STATE OF NEW JERSEY v. MARK HALLQUIST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1776-07T41776-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK HALLQUIST,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 6, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-27-07.

Raymond & Coleman, LLP, attorneys for appellant (Stephen G. Raymond, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mark Hallquist appeals from a conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. After being found guilty in the municipal court of Elk Township, defendant appealed to the Law Division, where a trial de novo again resulted in his conviction. Defendant appeals from the November 26, 2007 Law Division order that denied his motion to suppress evidence and found him guilty of driving while intoxicated. We affirm.

I.

On November 20, 2006, at 12:08 a.m., Elk Township police were dispatched to the buffer area near one of the exits of Route 55 to investigate a report of an automobile accident. Upon arrival at 12:10 a.m., Corporal Ken Sweeten and Officer Thomas Bisceglia observed a heavy-damaged blue pickup truck attached to a tow truck. The tow truck driver related that while operating his tow truck on Buck Road adjacent to the Route 55 on-ramp, a man, later identified as defendant, flagged him down and asked him to pull his truck out of a twenty-five foot ditch nearby.

Sweeten testified that he questioned defendant, who was "in the vicinity" of the tow truck when Sweeten arrived at the scene. Defendant told Sweeten that while traveling on Buck Road, he attempted to enter the on-ramp, but failed to navigate the turn, causing his vehicle to go off the road, into the woods, and down into the ditch, whereupon he flagged down the tow truck and asked the driver to assist him.

According to Sweeten, while speaking to defendant, he detected the smell of an alcoholic beverage emanating from defendant's breath. Sweeten described defendant as "definitely staggering, . . . having trouble walking, [and] having trouble standing." Accordingly, Sweeten directed defendant to sit on the grass nearby to ensure that defendant would not fall and injure himself.

Because the accident had occurred on a State highway, Sweeten contacted the New Jersey State Police. Shortly thereafter, two troopers, Godich and Wright, arrived. Godich administered field sobriety tests to defendant. The administration of the tests was videotaped, and the videotape was reviewed by both judges. Because defendant continually lost his balance and was unable to perform the tests, Godich discontinued the tests "for [defendant's] safety." Godich testified that defendant failed the tests. Godich also testified that when he asked defendant whether he had consumed any alcohol, defendant admitted to consuming four beers and a bottle of liquor.

After arresting defendant for driving while intoxicated, Godich placed defendant in his troop car and asked defendant to direct him to the precise scene of the accident. Defendant told the trooper that after hitting the guardrail, the car flipped and ultimately landed in a ditch twenty-five feet below the road surface. Defendant pointed to the ditch. Later, Trooper Wright administered the Alcotest to defendant at State Police barracks, which defendant failed.

In the municipal court, after the State rested, defendant moved for a dismissal of the charges, contending that police lacked "probable cause for the stop of the [tow truck]." The judge denied the motion, whereupon defendant took the stand. He testified that he had consumed "a couple of beers" before the accident. He maintained that sitting in his car after the accident, while trying to figure out what to do, he consumed a bottle of Crown Royal that he had purchased earlier that night. He contended that he "drank pretty much all or most of that bottle" before climbing up the ravine and flagging down the tow truck.

On cross-examination, defendant insisted that he was not, as Sweeten had testified, seated on the sidewalk when the officers arrived. Instead, defendant claimed that he was seated in the tow truck when Sweeten asked the tow truck driver to stop. However, defendant acknowledged that he never told the troopers that he was "drinking down in the gully." Defendant presented no other witnesses.

Judge Powell found defendant guilty of driving while intoxicated. The judge specifically rejected defendant's claim that he did not consume the Crown Royal until after the accident. After discussing defendant's testimony that he purchased the Crown Royal at a liquor store that was in the opposite direction from his children's home, to which he was heading before the accident, the judge stated, "I don't believe any of that." The judge concluded that defendant's account "doesn't make any sense--none of that makes any sense to me, it doesn't have the ring of truth to it. The drinking in the gully doesn't have any ring of truth to it either . . . ."

Based on the testimony of the four officers and the videotape that depicted defendant's performance on the field sobriety tests, the judge found defendant guilty of DWI. Defendant then filed an appeal seeking a trial de novo in the Law Division.

During the trial de novo, Judge Marshall commented that he would afford "due, although not controlling weight" to the municipal court's conclusion that defendant's testimony was not credible. Judge Marshall also viewed the videotape, commenting that he did not find it "particularly enlightening." In a written opinion, Judge Marshall denied defendant's motion to suppress, finding that police "had sufficient cause to conduct a motor vehicle stop" in light of the "anonymous call" that reported the accident. The judge reasoned, "[w]hen viewing the totality of the circumstances, the officers had reason to believe that the circumstances were enough out-of-the-ordinary to stop the vehicle and investigate. Based upon this, the motion to suppress is denied."

Next, the judge concluded the State established beyond a reasonable doubt that defendant had been operating the vehicle at or about the time of the accident and was intoxicated while doing so. Giving "due regard" to the credibility findings of Judge Powell, Judge Marshall specifically rejected defendant's claim that it was not until his truck had already run off the road that he consumed the bottle of Crown Royal.

In his written opinion, Judge Marshall specifically stated that he based his finding of guilt solely on the testimony of the officers concerning the smell of alcohol on defendant's breath and defendant's obviously-inebriated state at the scene. The judge remarked that he "entirely disregarded the [Alcotest] readings in this matter."

