State v. Malsbury

• Decision Date: 24 August 1982
• Citation: 451 A.2d 421,186 N.J.Super. 91
• Parties: STATE of New Jersey, Plaintiff, v. Robert S. MALSBURY, Defendant-Appellant. (Criminal), Burlington County
• Court: New Jersey Superior Court

Page 91

186 N.J.Super. 91

451 A.2d 421

STATE of New Jersey, Plaintiff, v. Robert S. MALSBURY, Defendant-Appellant.

Superior Court of New Jersey, Law Division (Criminal), Burlington County.

Decided Aug. 24, 1982.

Richard J. Schmitz, Jr., Asst. Pros. Atty., for the State (Stephen G. Raymond, Burlington County Prosecutor, attorney).

Martin J. Queenan, Burlington, for defendant-appellant.

GOTTLIEB, J. J. D. R. C. (temporarily assigned).

This appeal of two municipal court convictions concerns the reception into evidence of a report by the Burlington County Forensic Science Laboratory, under Evid.R. 63(15), without an appearance in court by the chemist from the laboratory.

Defendant Robert S. Malsbury was convicted in the Bordentown Township Municipal Court of violations of N.J.S.A. 2C:29-2b (attempting to elude a police officer in a motor vehicle), N.J.S.A. 24:21-20a(4) (unlawful possession of less than 26 grams of marihuana) and N.J.S.A. 39:4-97 (careless driving). He has appealed the first two convictions to this court under R. 3:23.

Only one witness, Trooper John Silver, testified at the hearing. He indicated that on March 4, 1982, while on routine patrol on Route 130 in the township, he saw a white Ford make an unsafe lane change. The trooper pursued the vehicle. The Ford made a left turn onto Burlington Street, followed by the officer's vehicle. Trooper Silver activated his overhead lights and attempted to pull the Ford over to the side of the road. The witness noticed the operator of the Ford look into his rear-view mirror and throw a lighted cigarette out of the window. The operator then emptied the contents--a greenish brown vegetation--of five bags out of the window, as well as the bags themselves. Finding a safe place to pass, the trooper forced the Ford to the side of the road. Trooper Silver exited his vehicle and approached the Ford. He observed some of the greenish brown vegetation all over the fur-collared coat defendant was wearing, as well as being strewn throughout the interior of the car. The trooper collected these vegetative remains, which he sealed in two packages and had sent to the laboratory. A report was made by the laboratory indicating that the contents of the two bags were positive for marijuana, totalling 1.63 grams in weight. The report was received into evidence, pursuant to Evid.R. 63(15), despite defense counsel's objection.

There were four reasons given for the objection: (a) a copy of the report had not been provided to counsel in his pretrial request for discovery; (b) "there hasn't been a proper foundation laid"; (c) the testing of a substance for marijuana was too complicated a procedure to be accepted by way of report rather than through the testimony of a laboratory chemist and (d) the report was inappropriately received under the evidence rule. In addition, at oral argument on the appeal defense counsel asserted that the laboratory chemist was not a public official under Evid.R. 62(3) and, further, that the rule, as applied, denied defendant his confrontational rights.

An examination of these arguments must begin with an analysis of Evid.R. 63(15).

Evid.R. 63(15), captioned "Reports and Findings of Public Officials," provides:

Subject to Rule 64, a statement is admissible if it is in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

Obviously, it is subpart (a) of the rule which is applicable, if at all.

The rule commences its statement in a provisory manner: "Subject to Rule 64 ...." This latter rule gives the court discretion to exclude a written statement at trial if the proponent did not advise the adverse party of an intention to offer the writing sufficiently in advance so as to provide that adverse party "with a fair opportunity to prepare to meet it."

Assuming no impediment under the conditional phrase, the rule authorizes the reception into evidence (as an exception to the general hearsay proscription of Evid.R. 63) of "a written statement of ... [a] condition ... observed ...." The Evidence Rules provide no definition of the word "condition." Nor have the courts of this State defined that term within the context of the evidence rule. Thus, as with statutes, it must be given its ordinary, well-understood meaning. Levin v. Parsippany-Troy Hills Tp., 82 N.J. 174, 182, 411 A.2d 704 (1980).

