Municipal Court improperly admitted into evidence
Drinking Driving Questionnaire (DDQ) and Drinking Driving Report State v. Kuropchak 216 N.J. 360 (2015)
The municipal court’s admission of
the Alcotest results without the foundational documents required by State v.
Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained
inadmissible hearsay, which may have unduly influenced the municipal court’s
credibility findings, the matter is remanded for a new trial.
State of New Jersey v. Julie Kuropchak (A-41-13)
(072718)
Argued October 21, 2014 -- Decided April 28, 2015
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court considered
the admissibility of evidence in the prosecution of driving while intoxicated
(DWI) cases.
On January 25, 2010, at
approximately 2:00 p.m., defendant had a sip of a margarita. Later, feeling
ill, defendant took Nyquil and a homemade remedy of apple cider vinegar and
water. At 8:30 p.m., defendant met with her doctor who prescribed an antibiotic
and two pain relievers. Defendant immediately picked up the prescriptions, but
did not take either. Driving home from the pharmacy, defendant turned onto a
two-lane, two-way road that sloped uphill. When she reached the top of the
hill, she saw an approaching vehicle straddling the center line. Defendant hit
her brakes, swerved, collided with the oncoming vehicle, and lost
consciousness.
When she woke up, the car was
filled with smoke and she tasted blood in her mouth. Officer Dennis Serritella
responded to the scene and performed three sobriety tests, two of which
defendant failed. He observed that she looked down multiple times, spaced out
her steps, slurred her speech, and had bloodshot and watery eyes. Concluding
that she was intoxicated, he arrested her.
Defendant
agreed to take an Alocotest (breathalyzer), which certified operator Officer
Jose Brito performed. First, he observed her for twenty minutes. At 10:08 p.m.,
the machine performed a control test. He then administered the first set of
tests at 10:11 (tests one through four). On tests two and three, defendant
failed to produce the minimum volume of air for the Alcotest to generate a blood-alcohol
level. The first and fourth tests yielded results, but they were not within an
acceptable tolerance range. At 10:35 p.m., the Alcotest machine self-performed
another control test. Officer Brito administered a second set of tests at 10:37
(tests five and six). Both tests yielded results, but they were also not within
an acceptable tolerance range. The machine performed a control test at 10:53
p.m., after which Officer Brito administered a third set of tests at 10:54
(tests seven through nine). Defendant failed to produce a minimum volume of air
on test seven. Tests eight and nine, however, both generated results of .10%
BAC, which were within an acceptable tolerance range.
At
trial, Gary Aramini, an Alcotest expert, and Officer Serritella testified.
Aramini said that the tests were done improperly and that the State had failed
to enter the right simulator solution Certificate of Analysis and the most
recent Calibrating Unit New Standard Solution Report into evidence. He also
testified that Officer Brito failed to wait the required twenty minutes between
the second and third set of tests and that lip balm, blood in defendant’s
mouth, and a cell phone in the testing room may have tainted the results. The
court admitted the Drinking Driving Questionnaire (DDQ) and Drinking Driving
Report (DDR) into evidence as business records. The court also admitted Officer
Brito’s Alcotest Operator Certification, the Alcotest Calibration Certificate,
Part I -- Control Tests, the Alcotest Calibration Certificate, Part II --
Linearity Tests, the Calibrating Unit New Standard Solution Report for solution
control lot number 08J060, and a Certificate of Analysis 0.10 Percent Breath
Alcohol Simulator Solution. This Certificate was admitted without objection;
however, the State concedes that it was for lot 09D065 rather than 08J060,
which was the simulator solution used in defendant’s control test.
On
August 10, 2010, the municipal court found defendant guilty of DWI. On de novo
review, giving due deference to the municipal court’s credibility
determinations, the Law Division found defendant guilty of DWI.
The Appellate Division affirmed defendant’s
conviction. This Court granted defendant’s petition for certification, limited
to the admissibility of the documentary evidence, the Alcotest results, and the
sufficiency of the observational evidence.
HELD: The municipal
court’s admission of the Alcotest results without the foundational documents
required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the
DDQ and DDR contained inadmissible hearsay, which may have unduly influenced
the municipal court’s credibility findings, the matter is remanded for a new
trial.
1. If a
municipal court convicts a defendant of DWI, the defendant must first appeal to
the Law Division. The Law Division reviews the municipal court’s decision de
novo, but defers to credibility findings of the municipal court.
Appellate
courts should defer to trial courts’ credibility findings. Occasionally,
however, a trial court’s findings may be so clearly mistaken that the interests
of justice demand intervention and correction.
2.
A court may convict a defendant of DWI if she registers a blood alcohol level
of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest’s
reliability. The operator must observe the subject for twenty minutes. After
twenty minutes, the Alcotest machine automatically conducts a blank air test to
determine if there are any chemical interferents in the room. Additionally, a
control test is conducted; if the Alcotest is working properly, that control
test will generate a result between 0.095 and 0.105. The State must also admit
certain foundational documents: (1) the most recent calibration report prior to
a defendant’s test, with part I--control tests, part II--linearity tests, and
the credentials of the coordinator who performed the calibration; (2) the most
recent new standard solution report prior to a defendant’s test; and (3) the
certificate of analysis of the 0.10 simulator solution used in a defendant’s
control tests to prove that the Alcotest was in working order.
