STATE OF NEW JERSEY v. BRIELLE L. FERREIRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3956-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIELLE L. FERREIRA,

Defendant-Appellant.

________________________________________________________________

December 28, 2011

 

Submitted December 6, 2011 - Decided

 

Before Judges Carchman and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

Municipal Appeal No. 59-10.

 

W. Curtis Dowell, attorney for appellant.

 

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Brielle L. Ferreira appeals from a judgment of conviction after her trial de novo for two motor vehicle violations: driving while intoxicated (DWI), N.J.S.A. 39:4-50; and failure to maintain a lane, N.J.S.A. 39:4-88(a). Defendant was sentenced as a third DWI offender to 180 days of imprisonment; referral to an Intoxicated Driver Resource Center (IDRC); a ten-year revocation of her driver's license; and fines, penalties and assessments totaling $1346.1 We affirm.

These are the facts adduced at the trial in the municipal court and at the trial de novo in the Law Division. On February 11, 2005 at approximately 3:45 p.m., Officer Jason Siitonen of the Evesham Township Police Department was on patrol when he observed defendant's white Mitsubishi sedan swerve from the travel lane and cross over the white fog line that separates the travel lane from the shoulder of the road. The officer then observed the driver, whom he later identified as defendant, correct the vehicle and cross over the double yellow lines in the center of the road, thereby entering the lane of oncoming traffic.

Based upon these observations, Officer Siitonen stopped defendant's vehicle. As the officer approached defendant's car, he initially observed that her eyes were "bloodshot and watery." Upon speaking with defendant and requesting her credentials, Officer Siitonen noted that her speech was "slow and slurred." As defendant searched through numerous papers to locate her credentials, the officer noticed her hand movements were "slow" and she "fumbled" with the documents. Ultimately, defendant produced a plastic folder containing her AAA card instead of the documents he had requested. Officer Siitonen returned the plastic folder to defendant and asked her to produce the proper credentials. According to the officer, defendant had difficulty remembering what documents he had asked her for, but ultimately produced valid credentials.

Based upon these observations, the officer, who has more than seven years of law enforcement experience, requested that defendant step out of the vehicle. At that time, the officer also observed that defendant's eyelids were "extremely droopy," and she "appeared to be drooling out of her mouth as she spoke." As defendant continued speaking, Officer Siitonen noticed she was not able to speak in coherent sentences and was "rambling."

While Officer Siitonen did not smell alcohol on defendant's breath, he suspected she was under the influence of "something." Based upon this suspicion, the officer asked defendant if she had taken any prescription medication. Defendant stated "she was on prescription medications stemming from a prior car accident," and that she had taken "a hydrocodone pill" earlier in the day. Whereupon, defendant "showed [the officer] a pill bottle" that appeared to be a valid prescription.

After a backup unit arrived, Officer Siitonen began to conduct field sobriety tests to determine whether defendant was intoxicated. Again, the officer observed defendant's movements were "slow" and "exaggerated," and she appeared to be "staggering" as she walked. Defendant failed each of the four sobriety tests that the officer administered, failing one of those tests on two separate attempts. At that point, Officer Siitonen placed defendant under arrest.

In the patrol car on the way to the police station, the officer described defendant's behavior as erratic and "[a]ll over the place." According to the officer, she was "[c]rying" and "drooling" and "kept asking repeatedly why she was under arrest, [and] why [the officer] stopped her."

At the police station, defendant was asked to provide basic biographical information, including her residence, birth date, place of employment, and social security number. As Officer Siitonen described, defendant "couldn't complete a sentence" in response to these routine questions.

Subsequently, the officer asked defendant if she would be willing to provide a breath sample, and she consented. Officer Anthony Padulese, a ten-year member of the Evesham Police Department, was brought in to administer the breathalyzer and complete an Alcohol Influence Report (AIR).2 As Padulese completed the report, Officer Siitonen remained present. Padulese also observed that defendant "display[ed] extremely slow speech, [was] unable to finish a complete sentence, . . . [and was] unable to keep the same idea through her sentences and answers." Padulese also noted defendant's eyes were "red and bloodshot." As the standardized AIR questions require, Padulese asked defendant if she was "taking [any] medicine." Defendant answered by stating she had consumed both "hydrocodone and Xanax" earlier in the day, having ingested the most recent dose around noon.

