STATE OF NEW JERSEY v. LEONARD J. STERBA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1579-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD J. STERBA,

Defendant-Appellant.

_________________________________________________

May 2, 2011

 

Argued January 4, 2011 - Decided

 

Before Judges Payne and Koblitz.

 

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Municipal Appeal No. 09-004.

 

Leonard J. Sterba, appellant, argued the cause pro se.

 

Paula Jordao, Assistant Prosecutor,

argued the cause for respondent (Robert

A. Bianchi, Morris County Prosecutor,

attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant, Leonard Sterba, appeals pro se from his convictions for driving while intoxicated, N.J.S.A. 39:4-50, and refusal to take a breath test, N.J.S.A. 39:4-50.2. On appeal, he makes the following arguments:

POINT I

STATE ERRED TO ADMIT V.A. RECORDS INTO EVIDENCE

 

POINT II

 

STATE ERRED IN FAILING TO PRODUCE CELL PHONE RECORDS. THE APPELLANT NEEDS THOSE RECORDS IN HIS DEFENSE

 

POINT III

 

STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT AS TO DRIVING WHILE INTOXICATED 39:4-50

 

POINT IV

 

STATE FAILED TO MEET ITS BURDEN OF PROOF AS TO ELEMENTS OF REFUSAL TO TAKE THE ALCOTEST

 

We affirm.

I.

The record provides substantial support for the conclusions of the municipal and Law Division judges that, at the time of his arrest shortly after midnight on November 29, 2008, defendant was intoxicated. At trial, testimony was offered by the arresting officer, Brian McGaughran, that, while on patrol on Route 10 in Randolph Township, he observed defendant, while driving, repeatedly swerving out of his lane of travel. McGaughran activated his lights, and defendant stopped. As McGaughran approached defendant's vehicle, he heard loud music coming from it. Defendant greeted McGaughran with a blank stare and continued to eat a McDonald's hamburger. When asked for his credentials, defendant responded by asking McGaughran whether he knew Dean Kazaba, Randolph's prior Chief of Police. Defendant then announced that he was a special police officer in Randolph a fact that was not true. Instead of producing the requested documents, defendant proceeded to enumerate other retired police officers and to ask McGaughran whether they were known to him. Believing defendant to be intoxicated and uncooperative, McGaughran called for back-up. Overhearing the call, defendant denied that he was giving the officer a hard time.

Patrolmen Biase and Caufield responded to McGaughran's call. Perceiving a need to control the situation, McGaughran directed defendant to exit his vehicle. In response to McGaughran's questions, defendant admitted to having consumed alcohol, stating, "of course I had a couple of drinks." After the results of a horizontal gaze nystagmus test suggested that defendant had consumed more, he admitted to having consumed four or five drinks. When asked to perform field sobriety tests, defendant claimed that he had problems with his eyes and a torn meniscus in his left leg. Defendant's physical conditions were noted, and he was directed to perform a walk-and-turn test, which he failed, and a one-leg stand test, which defendant elected to attempt by standing on his allegedly injured left leg. He failed that test as well. A heel-to-toe test was likewise failed. During the course of testing, defendant swayed and staggered, keeping his feet wide apart for balance. In his report of the incident, McGaughran wrote that defendant's speech was "shouting, rambling, incoherent, boisterous, and slurred." His actions were described as "resisting and profanity, thumbing nose, threatening." His eyes were described as bloodshot and watery, and his face was described as flushed. Defendant's breath smelled of alcohol.

As the result of the police's observations, defendant was arrested for driving while intoxicated and placed in McGaughran's patrol car. Throughout the stop and after his arrest, defendant screamed at the police officers; he threatened suit against them if the police did not tow his car to his residence; and he threatened suit against Randolph Township if the car were impounded. En route to police headquarters, defendant called McGaughran a "screwball" on numerous occasions.

Once at police headquarters and while processing was underway, defendant suddenly began reciting the alphabet, but when he came to the letter F, he stopped and stated "fuck you to patrols." Further, defendant continued calling McGaughran a "screwball" and invited McGaughran to hit him so that he could file suit. Defendant told Caufield that he was inexperienced and a "nothing," and he said that Caufield should "go to hell." Further, he threatened suit if the officers did not "roosen" or remove his handcuffs, which they declined to do as the result of safety concerns.

