Opinion
DOCKET NO. A-5906-11T3
06-12-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. KEITH E. MILLER, Defendant-Respondent.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Jay M. Arnesen, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 37-11.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Jay M. Arnesen, attorney for respondent. PER CURIAM
The State appeals from the June 29, 2012 order of the Law Division, reversing defendant Keith E. Miller's municipal court conviction for driving under the influence of alcohol, N.J.S.A. 39:4-50. The Law Division judge determined that defendant's right to a speedy trial was violated by the delay in bringing the case to trial and that the municipal judge violated defendant's right to fundamental fairness by not proceeding to trial on the scheduled date. For the reasons that follow, we reverse the decision of the Law Division and reinstate defendant's conviction.
I.
On August 11, 2011, at approximately 6:00 a.m., defendant was arrested by an officer of the Weehawken Police Department and charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated within a school zone, N.J.S.A. 39:4-50(g); speeding, N.J.S.A. 39:4-48; and reckless driving, N.J.S.A. 39:4-96. After defendant's arrest, he submitted to an Alcotest breath examination.
The results of the Alcotest are not part of the record and defendant does not contest that he drove while under the influence of alcohol.
On September 28, 2011, a status conference was held in Weehawken Municipal Court. Defendant's counsel indicated that he would be challenging the Alcotest results.
The transcript of the September 28, 2011 conference was not part of the record on the trial de novo but was referenced in the October 26, 2011 transcript.
On October 26, 2011, another status conference was held. The prosecutor explained to the municipal court that the machine used to administer defendant's Alcotest examination had been out of service for two months before being recalibrated and placed back in service prior to defendant's test. Defendant's counsel indicated that he had retained an expert and wanted access to any documents containing information as to why the machine was taken out of service and what repairs, if any, were done. The prosecutor responded that there were three digital data downloads from the machine that would be copied and provided to counsel, but she was not aware of any other documents relating to the machine. The court ordered the prosecutor to provide the digital data downloads from the Alcotest machine to defendant within one week and set trial for November 22, 2012.
In State v. Chun, 194 N.J. 54, 142, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), our Supreme Court identified the foundational documents that relate to the working order of the Alcotest machine:
(1) documents directly evidencing the good working order of the machine as of the time of the test, including: the most recent calibration record, the most recent new standard solution report, and the certificate of analysis of the 0.10 simulator solution used in the control tests; and (2) documents evidencing the accuracy of the devices used and chemical composition of the solutions used to routinely test and calibrate the machine, including the analysis of all of the solutions used to test linearity, the documents attesting to the accuracy of the devices used in the simulator, and the certificates of accuracy of the simulator and temperature probes.
When the parties appeared on that date, the prosecutor indicated that she was not ready to proceed as a witness was not available. Defendant objected to adjourning the case as he had retained an expert who was present and prepared to testify. Defendant moved to dismiss the charges and to exclude the Alcotest results based on the State's failure to provide complete discovery of digital downloads for the machine. The prosecutor explained that defendant had been provided with all existing digital data downloads and the machine was not scheduled for additional downloads until mid- to late December. The judge ruled that discovery had been completed and denied both of defendant's motions. Trial was adjourned for two weeks.
On December 6, 2011, the prosecutor informed the court that the officer who administered the Alcotest was not present due to a medical issue. Since the witness required surgery and would be unavailable for two to three months, the State decided to try the case without introducing the Alcotest results, relying solely on the arresting officer's observations. Defendant then entered a conditional guilty plea to driving while intoxicated, but reserved the right to appeal the denial of his motion to dismiss. The municipal court suspended defendant's driver's license for three months and imposed fines, fees, and costs totaling $256. On December 12, 2011, defendant filed a notice of appeal to the Law Division.
On May 11, 2012, the Law Division judge heard argument and reserved decision. On June 29, 2012, the judge entered an order, accompanied by a written decision, reversing defendant's conviction. First, the judge referenced Administrative Directive #1-84, issued by Chief Justice Wilentz on July 26, 1984, establishing a "60 day standard for DWI cases." The judge then analyzed the delay, using the four-part test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
The court found that the "case was delayed over 4 months in total and almost 2 months past the 60-day 'Administrative Directive' standard," but determined the length of this delay was not excessive and by itself did not warrant a dismissal. The court found the reasons for the delay were failure to procure digital data downloads and produce witnesses for trial, but concluded that "the causes for the delays were not entirely the State's fault" and did not justify a dismissal.