On appeal, defendant raises the following claims:

I. THE LAW DIVISION ERRED IN FINDING JUSTIFICATION FOR THE MOTOR VEHICLE STOP.

II. THE LAW DIVISION ERRED IN JUSTIFYING THE STOP UNDER THE COMMUNITY CARETAKING DOCTRINE.

III. THE LAW DIVISION ERRED BY FAILING TO SUPPRESS ALL EVIDENCE FROM THE ANONYMOUS PHONE CALL THAT POLICE ALLEGEDLY RECEIVED PRIOR TO MAKING THE ARREST AND THAT FORMED THE BASIS FOR THE STOP.

IV. THE LAW DIVISION ERRED IN OVERLOOKING PLAINTIFF'S FAILURE TO CALL AS A WITNESS THE DISPATCHER WHO RECEIVED THE ANONYMOUS CALL.

V. THE ALCOTEST EVIDENCE IS SUBJECT TO SUPPRESSION.

VI. THE LAW DIVISION ERRED BY FAILING TO APPLY OR GIVE DUE REGARD TO THE GLOVEBOX DEFENSE.

II.

In an appeal from a finding of guilt during a trial de novo, we are obliged to defer to the judge's findings of fact so long as those findings are based upon substantial and credible evidence in the record. State v. Locurto, 157 N.J. 463, 474 (1999). However, neither the judge's application of law to the facts nor his legal conclusions are entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We are satisfied, as was Judge Marshall, that when Elk Township police received a report of a motor vehicle accident, they were obliged to respond to the scene to investigate the accident and determine whether any motorists required medical assistance. State v. Goetaski, 209 N.J. Super. 362, 365 (App. Div.) (setting forth the community caretaking function of police), certif. denied, 104 N.J. 458 (1986). Neither the municipal court nor the Law Division specifically resolved the dispute in the testimony about whether defendant was in the tow truck when it was stopped or whether, instead, he was sitting on the sidewalk when police arrived. However, even if we were to accept defendant's contention that he was in the vehicle, we are satisfied that there was ample justification under Goetaski to stop the tow truck and make inquiries of the driver.

Our conclusion that the stop of the tow truck was justified as an exercise of the community caretaking function makes unnecessary any evaluation of the officers' reliance on the anonymous call reporting the accident. Here, we are satisfied that when police arrived at the scene, they observed a heavily-damaged pickup being towed, which was sufficient corroboration of the anonymous call to justify the actual stop. Consequently, we reject defendant's contention, encompassed in Points I, II and III, that the stop of the tow truck was unconstitutional because it was not based on a reasonable or articulable suspicion.

In Point IV, defendant argues that the Law Division erred when it overlooked the State's failure to call as a witness the dispatcher who received the anonymous call. Like the Law Division, we conclude that the stop of the tow truck was lawful without regard to the actual content of the anonymous call. The report of a motor vehicle accident, when combined with officers' observations of defendant's severely damaged pickup truck, clearly justified the stop of the tow truck. Ibid. Under such circumstances, the testimony of the dispatcher was unnecessary.

We need not address the argument defendant advances in Point V about the Alcotest results because the Law Division ignored these results. Instead, Judge Marshall based his finding of guilt on the officers' descriptions of defendant's inebriated condition, defendant's admission that he had been drinking and defendant's inability to complete the field sobriety tests. Those facts were more than sufficient to establish a finding of guilt on driving while intoxicated. Consequently, we, like the trial judge, see no need to address the Alcotest results.

Finally, defendant contends that the Law Division erred by "failing to apply or give due regard to the 'glovebox defense.'" See State v. Snyder, 337 N.J. Super. 59, 61 n.1 (App. Div. 2001) (observing that "[t]he assertion of post-operation alcohol consumption in a vehicle is popularly known as the 'glove box' defense"). Neither the trial judge nor the municipal court judge believed defendant's claim that he did not drink the Crown Royal until after he had stopped driving. Reading the same record the Law Division and the municipal court had before them, and giving deference to the credibility findings made by Judge Powell, as Locurto requires, 157 N.J. at 474, defendant's assertions "appear to us far less than credible and far short of a showing sufficient to mandate resolution of . . . [the] 'glove box' defense." Snyder, supra, 337 N.J. Super. at 67. Consequently, we reject defendant's contention concerning that defense.

Affirmed. The stay pendi
ng appeal is dissolved.

Because it was defendant's third DWI conviction, the judge sentenced him to six months in the county jail, imposed fines and penalties totaling $1,358, required him to complete twelve hours at the IDRC and suspended his driving privileges for a period of ten years. The judge stayed the sentence pending appeal.

See State v. Golotta, 178 N.J. 205, 219 (2003) (holding that police were justified in stopping a vehicle based on an anonymous 9-1-1 tip that the vehicle was driving erratically, without actually observing or otherwise verifying the caller's observations).

Defendant argues that the State is required to demonstrate probable cause to justify a motor vehicle stop. Such claim is incorrect. State v. Murphy, 238 N.J. Super. 546, 549-50 (App. Div. 1990) (holding that police may stop a vehicle based upon a reasonable and articulable suspicion that a motor vehicle infraction has occurred).

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A-1776-07T4

December 5, 2008