3.
Here, the last semi-annual calibration was completed on January 12, 2010, with
simulator solution control lot 09D065. The solution control lot for the control
test performed prior to and following the three rounds of breath tests
performed on defendant was solution control lot 08J060. Under Chun, the State
was required to provide the Certificate of Analysis of the 0.10 Simulator
Solution used in defendant’s control test. The State, however, mistakenly
admitted the Certificate of Analysis for the semi-annual simulator solution
control lot 09D065 instead. Additionally, the most recent Calibrating Unit New
Standards Solution Report was not admitted into evidence during the State’s
case. Given that the foundational documents were not admitted into evidence, the
State presented no evidence as to the reliability or accuracy of the Alcotest
results and, therefore, defendant’s conviction of per se intoxication was
improper.
4.
Defendant contends that the DDR and the DDQ were admitted into evidence in
violation of the Confrontation Clause. A person charged with a criminal offense
has the right to confront his accusers. Officer Serritella’s documentation of
the incident must be considered the recordation of testimonial statements
because his observations were made to establish that defendant was driving
while intoxicated. Since the officer testified at trial and was extensively
cross-examined, the Confrontation Clause was not violated by the admission of
the DDR and DDQ.
5.
As for defendant’s contention that the DDR and DDQ are hearsay not subject to
any exception, the Court observes that hearsay is inadmissible unless it fall
into one of certain recognized exceptions. To qualify as a business record, a
writing must: (1) be made in the regular course of business, (2) within a short
time of the events described in it, and (3) under circumstances that indicate
its trustworthiness. Foundational reports for breath testing, with certain
qualifications, are admissible under the business record exception to the
hearsay rule. Here, however, the DDR contains a narrative account of what the
officer saw at the scene and includes factual statements, observations, and the
officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the
DDQ also does not appear initially to constitute hearsay, it incorporates by
reference the DWI report in the “remarks” section and the DWI report, in turn,
contains several inadmissible opinions. The DDQ’s content thus also rises to
the level of inadmissible hearsay and must be excluded. Therefore, the DDR and
the DDQ were inadmissible hearsay outside the scope of the business records
exception.
6.
Here, the municipal court heard defendant’s testimony concerning the events on
the day of the incident, as well as the testimony of Officer Serritella. The
court found the Officer’s testimony more credible than defendant’s and
therefore found defendant guilty. The court’s credibility determinations,
however, were made after the DDR and the DDQ were admitted into evidence,
notwithstanding the impermissible hearsay statements they contained, and after
the Alcotest results were admitted into evidence despite the lack of requisite
foundational documents.
The cumulative effect of the inclusion of
the DDR, the DDQ, and the Alcotest results may have tilted the municipal
court’s credibility findings. Thus, the Court lacks sufficient confidence in
the proceedings to sanction the result reached and concludes that the interests
of justice require a new trial. It is only because of the unique confluence of
events in this case – the inappropriate admission of the Alcotest results as
well as the DDR and DDQ – that the Court remands for a new trial. Had the only
flaw been the admission of the DDR and DDQ, which contained hearsay, Officer
Serritella’s testimony would have alleviated much of that problem. Here,
however, the cumulative effect of the errors may have tilted the municipal
court’s credibility findings.
The judgment of the Appellate Division was
REVERSED. The matter was REMANDED for a new trial.
CHIEF JUSTICE RABNER; JUSTICES
LaVECCHIA, ALBIN, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily assigned)
join in JUSTICE FERNANDEZ-VINA’s opinion.
Full opinion at http://www.njlaws.com/Kuropchakcase.htm
SUPREME
COURT OF NEW JERSEY
A-41 September Term 2013
072718
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE KUROPCHAK,
Defendant-Appellant.
Argued October 21, 2014 –
Decided April 28, 2015
On certification to the
Superior Court, Appellate Division.
John V. Saykanic argued
the cause for appellant (Miles R. Feinstein, attorney; Mr. Saykanic and Mr.
Feinstein, on the briefs).
David A. Malfitano,
Assistant Prosecutor, argued the cause for respondent (John L. Molinelli,
Bergen County Prosecutor, attorney).
John Menzel argued the
cause for amicus curiae New Jersey State Bar Association (Paris P. Eliades,
President, attorney; Ralph J. Lamparello, of counsel and on the brief).
Robyn B. Mitchell, Deputy
Attorney General, argued the cause for amicus curiae Attorney General of New
Jersey (John J. Hoffman, Acting Attorney General, attorney).
JUSTICE FERNANDEZ-VINA
delivered the opinion of the Court.