The court found defendant asserted his right to a speedy trial on November 22, 2011, when he objected to the adjournment of trial. Finally, the court examined prejudice and noted that defendant had retained an expert who was prepared to testify on November 22, 2011, but could not afford to pay the expert to return on the rescheduled trial date. The court concluded that "[defendant] was unable to present a meaningful defense because he could no longer afford the expert witness costs." The court also found that defendant's inability to afford to pay the expert to return on the adjourned trial date "led to [defendant's] decision to enter a guilty plea."
The court then departed from its Barker analysis and determined that the municipal court's "insistence on trying the case on November 22, 2011" was a "promise" that was "sacrosanct." Failure to try the case on the promised date "violat[ed] the concept of fundamental fairness." The court held that "after weighing all the Barker factors and applying the principles of fundamental fairness . . . [defendant's] right to a speedy trial was violated and the case should have been dismissed."
On appeal, the State argues that the Law Division erred in its application of the Barker test and that its findings were unsupported by sufficient credible evidence. We agree.
II.
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967). As a matter of fundamental fairness, excessive delay in completing a prosecution may qualify as a violation of a defendant's constitutional right to a speedy trial. State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999) (citing State v. Gallegan, 117 N.J. 345, 354-55 (1989)). "'A defendant has no duty to bring himself to trial; the State has that duty[.]'" State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977) (quoting Barker, supra, 407 U.S. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115).
Because the facts relevant to the delay in this matter are undisputed, the issue presented is purely a question of law. "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) (citations omitted).
In Barker, the Court found that four factors must be considered when determining if a delay infringes upon a defendant's due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how defendant has asserted his right to a speedy trial; and (4) the prejudice defendant incurred as a result of the delay. Barker, supra, 497 U.S. at 530-33, 92 S. Ct. at 2191-93, 33 L. Ed. 2d at 116-19. The test is flexible in its application and the court applying the test may balance additional factors it deems appropriate as well. Ibid.
In State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976), our Supreme Court adopted the Barker test. These same standards also have been applied to municipal prosecutions. See State v. Berezansky, 386 N.J. Super. 84, (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); see also State v. Farrell, 320 N.J. Super. 425 (App. Div. 1999).
The first Barker factor addresses the length of delay. Defendant was arrested on August 11, 2011, and entered a guilty plea on December 6, 2011, a delay of 117 days. Although the Law Division did not find that the length of delay was excessive or that it, standing alone, justified dismissal, it determined that the delay occurred through no fault of defendant and the factor weighed in defendant's favor.
In Berezansky, supra, we rejected a defendant's contention that he was deprived of his constitutional right to a speedy trial based on the nearly five months that elapsed between his arrest and the beginning of his trial. 386 N.J. Super. at 99. In State v. Prickett, 240 N.J. Super. 139 (App. Div. 1990), we affirmed the denial of a speedy-trial motion in a trial held approximately six months after an arrest for driving under the influence. The delay here was not excessive.
The second Barker factor concerns the reasons for the delay. During the appearance before the municipal judge on October 26, 2011, the prosecutor indicated that the machine used to administer defendant's Alcotest had been taken out of service, recalibrated, and placed back into service before defendant's test. The prosecutor identified three digital downloads that had to be copied and provided to defendant, who was challenging the Alcotest results. The municipal court ordered discovery to be provided within one week. On November 22, 2011, the municipal court found that there had been "significant discovery issues that have delayed the movement of this trial[,]" but that "all discovery was . . . complete."
In Barker, the Court distinguished between deliberate and negligent delay, and held the former is weighed more heavily in favor of dismissal of the prosecution than delay attributable to the State's negligence or the court's procedures and calendars. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. While the minimal delay in providing discovery was attributable to the State, the record supports a conclusion that the delay was neither deliberate nor excessive and the reasons for the delay were valid.
