On appeal from the Superior Court of New Jersey, Somerset County, Law Division.
Before Judges Pressler, Brochin and Kleiner.
The opinion of the court was delivered by
KLEINER, J.S.C. (temporarily assigned).
Defendants Robert J. Cusmano, Richard K. Najar and Keith M. Pacciano were indicted for second degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third degree possession of a weapon, a
pipe, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4d, upon Carmen E. Parisio. This attack occurred March 7, 1993, as Parisio and his girlfriend Lana Jakubiw were exiting Parisio's vehicle in the parking area of an apartment building where Jakubiw rented an apartment with a roommate Maria Kapinos. At the time of the incident Parisio was also residing in that apartment. Kapinos is alleged to have observed the assault from an apartment window.
On June 9, 1993, Jakubiw and Kapinos informed Detective Nicholas Importico of the Somerset County Prosecutor's Office that they had received telephone calls from defendants attempting to persuade them not to testify at the impending trial. Importico obtained authorization for a consensual interception, N.J.S.A. 2A:156A-46, and a recording device was installed at the Jakubiw/Kapinos apartment. Ultimately, ninety minutes of taped conversation were recorded involving either Jakubiw or Kapinos and defendants Cusmano, Pacciano and Shannon Dick. Ms. Dick had been with defendant Pacciano, who was her boyfriend, on March 7, 1993.
As a result of these tape recordings, another indictment was returned by the Somerset County Grand Jury charging in: Count one, aggravated assault, N.J.S.A. 2C:12-1b(1), by defendants Cusmano, Najar and Pacciano and in Count two, conspiracy of those three defendants and Shannon Dick to induce Jakubiw or Kapinos to testify falsely or withhold testimony in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:28-15a; Counts three, four and five separately charged defendants Cusmano, Pacciano and Dick individually with substantive violations of N.J.S.A. 2C:28-15a.
On September 20, 1993, defendant Dick filed a motion to dismiss the indictment and a separate motion seeking a hearing as to the admissibility of the tape recordings. The motion to dismiss was denied on October 21, 1993 by the Presiding Judge of the Criminal Part.
An Evid. R. 8 hearing (now N.J.R.E. 104) was conducted by another Judge on November 29 and 30, 1993 and December 1,
1993. Prior to that hearing defendants Cusmano and Pacciano also filed formal motions to challenge the admissibility of the taped conversations. Defendant Najar was granted leave to participate in that evidentiary proceeding.*fn1
At the Conclusion of this hearing, the court rendered an oral opinion suppressing the taped recordings, and thereafter filed a written opinion on December 9, 1993 supplementing the oral decision. The proposed recorded evidence consists of three sides of taped conversations, marked and designated "tape one, side one," "tape one, side two," and "tape two, side one." Each side comprises thirty minutes. The motion Judge considered the tapes as one unit and ruled the tapes inadmissible at trial on a dual basis: the operators of the recording equipment were not competent and the tapes as offered contain deletions. The court's Conclusions are interrelated: the presence of the deletions were regarded by it as evidence of the incompetence of the operators of the recording equipment or, postulated differently, the incompetence of the operators caused the occurrence of the deletions. The court predicated its decision on State v. Driver, 38 N.J. 255, 183 A.2d 655 (1962). As discussed infra, Driver does not define the operator's "competence." The motion Judge declared "competence" should be construed as "'competence to operate a sound recording device for use in a criminal prosecution.'" The Judge did not further explain his definition. We conclude that an analysis of judicial precedent in the federal courts leads to the contrary Conclusion that the tapes are admissible. We agree with the federal analysis and are constrained to reverse.
On December 17, 1993, the State sought leave to appeal the interlocutory decision of the motion Judge and thereafter defendant Dick filed a cross-motion seeking leave to appeal the denial of her motion to dismiss the second indictment. Both motions for
leave to appeal were granted and these separate appeals have been consolidated for Disposition.
Since the motion Judge premised his decision on State v. Driver, id., we will, in Part I, review New Jersey precedent commencing with Driver as background for our analysis, in Part II, of the proffered tape recorded conversations. In Part III, we will discuss federal precedent upon which we primarily rely in reaching our decision. Part IV will focus upon the separate appeal by defendant Dick.
In State v. Driver, supra, 38 N.J. at 287, the Supreme Court stated:
At the present time the great weight of authority throughout the country sanctions the use of sound recordings where the matter contained therein is competent and relevant. See Annotation, 58 A.L.R.2d 1024 (1958). We adopt that view. As a condition to admissibility, however, the speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. Annotation, supra, at pp. 1027, 1032-36; as to confessions, see the many cases cited at pp. 1046-47.