This case poses important
questions about the admissibility of certain evidence in the prosecution of
driving while 2
intoxicated
(DWI) cases. After a four-day trial, defendant Julie Kuropchak was convicted by
a Garfield Municipal Court Judge of DWI contrary to N.J.S.A. 39:4-50. The court
heard testimony from the arresting officer, the officer who operated the
Alcotest machine, defendant’s expert on Alcotest procedure, defendant, and
defendant’s father and brother. The court also admitted, over defendant’s
objection, the Drinking Driving Questionnaire (DDQ) and Drinking Driving Report
(DDR) completed by the arresting officer upon questioning defendant. Defendant
did not object to various documents, including documents alleged to establish
that the Alcotest breath-testing device was in working order when used to
measure defendant’s blood alcohol content (BAC).
The municipal court found
defendant guilty based on two independent grounds: first, the officers’
observations of her behavior, which the court found more credible than
defendant’s account of the incident and; second, the Alcotest results, which
reported a .10 BAC. After a trial de novo, the Law Division also found
defendant guilty based on the officers’ observations and the Alcotest results.
Defendant appealed. The Appellate Division expressed some reservations about
the sufficiency of the foundational documents offered in support of the
Alcotest, but did not decide the admissibility of the test results. The panel
did determine that the DDQ and DDR were admissible under 3
the
business records exception to the hearsay rule and that, because the arresting
officer testified as to the contents of the reports, there was no violation of
the Confrontation Clause of the Sixth Amendment of the United States
Constitution. The appellate panel held that there was sufficient credible
evidence in the record to support defendant’s DWI conviction and accordingly
affirmed.
We hold that it was error
to admit the Alcotest results without the foundational documents required by
State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.
Ed. 2d 41 (2008). Further, although we find no violation of the Confrontation
Clause with respect to the admission of the DDQ and the DDR, we determine that
those reports constitute inadmissible hearsay. We conclude that consideration
of this improperly admitted evidence may have unduly influenced the municipal
court’s credibility findings. Therefore, we reverse the judgment of the
Appellate Division and remand for a new trial.
I.
On January 25, 2010,
defendant and three friends went to Houlihan’s Restaurant in Hasbrouck Heights.
They arrived between 2:00 and 3:00 p.m. and stayed for approximately two hours.
They shared appetizers, and defendant took a sip of her friend’s margarita. At
trial, defendant testified that she did 4
not
drink any other alcohol that day but had taken a dose of Apidex, an appetite
suppressant, at 9:00 a.m. the day before.
After leaving the
restaurant, defendant returned home alone. Feeling ill from a urinary tract
infection, defendant took Nyquil and a homemade remedy of apple cider vinegar
and water. Defendant had an appointment with her doctor at 8:30 p.m. that
evening; the doctor prescribed an antibiotic and two pain relievers. Defendant
picked up the prescription at 8:48 p.m. at a pharmacy adjacent to the doctor’s
office, but did not take any medication at that time.
On her way home, defendant
turned onto Chestnut Street, a two-lane, two-way road that slopes uphill in the
direction defendant was driving. As she reached the top of the hill, defendant
saw a vehicle approaching from the opposite direction. According to defendant,
the vehicle was straddling the center line and thus driving in both lanes. The
vehicle had an interior light on but its headlights were off. Defendant hit her
brakes and swerved to the left of the oncoming car. According to her testimony,
she chose to swerve left instead of right to avoid the cars parked along the
right-hand side of the road.
Defendant’s car collided
head-on with the oncoming vehicle. The driver of the other vehicle was later
charged with driving while intoxicated. The collision caused defendant to lose
5
consciousness.
When she awoke, the airbags had deployed and the car was filled with smoke and
dust. Defendant testified that she tasted blood in her mouth, her chest hurt,
and a piece of her necklace had become embedded in her neck.
Officer Dennis Serritella
of the Garfield Police Department arrived at the scene. He observed that the
vehicles appeared to have collided head-on and that defendant’s car was in the
wrong lane. Officer Serritella asked defendant for her credentials; he stated
that she stared at him for a “few moments” and then produced them slowly.
According to Officer Serritella, defendant declined to go to the hospital. She
told Officer Serritella that she was coming from her doctor’s office and showed
him the prescriptions. Defendant tried to drink water, but was forbidden to do
so.
Officer Serritella advised
defendant that he was going to conduct field sobriety tests, and led her to
flat ground about twenty feet from the accident. Officer Serritella began with
the finger-to-nose test, which defendant passed. He then conducted the
one-legged balance test, which requires the subject to stand on one leg for
thirty seconds. Defendant failed the test, dropping her leg “many times.” She
explained to Officer Serritella that she had had surgeries on her feet at age
thirteen that left her with pinched nerves and rendered her unable to balance
on one leg. Lastly, Officer Serritella 6
conducted
the walk-and-turn test, which requires the subject to walk nine paces in a
heel-to-toe manner while keeping her head up, and then turn around and walk in
the opposite direction. Defendant failed this test, as she looked down multiple
times and spaced out her steps. Officer Serritella also observed that defendant
swayed as she walked, her knees sagged, her speech was slow and slurred, her
demeanor was sleepy, her eyes were bloodshot and watery, her hands moved
slowly, and her face was pale. However, he did not smell alcohol on her breath.