Defendant "refused to accept authority" from the officers and demanded that a sergeant come to the scene. Sergeant Guiliani responded but, rather than becoming cooperative, defendant yelled at him, stuck out his tongue, and called him a "son-of-a-bitch." Additionally, defendant derided McGaughran and Caufield for not finding in a preliminary pat-down a knife that defendant had placed behind a cell phone that was clipped to his belt.

In preparation for conducting an Alcotest on defendant, McGaughran read him the standard statement that arresting officers are required to read to defendants who are accused of driving while intoxicated. When asked whether he would submit the required samples of his breath, defendant responded "yes." However, he then immediately asked for a cup of water, which was refused because it would interfere with the Alcotest. Defendant then stated that he was having an asthma attack, although no symptoms of asthma were evident, and that he wished to go to the hospital. In accordance with defendant's demand, the police requested that the Randolph Rescue Squad respond, but on their arrival, defendant was antagonistic to them and failed to indicate whether he still wished to be transported to the hospital while refusing to sign a refusal of treatment acknowledgment. As a result of the lack of a clear response, the Rescue Squad eventually transported defendant to the hospital. However, they offered no treatment at the scene, finding no apparent signs of an asthma attack.

Before defendant was taken to the hospital, the twenty-minute observation period required prior to administration of an Alcotest expired. Caufield therefore asked defendant to submit to the test, but he refused to approach the machine. As a result, McGaughran read to defendant the supplemental statement regarding the consequences of a refusal that is required when a refusal occurs. The concluding question, "will you submit to giving samples of your breath," was answered with silence. Defendant was therefore additionally charged with refusal to provide a breath sample.

McGaughran accompanied defendant to the hospital. After McGaughran removed defendant's handcuffs and started to leave the room in which defendant had been placed, defendant stated to him in parting, "screw you and the horse you rode in on."

McGaughran testified that defendant was eventually charged with driving while intoxicated, failure to submit to a breath test, reckless driving, failure to maintain a lane, failure to notify of an address change, disorderly conduct, and unlawful possession of a weapon (a knife).

The State also offered the testimony of Patrolman Richard Biase and Patrolman Neil Caufield. Both Biase and Caufield confirmed that when defendant was asked if he had consumed any alcoholic beverages, he responded that of course he had. Biase also stated that, when McGaughran attempted to instruct defendant regarding the field sobriety tests, he would interrupt or attempt to begin the test before the instructions were completed. He stated that defendant was unable to properly complete either the walk-and-turn test or the one-leg-stand test. Caufield agreed with Biase's observations regarding the field sobriety tests, and he described defendant's conduct as "irrational and abrasive." Biase testified that the field sobriety tests suggested that defendant was impaired as the result of consumption of alcohol; Caufield testified that, in his opinion, defendant was "extremely intoxicated."

Additionally, Caufield confirmed McGaughran's testimony that defendant attempted to avoid arrest by naming members of the police department who were known to him. He also stated that, when read his Miranda1 rights, defendant chimed in, in a loud, slurred fashion. Caufield testified that, when arrested, defendant stated: "How dare how dare you do this to me. I'm a wounded veteran. How dare you." When at headquarters, defendant was described as being "enraged, uncooperative, intoxicated." Overhearing the disturbance, Sergeant Giuliani came in and tried to obtain defendant's cooperation, but defendant responded by ridiculing him. Caufield's testimony regarding defendant's request for water, statement that he was suffering from an asthma attack and wished to go to the hospital, disclosure of the possession of a knife, refusal to participate in an Alcotest, and reaction to the appearance of Rescue Squad personnel was similar to that of McGaughran. Caufield confirmed that defendant used profanity throughout the proceedings.