In Driver, the court determined that a tape recording of a confession should have been excluded. The specific reasoning of the court was:
In the matter now before us, therefore, the tape recording was not inadmissible per se, so long as its capacity to record accurately, and the other conditions precedent were established. But even if the involuntary character of the recording did not bar it, in our view it should have been excluded. It was garbled, full of static and other foreign sounds; it was unintelligible and inaudible for the most part, and a fair exercise of discretion required the entire tape to be withheld from the jury. In this connection, we note the comment of the trial Judge as he listened to it: "If you can't hear it, you can't hear it. Inaudible." He did not specify further. Basic fairness demanded its exclusion.
[Id. at 288 (citations omitted).]
Since 1962, the Annotation, 58 A.L.R.2d 1024, relied upon by the Court in Driver has been supplemented. See 57 A.L.R.3d 746 (1974). Our review of the cited decisions throughout the United
States in both State and federal courts reflect that the broad Conclusion pronounced in State v. Driver, supra, is still correct.
Although State v. Driver, id., is often cited for various precedental value, our research reveals only five New Jersey decisions which specifically rely upon State v. Driver in examining the admissibility of particular recordings: State v. Seefeldt, 51 N.J. 472, 487, 242 A.2d 322 (1968); State v. Seaman, 114 N.J. Super. 19, 28, 274 A.2d 810 (App. Div.), certif. denied, 58 N.J. 594 (1971), cert. denied, 404 U.S. 1015, 92 S. Ct. 674, 30 L. Ed. 2d 662 (1972); Sarte v. Pidoto, 129 N.J. Super. 405, 324 A.2d 48 (App. Div. 1974); State v. Zicarelli, 122 N.J. Super. 225, 239-40, 300 A.2d 154 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973); State v. Gora, 148 N.J. Super. 582, 593, 372 A.2d 1335 (App. Div.), certif. denied, 74 N.J. 275 (1977).
Relevant to our Discussion, although not citing Driver, is State v. Dye, 60 N.J. 518, 291 A.2d 825, cert. denied, 409 U.S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972), modified on other grounds by State v. Catania, 895 N.J. 418 (1981), involving in part the admissibility of conversations recorded over tapped telephones pursuant to N.J.S.A. 2A:156A-1 et seq., the New Jersey Wiretapping and Electronic Surveillance Act.
Of the five cases specifically relying on Driver, only State v. Zicarelli, supra, is particularly relevant to our analysis sub judice. The Zicarelli court noted:
It is true that in State v. Driver it was suggested that the tape there involved was so inaudible and garbled that, as a matter of discretion, it should have been excluded.
In reviewing the exercise of discretion here we consider the evidential purpose which the tape served. It has been held that if a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible. State v. Spica, 389 S.W.2d 35, 48 (Mo. Sup. Ct. 1965), cert. den. 383 U.S. 972, 86 S. Ct. 1277, 16 L. Ed. 2d 312 (1966); United States v. Hall, supra; Addison v. United States, 317 F.2d 808, 815 (5 Cir. 1963), cert. den. 376 U.S. 905, 84 S. Ct. 658, 11 L. Ed. 2d 605 (1964).
Certainly, the tape of the conversation between Policastro and Zicarelli at St. Mary's Hospital on February 20, 1970 proved the intimacy between them and, considered with Policastro's direct testimony, the relationship of that intimacy to
the central conspiracy of suppressing prosecution of the gambling enterprise headed by Zicarelli. Therefore, it had probative value to that extent, and was admissible for that purpose. In Driver, on the other hand, the only relevance of the tape was that it was a confession. It had no other probative value. In that case the inaudibility of the tape was central to the purpose for which it was offered and, because it was largely inaudible (in addition to its involuntary nature), it would have been grossly unfair to admit it. As said above, the Policastro-Zicarelli tape had probative value for reasons other than what was said. Inaudibility had no relevance to those reasons. The question of admissibility of the tape was a matter of discretion. Cf. State v. Driver, supra, 38 N.J. at 288. Here there was no abuse of discretion in its admission.
In any event, there was no prejudice to defendants in the introduction of the tapes or the transcript thereof. Policastro testified that everything therein was truly said. He was subjected to cross-examination. See People v. Jackson, 125 Cal. App.2d 776, 271 P.2d 196, 199 (D.Ct. App. 1954). In turn, the tapes served the probative purpose of corroborating Policastro's testimony. The resolution of the weight of that evidence was left to the jury.
[122 N.J. Super. at 239-40.]