Based on his observations,
Officer Serritella concluded that defendant was intoxicated. He handcuffed her
and brought her to police headquarters. At several points defendant asked why
she was being treated like a criminal when she had done nothing wrong. At
headquarters, Officer Serritella arrested defendant and read her Miranda1
rights.
1 Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966).
Officer Serritella read defendant the DMV Standard Statement
for Operators of a Motor Vehicle, which informed defendant of her rights and
obligations with respect to providing a breath sample. Defendant consented to
take an Alcotest, or breathalyzer test. During the municipal court trial,
Officer Serritella testified that all cell phones were removed from the testing
room. Defendant testified that her 7
cell
phone was in the testing room the entire time, that she applied lip balm
multiple times during the Alcotest process, and that she had a tongue ring in
her mouth during the tests.
Officer Jose Brito, a
certified Alcotest operator, conducted the tests. Officer Brito observed
defendant for twenty minutes before he administered the Alcotest. At 10:08
p.m., the machine performed a control test. Officer Brito then administered the
first set of tests to defendant at 10:11 (test one), 10:13 (test two), 10:15
(test three), and 10:17 (test four). On the second and third tests, defendant
failed to produce the minimum volume of air for the Alcotest to generate a
blood-alcohol level. The first and fourth tests yielded results, but they were
not within acceptable tolerance ranges of each other.2
2 To be valid, an Alcotest must generate
two readings within acceptable tolerance of each other out of a maximum of
eleven attempts. “Tolerance is the range of any set of measurements that is
accepted as being representative of a true reading . . . [and] the wider the
acceptable tolerance between reported results, the lower our confidence in the
accuracy of any of the reported results.” Chun, supra, 194 N.J. at 110.
At 10:35 p.m., the Alcotest machine self-performed another
control test. Then, Officer Brito administered a second set of tests at 10:37
(test five) and 10:40 (test six). Both tests yielded results, but they were not
within acceptable tolerance ranges of each other. The machine performed another
control 8
test
at 10:53 p.m., after which Officer Brito administered a third set of tests at
10:54 (test seven), 10:56 (test eight), and 10:58 (test nine). Defendant failed
to produce a minimum volume of air on the seventh test. The eighth and ninth
tests, however, both generated a result of .10% BAC, and were thus within
acceptable tolerance of each other.
At trial, Gary Aramini, an
expert on the Alcotest procedure who had reviewed the discovery documents
provided to him, testified for the defense that the Alcotest was improperly
conducted and that the State failed to enter into evidence two documents that are
required under Chun to show that the Alcotest is properly calibrated: the
proper simulator solution Certificate of Analysis and the most recent
Calibrating Unit New Standard Solution Report. He also stated that Officer
Brito failed to wait the required twenty minutes between the second and third
set of Alcotest sequences. Lastly, Aramini testified that lip balm, blood in
defendant’s mouth, and the presence of a cell phone in the testing room could
have tainted the Alcotest results.
In addition to testimony,
the court admitted into evidence various documents. Officer Serritella
testified and laid a foundation for the DDQ and DDR. After his testimony and
over a defense objection, the court admitted those documents into evidence as
business records under N.J.R.E. 803(c)(6). 9
The
court also admitted into evidence certain documents to establish a foundation
for the Alcotest machine, as well as the simulator unit that is used to
calibrate the device and the chemical composition of the solutions that the
machine requires. Such foundational evidence is mandatory pursuant to Chun,
supra, 194 N.J. at 142. The documents included Officer Brito’s Alcotest
Operator Certification, the Alcotest Calibration Certificate, Part I -- Control
Tests, and the Alcotest Calibration Certificate, Part II -- Linearity Tests.
The latter two documents were signed by Officer Robert Demler and dated January
12, 2010; all three were admitted without objection.
The court also admitted
the Calibrating Unit New Standard
Solution Report for
solution control lot number 08J060 dated January 25, 2010, and signed by
Officer Ronald Polonkay. This document, however, was admitted at the conclusion
of limited rebuttal testimony from Officer Serritella.
Finally, the court
admitted a Certificate of Analysis 0.10 Percent Breath Alcohol Simulator
Solution. This Certificate was admitted without objection; however, the State
concedes that it was for lot 09D065 rather than 08J060, which was the simulator
solution used in defendant’s control test. Accordingly, the State admitted the
incorrect document.
On August 10, 2010, the
municipal court found defendant guilty of DWI based on two independent grounds.
First, the 10
municipal
court found defendant guilty based on the .10 BAC Alcotest results. Second, the
municipal court found that the officers’ observations of defendant’s behavior
at the scene of the accident established defendant’s guilt.
In its oral decision, the
municipal court noted that Officer Serritella and Officer Brito were “entirely
credible,” “more credible” than defendant. The municipal court also found that
the Alcotest was operated properly. The court noted that, “without going
through each document,” the State entered the correct documents into evidence
to show that the Alcotest was properly calibrated. The court determined,
further, that defendant’s expert testimony was “unpersuasive.” The court
sentenced defendant, a third-time offender, to 180 days in jail, a ten-year
driver’s license suspension, and a three-year interlock on her ignition
following the suspension period. The court also assessed monetary fines and
penalties.