At the trial, Officer Sittonen testified to his observations of defendant on the day of the arrest. The officer described defendant's conduct, behavior, and the physical signs of intoxication he had observed from the time that he first stopped defendant's vehicle through the time he placed her under arrest.

In detail, Officer Sittonen related defendant's performance on the four field sobriety tests that he administered. The officer indicated that when he asked defendant to stand with her feet together and arms at her side, she was "swaying and losing her balance." When he next performed the horizontal vision gaze test (HGN), the officer stated that he observed a "nystagmus," which is an involuntary jerking of the eye, that was abnormal in light of defendant having reported she did not wear glasses or have a vision problem.

When the officer asked defendant to perform the "walk and turn test," and provided basic instructions for her to follow, she failed to comply with the instructions and failed the test on two separate attempts. When he attempted to explain the "one-leg[ged] stand test," defendant repeatedly interrupted him, was unable to follow his instructions, and "couldn't keep her foot [raised] off the ground."

In later testimony, Officers Sittonen and Padulese described defendant's abnormal conduct and the physical signs of intoxication they had observed after defendant was arrested and transported to the police station. During the completion of the AIR, defendant admitted she had taken "hydrocodone and Xanax" with the most recent dose occurring at noon.

The State then proffered Dr. John Brick, a biological psychologist specializing in "psychopharmacology," which he described is the study of the effects of alcohol and drugs upon the human brain. After the doctor detailed his training, education, and experience, the State offered Dr. Brick as an expert in the field of "pharmacology and behavioral and physiological [e]ffects of intoxication." Defense counsel stipulated to Dr. Brick's expertise "limited to those areas."

Dr. Brick noted that hydrocodone is a powerful opiate that "changes the brain to [alter] behavior" and that it is "similar to morphine in terms of its potency." He stated that Xanax, the brand name for alprazolam, is a benzodiazapine that is commonly used to treat anxiety disorders. According to Dr. Brick, both drugs carry a "high risk for abuse and dependence."

Regarding the effects of these drugs, Dr. Brick observed that hydrocodone impairs driving and benzodiasaphes produce "effects that have been shown to impair skills related to safe motor vehicle operation." He explained that both drugs "impair psychomotor behavior" and are "frequently" known to produce the behaviors that the officers observed in defendant on the day of her arrest, such as "trouble standing, . . . swaying . . . [and] slow [and] fumbl[ed] hand movements." He further confirmed the use of these drugs would produce "slow, slurred, or incoherent speech."

While Dr. Brick stated that hydrocodone would not produce a "nystagmus," he noted that Xanax has been shown to produce this effect. The doctor further confirmed that both hydrocodone and Xanax can result in "cognitive impairment" consistent with defendant's "inability to understand . . . instructions, and [being] unable to answer questions . . . in complete sentences."

Ultimately, Dr. Brick opined that defendant's admission to having taken hydrocodone and Xanax was "consistent with the biobehavioral indicators observed and reported by police" and that the officers' observations were "consistent with the known effects of these medications."

Defendant did not testify at trial. However, she proffered Dr. Lance Gooberman, a medical doctor who specializes in internal medicine, who routinely treats patients suffering from influenza. The State stipulated to Dr. Gooberman's expertise. Dr. Gooberman indicated that a respiratory infection, such as influenza, can produce a "nystagmus" or cause bloodshot eyes and droopy eyelids. As the doctor explained, "it's pretty exhausting to walk around with a fever, and that could make you tired, [a]nd it can also make it difficult to sleep." Dr. Gooberman also explained that injuries from a prior car accident could have affected defendant's balance and impeded her performance on the field sobriety tests.

Ultimately, Dr. Gooberman opined, "within a reasonable degree of medical certainty," that defendant was not intoxicated at the time she "was operating [a motor vehicle]" on the day she was arrested. Dr. Gooberman explained that his conclusion was based on statements defendant had made to the officers at the time of her arrest regarding a recent car accident and her reported feelings of fever, along with "the absence" of any "objective data" obtained by the police, "such as a competent examination, a breath test, a urine test, [or] blood analysis for intoxicating substances."