Although State v. Dye, supra, does not rely upon Driver, the issue posed is essentially the same, whether tapes of a tapped telephone call should be admitted into evidence. The Supreme Court summarized the problem:
Moreover, there is no support in the record for the contention that all the tapes should be excluded either because they were entirely inaudible or inaudible in such substantial part as to render them untrustworthy. Unless such a condition appeared the State was entitled to have the tapes admitted in evidence. See United States v. Knohl, 379 F.2d 427, 440 (2 Cir.), cert. den. 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967); Addison v. United States, 317 F.2d 808, 815 (5 Cir. 1963), cert. den. 376 U.S. 905, 84 S. Ct. 658, 11 L. Ed. 2d 605, reh. den. 376 U.S. 966, 84 S. Ct. 1121, 11 L. Ed. 2d 984 (1964); Todisco v. United States, 298 F.2d 908 (9 Cir. 1961), cert. den. 368 U.S. 989, 82 S. Ct. 602, 7 L. Ed. 2d 527 (1962); Cape v. United States, 283 F.2d 430, 435 (9 Cir. 1960); and Monroe v. United States, 98 U.S. App. D.C. 228, 234 F.2d 49, 55, cert. den. 352 U.S. 873, 77 S. Ct. 94, 1 L. Ed. 2d 76 (1956), where it was said "that partial inaudibility is no more valid reason for excluding recorded conversations than the failure of a personal witness to overhear all of a conversation should exclude his testimony as to those parts he did hear. Unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy the recording is admissible, and the decision should be left to the sound discretion of the trial Judge."
[State v. Dye, supra, 60 N.J. at 531 (citations omitted) (emphasis added).]
The other four cases which rely upon Driver (Seefeldt, Seaman, Pidoto and Gora) each involved audibility issues and in each instance a tape recording was admitted into evidence.
In the case sub judice, defendants did not challenge the tape recording due to audibility problems. As we will note infra, the tape recording is perfectly audible. Defendants' arguments rest upon their contention that the tape recording machine operators were incompetent, Driver, supra, 38 N.J. at 287 (factor two), and that "changes, additions or deletions" have been made in the tapes, ibid. (factor four), thus rendering the tape recordings inadmissible.
As part of the Driver hearing, the court had the benefit of listening to a copy of the original tapes of five distinct telephone conversations intercepted on June 10, 1993, and was assisted by a transcript of those interceptions which by stipulation were deemed accurate. This transcript comprises sixty-four pages numbered one to sixty-four. As noted supra, when played, the entire conversations were timed as lasting ninety minutes. The transcript bears the designations "tape one, side one," "tape one, side two," and "tape two, side one."
Tape one, side one contains the start of two distinct telephone calls received at the interception location. The first telephone call was received by Jakubiw from a male later identified as defendant Keith Pacciano. That conversation is recorded in its entirety, without audibility difficulty and without interruption. It commences on page one of the transcript and terminates at the bottom of page three, when Pacciano hands the telephone to Shannon Dick.*fn2 Dick and Jakubiw are heard conversing without interruption for the remainder of page three to the middle of page seven, where the tape recording suddenly ends. The transcript on page seven at that point bears the words "(tape cuts out)."
Defendants presented an expert witness, Paul Ginsberg.*fn3 On direct examination, Ginsberg testified as follows:
Q Okay. Now, I am going to call your attention to the first conversation, and that is --
Q -- from pages 1 through page 7?
Q Did you notice anything significant about that conversation?
Q Okay. Can you tell us what you noticed?
A At the Conclusion of the recording -- let's put it this way. There was no Conclusion of recording. On page 7 in the middle of the page there is a notation by the transcriber in parenthesis "tape cuts out". In fact, the tape did not cut out but what I found from my examination was that the recorder after the Conclusion of the conversation being recorded was at some subsequent time rewound back to a certain point and restarted recording another conversation, thus obscuring the balance of the original conversation that was being overrecorded by this new conversation.
And this is clearly evident from observation on the oscilloscope as well as contextually by anybody just reading on or listening to the tape. There is a tape, conversation in progress on page 7, and at a certain point there is a new conversation that starts in which is unrelated to the original conversation.
Ginsberg also indicated that it is impossible to determine how long the conversation between Shannon Dick and Lana Jakubiw lasted after the next conversation began. He did indicate, however, that the recorded conversation between defendant Dick and Jakubiw lasted five minutes.*fn4
The balance of page seven is a transcription of a separate and distinct conversation between defendant Robert Cusmano and Maria Kapinos. That conversation continues without interruption until the top of page twenty-two, when Kapinos transfers the telephone to Lana Jakubiw. Jakubiw and Cusmano continue their
conversation to the bottom of page fifty-three of this transcript. The transcript reflects three interruptions of this conversation as follows:
Page 24 "(End of side 1 of tape #1.)"
Page 43 "(End of side 2 of ...