, 2007, at approximately 6:00 p.m., Patrolman Gregory Post, a three-year veteran of the West Milford Police and a ten-year veteran of the Passaic County Sheriff's Department, responded to a report of a motor vehicle accident on North Gate Road in Kinnelon. Upon arriving at the scene, Patrolman Post observed a black 2005 Acura S.U.V. down the embankment on Route 23 North in the area of a Smoke Rise development entrance. It had snowed earlier that day and the embankment remained snow covered, though the road itself had been cleared. The S.U.V. had left tracks in the snow which indicated to Patrolman Post that the driver had wanted to make a right into the entrance of the development but had overshot and driven into the woods instead.

The vehicle's engine was still running and its lights were on. The airbags had also been deployed. The driver, later identified as defendant, remained in the driver's seat. Patrolman Post asked defendant if he was injured, to which defendant responded that he was not, but he could not "believe he trashed truck." Patrolman Post then asked defendant if he had been drinking. Defendant admitted to having "nine or ten glasses." Patrolman Post turned off the S.U.V.'s ignition and asked defendant to step out of the vehicle.

Officer Melissa Huizenga, a fifteen-year veteran of the Kinnelon police force, had also arrived at the scene. She immediately observed the S.U.V. at the bottom of the embankment and watched as Patrolman Post assisted defendant up the snow-covered embankment. Patrolman Post testified that defendant had difficulty in standing up as soon as he exited the vehicle and he "had to actually hold [defendant] up." As Patrolman Post helped defendant up the embankment, defendant "was falling down, slurring his words" and Patrolman Post could "smell a strong odor of alcohol coming from his breath." Upon reaching the top of the embankment, Patrolman Post placed defendant into the custody of Officer Huizenga because she had jurisdiction over the matter.

Officer Huizenga also smelled alcohol on defendant's breath and observed that he was slurring his speech, had "watery eyes" and was having difficulty standing on his own. She informed defendant that she was going to administer field sobriety tests, and then asked if he was hurt. Defendant responded that "his head hurt" and so Officer Huizenga dispatched an ambulance and had defendant sit in her patrol car. She did not see any visible signs of injury but because defendant said he was in pain, Officer Huizenga opted not to administer any sobriety field tests.

While they waited for the ambulance to arrive, Officer Huizenga advised defendant of his Miranda rights. Defendant waived those rights and stated that he was willing to speak to Officer Huizenga, who then asked him how many drinks he had consumed that evening. Defendant responded that he had three glasses of wine and one beer.

Officer Huizenga then asked defendant "if he would mind

. . . getting his blood taken" at the hospital. Defendant responded that "he had no problem with it." Officer Huizenga testified that while defendant waited for the ambulance in her police car, he kept repeating to himself "I know I'm drunk, but did I swerve or did I hit something? Uh, I don't remember what happened, where's my car?"

When the ambulance arrived, Officer Huizenga issued defendant a summons for driving while intoxicated, in violation of N.J.S.A. 39:4-50 and a summons for careless driving, in violation of N.J.S.A. 39:4-97.

Officer Huizenga notified Patrol Sergeant Chris Burns, an eighteen-year veteran of the Kinnelon Police Department, of the accident prior to the ambulance arriving and requested that he go to the hospital with defendant in order to retrieve the blood samples. Sergeant Burns met the ambulance en route to Chilton Memorial Hospital and followed it. Upon arrival, the ambulance personnel and Sergeant Burns escorted defendant into the emergency room on a gurney. Sergeant Burns brought a "blood kit" from his patrol car into the hospital with him in order to obtain the samples.

Sergeant Burns informed the hospital staff that defendant had been in a motor vehicle accident and that he required a blood sample for investigative purposes and then waited with defendant. While he waited with defendant, he observed that "there was a heavy smell of an alcoholic beverage [on defendant's breath], his speech was slurred." Dr. Solomon Alcantara, an employee of the hospital, arrived at approximately 7:20 p.m. and Sergeant Burns handed him the blood kit and explained that samples were needed as part of the investigation into the accident.

Dr. Alcantara treated defendant for "a small bruise or contusion on the right forehead" and noticed the smell of alcohol on his breath. Dr. Alcantara then drew two vials of blood using the contents of the blood kit and gave the vials to Sergeant Burns. The sergeant labeled the vials, placed them into the kit, sealed it and took it back to Police Headquarters, where he stored them in the evidence refrigerator. The evidence refrigerator had a combination lock and Sergeant Burns testified that only Detectives Mark Kane and Crouthamel had the combination.

