STATE OF NEW JERSEY VS. KEITH R. GREENWOOD (17-037, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3802-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH R. GREENWOOD,
Defendant-Appellant.
___________________________
Submitted February 14, 2019 – Decided August 12, 2019
Before Judges O'Connor and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal No. 17-
037.
Helmer Conley & Kasselman, PA, attorneys for
appellant (Patricia B. Quelch, of counsel and on the
brief).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Paula Cristina Jordao, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Keith Greenwood appeals from his conviction of driving while
intoxicated (DWI), N.J.S.A. 39:4-50(a). We affirm.
I
The evidence adduced at the municipal court trial pertinent to the issues
on appeal is as follows. Sergeant Steven Catalano of the Roxbury Township
Police Department testified that, on November 12, 2015, he pulled over a car
defendant was operating, because defendant was driving too closely to the
vehicle Catalano was operating 1 and was improperly using his high beams. In
addition, defendant's front headlight assembly was "completely out." During
the course of the motor vehicle stop, Catalano detected the odor of alcohol on
defendant's breath. Defendant initially denied drinking but then admitted he had
had "some drinks."
After administering field sobriety tests, Catalano concluded defendant
was under the influence of alcohol. Catalano placed defendant under arrest and
read to him his Miranda2 rights. Defendant was taken to the Roxbury Police
Department so the police could administer a breathalyzer test to him. However,
before the test started, defendant appeared to have some difficulty breathing and
1
Catalano was driving an unmarked vehicle at the time.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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was "dry heaving." Therefore, the police called a local rescue squad, which
transported defendant to a nearby hospital.
Maricel Jerez, one of the nurses who cared for defendant at the hospital,
testified that when defendant was admitted to the emergency room, he was
complaining of chest pain and anxiety. Patrolman Scott Weaver, who
accompanied defendant to the hospital, testified that after defendant was
stabilized, Weaver showed to and went over with defendant the "voluntary
consent to draw blood form."3 Defendant consented to and signed the form.
Weaver stated defendant did not make any statements indicating an
unwillingness to either sign the form or to have his blood drawn.
After defendant signed the form, Weaver handed a "blood draw kit" to
Jerez, and watched her draw two vials of blood from defendant. Weaver
transported the vials back to the police department, where they were refrigerated
and ultimately taken to the New Jersey State Police, Office of Forensic Sciences.
Jerez testified that after she withdrew blood from defendant's arm, she
handed the vials to a police officer. Because relevant to one of the issues on
appeal, we note that, when she gave a summary of how she drew blood from
3
Neither a copy of this form nor any other document admitted into evidence
was provided in the record.
A-3802-17T1
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defendant, she did not specifically mention whether she "rocked" the vials back
and forth before handing them over to the officer. Finally, Jerez testified
defendant was discharged from the hospital approximately one hour later.
Lisa Comunale, a forensic scientist of the New Jersey State Police, Office
of Forensic Sciences, testified she was the scientist who tested and analyzed
defendant's blood. She noted each vial contained seven milliliters of blood, and
that an additive was present in each vial in order to preserve the blood.
Consistent with the protocol in the office, she tested defendant's blood twice.
Comunale noted she worked for the State Police in the same capacity as a
forensic scientist from 2003 to 2012. She has a Bachelor of Science and a
Master's Degree in forensic science. In 2012, she took a three-year leave of
absence. At the time she left in 2012, she was "certified"; she did not indicate
what it meant to be certified. However, when she returned in 2015, she had to
be recertified because of her three-year absence. When she analyzed defendant's
blood in November 2015, she had not yet been recertified. Therefore, Joseph
Messana, another person in the department who was certified, had to and did
review her work to ensure the results of her testing were accurate.