On August 18, 2010, the municipal court judge found defendant guilty and sentenced her.3 Following a trial de novo, Judge Kelly, in an expansive written opinion, concluded that the aggregate facts established beyond a reasonable doubt that defendant was guilty of driving under the influence of a narcotic on February 11, 2005.

On appeal, defendant raises the following issues:

Point I

 

THE APPLICABLE STANDARD OF REVIEW IS WHETHER THE LAW DIVISION RULING WAS BASED UPON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD. THE SO-CALLED "TWO-COURT RULE" DOES NOT APPLY TO THIS CASE.

 

Point II

 

THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO ESTABLISH BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS UNDER INFLUENCE OF NARCOTICS. THUS, THE CONVICTION BELOW SHOULD BE REVERSED AND DEFENDANT ACQUITTED OF D.W.I.

 

A. Although the Law Division ostensibly disregarded the HGN test, reliance upon the HGN by the police and State's expert constitute sufficient and independent reasonable doubt.

 

B. The Law Division erred in failing to consider that the State's expert impermissibly rendered an opinion on defendant's credibility, tainting the trial and establish reasonable doubt.

 

C. The Law Division erred in its interpretation and application Bealor. As a matter of law, "additional proofs" of narcotics consumption requires a chemical test. Even if admission of narcotics consumption is sufficient, something more than the vague admission in the instant case is required.

 

Point III

 

THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION AND ACQUIT DEFENDANT OF N.J.S.A. 39:4-88(a).

 

Critical to our consideration of this appeal is our standard of review. We state the basic principles that inform our consideration the issues raised on appeal.

Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the Municipal Court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (citing State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the Municipal Court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the Municipal Court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error."4 Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). The Law Division judge clearly understood that his role was to made independent findings; findings that, ultimately, were reflected in his written opinion.

While argued in various ways, the thrust of defendant's argument is that the State failed to present sufficient credible evidence to support the finding of guilt. We address the various arguments advanced in support of that claim.

A person who operates a motor vehicle while "under the influence" of a narcotic is guilty of DWI. N.J.S.A. 39:4-50(a). "[U]nder the influence" is defined as:

a substantial deterioration of diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs . . . . [or] a condition [that] so affects the judgment or control of a motor vehicle operator as to make it improper for him to drive on the highway.

 

[State v. Bealor, 187 N.J. 574, 589 (2006) (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)) (internal quotation marks omitted).]

As applied to the ingestion of narcotics and habit-producing drugs, the Court has explained that a driver is "under the influence of a narcotic drug . . . if the drug produced a narcotic effect so altering his or her normal physical coordination and mental faculties as to render such person a danger to himself as well as to other persons on the highway." Id. at 589-90 (quoting Tamburro, supra, 68 N.J. at 421) (internal quotation marks omitted).

To sustain a conviction, the State must prove beyond a reasonable doubt that defendant was "under the influence" at the time of the violation. Id. at 586. To meet its burden, the State may rely on "competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant's consumption of narcotic[s] . . . or habit-producing drugs as of the time of the defendant's arrest, [which] constitute proofs sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt." Id. at 577.

In Bealor, the defendant was convicted of DWI in municipal court and in the Law Division based on the testimony of the arresting officer and expert proofs confirming the likely presence of marijuana in his system at the time of the arrest. Id. at 577, 580-83. Specifically, the officer testified to his observations of the defendant's demeanor and physical appearance, and described the defendant's performance on the field sobriety tests that he administered. Id. at 578-80. Two forensic scientists testified to the results of tests performed on defendant's urine sample and a glass pipe seized from the defendant after his arrest. Id. at 580-81.

We reversed, concluding that the State's proofs were insufficient because the State had failed to prove, through expert opinion, that the defendant was under the influence of marijuana while he was driving. Id. at 583.

