STATE OF NEW JERSEY v. GEORGE DAVIDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-06179-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE DAVIDSON,

Defendant-Appellant.

January 31, 2014

Submitted January 22, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. A-02-12.

Law Offices of Richard M. Pescatore, attorneysfor appellant(Jennifer M. Carlson, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant George E. Davidson was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to maintain lane, N.J.S.A. 39:4-88. We affirm.

We derive the following facts from the record. While on patrol at approximately 3:00 a.m. on May 1, 2011, Patrolman Justin Selby of the Vineland Police Department was driving behind defendant's vehicle southbound on East Avenue in Vineland. Selby observed defendant cross over the white fog line on the right side of the road, and then "immediately swerve to the left violently," into the oncoming lane of traffic. The vehicle then again moved back over to the white fog line before returning to the correct lane of travel. Upon stopping defendant's vehicle due to his erratic driving, Selby detected an odor of alcohol coming from defendant's breath and vehicle. Defendant's speech was slurred, and his eyes appeared extremely bloodshot. Defendant admitted consuming one Guinness beer, but denied swerving off the roadway.

Selby administered two field sobriety tests: the one-leg stand test and the walk and turn test. Defendant failed to properly perform both tests in accordance with the officer's instructions. Defendant was unable to complete the one-leg stand test, immediately putting his foot down upon raising it. On the walk and turn test, defendant separated his feet, lost his balance, and miscounted the number of steps. Defendant was also unable to recite the alphabet correctly, and again Selby noted the odor of alcohol along with defendant's slurred speech.

Based on these observations, Selby concluded that defendant was under the influence of alcohol. Defendant was placed under arrest and transported to police headquarters where an alcotest was administered by another officer. The test revealed that defendant's blood alcohol content (BAC) was 0.10%.

After the State rested, the defense also rested, and reserved the right to be heard on closing argument. The municipal court judge specifically asked, "All right. Are you going to present any witnesses?" Defense counsel responded "No, Your Honor."

Defense counsel then summed up, followed by the State. As the prosecutor was commenting on the evidence, past the midway point of his summation, defendant suddenly interjected, "He [Selby] was [] lying. I'd like to take the stand." The judge advised the prosecutor to "proceed."

After the State concluded its closing argument, the court took a brief recess, and then returned with its decision. As the court was delivering its decision, and after pronouncing defendant guilty of the failure to maintain lane violation, defendant sporadically interrupted, stating "I don't believe this," and "Oh, man." A short time later, as the judge continued placing his decision on the record, defendant again interrupted and asked to "take the stand," to which the judge replied, "No." The court then found defendant guilty of the DWI violation, based on Selby's observations and defendant's 0.10% BAC.

Prior to the judge imposing sentence on the DWI, defendant again asked to speak. Defense counsel responded, "Your Honor, I've advised against it. I told him to hold off." Defendant repeated his request to take the stand, which the judge ignored. The judge then sentenced defendant on the DWI conviction as a third-time offender, imposed a 180-day custodial sentence, a ten-year revocation of his driver's license, and appropriate fines and penalties. Defendant remarked, "Give me 500 days, man," became disruptive, and was removed from the courtroom after sentencing was completed. A $106 fine and $33 court costs were imposed on the failure to maintain lane conviction.

On appeal de novo to the Law Division, Judge James R. Swift found defendant guilty of both offenses, and reimposed the same sentences. The judge reasoned that defendant's BAC level, which was above the statutory limit, along with the officer's observations of defendant's erratic driving and physical condition, adequately established defendant's guilt on the DWI charge. The judge also rejected defendant's argument that he was denied his constitutional right to testify, and his claims of ineffective assistance of counsel. The present appeal followed. On appeal, defendant raises the following contention:

POINT I

THE COURT BELOW DEPRIVED APPELLANT OF HIS RIGHT TO TESTIFY ON HIS OWN BEHALF AS SET FORTH IN THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATE CONSTITUTION AND THE CONSTITUTION OF THIS STATE.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R.3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J.146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division - not the municipal court. Id.at 162. We must accord deference to the trial court's findings of facts and determinations of credibility. State v. Locurto, 157 N.J.463, 474 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J.599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super.374, 383 (App. Div. 2000). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

Defendant argues, as he did before the Law Division, that his constitutional right to testify in his own defense was denied by the Municipal Court. In rejecting this argument, Judge Swift found:

As to the contention of Mr. Davidson as to the right to testify; obviously, the right to testify in any case is a constitutional right that should be protected as [] scrupulously as possible.