The Random House Dictionary of the English Language (unabr. ed. 1967) defines "condition" as the "particular mode of being of a person or thing; situation with respect to circumstances; existing state or case." (Definition 1, page 306). Phrased another way, as applied to Evid.R. 63(15), "condition" is to be defined as meaning the quality or characteristics of a state of being. The preciseness of this definition is necessary in light of the note to the rule of the 1967 legislative commission studying the Evidence Rules. The commission made it clear that only objective observations, not subjective conclusions, were to be encompassed within the rule. For example, a report of an investigation of the condition of a stairway indicating that its steps consisted of rotted boards is admissible; that traversing those steps was hazardous is not. "Condition," therefore, is confined to the perceptions of a quality or characteristic, and excludes an interpretation of those perceptions. See Brown v. Mortimer, 100 N.J.Super. 395, 405-6, 242 A.2d 36 (App.Div.1968).

The rule continues by requiring that those observations be by a public official whose duty it is to make the observations and produce the written statement. The rationale for the rule culminates in this requirement, for the written recordation of an observation of a nonofficial or an official not acting within his commission is not accorded similar status. As noted in State v. Hudes, 128 N.J.Super. 589, 602, 321 A.2d 275 (Cty.Ct.1974): "There is a presumption, absent contrary testimony, that those responsible for services to the public will carry out their duties in a proper, careful and prudent manner." There is a high probability that the obligation to report accurately has been fulfilled, vis-a-vis a public official.

In addition, the rule recognizes the inconvenience in requiring that a public official appear in court to testify on the subject matter of the statement. As explained in McCormick, Evidence (2 ed. 1972), § 315 at 736:

Not only would this disrupt the administration of public affairs, but it almost certainly would create a class of official witnesses. Moreover, given the volume of business in public officers, the official written statement will usually be more reliable than the official's present memory.

Cf. State v. Martorelli, 136 N.J.Super. 449, 454, 346 A.2d 618 (App.Div.1975), where, in reference to a blood test, it was reasoned: "To require those who perform tests which are relatively simple to appear in court and testify would work a hardship on an already overburdened medical system." The court does recognize that the conclusion in Martorelli was grounded in Evid.R. 63(13), not 63(15), but an analogous reasoning applies.

The rule is both realistic and practical. Being charged with the obligation of accuracy, a public official's report is accorded a presumption of trust. And to require that a public official relinquish continued attention to the other tasks within his responsibility merely to repeat orally that which he has already written disserves the public. The rule is to be viewed and implemented in this context.

Returning, then, to the specific facts of this case, as noted above, the first objection to the use of the rule in the municipal court was that the condition of Evid.R. 64 was not met. As indicated previously, defense counsel did ask for discovery before trial, but a copy of the laboratory report was not supplied. However, the discovery request was submitted to the court clerk rather than the prosecutor. The court below offered defense counsel additional time to analyze by continuing the trial to a later date and requiring disclosure, but this was declined. Further, the intention of the State to proceed under Evid.R. 63(15) had been made known to defense counsel about three weeks earlier, although a copy of the report itself had not been supplied.

Under these circumstances, the municipal court did not improperly exercise its discretion. Evid.R. 64 does not require that a copy of the written report be submitted to the adversary--merely that the intention to offer it be communicated. Its pretrial disclosure is governed by the discovery rules, R. 7:4-2(g) and R. 3:13-3. Subsection (f) of this latter rule indicates that if there is a failure to provide discovery, the court may direct disclosure, grant a continuance or bar the introduction of a non-divulged item into evidence. Since there are alternative remedies provided, it is evident that the selection of the appropriate redress is discretionary with the court. In this instance, the court thought it appropriate to order disclosure and afford counsel an opportunity to prepare to meet the...