The Supreme Court reversed and reinstated the conviction, holding that "[e]xpert proofs are not a necessary prerequisite for a conviction for driving while under the influence," and that "the driving while intoxicated statute 'does not require that the particular narcotic[, hallucinogen or habit-producing drug] be identified.'" Id. at 588-89 (quoting Tamburro, supra, 68 N.J. at 421). Instead, the Court observed that the State had satisfied its burden even "if limited solely" to the observations of the arresting officer, who testified in relevant part to the defendant's "erratic and dangerous driving," "slurred and slow speech," "'bloodshot and glassy' eyes," "droopy eyelids," and "'fumbl[ing] around the center console and his glovebox searching for all his credentials.'" Id. at 590.

The Court determined "the aggregate of th[e] proofs" presented by the State, which included the officer's testimony that the defendant admitted he "'drank a couple beers,'" was "more than sufficient to permit the fact-finder to conclude, beyond a reasonable doubt, that defendant violated the driving while intoxicated statute." Id. at 578, 590 (emphasis added). As the Court observed, "[c]ompetency to operate a motor vehicle safely is the critical question." Id. at 591 (quoting Tamburro, supra, 68 N.J. at 422).

Presented with similar facts in Tamburro, the Court affirmed our decision upholding the defendant's conviction for operation of a motor vehicle while under the influence of narcotics. Tamburro, supra, 68 N.J. at 422. There, the conviction was based on the lay testimony of the arresting officer, combined with the testimony of a medical doctor experienced in narcotics and drug control, and the defendant's admission to having ingested a prescribed dose of methadone earlier in the day. Id. at 416, 418.

At trial, the officer in Tamburro testified to his observations of the defendant, including the fact that the defendant "fumbled excessively with his wallet," had "bloodshot" eyes, "swayed slightly, appeared uncoordinated," and "slurred" his speech. Id. at 417. Additionally, the State's expert testified that the physical symptoms observed by the officer "could not have been produced by anything other than the ingestion of a narcotic drug." Id. at 418. While the defendant's expert opined that "something else" was responsible for the defendant's condition, the Court found the State's proofs sufficient to prove beyond a reasonable doubt that the defendant was guilty of DWI. Id. at 419, 422 (internal quotation marks omitted).

Consequently, the Court held that a conviction for DWI based on the consumption of narcotics "does not require that the particular narcotic be identified." Id. at 421. Rather "[i]t is enough if, from the subject's conduct, physical and mental condition and the symptoms displayed, a qualified expert can determine that he or she is 'under the influence' of a narcotic [or] . . . a drug [that] produces a narcotic effect. Ibid.

Here, as in Bealor and Tamburro, the State presented the testimony of the arresting officer, combined with the expert testimony and defendant's admission to having ingested narcotics on the day of her arrest. Officer Siitonen described his observations of defendant's behavior and the physical symptoms of intoxication that he had observed in defendant. His observation mirrored those in both Bealor and Tamburro as Officer Siitonen described defendant's eyes as "bloodshot and watery"; her speech as "slow and slurred"; and her hand movements as being "slow" and "fumbled."

Also similar to the arresting officers in Bealor and Tamburro, Officer Siitonen observed defendant's poor performance on each of the sobriety tests, and he recounted his interaction with defendant in detail. Here, defendant admitted ingesting hydrocodone and Xanax on that day, ingesting those medications as recently as noon.

Again, consistent with the expert testimony elicited in Bealor and Tamburro, here the State presented the testimony of Dr. Brick, who confirmed that the observations made by Officers Siitonen and Padulese were consistent not only with the ingestion of narcotic drugs in general, but specifically with the precise prescription drugs that defendant had admitted she consumed. Dr. Brick also opined that hydrocodone impairs driving, while benzodiazapines such as Xanax produce "effects that have been shown to impair skills related to safe motor vehicle operation."

Dr. Brick further explained that both hydrocodone and Xanax "impair psychomotor behavior" and are "frequently" known to produce the behaviors that the officers reported having observed, such as "trouble standing, . . . swaying . . . [and] slow [and] fumbl[ed] hand movements." In rendering his expert opinion, Dr. Brick stated:

I don't think there is any question that the defendant was impaired when she was in contact with police. While there may be a multitude of reasons for her impairment, what is in evidence and what is consistent and explains the observations is her admitted use of Xanax and [hydro]codone.

 

While defendant presented a competing expert, both judges as finders of fact were entitled to accept or reject any expert testimony that they found credible or unbelievable. Judge Kelly, in the Law Division, rejected the testimony of defendant's expert, as was his right.