Sergeant Burns also prepared an evidence report and a "police officer's" report. On the evidence report, he wrote the case number, date, time, investigating officer and location of the incident. He described the evidence, documenting "2 Vials of blood from Chilton Hospital marked 'Wayne Gibson'" and noted that he placed the samples in the "refrigerator lock box" at "18:06" on "2/17/07." On the "police officer's" report Sergeant Burns also recorded defendant's name, charged offense, and the date and time the blood was drawn.

Detective Mark Kane, twenty-year veteran of the Kinnelon Police Department, testified that on February 23, 2007, at 2:30 p.m., he retrieved defendant's blood samples from the evidence refrigerator. He stated that only he and Detective Crouthamel had access to the refrigerator. There was no other evidence in the refrigerator and the blood samples were marked by defendant's name, the date the samples were taken, and the case number. The samples were sealed in a clear plastic bag. Detective Kane placed the samples in a cooler and took them to the Little Falls State Police lab.

When the detective arrived at the lab, he signed the "sign in" book, waited a few minutes and then gave the samples to the clerk, Tammy Moore. Moore then prepared an evidence receipt and assigned the samples an identification number of 07-01913. Both Moore and Detective Kane signed the evidence receipt and Detective Kane was given a copy.

On February 26, 2007, Michael Baklarz, an employee of the State of New Jersey in the Office of Forensic Sciences, retrieved the blood specimen from the "vault" where the sample was kept at the Little Falls State Police lab. Because he did not personally have access to the vault, another employee of the Office of Forensic Sciences opened it for him. Though Baklarz could not remember who opened the vault, he testified that he personally removed the blood sample marked 07-01913. It was sealed in a plastic bag containing two plastic vials of blood. In order to handle the plastic vials, Baklarz had to cut open the plastic bag. The vials were labeled "Wayne Gibson" and were dated "2/17/07." Baklarz tested the samples using a gas chromatograph and found defendant's blood was 0.292 percent ethanol.

On the de novo hearing in the Law Division, defendant argued that his double jeopardy rights were violated because of the mistrial declared sua sponte by the municipal court. Judge Thomas Manahan rejected this argument, finding that defendant had consented to the mistrial.

Defendant further argued that he was prejudiced by the municipal court admitting the "chain of possession" portion of the "police officer's" report into evidence. The Law Division judge likewise rejected this argument, finding no prejudice because defendant had the opportunity to review the evidence and then cross-examine the witnesses.

Judge Manahan also found that the Municipal Court judge did not err in allowing defendant's blood sample analysis to be entered into evidence, finding that the State presented an adequate chain of custody. Based on these findings, the Law Division judge found defendant guilty of driving under the influence of alcohol in violation of N.J.S.A. 39:4-50 and reimposed the municipal court's sentence.

On appeal, defendant raises the following issues for our consideration:

POINT I: THE TRIAL COURT SHOULD HAVE EXCLUDED THE "CERTIFIED LABORATORY REPORT TOXICOLOGY ANALYSIS" ADMITTED INTO EVIDENCE AS STATE'S EXHIBIT S-5 AS THE STATE FAILED TO PROVE A SUFFICIENT CHAIN OF CUSTODY IN VIOLATION OF THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL AND STATE RIGHT TO A FAIR TRIAL; U.S. CONST. AMEND. XIV; VI; N.J. CONST. ART. I, PARA. 10.

POINT II: THE COURT ERRED IN ADMITTING S-6 (THE EVIDENCE RECEIPT - DIVISION OF STATE POLICE) OVER THE DEFENDANT'S OBJECTION IN VIOLATION OF HIS SIXTH AMENDMENT CONFRONTATION RIGHT AND FOURTEENTH AMENDMENT DUE PROCESS AND FAIR TRIAL RIGHTS (U.S. CONST. AMEND. VI; XIV; N.J. CONST. OF 1947, ART. I, PAR. 10).

POINT III: THE DEFENDANT'S STATE DISCOVERY AND DUE PROCESS RIGHTS WERE VIOLATED MANDATING DISMISSAL OF THE SUMMONS (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. OF 1947, ART. I, PAR. 10).

POINT IV: THE MUNICIPAL COURT ERRED IN QUALIFYING MICHAEL BAKLARZ AS AN EXPERT IN VIOLATION OF DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS (U.S. CONST., AMEND. XIV; N.J. CONST. OF 1947, ART. I, PAR. 10).

POINT V: THE DEFENDANT'S DOUBLE JEOPARDY RIGHTS WERE VIOLATED MANDATING A REVERSAL OF HIS CONVICTION AND DISMISSAL OF THE DWI SUMMONS (U.S. CONST. AMEND. V).