Messana, who in 2015 had been a forensic scientist of the Office of
Forensic Sciences for twenty-eight years and was certified, testified he reviewed
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Comunale's work and determined she correctly analyzed defendant's blood. He
then affixed his signature to and thereby certified the laboratory report setting
forth the test results of defendant's blood. He stated the average of the two tests
Comunale conducted on defendant's blood was .163, plus or minus .003, and
that the probability defendant's blood alcohol value was in fact between .160
and .166 was ninety-nine percent.
After Messana signed and generated the laboratory report, Comunale's
analysis was peer reviewed by her supervisor. Thereafter, her analysis was
reviewed by another scientist. Both the former and the latter approved
Comunale's results.
Defendant called Gary Lage as his expert witness. The municipal court
judge found Lage to be an expert in the fields of pharmacology and toxicology.
Defendant sought to have Lage qualified as an expert in "laboratory procedures
and the correct procedures in which blood is supposed to be analyzed in a lab,"
but the judge declined to do so.
Lage testified that he was present in the court room when Nurse Jerez
testified about how she drew blood from defendant. He noted her testimony
failed to reveal whether she followed the "proper protocol." Lage testified vials
come with additives in them in powder form. He claimed the "recommended
A-3802-17T1
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protocol" requires that, after blood is drawn into a vial, the vial be held between
a person's thumb and forefinger and "rocked back and forth" a minimum of ten
times so the additives will dissolve in the blood. Lage did not identify the source
of such protocol.
According to Lage, there is the "potential" that any glucose in a patient's
blood will turn into ethanol. The additives preclude glucose from being
converted into ethanol, which might cause a higher blood alcohol reading than
would have been otherwise. However, to be effective, the additives must be
dissolved in the blood in accordance with the protocol.
Lage further testified there were only seven instead of eight milliliters of
blood in each tube. He claimed the higher concentration of additives could have
"potentially" caused a false elevation of blood alcohol, and thus affected the
reliability of the blood alcohol analysis. However, he then conceded that
dissolving additives in seven instead of eight milliliters of blood was not
significant.
Lage was critical of the fact it was Messana and not Comunale who signed
and certified the laboratory report, and that the peer review of Comunale's work
was not done until after the laboratory report was certified. We note Lage was
not qualified by the court to render an opinion on laboratory procedures.
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Further, Lage did not opine that certifying the laboratory report before the peer
review in fact affected the reliability of the information in such report.
Significantly, Lage was not critical of Comunale's analysis of defendant's blood.
Relying upon Catalano's testimony detailing how poorly defendant fared
when undergoing the field sobriety test, the municipal court judge found
defendant had been under the influence of alcohol at the time he was pulled over.
The judge convicted him of driving while intoxicated, N.J.S.A. 39:4-50, as well
as failure to maintain lamps, N.J.S.A. 39:3-66; following too closely, N.J.S.A.
39:4-89; improper use of high beams, N.J.S.A. 39:3-60; and reckless driving,
N.J.S.A. 39:4-96.
The municipal court judge rejected the State's contention there was proof
beyond a reasonable doubt defendant's blood alcohol concentration (BAC) was
above 0.08 percent, the allowable limit pursuant to N.J.S.A. 39:4-50(a). The
judge stated he was not satisfied the blood was drawn in accordance with
appropriate procedure, a decision he based upon "prior case law and prior
procedure that has been presented before the court." The judge did not cite the
case law that he claimed enabled him to find that the blood was not drawn in
accordance with the appropriate procedure. The municipal court judge also
A-3802-17T1
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rejected the premise defendant's BAC was above 0.08 percent on the ground
Comunale was not certified when she analyzed defendant's blood.
Defendant appealed his convictions to the Law Division for a trial de
novo. Following that trial, the judge in the Law Division concluded the field
sobriety test results did not provide sufficient grounds to convict defendant of
DWI, but the judge determined there was evidence beyond a reasonable doubt
that defendant's BAC was above 0.08 percent – as found by the forensic
scientists – when he was pulled over. The Law Division judge convicted
defendant of driving while intoxicated, N.J.S.A. 39:4-50(a); failure to maintain
lamps, N.J.S.A. 39:3-66; following too closely, N.J.S.A. 39:4-89; and improper
use of high beams, N.J.S.A. 39:3-60.
