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Neno v. Clinton

May 16, 2001


The opinion of the court was delivered by: Per Curiam.

Argued January 17, 2001

On appeal from and certification to the Superior Court, Appellate Division.

Plaintiffs sustained serious injuries after being hit as they walked across a highway intersection by a truck owned by defendant Gilsonite Music Industries, Inc. (Gilsonite). Plaintiffs filed suit against Gilsonite and Derek Clinton (Clinton), the driver of the truck. The jury found that Clinton was negligent, but that his negligence was not a proximate cause of the collision, and the Law Division entered judgment for defendants. The Appellate Division majority affirmed that judgment in an unpublished opinion. The dissenting member determined that the trial court improperly had admitted the opinion of the investigating traffic officer concerning the cause of the accident. The dissent also concluded that the verdicts were inconsistent, requiring a retrial. Plaintiffs filed a notice of appeal as of right, R. 2:2-1(a), and a petition for certification. We granted the petition, Neno v. Clinton, 165 N.J. 488 (2000), and now reverse.


In January 1995, plaintiffs Joao Neno and Helder Neno were working at a construction site that straddled both sides of Route One in Plainsboro. On the day in question, they and several other workers had to walk across the intersection of Route One, a four-lane highway, and Scudders Mill Road, to reach another part of the site. There are no pedestrian crosswalks at that intersection. The workers began to walk through the first two lanes of Route One south when the traffic light facing them was green. They walked in front of a truck stopped in the right lane without incident. Another worker who was slightly ahead of Joao and Helder successfully crossed the left southbound lane, but when plaintiffs stepped into that second lane the Route One traffic light turned green. Plaintiffs were hit by a truck heading southbound on Route One in the left lane driven by defendant Clinton. Just prior to the collision, the driver of the truck stopped in the right-hand lane, William Burnett, saw Clinton look away from the road and into Burnett's driver's side mirror, a fact that Clinton did not dispute. Clinton accelerated prior to reaching the intersection, and was traveling thirty to thirty-five miles per hour at the time of the collision. Both plaintiffs suffered severe injuries.

Officer Kelly, the primary investigating officer, arrived on the scene after the accident but before Joao and Helder were taken away by ambulance. He interviewed Burnett and Mark Meyer, another driver who witnessed the accident as he approached the intersection driving his vehicle in the opposite, northbound direction.

Kelly testified that Meyer told him that the light facing Meyer's vehicle, which was headed northbound, was green when defendant's truck struck plaintiffs. Meyer's statement established the fact that the light also was green for defendant Clinton as he entered the intersection from the opposite, southbound direction. Officer Kelly also testified that Burnett, the truck driver stopped at the light, told him that the traffic light was green when defendant's truck entered the intersection. The trial court allowed Kelly to testify to the content of the statements of the two eyewitnesses over plaintiffs' objection, concluding that Kelly's testimony was admissible because both Burnett and Meyer would be testifying later in the trial.

The trial court also permitted Kelly to testify, over objection, that in his opinion plaintiffs were at fault because they continued to cross the road against a red light. Officer Kelly's testimony included the following opinion:

[B]ased on all the statements and the investigation that I did at the accident - - of this accident[,] the pedestrians failed to properly cross the intersection. The sequence of events suggest[s] the pedestrians began to cross the roadway after the [Scudders] Mill Road signal turned red and before US Route 1 signal turned green. A slight delay of approximately 4 seconds is utilized where all signals are red. This allows the intersection to clear prior to US Route 1 receiving a green signal. [Emphasis added.]

The court explicitly refused to qualify Kelly as an expert, instead allowing him to offer his opinion as a lay witness. Kelly based that opinion testimony on his investigation of the scene after the accident and on the eyewitness statements given to him by Burnett and Meyer.

At the conclusion of the trial, the jury returned a verdict of no cause for action, finding that although defendant Clinton was negligent, his negligence was not a proximate cause of the accident.


Plaintiffs challenge two evidentiary rulings concerning Officer Kelly's testimony. First, they contend that the trial court improperly allowed Kelly to testify to the substance of statements made by Burnett and Meyer at the scene. Second, they assert that the trial court improperly allowed Kelly to testify to his opinion regarding who was at fault in the accident. We address each ruling in turn.

"?Hearsay' is 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). Long considered "untrustworthy and unreliable," State v. White, 158 N.J. 230, 238 (1999), "[h]earsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802. The hearsay prohibition "ensure[s] the accuracy of the factfinding process by excluding untrustworthy statements, such as those made without the solemnity of the oath, and not subject to cross-examination . . . or the jury's critical observation of the declarant's demeanor and tone." State v. Engel, 99 N.J. 453, 465 (1985); see McCormick on Evidence § 245 (5th ed. 1999) (indicating that hearsay statements made out-of-court, not under oath, or not subject to cross-examination may suffer infirmities of perception, memory, and narration if admitted).

One possible exception to the hearsay bar, N.J.R.E. 803(a)(2), allows admission of statements "offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive." Ibid. The scope of the exception encompasses prior consistent statements made by the witness before the alleged "improper influence or motive" to demonstrate that the witness did not change his or her story. See State v. Torres, 313 N.J. Super. 129, 158-59 (App. Div.) (allowing prior consistent statements "to rebut the assertion that [the witness] was fabricating his trial testimony because of a motive to shift the blame to the defendant"), cert. denied, 156 N.J. 425 (1998). A court cannot admit a prior consistent statement unless it falls within the parameters of that hearsay exception.

More importantly, "[a] prior consistent statement offered [solely] to bolster a witness' testimony is inadmissible." Palmisano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997); see also Biunno, supra, comment 4 on N.J.R.E. 607 (noting that "prior consistent statements offered to bolster the credibility of a witness may only be admitted if the requirements of N.J.R.E. 607 are satisfied, i.e., that there has been a charge or suggestion that the testimony of the witness was a fabrication that was belatedly conjured up"); State v. Johnson, 120 N.J. 263, 295 (1990) (holding that "it would be improper to bolster [lay- opinion] testimony by reliance on [a prosecution witness's] qualifications as a fingerprint expert"); State v. Clausell, 121 N.J. 298, 337-38 (1990) (finding that testimony of police sketch artist that widow of victim was "very good" as witness "improperly bolstered the credibility of a key prosecution witness" under predecessor of N.J.R.E. 403, which excludes relevant evidence if "its probative value is substantially outweighed by the risk of undue prejudice"); State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993) ("There is no basis in our law for the expression of an expert opinion as to the truthfulness of a statement by another witness.")

Burnett's and Meyer's statements, as testified to by Kelly, were undoubtedly hearsay. Kelly testified that Burnett told him that he was stopped at a red light that turned green just prior to the collision. The statement was offered for the substantive truth of the matter, i.e., that the light facing Burnett was initially red, but turned green just before the collision (and therefore that plaintiffs were crossing when faced with a red light). Similarly, Kelly testified that Meyer, the driver approaching the intersection from the opposite direction, told the officer that Meyer had a green light at the time of the accident. The statement was offered to prove Meyer's light was green, and tended to establish that defendant Clinton, who was traveling in the opposite direction from Meyer, also had a green light. As to both Burnett and Meyer, Kelly was permitted to testify to out-of-court statements that were introduced exclusively to prove the truth of those statements. Thus, the trial court improperly admitted those statements because there was no charge of improper influence or motive in this ...

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