After full review of the record, we are satisfied that the arguments made are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

Establishing the custody chain is necessary to insure the reasonable probability that no tampering has occurred. State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968). Moreover, "it is not necessary for the party introducing . . . evidence to negate every possibility of substitution or change in condition between the event and the time of trial. . . ." Id. at 27. Here, the credible testimony of Sergeant Burns, Detective Kane and Michael Baklarz tracked the custody trail which ended when Baklarz cut open the sealed package containing the vials of blood marked and identified as taken from defendant along with the date taken which was then tested. The chain of custody was clearly established and no inference of tampering is even suggested.

Defendant had no constitutional right to examine Tammy Moore, the evidence clerk who prepared the receipt documenting the blood sample's arrival at the Little Falls lab. Detective Kane observed Moore prepare a receipt for the sample and both he and Moore signed that receipt entered into evidence. Kane testified at trial and was subject to cross-examination as to witnessing Moore sign the receipt. Furthermore, the receipt was non-testimonial and not subject to the Confrontation Clause of the Sixth Amendment. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004) recognized as much, noting that confrontation did not apply to non-testimonial hearsay.

Our State Supreme Court has held that the essential elements of testimonial evidence are 1) a report of a past event, 2) given in response to police interrogation, 3) with the purpose of establishing evidence that a defendant committed an offense. State v. Chun, 194 N.J. 54, 147 (2008). The Court went on to comment that the documents will not be considered testimonial when they "neither establish an element of the offense charged nor demonstrate the truth of any fact in issue." Id. at 141.

Here, the receipt used to record Detective Kane's delivery of the blood samples to the Little Falls lab is not testimonial. It does not establish an element of defendant's DUI offense, nor does it demonstrate "the truth of any fact in issue." Ibid. It was only used to establish a chain of custody, to which Detective Kane gave testimony and was subject to cross-examination.

During Sergeant Burns' redirect examination, the State presented an evidence report that documented Detective Kane's removal of the samples from the evidence refrigerator at the police station in order to transport them to the lab. At the time of trial, defendant had only been supplied with an incomplete version of the report. The State failed to provide defendant with this updated discovery, and so defendant's version of the report did not indicate who removed the blood samples from the police station. Defendant objected to admitting the most current evidence report into evidence, arguing that he was prejudiced by not being served with it before trial. The Municipal Court judge allowed the report to be admitted into evidence because the trial was extending beyond a single day and defendant would have ample time to review the report and recall witnesses, if necessary, based on the new information. Upon de novo review, Judge Manahan found the evidence admissible.

The State acknowledges that it breached its continuing duty to supply defendant with discovery. However, our Supreme Court, in discussing the United States Supreme Court's decision of Michigan v. Lucas, 500 U.S. 145, 152, 111 S. Ct. 1743, 1748, 115 L. Ed. 2d 205, 214 (1991), has stated that preclusion of evidence is not a necessary sanction "every time a discovery rule is violated." State v. Bradshaw, 195 N.J. 493, 506 (2008). Rather, the New Jersey Supreme Court held that "alternative sanctions would be 'adequate and appropriate in most cases.'" Ibid. (quoting Michigan v. Lucas, 500 U.S. at 152, 111 S. Ct. at 1748, 115 L. Ed. 2d at 214.) The Court went on to note that "absent a finding of a willful and blatant discovery violation, the sanction of excluding . . . [evidence] is not appropriate." Ibid.

There is no indication that the State willfully withheld the report in question. On the contrary, it appears that it was merely an innocent oversight. Significantly, defendant suffered no prejudice from the State's error. Defense counsel had sufficient time to review the evidence report and had the opportunity to cross-examine witnesses regarding the information contained therein. The new information provided in the report, that Detective Kane had taken the blood samples from the evidence refrigerator, had already been testified to by Detective Kane himself. Our Supreme Court has held that when a defendant has "suffered no prejudice from the State's failure to turn over . . . [discovery], defendant's claim that the State violated its discovery obligations is without merit." State v. Marshall, 148 N.J. 89, 195 (1997), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). That is the case here. Defendant suffered no prejudice and his due process rights were not violated.

Defendant's contention that Michael Baklarz was not qualified to testify as an expert on laboratory analysis of ethyl alcohol was properly rejected. He is certified in his field to test blood samples, and he has performed over 500 tests in his four-year career. He has received "in-house" training on testing blood samples. Baklarz satisfied N.J.R.E. 702's requirement that he have a "knowledge, skill, experience, [or] training" in a particular area of expertise.

Defendant's double jeopardy claim was properly rejected when defendant consented to the mistrial declared by the Municipal Court judge when the trial proceedings were incomplete due to a recording malfunction and, according to the judge, the record could not be reconstructed. The situation here was unlike that in State v. Leonard, 234 N.J. Super. 183 (App. Div. 1989), where consent was absent and defendant objected to a mistrial.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-6098-07T4

June 12, 2009