II
On appeal, defendant asserts the following points for our consideration:4
POINT I: THE SUPERIOR COURT, LAW
DIVISION, COULD NOT LEGALLY FIND
DEFENDANT GUILTY BASED UPON A PER SE
VIOLATION BECAUSE THE BLOOD TEST
RESULTS WERE SUPPRESSED BELOW AND THE
TRIAL DE NOVO WAS LIMITED TO THE
FINDING OF GUILTY BASED UPON
OBSERVATIONS ONLY.
4
Defendant appealed only his conviction for DWI.
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POINT II: THE TRIAL COURT ERRED BY NOT
DISMISSING THE MOTOR VEHICLE
SUMMONSES FOR VIOLATION OF
DEFENDANT'S RIGHT TO A SPEEDY TRIAL.
POINT III: DEFENDANT'S CONSENT TO
PROVIDING BLOOD WAS INVALID.
POINT IV: THE BLOOD TESTS WERE INVALID.
Having considered the record and applicable legal principles, we reject
defendant's arguments and affirm.
An appeal of a municipal court conviction must first be addressed by the
Law Division de novo. R. 3:23-8. The role of the Law Division is to make
independent findings of facts and conclusions of law based on the record
developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333
(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The Law
Division on an appeal from the municipal court does not search the record for
error, or determine if there was sufficient credible evidence to support a
conviction. The Law Division is required to decide the case completely anew
on the record made before the municipal judge, "giving due, although not
necessarily controlling, regard to the opportunity of the" judge to evaluate
witness credibility. Johnson, 42 N.J. at 157; see also State v. Cerefice, 335 N.J.
Super. 374, 382-83 (App. Div. 2000). The Law Division judge performs "an
A-3802-17T1
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independent fact-finding function in respect of defendant's guilt or innocence,"
and must "make his [or her] own findings of fact." State v. Ross, 189 N.J. Super.
67, 75 (App. Div. 1983).
We review the Law Division's decision employing the "substantial
evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "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." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div.
2005) (citing Johnson, 42 N.J. at 161-62). However, we review the Law
Division's interpretation of the law de novo without according any special
deference to the court's interpretation of "the legal consequences that flow from
established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
Defendant first contends the Law Division judge erred when he found
defendant violated N.J.S.A. 39:4-50(a) on the ground his BAC was above 0.08
percent when he was pulled over by Catalano, because the municipal court judge
suppressed the results of the blood test results and, "entered an acquittal of the
per se portion of the DWI statute."
A-3802-17T1
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First, even if the municipal court judge had suppressed the evidence of the
blood test results, the Law Division judge was free to make his own assessment
of the evidence in the record. "That is, indeed, the essence of a trial de novo,
which is based on the record in the municipal court." State v. Kashi, 360 N.J.
Super. 538, 545 (App. Div. 2003), aff'd 180 N.J. 45 (2004). As we stated in
Kashi, a trial de novo in this context "is not an appellate one; the Superior Court
judge does not affirm or reverse what occurred in the municipal court. Rather,
the Superior Court judge reviews the transcript and makes an independent
determination of the sufficiency of the evidence presented . . . ." Ibid.
Here, that is what the Law Division judge did. He reviewed the transcript
and made an independent determination of the evidence presented. Of course,
the "court conducting a de novo review must give due, but 'not necessarily
controlling, regard to the opportunity of the [municipal court] to judge the
credibility of the witnesses[,]'" State v. Kashi, 180 N.J. 45, 48 (2004) (quoting
Johnson, 42 N.J. at 157), but none of the Law Division judge's findings
conflicted with that principal.