Defendant next asserts that "[t]he de novo court relied heavily on the opinion of the State's expert which was impermissible based on consideration of the HGN test and on assumptions not in evidence and which actually impermissibly opined on the credibility of defendant." We disagree.

Judge Kelly explicitly rejected "the probative value of the HGN test" in reaching his determination. See State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000) (noting the results of an HGN test cannot be used as substantive evidence of intoxication absent a showing of general acceptance in the relevant scientific community). Most important, even without the HGN test, there was more than ample evidence in the record to support the expert opinion of Dr. Brick under Bealor and Tamburro, and to support the ultimate conclusion reached by Judge Kelly.

Defendant next asserts that Dr. Brick "assumed the ingestion of narcotics from defendant's admissions, but . . . refused to consider [defendant's] statements as to her influenza and injuries made under the same circumstances." According to defendant, this amounted to "an improper opinion as to defendant's credibility."

This argument is without merit. In his testimony, Dr. Brick did not render an opinion as to defendant's credibility or candor. Rather, Dr. Brick applied his medical knowledge to the lay observations reported by the officers, and opined as to whether such behaviors were consistent with defendant having ingested the precise narcotics that she admitted she had consumed.

Ultimately, Judge Kelly found Dr. Brick's testimony, and the testimony of Officers Siitonen and Padulese, to be "worthy of belief and credit." By contrast, the judge "d[id] not accept the opinion of Dr. Gooberman in view of the considerable other evidence presented as to the mental and physical condition of th[e] defendant immediately after she was stopped for erratic driving." The judge fulfilled his obligation to weigh the factual record anew.

Defendant next asserts that "Bealor requires a corroborating chemical test before a conviction for D.W.I. conviction may ensue." This reading of Bealor is incorrect.

In Bealor, the Court stated that "[e]xpert proofs are not a necessary prerequisite for a conviction for driving while under the influence," and that "the driving while intoxicated statute 'does not require that the particular narcotic[, hallucinogen or habit-producing drug] be identified.'" Supra, 187 N.J. at 588-89 (quoting Tamburro, supra, 68 N.J. at 421).

As Judge Kelly observed, Bealor requires that "the aggregate of th[e] proofs" presented by the State be "sufficient to permit the fact-finder to conclude, beyond a reasonable doubt, that defendant violated the driving while intoxicated statute," with "'[c]ompetency to operate a motor vehicle safely [being] the critical question.'" Id. at 578, 590-91 (quoting Tamburro, supra, 68 N.J. at 422).

Judge Kelly correctly determined that "the aggregate of the police testimony as to their observation of the defendant's demeanor, physical appearance, coupled with her admission of ingesting hydrocodone and alprazolam [wa]s sufficient to support a finding, de novo, that defendant [wa]s guilty beyond a reasonable doubt of driving under the influence of a narcotic or habit-producing drug" on the day of her arrest. (Emphasis omitted).

We are satisfied that Judge Kelly properly concluded that the State met its burden and defendant was properly convicted of a violation of N.J.S.A. 39:4-50.

Finally, we have considered defendant's argument that we should exercise original jurisdiction and enter a finding of not guilty to the violation of N.J.S.A. 39:4-88(a). We conclude that the argument is without merit and does not require further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The sentence was stayed pending appeal. The stay is vacated.

2 While the results of the breathalyzer administered by Padulese are not part of the appellate record, it appears the breath sample provided by defendant was negative.

3 The judge initially sentenced defendant as a second-time DWI offender, but the State moved to correct the sentence upon realizing that defendant was convicted of an additional DWI offense during the pendency of the proceedings, and was a third-time offender at the time of sentencing. The judge granted the State's motion, and corrected the sentence.

4 In a separate point heading, defendant challenges the application of the "two-court rule." The rule is not a rule per se but a recognition that where judges in the municipal court and Law Division have made credibility determinations as well as findings of fact, appellate courts will not generally diverge from those findings absent a showing of error that is obvious and exceptional. The concern about the "two-court rule" here is misplaced as the Law Division judge's disregard of the HGN test was an issue of law rather than a credibility determination. In any event, it does not alter the result.