The third Barker factor considers whether a defendant asserted his right to a speedy trial. The Law Division concluded that defendant did not assert his right to a speedy trial until November 22, 2011, the first day this matter was actually scheduled for trial. Two weeks later, the matter was resolved. Moreover, when the State realized the officer would not be able to appear, they agreed to proceed with a lesser quantum of proof, forsaking the Alcotest proofs and relying only on the arresting officer's observations of defendant's intoxication. Once defendant asserted his right to a speedy trial, the matter was resolved promptly.
The fourth Barker factor requires an analysis of whether the delay prejudiced defendant. The Law Division concluded that defendant "was unable to present a meaningful defense because he could no longer afford the expert witness costs." The court apparently based this conclusion on one statement made by defendant's counsel on November 22, 2011. However, in his statement, counsel did not indicate that defendant could not afford to pay an expert to return on the rescheduled trial date, only that he would be required to expend additional funds on his defense:
If the State is not ready to move forward, I'm going to ask that the case be dismissed. It should be dismissed with prejudice. My client will now be obligated to spend extra money, not only on this expert, but on me.
I have now been here approximately six times as well, Judge. I've prepared for the last day and a half for this trial. I've skipped other court appearances, where I could have made other money, other places. And I know that's not the Court's problem, but that's the truth of what happened.
Respectfully judge, with that said, my client is prejudiced, and I'd ask that the charge be dismissed.
At oral argument, the Law Division questioned defendant's counsel about the expert hired by defendant to testify on November 22. Counsel identified Gary Aramini, whom he described as an expert in field sobriety, because, as he explained, "it was an observation case on the trial date." Other than counsel's statement that defendant will "now be obligated to spend extra money," the municipal court record is devoid of any proof that defendant was unable to afford to continue to pay Mr. Aramini. Moreover, in addition to Mr. Aramini, defendant also retained, but did not use, Samuel Sacks, an expert to testify regarding the digital downloads. There is nothing in the record as to defendant's employment, income or assets. The Law Division had no basis to conclude that "[defendant] was forced to present his case without the assistance of an expert witness because he could not afford one."
We note that the record indicates that the State did not decide to abandon the Alcotest proofs and prosecute this matter on the officer's observation alone until the parties appeared in court on December 6, 2011.
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Even if defendant's payments to Aramini and Sacks had rendered him impecunious, the adjournment did not result in prejudice of a constitutional dimension. While a conviction of driving while intoxicated gives rise to a "consequence of magnitude" and a right to counsel, State v. Hrycak, 184 N.J. 351, 362 (2005), defendant has cited no authority for extending this Sixth Amendment protection to include the right to the services of expert witness in defending those cases. Moreover, when the State agreed to forego use of the Alcotest evidence, defendant benefitted, as the State's proofs were limited to the arresting officer's observation of defendant's intoxication.
Finally, we address the Law Division's conclusion that the municipal court's "insistence" on trying defendant's case on November 22, 2011, constituted a promise that resulted in a violation of the concept of fundamental fairness when the court adjourned the trial and "[failed] to uphold [its] end of the bargain." In support of this conclusion, the Law Division judge cites State v. Perkins, 219 N.J. Super. 121 (Law Div. 1987). In Perkins, the Law Division found dismissal of a driving while intoxicated charge was warranted after a three-month delay, as the municipal court judge had promised to dismiss the case if the State was not ready to proceed. 219 N.J. Super. at 124-25.
In State v. Cahill, 213 N.J. 253, 270 (2013), our Supreme Court mentioned Perkins when considering so-called "try-or-dismiss" cases, and noted:
Other than Directive #1-84, in which the Court established a sixty-day dispositional goal, the Court has steadfastly declined to adopt a bright-line try-or-dismiss rule. Even the sixty-day period announced in 1984 was described as a goal rather than a bright-line rule.
Here, the municipal court set a firm trial date, as the judge was concerned with the length of delay in the case. While the judge used the term "definite trial," and cautioned defendant that if his expert could not appear he should retain another expert, he never even suggested that the case would be dismissed if the State was not prepared to proceed. The holding in Perkins is not precedential and has no application here.
The decision of the Law Division is reversed and defendant's conviction is reinstated.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION