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Windmere Inc. v. International Insurance Co.

Decided: March 21, 1986.

WINDMERE, INC., A CORPORATION, PLAINTIFF-APPELLANT,
v.
INTERNATIONAL INSURANCE COMPANY, A CORPORATION, DEFENDANT-RESPONDENT



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

O'Brien, Simpson and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Plaintiff appeals from a jury verdict in favor of defendant insurance company on plaintiff's claim for a fire loss. The principal issue in this case is the admission of voiceprints into evidence based upon a finding of sufficient reliability by the trial judge. We affirm.

Plaintiff Windmere, Inc. is a corporation of which Thomas Ciambrone, Jr., is president and sole stockholder. The corporation owned property upon which a restaurant was being operated. In 1978 or 1979, Thomas Ciambrone, Jr. moved to Florida and turned over operation of the restaurant to his brother Jerry Ciambrone and Robert Nardi, which they operated through Crosswinds Restaurant Corporation. Jerry Ciambrone and Nardi agreed to pay maintenance expenses of the building and, after a certain point, pay plaintiff a share of the profits.

At 3:14 a.m. on March 12, 1982, a telephone report was made to the West Milford Police Department that the restaurant was on fire. The caller also said there was a bomb inside the burning building. A tape recording was made of the telephone call. Between 4:00 and 4:30 a.m. on the morning of the fire, Thomas Ciambrone, Jr. received a telephone call at his home in Florida from his uncle, Rex D'Angelis, about the fire. Ciambrone's uncle lived close to the restaurant and was responsible for maintaining and overseeing the building.

Defendant had issued a policy of insurance on the building covering fire loss in the amount of $600,000 which was in effect at the time of the fire. Defendant's refusal to pay plaintiff's claim, based upon a contention that plaintiff's officers, directors and employees had either set the fire or had knowledge that the fire would be intentionally set, precipitated this suit.

At trial, plaintiff presented the testimony of a fire investigator who said the "fire had been caused by the willful and malicious act of arson, and that an accelerant had been used to cause the building to burn faster and create more damage." Thomas Ciambrone, Jr. testified he was in Florida at the time of

the fire. Plaintiff also called William Brickman, president of the bank which holds the mortgage on the property, who had also been a volunteer fireman. Brickman testified that Thomas Ciambrone, Jr. called him from Florida at approximately 7:00 a.m. to inquire whether there had been a fire in the restaurant. Plaintiff's insurance agent testified that he had been called by Thomas Ciambrone, Jr. at about 6:30 a.m. on the morning of the fire and asked to go over and see what was going on.*fn1

Detective Sergeant Albert E. Hooper (Hooper) of the West Milford Township Police Department testified as to various articles found in the building, including a blue jacket bearing shoulder patches which read "Chrysler Drag Seminar 1973." The police also found a set of keys in the jacket, including a key for the rear door of the building. Since the police found no evidence of forced entry, Hooper believed that the arsonist entered the building through the rear door using the key found in the blue jacket. Investigators also found a plastic five-gallon container in the foyer of the building which contained a residue of gasoline.

After a Evid.R. 8 hearing, Detective Hooper was permitted to testify as to statements given to him by Howard Bodell (Bodell) who was employed by T & J Trucking, another company owned and operated by Thomas Ciambrone, Jr. Bodell also worked as a maintenance man at the restaurant when there was no work for him at T & J Trucking. Bodell told Hooper he had purchased gasoline on March 9 at a local service station which he intended to use to soften asphalt in order to repair a gas pipe at the restaurant. The gasoline had been placed in a small plastic container. Although Bodell at first said he purchased only one gallon, he was confronted with the credit-card slip, which was

for the account of Thomas Ciambrone, Jr. and indicated two gallons had been purchased. Bodell then recalled he bought two gallons of gasoline and had only used a portion of one gallon and had taken the other gallon home.

Since the telephone call reporting the fire had been tape recorded, the police made an exemplar of Bodell's voice on the telephone in which he repeated the caller's statements. These tapes were delivered by the Passaic County Prosecutor's Office to Voice Identification, Inc., whose president, Ernst F. V. Alexanderson (Alexanderson), reported that:

We have completed our analysis and have been able to identify ten matching words between the unknown caller and Mr. Howard Bedell [ sic ]. Our aural examination concurs with the spectrographic portion, and we feel sure beyond a reasonable doubt that Mr. Howard Bedell [ sic ] made the bomb threat call.