The Law Division reviewed
the case de novo pursuant to Rule 3:23-8 and, on July 19, 2011, the court found
defendant guilty of DWI based on both the physical evidence at the scene and
the Alcotest results, giving due deference to the municipal court judge’s
credibility determinations.
The Appellate Division
affirmed defendant’s conviction. The panel first considered the Alcotest
results. The panel noted certain inadequacies as to the foundational evidence
the 11
State
introduced in support of the Alcotest. Nonetheless, the panel declined to
address whether the evidential record fairly supported the Law Division’s
guilty finding under the per se prong of the DWI statute, because it found that
the observational evidence against defendant sufficient to support her
conviction under the statute’s other prong.
Addressing defendant’s
evidentiary challenges, it concluded that the municipal court properly admitted
the DDR and the DDQ under the business records exception to the hearsay rule.
Although the panel found the transcript to be unclear as to whether the
municipal judge was marking the documents for identification or admitting them
into evidence before Officer Serritella testified, it concluded that any harm
presented by the premature admission of the reports into evidence was soon
mitigated by Officer Serritella’s testimony about the contents of the reports.
The panel also found that because Officer Serritella, who authored the reports,
testified at trial and was extensively cross-examined, the reports’ admission
did not violate defendant’s right to confrontation under the Sixth Amendment.
U.S. Const. amend. VI.
The panel ultimately held
that, based on the location of defendant’s vehicle, Officer Serritella’s
observations at the scene of the accident, and defendant’s performance on the
field 12
sobriety
tests there was sufficient credible evidence in the record to support
defendant’s DWI conviction.
Defendant filed a petition
for certification, which this Court granted limited to the admissibility of the
documentary evidence and the Alcotest results, and the sufficiency of the
observational evidence. State v. Kuropchak, 216 N.J. 360 (2013). The New Jersey
Attorney General and the New Jersey State Bar Association appeared as amici
curiae.
II.
Defendant argues that the
municipal court admitted the DDQ and the DDR before the State laid a proper
foundation for them, thus presupposing that police officers and the reports they
write are inherently reliable. Defendant also argues that narrative reports
such as the DDQ and the DDR violate Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004), because they are testimonial hearsay.
With respect to the observational
evidence of defendant’s guilt, defendant argues that the record does not
support her conviction. Defendant asserts that each fact that incriminates her
is also consistent with an innocent explanation. For example, the fact that
defendant’s car was found in the wrong lane is explained by the fact that the
other vehicle was driving in the middle of the road and defendant swerved to
the left to avoid hitting parked cars. Defendant alleges that the other
purported
indicia of defendant’s intoxication -- such as her slowness in responding, pale
complexion, slurred speech, and bloodshot eyes -- are attributable to the
severity of the motor vehicle accident, airbag deployment, and an illness that
caused her to seek medical help shortly before the collision. Furthermore,
defendant maintains that she failed two of the field sobriety tests because of
prior foot surgeries which continue to affect her balance.
Lastly, defendant argues
that the municipal court should have suppressed the Alcotest results. First,
defendant asserts that the State failed to lay a proper foundation for the
results as required by Chun. Defendant also notes that, contrary to Chun, not
all of the requisite documents were introduced during the State’s
case-in-chief.
The State contends that defendant’s trial did not raise any
Confrontation Clause issues because Crawford addresses the admissibility of
testimonial evidence when a witness does not testify. Here, on the contrary,
Officer Serritella drafted the police reports and testified at trial. The State
therefore argues that because the reports only contained statements by Officer
Serritella and defendant, who both testified at trial, the statements did not
violate the Confrontation Clause.
The State also argues that the observational evidence in this
case is sufficient to sustain defendant’s conviction. It
emphasizes
that Officer Serritella observed several separate indicia of intoxication:
defendant’s vehicle was in the wrong lane; she was slow to respond and to
produce her credentials; she failed two of the field sobriety tests; she swayed
as she walked; her speech was slow and slurred; her demeanor was sleepy; and
her eyes were bloodshot and watery. Even though defendant proffers various
innocent explanations, the State maintains that those observations should be
considered in the aggregate. The State also contends that the municipal court
judge found the State’s witnesses more credible than defendant.
The Attorney General, appearing as amicus curiae, urges this
Court to affirm defendant’s conviction. The Attorney General argues that the
municipal court did not err by admitting the DDR and DDQ into evidence under
the business records exception to the hearsay rule, N.J.R.E. 803(c)(6), because
the police prepared these reports in the regular course of business, shortly
after the events described in the reports, and in a manner that justifies their
admission.