As a final witness, the State called Colin Baker, an emergency medical technician and member of the Randolph Rescue Squad who had responded to the police's call regarding defendant. Baker testified that, upon arrival at headquarters, he was informed that defendant was complaining of an asthma attack and associated shortness of breath. He was requested to make an assessment, but as the result of defendant's conduct, was only able to make general observations regarding his condition. In Baker's opinion as an emergency medical technician, defendant was manifesting none of the signs of shortness of breath or other distress, although he appeared to be "aggravated and agitated." Once at the hospital, defendant was belligerent to staff and "not making it easy on them." However, Baker testified that he did not smell alcohol on defendant's breath. Baker was unaware of what treatment, if any, was rendered by hospital personnel.

After the State had rested, defendant offered as a witness his treating physician, Charles Joseph, M.D. Dr. Joseph testified that, in 2004, defendant had received a facelift that had caused ptosis, which is a drooping of the eyelid, causing watery, itchy eyes, but not a bloodshot appearance. Additionally, the doctor testified that defendant suffered from a torn medial meniscus in his left knee that would impact his ability to stand on that leg. According to Dr. Joseph, a person with that injury "would try to avoid standing just on that knee." Dr. Joseph also testified that he had been treating defendant for asthma for many years, and he stated that stress could bring on that condition. He stated that a person experiencing the symptoms of asthma, including tightness in the throat, could seek water. Further, the doctor testified that he was aware that defendant, a Vietnam War veteran, had been diagnosed as suffering from post-traumatic stress disorder. He also had a hearing problem.

Defendant testified on his own behalf at trial. In the course of his testimony, he admitted to consuming three alcoholic beverages on the night of his arrest, one drink at dinner, and two beers at approximately 11:00 p.m. at a local go-go bar, just before ordering two cheeseburgers at McDonald's. Defendant attributed his "wavering" while driving to his attempts to reach into the McDonald's bag located on the passenger seat. Defendant testified that, after being stopped, he immediately reached for his license, registration and insurance card, but he was nonetheless admonished for being uncooperative and for giving the officer a hard time. He denied engaging in such conduct when he overheard the officer reporting it and requesting back-up. After being pulled from his vehicle, defendant informed the officer that he had a problem with his eyes that causes them to tear and look droopy. He also stated that he had a torn meniscus in his left leg, and thus had difficulty performing the one-leg-stand test. Testing, he claimed, was done on a sloping part of the parking lot where he had stopped at the police's direction. Defendant denied calling McGaughran a "screwball" and stated that he only became upset and irritated when the officer arrested him for driving while intoxicated and indicated that his car would be towed. Defendant denied ever having been intoxicated when driving, and stated that he had only been intoxicated in other circumstances on a few occasions when he was a young man. He claimed to have responded to McGaughran "quite intelligently."

Defendant asserted that he wanted to take the Alcotest to clear himself, but unfortunately he was unable to do so because he experienced an asthma attack after being harassed by Sergeant Giuliani. Further, he was not given the water that he requested, and he was never actually offered the opportunity to be tested. According to defendant, Giuliani and Caufield had frequently been to defendant's residence in response to his complaints about people playing paintball, which activity set off defendant's post-traumatic stress disorder, and he suggested that the police arrested him in retribution for his prior complaints. Defendant stated that Giuliani disrespectfully called him "Lenny" and mentioned his complaints about paintball at the station, thereby causing him further stress. Defendant also noted that in an audiotape of station house conversations at the time that McGaughran sought reinforcements that was introduced into evidence at trial, Giuliani had referred to him as a "fucking nut job" and "a pain in the ass." On cross-examination, defendant denied the truth of the testimony given by the Randolph police officers.

At the conclusion of the trial, the judge found in a thorough and complete oral opinion that defendant was not guilty on the charges of failure to notify of a change of address, reckless driving and unlawful possession of a weapon. After determining that the testimony of the three police officers and of the Rescue Squad member was consistent and credible, the judge concluded that the evidence demonstrated, beyond a reasonable doubt, that defendant was guilty of driving wile intoxicated, N.J.S.A. 39:4-50, refusal to submit to a breath test, N.J.S.A. 30:4-50.2, failure to maintain a lane, N.J.S.A. 39:4-88, and disorderly conduct, N.J.S.A. 2C:33-2a(1). He sentenced defendant, as a first-time offender, to a license suspension of three months for driving while intoxicated and to twelve hours of instruction at the Intoxicated Driver Resource Center (IDRC). A concurrent license suspension of ten months, with twelve hours of IDRC instruction was imposed as the result of defendant's conviction for refusal to submit to a breath test. In connection with his conviction for disorderly conduct, he was also required to obtain counseling for stress management twice per month for a period of at least six months and until discharge was deemed warranted by the treating doctor. Appropriate fines, surcharges and assessments were also imposed as the result of all four convictions. Defendant's license revocation was stayed for ten days to permit him to perfect his appeal.

