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State ex rel D.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 20, 2010

STATE OF NEW JERSEY IN THE INTEREST OF D.H.

On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Nos. FJ-08-858-08, FJ-08-927-08, FJ-08-1331-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Wefing and LeWinn.

D.H., a juvenile, was charged with acts which, if committed by an adult, would constitute burglary and theft. Following trial, he was found not guilty of burglary but guilty of theft. He appeals. After reviewing the record in light of the contentions advanced on appeal, we reverse.

On the morning of July 23, 2007, John Rooney walked to his car, parked in front of his residence, intending to drive to work. He found that the car doors had been opened and the interior ransacked. In the trunk was a box in which he had stored a GPS navigation system he had only recently obtained; the box was empty. Mr. Rooney summoned the police and the officer who responded to the scene carefully removed the box from the trunk and later delivered it to an investigator in his department. The investigator dusted the box and found several latent fingerprints. He did not attempt to lift the prints himself but forwarded the box to the county prosecutor's office to complete the process.

Detective Nicholas Kappre of the prosecutor's Crime Scene Unit took the box and lifted eight partial latent prints which he forwarded to the New Jersey State Police AFIS (Automated Fingerprint Identification System) unit. Of those eight, only two were found to be suitable for purposes of comparison. Detective Kappre received back a card containing ten prints that had been selected by AFIS, together with a computer print-out containing an enlargement of the latent print and the known print. Detective Kappre compared the latent print with the known print he had received from AFIS and testified that they were a match.

Detective Kappre also received from AFIS a list of twenty-five potential matches, identified by SBI number. Detective Kappre did not investigate any of those other potential matches to perform a comparison. There was testimony from which it could be inferred that D.H. headed this list, with the word "hit" next to his identification. There was no testimony to explain the significance of the term "hit" and no testimony linking D.H. to that SBI number. Nor did Detective Kappre take defendant's fingerprints to compare them either to the latent prints retrieved from the box or the ten-print card or enlargements he had received from AFIS.

Although Detective Kappre had received some training in fingerprint identification, he had never testified before on the question of fingerprint comparison. There was no attempt to qualify Detective Kappre to testify as an expert with respect to the workings of AFIS.

The trial was unfortunately protracted and heard in segments over eight days from May through September, 2008. Detective Kappre was the last witness for the prosecution. At the conclusion of his testimony on July 10, 2008, the prosecutor stated that the State was resting its case, and she then began to move documents into evidence, including the AFIS print screens Kappre had received from the State Police. Defense counsel objected, asserting they were hearsay, and that no foundation had been laid for their admission.

The trial court permitted the prosecution to recall Detective Kappre to the stand. For unavoidable reasons, the trial did not resume until August 7. Over defendant's objection, Detective Kappre took the stand. He testified that he had received from AFIS the latent prints he had taken from the box, the print screen AFIS had prepared comparing the latent prints and the known prints stored in the AFIS system and the ten-print card. Defendant objected to Kappre's testimony that the ten-print card contained D.H.'s name; he also testified that he believed the latent prints on the GPS box belonged to D.H.

On appeal, D.H. raises the following contentions for our consideration:

POINT I

THE TRIAL COURT PERMITTED INADMISSIBLE HEARSAY THAT THE FINGERPRINTS FEATURED ON THE 10-PRINT CARDS SUPPLIED TO INVESTIGATOR KAPPRE BY AFIS AND THE WEST DEPTFORD POLICE, AND ON EXHIBITS D-7 AND D-8 WERE THE JUVENILE'S

POINT II

THE COURT'S DECISION TO PERMIT THE STATE TO REOPEN ITS CASE VIOLATED THE JUVENILE'S RIGHT AGAINST DOUBLE JEOPARDY

POINT III

THE JUVENILE WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS

POINT IV

THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE

Hearsay is a "statement, other than one 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). Admissibility of hearsay evidence is governed both by the hearsay exceptions set forth in N.J.R.E. 803 and 804, in criminal matters, by analysis of whether the proffered evidence is "testimonial" in nature under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004).*fn1

The trial court ruled that the print screens Detective Kappre received from AFIS were admissible under the business records exception to the hearsay rule.