Additionally, the Attorney
General asserts that the municipal court correctly admitted into evidence the
Calibrating Unit New Standard Solution Report dated January 25, 2010, one of
the foundational documents for the Alcotest, because the court had allowed the
State to reopen its case. The Attorney General admits, however, that the
correct Certificate of Analysis for the 0.10 simulator solution does not appear
to have been entered into evidence. Additionally, the Attorney General asserts
that even though defendant provided individual explanations for her behavior
when questioned by Officer Serritella, when viewed in the aggregate, the
numerous indicia of intoxication observed by Officer Serritella were more than
adequate to establish defendant’s intoxication.
The New Jersey State Bar Association (NJSBA), also appearing
as amicus curiae, argues that narrative police reports including the DDR and
DDQ should not be considered business records under N.J.R.E. 803(c)(6), absent
a stipulation by the parties, because those reports contain testimonial
statements and are “prepared for the primary purpose” of criminal prosecution.
The NJSBA also asks this Court to reaffirm that strict compliance with Chun,
supra, is required, and to hold that the Alcotest results in this matter were
not admissible due to the State’s failure to offer proper core foundational
documents. The NJSBA contends that because the appellate panel ultimately
affirmed defendant’s conviction on the observational prong, it did not
determine whether the evidentiary record would support a conviction on the per
se prong.
III.
A conviction for DWI
requires proof beyond a reasonable doubt. State v. Kashi, 360 N.J. Super. 538,
544 (App. Div. 16 2003) (citation omitted), aff’d, 180 N.J. 45 (2004). If a
municipal court convicts a defendant of DWI, the defendant must first appeal to
the Law Division. R. 7:13-1; R. 3:23-1. The Law Division reviews the municipal
court’s decision de novo, but defers to credibility findings of the municipal
court. State v. Johnson, 42 N.J. 146, 157 (1964).
“Appellate courts should
defer to trial courts’ credibility findings that are often influenced by
matters such as observations of the character and demeanor of witnesses and common
human experience that are not transmitted by the record.” State v. Locurto, 157
N.J. 463, 474 (1999). Thus, appellate review is limited to “whether the
findings made could reasonably have been reached on sufficient credible
evidence present in the record.” Johnson, supra, 42 N.J. at 162. “This involves
consideration of the proofs as a whole,” and not merely those offered by the
defendant. Ibid. “Any error or omission shall be disregarded by the appellate
court unless it is of such a nature as to have been clearly capable of
producing an unjust result[.]” R. 2:10-2; see also State v. Macon, 57 N.J. 325,
338 (1971); Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 828, 17 L.
Ed. 2d 705, 710 (1967) (“‘The question is whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction.’”
(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed.
17
2d
171, 273 (1963))). Occasionally, however, a trial court’s findings may be so
clearly mistaken “that the interests of justice demand intervention and
correction.” Johnson, supra, 42 N.J. at 162. Moreover, legal conclusions are
subject to de novo review. State v. Gandhi, 201 N.J. 161, 176 (2010).
IV.
We first address whether a
proper foundation was laid for the admission of the Alcotest results. A court
may convict a defendant of DWI if she registers a blood alcohol level of 0.08%
or higher. N.J.S.A. 39:4-50(a); State v. Bealor, 187 N.J. 574, 588 (2006). This
finding of per se guilt, however, is subject to proof of the Alcotest’s
reliability.
In Chun, this Court set
forth mandatory guidelines for establishing the Alcotest’s reliability. First,
when the test is administered, an Alcotest operator must observe a subject for
twenty minutes before commencing the test to ensure that the subject does not
put anything, such as alcohol, tobacco, or chewing gum in his or her mouth
during that time. 194 N.J. at 79. The operator should also remove all “cell
phones and portable devices” from the testing room. Id. at 80. After twenty
minutes, the Alcotest machine automatically conducts a “blank air test” to
determine “if there are chemical interferents in the room.” Ibid. Additionally,
a “control test” is conducted; if the Alcotest is working properly, that 18
control
test will generate a result between 0.095 and 0.105. Ibid. A similar control
test is completed as part of the Alcotest’s semi-annual calibration. Id. at
144-45.
In Chun, supra, we
directed that the Alcotest “be programmed to fix the tolerance range to be plus
or minus 0.005 percent BAC from the mean or plus or minus five percent of the
mean, whichever is greater,” to ensure reliable results. Id. at 116. If the
first and second tests are not within acceptable tolerance of each other, “the machine
prompts the operator to conduct a third breath test,” and so on. Id. at 81. We
also required the State to admit certain foundational documents to prove that
the Alcotest was in working order. Id. at 145. They are:
(1) the most recent
calibration report prior to a defendant’s test, with part I--control tests,
part II--linearity tests, and the credentials of the coordinator who performed
the calibration; (2) the most recent new standard solution report prior to a
defendant’s test; and (3) the certificate of analysis of the 0.10 simulator
solution used in a defendant’s control tests.
[Ibid. (emphasis added).]
Here, the last semi-annual
calibration was completed on January 12, 2010, with simulator solution control
lot 09D065. The solution control lot for the control test performed prior to
and following the three rounds of breath tests performed on defendant was
solution control lot 08J060. Under Chun, the 19
State
was required to provide the Certificate of Analysis of the 0.10 Simulator
Solution used in defendant’s control test. Ibid. The State, however, mistakenly
admitted the Certificate of Analysis for the semi-annual simulator solution
control lot 09D065 instead of the Certificate from defendant’s control test.