However, in this particular case, Mr. Davidson did not assert his right to [] testify, certainly did not do that at the time that [defense counsel] said the [] defense has no witnesses, did not say anything during the course of [defense counsel's] closing and summation to the court. He only responded that he wanted to testify after the substantial portion of the State's argument had been presented, at which time [] Mr. Davidson didn't like what was being said, and decided, at that point in time, that it wasn't going his way, and felt to jump in and try to change [] what appeared to be the - - what was going to be the outcome of the Court.

So, I do not find that Mr. Davidson was denied his right to [] testify; and I just believe that Mr. Davidson asserted that after he realized that the court was not going to rule in his favor.

We find the Law Division's conclusion amply supported by the record. After defendant rested, the municipal judge specifically asked whether defendant wished to call any witnesses. When defense counsel responded, "No, Your Honor," defendant did not object, nor ask to testify. It is established that the court has no duty to advise a defendant of his right to testify, or to secure the defendant's waiver of such right. State v. Savage, 120 N.J.594, 630 (1990); State v. Bogus, 223 N.J. Super.409 (App. Div. 1989).1

We further note that, having rested, the defense never moved to reopen. Even if we deem defendant's belated requests to "take the stand" as an application to reopen his case, the Supreme Court has long held that it is within a trial judge's discretion whether to reopen a criminal case after one or both of the parties rest. State v. Wolf, 44 N.J.176, 191 (1965); see alsoState v. Cooper, 10 N.J.532, 564 (1952). In State v. Gray, 101 N.J. Super.490, 494 (App. Div.), certif. denied, 52 N.J.484 (1968), we held under similar circumstances that a trial court did not abuse its discretion in refusing to reopen the record to allow defendant to testify when defendant had waived his right to testify and summations had already been given.

Here, defendant unquestionably allowed the case to proceed to summations without objection. No new evidence was presented which triggered defendant's request to testify. Rather, defendant merely changed his mind after the defense summation was completed, and he wished to respond to closing argument presented by the prosecutor. When defendant next sought to testify, the municipal judge had already pronounced him guilty of the lane violation, and was in the process of concluding his decision on the DWI charge. Given these circumstances, we discern no abuse of discretion.

While not specifically raised by defendant, we are however concerned that the municipal court did not allow defendant to speak at sentencing. In all likelihood, the municipal judge's refusal was attributable to defense counsel's statement on the record that he advised his client not to speak. Nonetheless, defendant still expressed a desire to be heard, and should have been afforded that right. However, we perceive any error in this regard as harmless, as defendant was afforded an extended opportunity to speak at sentencing by the Law Division judge, who then sentenced him anew.

In addition to rejecting defendant's argument that he was denied the constitutional right to testify, Judge Swift examined the record, and determined that the State's proofs were sufficient to establish defendant's guilt. A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996); see also State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986). A defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol or an admission of the consumption of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993); Ghegan, supra, 213 N.J. Super. at 385.

Given our standard of review, we are satisfied that the record contains ample credible evidence from which Judge Swift could have found defendant guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Defendant's erratic driving, slurred speech, bloodshot eyes, together with the odor of alcohol, his admission of the consumption of alcohol coupled with his 0.10% BAC, and his poor performance on field sobriety tests, including an inability to correctly recite the requested letters of the alphabet, were more than sufficient to sustain a DWI conviction.

1 The Supreme Court has indicated, however, that "it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant of his or her right to testify. This will best ensure that defendant's constitutional rights are fully protected. Indeed, counsel's failure to do so will give rise to a claim of ineffectiveness of counsel." Savage, supra, 120 N.J. at 631. In his notice of appeal to the Law Division, defendant raised various claims of ineffective assistance of counsel, including counsel's failure to allow defendant his constitutional right to testify in his own defense. These claims are not before us, and defendant concedes in his brief that they are not ripe for direct review since they involve allegations and evidence that lie outside the trial record. See State v. Castagna, 187 N.J. 293, 313 (2006).