On appeal to the Law Division, counsel for defendant sought records of the existence of cell phone calls sent and received by the police at the time of defendant's arrest that had been denied to him by the municipal court judge. Counsel also sought to supplement the record with the reports of defendant's treatment by the Veterans Administration that had been ruled inadmissible by the municipal judge. The Law Division judge denied both applications, determining that records of the occurrence of cell phone calls lacked relevance, and the Veterans Administration records had not been properly authenticated.

Turning to the merits, the judge accepted the municipal judge's determination that the State's witnesses gave credible testimony. He found that the police had reasonable suspicion to stop defendant's vehicle and to conduct field sobriety tests. With respect to the testing, the judge noted defendant's inability to follow instructions a factor indicating intoxication that was unaffected by his physical conditions, and he noted that, despite a torn meniscus in defendant's left knee, he chose that leg to stand on while attempting the one-leg-stand test. As a consequence, the judge held on the basis of the evidence produced at trial that defendant was guilty of operating a vehicle while intoxicated. Additionally, he found defendant to be guilty of refusal to take an Alcotest, failure to maintain a lane, and disorderly conduct. However, the judge merged the failure to maintain a lane and the disorderly conduct convictions into the conviction for driving while intoxicated. The judge also eliminated the requirement that defendant receive counseling for stress management. With respect to the convictions for driving while intoxicated and refusing to take a breath test, the judge imposed the same concurrent sentences that had been imposed by the municipal judge. A stay of payment of the fines was entered; a stay of surrender of defendant's license was denied.

Upon further appeal, this court denied defendant's motion for a stay of his license suspension, as well as his motion to supplement the record.

II.

Defendant argues on appeal that the court erred in refusing to admit records of his treatment at Veterans Administration hospitals in New Jersey. At trial, defense counsel sought the admission of these records, following the testimony of Dr. Joseph, claiming that they had been obtained pursuant to subpoena and had been delivered directly to the municipal court. The records were accompanied by a certification by Sandra C. Kelley, which stated:

I, Sandra Kelley, of the Department of Veterans Affairs of New Jersey Health Care Systems, Lyons Record/Agent hereby certify that the records attached is [sic] in the custody of and is the full and complete records of the condition, act, transaction, occurrence or event of this institution concerning; Leonard Sterba, inclusive of dates January 1, 2000 to May 20, 2009.

 

I further certify that this record was made in the regular course of business of this institution and is in the regular course of business of this institution to make such record, And such record was made at the time of the condition, act, transaction, occurrence, or event or within a reasonable time thereafter.

 

Sincerely,

 

SANDRA C KELLEY - Release of Information

 

At the municipal trial, defense counsel sought admission of the records for their truth as corroboration of the medical conditions to which Dr. Joseph and defendant had testified. The State objected, arguing that the records had not been produced in discovery, they were not properly authenticated, they were not relied upon by defendant's expert, and they were generated by multiple physicians who were unavailable for cross-examination. Following an extended colloquy, the judge denied their admissibility as lacking proper authentication and probative value and as containing opinions that could not be challenged through cross-examination. On appeal, the Law Division judge found, as we have stated, that the records were not properly authenticated. Defendant, however, now argues that the records were admissible as business records pursuant to N.J.R.E. 803(c)(6) and relevant as evidence "establish[ing] the general circumstances of [defendant's] health" at the time of his arrest.

N.J.R.E. 803(c)(6) excepts from the bar of the hearsay rule

[a] statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

As noted, the documents that counsel sought to admit into evidence were accompanied by a certification by Sandra Kelley. While properly certified documents may be admissible pursuant to the business document exception to the hearsay rule, without the necessity of oral testimony, Gunter v. Fischer Scientific Am., 193 N.J. Super. 688, 691-92 (App. Div. 1984); 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(6), it is not clear to us that Kelley occupied a position that permitted her to certify to the authenticity and completeness of medical records covering a period of more than eight years at multiple, unidentified Veterans Affairs medical facilities.