Additionally, contrary to
Chun, the record shows that the most recent Calibrating Unit New Standards
Solution Report was not admitted into evidence during the State’s case. During
the State’s case, the municipal court admitted into evidence the Calibrating
Unit New Standard Solution Report dated January 12, 2010. During
cross-examination, defendant’s expert testified that the State was required to
enter into evidence the Calibrating Unit New Standard Solution Report,
completed on January 25, 2010, as part of defendant’s Alcotest. Upon recognition
of this mistake, at the next trial session, the prosecutor presented, for
identification, the Calibrating Unit New Standard Solution Report dated January
25, 2010. This document was then admitted into evidence. This admission,
however, was inappropriate. The prosecutor moved to enter the correct
Calibrating Unit New Standard Solution Report at the conclusion of limited
rebuttal testimony from Officer Serritella that was unrelated to the Alcotest.
Moreover, the document was admitted even though the State had not moved to
reopen its case at that point. 20
We
conclude that the foundational documents required under Chun were not admitted
into evidence. Therefore, the State presented no evidence as to the reliability
or accuracy of the Alcotest results. We thus hold that defendant’s conviction
of per se intoxication was improper.
V.
We now turn to defendant’s
arguments that the admission of the DDR and DDQ violated the New Jersey Rules
of Evidence. This Court uniformly has endorsed the proposition that “in
reviewing a trial court’s evidential ruling, an appellate court is limited to
examining the decision for abuse of discretion.” Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008). The general rule as to the admission or exclusion of evidence is
that “[considerable latitude is afforded a trial court in determining whether
to admit evidence, and that determination will be reversed only if it
constitutes an abuse of discretion.” State v. Feaster, 156 N.J. 1, 82 (1998),
cert. denied 532 U.S. 932 (2001); see also State v. J.A.C., 210 N.J. 281, 295
(2012). Under that standard, an appellate court should not substitute its own
judgment for that of the trial court, unless “the trial court’s ruling ‘was so
wide of the mark that a manifest denial of justice resulted.’” State v.
Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216
(1984)).
A. 21
Defendant
first contends that the DDR and the DDQ were admitted into evidence in
violation of the Confrontation Clause and Crawford, supra, 541 U.S. at 68, 124
S. Ct. at 1374, 158 L. Ed. 2d at 203. Additionally, the NJSBA contends that the
DDR and DDQ are testimonial.
A person charged with a
criminal offense has the right to confront his accusers. U.S. Const. amend. VI.
This right is founded on the belief that subjecting testimony to
cross-examination enhances the truth-discerning process and the reliability of
the information. California v. Green, 399 U.S. 149, 159, 90 S. Ct. 1930, 1935,
26 L. Ed. 2d 489, 497 (1970); State ex rel. J.A., 195 N.J. 324, 342 (2008).
The Confrontation Clause
of the United States Constitution bars the “admission of testimonial statements
of a witness who did not appear at trial unless the witness was unavailable to
testify, and the defendant had a prior opportunity for cross-examination.”
Crawford, supra, 541 U.S. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194.
Additionally, hearsay that is testimonial in nature is inadmissible, even if it
satisfies a recognized exception to the hearsay rule, when the declarant does
not testify. See Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,
2273-74, 165 L. Ed. 2d 224, 237 (2006); State v. Michaels, 219 N.J. 1, 31
(2014) (noting that New Jersey applies Crawford’s primary-purpose test when
assessing 22
testimonial
nature of statement), cert. denied, U.S. , 135 S. Ct. 761, 190 L. Ed. 2d 635
(2014).
Testimony “is typically
[a] solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” State v. Sweet, 195 N.J. 357, 373 (2008) (quoting Crawford,
supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192), cert. denied,
557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009). Additionally, “[statements
taken by police officers in the course of interrogations” are also testimonial.
Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d at 237 (citing
Crawford, supra, 541 U.S. at 52, 124 S. Ct. at 1354, 158 L. Ed. 2d at 177).
In a criminal context,
formal statements to government officers constitute testimony in a sense that a
person’s casual remark to an acquaintance does not. Sweet, supra, 195 N.J. at
373 (citing Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d
at 192); see also Michaels, supra, 219 N.J. at 31-32 n.9 (noting Sweet’s
distinction between foundational and testimonial documents). Thus, the
Confrontation Clause generally forbids admitting testimony of a witness who
directly or indirectly provides information derived from a non-testifying
witness, which incriminates a defendant at trial. Branch, supra, 182 N.J. at
350. 23
Officer
Serritella’s documentation of the incident must be considered the recordation
of testimonial statements. Serritella’s observations were made for the purpose
of establishing or proving that defendant was driving while intoxicated.
However, the officer testified at trial and was extensively cross-examined by
defense counsel. Thus, the Confrontation Clause was not violated by the
admission of the DDR and DDQ.
B.