Second, the municipal court judge did not suppress the evidence of the
blood test results. Defendant made a motion to suppress those results but it was
denied. In support of his argument the judge did suppress those results,
A-3802-17T1
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defendant quotes the following excerpt from the municipal court's judge's final
decision:
[T]his court will not allow the results of the blood draw
and its determination into the court's determination.
And I find that those results are flawed for the reasons
set forth on the record, and I am not going to consider
that before the court.
Defendant quotes the above statement out of context. The municipal court
judge did not find the blood test results reliable, but he did not suppress evidence
of them. The above excerpt merely references the judge's finding he did not
consider the results of the blood test to be trustworthy.
The Law Division judge reviewed the same evidence de novo and found
the blood test results valid and reliable. Finally, even if the municipal court
judge had suppressed the evidence of the blood test results, that would not have
been an acquittal of the charge defendant operated a vehicle when his BAC was
above 0.08 percent. See Kashi, 360 N.J. Super. at 545-46.
Defendant contends his consent to permit the police to draw blood from
him was not provided knowingly and voluntarily and, therefore, his consent was
not valid. Specifically, in his brief defendant claims that when he gave his
consent, he was having a "severe panic attack," and thus cannot be deemed
responsible for his actions. We reject this argument because there was no
A-3802-17T1
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evidence from a medical expert establishing he had this condition, let alone that
such condition precluded him from rendering a knowing and voluntary cons ent.
Defendant also argues the police violated his Fifth Amendment 5 rights
when they asked him if he consented to having his blood drawn. He notes he
had asserted his Fifth Amendment rights at the police station before he was taken
to the hospital, and that the police violated those rights by asking him a question
that elicited a response. We disagree. A police officer's request that a suspect
submit to a blood-alcohol test and the routine questions attendant to that request
are not interrogation within the meaning of Miranda. State v. Stever, 107 N.J.
543, 553 (1987). For that reason, the officer's request defendant submit to a
blood test did not violate his Fifth Amendment rights.
Defendant next argues the blood tests were invalid because, given she was
not certified, Comunale was not qualified to determine the blood alcohol content
of his blood sample. We disagree. First, defendant's own expert testified he did
not have an opinion about the quality of Comunale's analysis of defendant's
blood sample, and did not proffer any opinion her analysis was deficient in any
way.
5
U.S. Const. amend. V.
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Second, defendant does not cite and we were unable to find any legal
authority that requires a forensic scientist who performs the kind of analysis
Comunale conducted in this matter be licensed or certified by a state licensing
agency. Because the topic was not explored at trial, there is no evidence of what
the term "certified" as used by Comunale and Messana meant, which merely
may have been a reference to an internal certification process within the Office
of Forensic Sciences. Regardless, defendant's expert did not voice any criticism
of Comunale's ability to perform the subject analysis or of the analysis itself.
Defendant argues that, according to Lage, there was no evidence Nurse
Jerez rocked the vials that contained his blood back and forth to effectuate
dissolving the additives in the blood. Thus, defendant maintains, the ethanol
found in his blood could have originated from glucose rather than from an
alcoholic beverage.
We note the source of Lage's claim the vial should have been rocked back
and forth ten times as soon as blood is withdrawn is an unidentified
"recommended protocol." In our view, his testimony on this issue constituted
an inadmissible net opinion because there was no evidence of the source of that
protocol or standard. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 373 (2011) ("[A] trial court may not rely on expert testimony that . . . fails
A-3802-17T1
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to establish the existence of any standard about which the expert testified.").
There is no indication of who authored the recommended protocol, and whether
such protocol is recognized and accepted within the medical community. In
essence, Lage merely provided a "bare opinion that has no support in factual
evidence or similar data . . . ." Id. at 372.
We considered defendant's remaining arguments, and conclude they are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
We are satisfied there is sufficient credible evidence present in the record
to support the Law Division judge's findings. Clarksburg Inn, 375 N.J. Super.
at 639 (citing Johnson, 42 N.J. at 161-62).
Affirmed.
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