On this appeal, plaintiff argues that there was insufficient evidence at the Evid.R. 8 hearing as to the reliability of spectrograms*fn2 to warrant their admission into evidence. In addition, plaintiff contends that comments by defense counsel in summation were prejudicial and that the trial judge erred in permitting the hearsay statements of Bodell to be received through the testimony of Sergeant Hooper.*fn3 We first address the issue of the admission of the spectrograms since defendant conceded at oral argument that such evidence was extremely prejudicial and if improperly admitted probably should lead to a reversal.

Plaintiff first contends that the Evid.R. 8 hearing as to the admissibility of the spectrographic evidence was inadequate and seeks a remand for a new hearing. Although this contention suggests surprise, approximately six months before

trial defendant provided plaintiff with a copy of Voice Identification, Inc.'s report and informed plaintiff of defendant's intention to proffer this report at trial. Furthermore, defendant filed a trial brief in support of the admissibility of spectrographic evidence. Plaintiff's failure to adequately prepare to meet defendant's proffer of voiceprint evidence is no basis to remand for a new Evid.R. 8 hearing. While the issue might have been addressed at a pretrial Evid.R. 8 hearing, as now contended by plaintiff, neither party sought such a hearing. Thus the issue of admissibility was properly examined at a Evid.R. 8 hearing during the course of the trial.

At the Evid.R. 8 hearing, defendant offered the testimony of Alexanderson and Detective Lieutenant Lonnie Smrkovski (Smrkovski), commanding officer of the Voice Identification Unit of the Michigan Department of State Police, in support of the admissibility of spectrographic evidence. Professor Louis J. Gerstman, professor of psychology and speech and hearing sciences at City University of New York, testified on behalf of plaintiff against admissibility. After the hearing, the judge found spectrograms sufficiently reliable for admission into evidence when offered through the testimony of a qualified expert, and when coupled with aural evidence from which the jury itself can compare the questioned tape with the exemplar. Accordingly, the proffered testimony was ruled admissible and Alexanderson subsequently testified before the jury as to the findings in his spectrographic report. Plaintiff, however, offered no expert testimony before the jury.*fn4

Admissibility of spectrograms has not been finally adjudicated in New Jersey. In State v. Cary, 49 N.J. 343 (1967), the Supreme Court ruled that the prosecution could compel a defendant

to submit to a voice test in order to conduct a spectrographic examination. Id. at 352. However, the Court expressly did not decide the subsequent admissibility of the resulting voice print, leaving to the trial judge the determination of whether the technique and equipment had a sufficient basis. Ibid. Upon remand, the trial court concluded that, although the spectrograph was an efficient and accurate piece of equipment, the reliability of the spectrogram, i.e., the product produced by the spectrograph, was still subject to scientific question. State v. Cary, 99 N.J. Super. 323, 332 (Law Div.1968). Consequently, the trial judge refused to permit any identification opinion resulting from the tape-recorded messages that had been compared by the expert. Id. at 334. On application of the State to produce further expert testimony, the Supreme Court remanded the issue for that purpose, because of the far-reaching implications of admission of voiceprint evidence. State v. Cary, 53 N.J. 256, 258 (1969). The State, however, was unable to furnish any additional scientific support for the reliability of voiceprints, and the Supreme Court affirmed the trial judge's exclusion of this evidence. State v. Cary, 56 N.J. 16 (1970).

The issue was again addressed by our Supreme Court in State v. Andretta, 61 N.J. 544 (1972). After noting that ". . . the voiceprint method today has much more support for its admissibility as evidence than at the time of Cary," the Court found it unnecessary to decide whether the result of a voiceprint analysis would routinely be admissible at trial because the issue before it was only whether defendants could be compelled to give an exemplar for comparison. Id. at 551. The Court said:

The significant scientific experiments and recent judicial acceptance of the voiceprint method since Cary convince us that the support for this method now rests on considerably more than the word of a single man. In light of the developments since Cary, we believe that it is no longer unreasonable to order these defendants to speak for purposes of this test. After this test is completed and the State indicates that it intends to offer the results of the test at trial, the trial judge shall hold an additional pre-trial hearing to determine whether any identification ...


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