We now turn to defendant’s
contention that the DDR and DDQ are inadmissible hearsay and do not fall within
any of the hearsay exceptions.
Hearsay is defined as “a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.”
N.J.R.E. 801(c). Hearsay is inadmissible unless it falls into one of the
recognized exceptions. N.J.R.E. 802. To qualify as a business record under
N.J.R.E. 803(c)(6), a writing must meet three conditions: it must be made in
the regular course of business, within a short time of the events described in
it, and under circumstances that indicate its trustworthiness. State v.
Matulewicz, 101 N.J. 27, 29 (1985) (citation omitted). The criteria to apply
the business records exception have remained constant. Id. at 29; Sweet, supra,
195 N.J. at 370-71 (2008). 24
The
rationale behind this exception is “‘that records which are properly shown to
have been kept as required normally possess a circumstantial probability of
trustworthiness, and therefore ought to be received in evidence.’” Matulewicz,
supra, 101 N.J. at 29-30 (quoting Mahoney v. Minsky, 39 N.J. 208, 218 (1963));
see also Fagan v. City of Newark, 78 N.J. Super. 294, 309 (App. Div. 1963)
(finding exception to be “founded upon the twin principles of reliability and
necessity.” (internal citations omitted)).
We recognize that
foundational reports for breath testing, with certain qualifications, are
admissible under the business record exception to the hearsay rule. Sweet,
supra, 195 N.J. at 370-71; Chun, supra, 194 N.J. at 142. However, we have also
recognized that police officers who draft reports have an interest in
prosecuting defendants. See, e.g., State v. Simbara, 175 N.J. 37, 49 (2002)
(“recognizing a laboratory certificate in a drug case is not of the same ilk as
other business records, such as an ordinary account ledger . . . . [T]he
analyst prepares the laboratory certificate . . . for the sole purpose of
investigating an accused.”).
On the first page, the DDR
records the officer’s observations by means of a checklist of indicia of
intoxication. Officer Serritella checked off the items he observed. The second
page of the DDR contains a narrative account of the 25
events
Officer Serritella witnessed at the scene of the accident. The page includes
factual statements, observations, and the officer’s opinions. For example,
Officer Serritella noted that upon being questioned about her well-being,
defendant “stared back at him.” Additionally, Officer Serritella wrote that she
“paused for a few moments” and “appeared to be very slow in her actions and
responses when questioned.” Officer Serritella also noted that defendant became
very defensive when questioned. Thus, the DDR contains inadmissible hearsay.
Although the DDQ also does
not appear initially to constitute hearsay, it incorporates by reference the
DWI report in the “remarks” section -- “see DWI report for incident details” --
and the DWI report, in turn, contains several inadmissible opinions. The DDQ’s
content thus also rises to the level of inadmissible hearsay and requires
exclusion. Therefore, we hold that the DDR and the DDQ are inadmissible hearsay
outside the scope of the business records exception. See N.J.R.E. 803(c)(6).
VI.
An appellate court should
engage in a “searching and critical” review of the record when it is faced with
a trial court’s admission of police-obtained statements to ensure protection of
a defendant’s constitutional rights. See State v. Pickles, 46 N.J. 542, 577
(1966). 26
Here,
the municipal court heard defendant’s testimony concerning the events on the
day of the incident, as well as the testimony of Officer Serritella. The court
found the Officer’s testimony more credible than defendant’s and therefore
found defendant guilty.
The court’s credibility
determinations, however, were made after the DDR and the DDQ were admitted into
evidence notwithstanding the impermissible hearsay statements they contained,
and after the Alcotest results were admitted into evidence despite the lack of
requisite foundational documents. The cumulative effect of the inclusion of the
DDR, the DDQ, and the Alcotest results may have tilted the municipal court’s
credibility findings. Thus, we lack sufficient confidence in the proceedings to
sanction the result reached and conclude that the interests of justice require
a new trial. It is only because of the unique confluence of events in this case
–- the inappropriate admission of the Alcotest results as well as the DDR and
DDQ -- that we remand for a new trial. Had the only flaw been the admission of
the DDR and DDQ, which contained hearsay, Officer Serritella’s testimony would
have alleviated much of that problem. Here, however, the cumulative effect of
the errors may have tilted the municipal court’s credibility findings.
VII. 27
Therefore,
we reverse the judgment of the Appellate Division and remand for a new trial.
CHIEF JUSTICE RABNER;
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
SUPREME
COURT OF NEW JERSEY
NO. A-41 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate
Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE KUROPCHAK,
Defendant-Appellant.
DECIDED April 28, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
|
CHECKLIST
|
REVERSE AND REMAND
|
|
CHIEF JUSTICE RABNER
|
X
|
|
JUSTICE LaVECCHIA
|
X
|
|
JUSTICE ALBIN
|
X
|
|
JUSTICE PATTERSON
|
X
|
|
JUSTICE FERNANDEZ-VINA
|
X
|
|
JUSTICE SOLOMON
|
X
|
|
JUDGE CUFF (t/a)
|
X
|
|
TOTALS
|
7
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