Under N.J.R.E. 803(c)(6), Records of Regularly Conducted Activity, business records are an exception to the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose, or circumstances of preparation indicate that it is not trustworthy.

New Jersey does not require that the custodian of the records testify as a condition to their admission. Supreme Court Committee Comment to N.J.R.E. 803(c)(6) (1991). However, a foundation must be laid establishing that the documents are admissible. Ibid.

Under the old rule, "the custodian or other qualified witness" had to testify as to the identity and mode of preparation of the business record. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2009) (quoting N.J.S.A. 2A:82-35). The new rule is "substantially similar." Ibid. The primary difference is requiring the document be made in regular business practice. Ibid. (cited with approval in State v. Sweet, 195 N.J. 357, 370 n.8 (2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2858, 174 L.Ed. 2d 601 (2009)).

The New Jersey Supreme Court in State v. Matulewicz, 101 N.J. 27, 29 (1985), found that in order for evidence to be admitted under the business records exception: "First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." (finding State Police chemist's laboratory report inadmissible as a business record because the factual record below was "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the . . . report"). Although Matulewicz was decided under the old statute, it has been held as the standard by the New Jersey Supreme Court after the current rule for business records was adopted in 1991. See, e.g., Sweet, supra, 195 N.J. at 370; Feldman v. Lederle Labs. (Feldman III), 132 N.J. 339, 354 (1993).

No foundation was ever laid for entry of the AFIS documents. The writing must be made in the regular course of business and made by someone with actual knowledge, or someone who with actual knowledge supplied the information. N.J.R.E. 803(c)(6). While the person with "actual knowledge" need not be the person who lays the foundation for entry of the business record, Hahnemann University Hospital v. Dudnick, 292 N.J.

Super. 11, 17-18 (App. Div. 1996), the foundation must be laid by someone with personal knowledge that the records were kept in the ordinary course of business and the circumstances in which the records were made. N.J.R.E. 803(c)(6); N.J.R.E. 602 (a witness can only testify to matters he or she has personal knowledge of).

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H.

In addition to the enlargements, Detective Kappre also received two 10-print cards, one from AFIS, and one from the municipal police which, testimony indicates, bore D.H.'s name. Those cards were never received in evidence, however. And, even if they had been proffered, they would suffer from the same evidential deficiency as the enlargements; Detective Kappre lacked the knowledge to testify that the cards in fact contained D.H.'s prints for he had no knowledge of their preparation or recordation.

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, "The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original." N.J.R.E. 1005 specifies, however, that the document must be "otherwise admissible." Here, the AFIS records were not "otherwise admissible" in the absence of a proper foundation, which Kappre was not equipped to provide.

We also note, although defendant does not explicitly raise it in his brief, that Kappre testified that the prints received from AFIS were computer-generated and that the process of taking fingerprints by computer, as opposed to by a manual ink roll, involves certain distortions. Kappre was not asked to explain the significance of these distortions and their effect, if any, on his comparison of these prints. We recently addressed an analogous situation in Rodd v. Raritan Radiologic Associates, P.A., 373 N.J. Super. 154 (App. Div. 2004), in which we held inadmissible, in the absence of foundational testimony, a computer-generated blow-up of a mammogram. We noted that the radiologist, who testified about this blow-up, "offered no account of how the films were scanned into the computer, or how the computer program operated. Consequently, he added very little to explain the circumstances surrounding the computer images' creation. . . ." Id. at 169. Here, there was no testimony as to the creation of AFIS's records.

Because we are satisfied that these records were improperly admitted into evidence, and they are the only link between D.H. and the theft, his adjudication must be reversed. This makes it unnecessary to address his remaining contentions.

The order adjudicating D.H. a delinquent is reversed.


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