If we assume the general conditions for admissibility were met, State v. Matulewicz, 101 N.J. 27, 29 (1985) (establishing conditions for admissibility); DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 86 (App. Div. 2001) (approving the admissibility of medical records under the rule), we must still consider the applicability of N.J.R.E. 808 in the context of this case. That rule provides:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

 

At trial, defense counsel stated that the records that he sought to have admitted concerned post-traumatic stress disorder, asthma, anxiety, hearing loss, tinnitus, anger issues and response to sounds, and problems with a dry mouth. He wished to use the substance of the records to confirm as true the fact that defendant had been diagnosed as suffering from these conditions and thus that his behavior on the night of his arrest was attributable to his medical status, not intoxication. However, the diagnoses upon which he sought to rely were derived as a matter of expert opinion by non-testifying treating physicians, thereby implicating N.J.R.E. 808. In that connection, we do not question the circumstances involved in rendering the diagnoses at issue, including the motive, duty and interest of the doctors involved, and we acknowledge that the diagnoses were rendered at a time when litigation was not contemplated. However, we also recognize the complexity of the subject matter and, because of that factor, a need to test the accuracy of the diagnoses that were rendered. As a consequence, we do not find the conditions of N.J.R.E. 808 to have been met.

As a final matter, as the municipal judge determined, the documents merely provided cumulative evidence of defendant's medical state, as to which ample testimony had been provided by defendant himself and corroborated by the detailed testimony of his long-term treating physician. As such, they were excludable pursuant to N.J.R.E. 403. We find no abuse of the judge's discretion in utilizing that ground for the exclusion of the proffered evidence. Estate v. Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010).

II.

Defendant next argues that the court erred in denying his request for discovery of the record of Nextel cell phone calls initiated and received by the Randolph Township police at the time of Officer McGaughran's stop. Prior to trial, those records were informally requested. However, the State refused to produce them voluntarily and the municipal judge declined to order their production because defense counsel was unable to articulate why they would be relevant to the litigation. The following exchange occurred between the judge and defense counsel:

THE COURT: Mr. Gates, specifically, you're going to have to give me something more than personal cell phone records. I mean, if it's just pure conjecture, I see no basis to provide pure the cell phone records.

 

MR. GATES: Well, Your Honor, there, there is a reference, I believe, in the police report to a call made on a cell phone.

 

THE COURT: And what would be the relevance of that?

 

MR. GATES: Well it's, it's I can't give you a specific because I don't know what, what the calls were, but

 

THE COURT: Well all you would find out . . . [was] that a call was made. You're not going to know what the content of the conversation was.

 

MR. GATES: No, but if the call was made from the for instance this is hypothetical because I don't have the facts. But if one of the officers on the scene placed a cell phone call to another officer who is back-up, there might be some relevance to the way they conducted the investigation. There might be certain inferences.

 

Thereafter, at the judge's suggestion, defendant made a formal motion for the records, claiming that they might be exculpatory in nature. However, counsel was again unable to articulate what exculpation could be obtained from a record that only indicated that a call had been placed or received. The motion was denied. No greater showing of relevance was made to the Law Division judge, who also declined to require production of the cell phone records.

On appeal, defendant proffers evidence that cell phone communications occurred between police officers on the night of his arrest. He offers nothing further to support his claim that a record that such calls were made could be exculpatory. We therefore find no abuse of discretion on the part of the municipal and Law Division judges in denying defendant's discovery request.

III.

In his remaining two arguments, defendant contends that the State failed to meet its burden of proof on the charges of driving while intoxicated and refusing to take a breath test. However, our review of the record satisfies us that these arguments lack merit. R. 2:11-3(e)(1)(A) and (E). As the factual recitation that commenced this opinion discloses, substantial evidence was introduced in support of the State's charges in this matter. State v. Locurto, 157 N.J. 463, 474 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964).

Affirmed.

 

 

 

 

 

 

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