August 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ALAN STOEDTER, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 4, 2010
Before Judges Wefing, Messano and LeWinn.
Pursuant to leave granted, the State appeals from a pre-trial order entered by the trial court suppressing "the video/audio tapes" of defendant's interrogation, "including any testimony regarding [the] questions & answers and any video presentation of any part of said interview." After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand the matter for further proceedings.
Shortly before noon on December 14, 2005, defendant drove to the Manasquan municipal building, walked up to the window of the dispatcher of the Manasquan Police Department and told Officer Donald Eisenmann, the officer on duty, that he had just gone to his home in Manasquan and found that it had been ransacked and his wife shot. Officer Eisenmann notified the sergeant on duty, Sergeant Donald Clayton, and dispatched officers to investigate.
Defendant repeated to Clayton that he had found the house ransacked and his wife shot. When asked if his wife was all right, he responded that her body was cold. Defendant spoke with Clayton for an extended period of time, recounting what he had done that morning, leading up to his discovery. He displayed no signs of shock or emotional turmoil. At one point he told Sergeant Clayton an extended story about playing the saxophone as a child and his brother playing the guitar.
The officers who responded to defendant's home found the body of his wife on the floor in their bedroom, with an apparent bullet wound in her chest. Drawers had been opened and cash, jewelry and clothing were scattered around. Jewelry and electronic equipment had not been taken. There were no signs of forced entry into the house, but a window was partially open. The victim's Mercedes Benz automobile was parked in the garage. Her pocketbook was in the car, as well as accumulated Christmas presents, none of which had been disturbed. A subsequent autopsy revealed three bullet wounds, one to a finger, one behind her left ear, and one in her chest.
Several hours after defendant reported the discovery of his wife's body, he was interviewed by Detective Sergeant Douglas Johnson of the Monmouth County Prosecutor's Office and Patrolman Michael Tischio of the Manasquan Police Department at the offices of the Wall Township Police Department. Defendant voluntarily agreed to accompany the officers to the Wall police station. The interview lasted approximately three hours and was, unbeknownst to defendant, recorded on video and audio tape.*fn1
The room used for this interview was located next to the radio room for the Wall Police Department and radio communications made during the regular course of the department's business over that three-hour period significantly interfered with the audio quality of the tape. While some portions of the tape are audible, others are wholly unintelligible. There was no interference with the video quality of the recording.
Detective Johnson took notes during this interview and later prepared a report. After his report was completed, he destroyed his notes. By the time he destroyed his notes, he was aware that there was a problem with the quality of the audio recording of the interview.
Defendant was not arrested and charged with his wife's murder until more than two years had passed. In June 2008, he was indicted for the murder of his wife and in September 2008, defendant filed a series of motions to bar the use of the videotape of this interview. The trial court held five days of hearings in response to these motions. The first two days of hearings were conducted pursuant to State v. Driver, 38 N.J. 255 (1962), while the balance were directed to the admissibility of defendant's statements both before and after this interview, evidence uncovered when officers initially responded to defendant's house after defendant reported the discovery of his wife's body and the admissibility of defendant's statements under N.J.R.E. 104(c). At the conclusion of those hearings, and after extensive oral argument by the attorneys, the trial court placed its rulings on the record. It denied defendant's motions to suppress the items of evidence retrieved by the police both in their initial entry into defendant's home and during execution of the subsequently-obtained search warrants. In addition, it denied his motion to suppress any descriptions of his physical appearance when he reported his discovery to the police as well as his motion to suppress information retrieved from his cell phone.
The trial court then turned to the various statements defendant had made. It distinguished between his statements to Eisenmann and Clayton at the Manasquan station immediately following his report, as well as his inquiry to Tischio and Clayton about their views with respect to the death penalty, made on the drive back to Manasquan and those made during the questioning at the Wall police station. As to the first two, the trial court denied defendant's motion. As to the latter, based upon the substantial problems with audibility, the trial court excluded the entirety of the recording of defendant's interview at the Wall police station, that is, both its audio and video portions. It also went on to preclude either of the officers from testifying about any aspect of the interview.
The State thereafter filed a motion for reconsideration. After hearing argument, the trial court denied this motion. In the course of its oral opinion, it extended its ban on the use of this videotape to encompass any rebuttal case the State might put on at trial. We then granted the State's motion for leave to appeal.
The State raises three arguments on this appeal:
POINT I THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING THE VIDEOTAPE POINT II THE COURT ERRED IN EXCLUDING THE OFFICERS' TESTIMONY CONCERNING THE INTERVIEW POINT III EVIDENCE OF THE INTERVIEW SHOULD BE ADMISSIBLE ON REBUTTAL
In the course of our consideration of the arguments presented on appeal, we have conducted our own review of this videotaped interview. While certain portions of the interview are clearly intelligible, large portions are wholly inaudible, with the audio portion overridden by static caused by radio transmissions from the adjoining room. In our judgment, it is readily apparent from a review of this videotape why, after two days of hearings, the State, defense counsel and the trial court were unable to agree on large sections of what defendant and the two officers said to one another.
The decision whether a recording is sufficiently audible to be admissible at trial is a discretionary one by the trial court. Driver, supra, 38 N.J. at 287-88; State v. Gora, 148 N.J. Super. 582, 593 (App. Div.), certif. denied, 74 N.J. 275 (1977). The trial court's decision to deny admission of this tape is fully supported by the record. The trial court, moreover, fully explained its reasoning for not admitting those portions of the tape which are audible while excluding those which are not. It noted, for instance, that such partial admissions would make it impossible for the jury to determine the context in which those statements which are audible were made. It recognized the significant potential for prejudice which is inherent in such a situation; the jury would not have the background against which to judge the import of those remarks, and remarks which may have had an entirely innocent aura could be seriously misunderstood.
The State challenges this portion of the trial court's ruling, contending that those portions of the videotape which are audible should be admissible at trial. In support of its position, it relies upon State v. Vandever, 314 N.J. Super. 124 (App. Div. 1998), certif. denied, 178 N.J. 32 (2003), and State v. Cusmano, 274 N.J. Super. 496 (App. Div. 1994). We find both cases distinguishable.
We note initially that in neither of these cases were we dealing with questions of audibility; rather we were dealing with tapes that were not complete. Vandever, supra, 314 N.J. Super. at 127; Cusmano, supra, 274 N.J. Super. at 512. In Vandever, the defendant, after being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), gave an oral statement admitting his involvement in a series of robberies. Vandever, supra, 314 N.J. Super. at 127. The interrogating officer left the room briefly and returned with a microcassette recorder in his pocket. Ibid. He continued his questioning and the defendant again admitted his participation. We overturned the trial court's ruling that the tape was not admissible because it did not contain the entirety of the conversation. Id. at 127-29.
In Cusmano, supra, the police received authorization to place a consensual listening device on a telephone; ninety minutes of conversation were recorded, all of which were clearly audible. 274 N.J. Super. at 512. Within those ninety minutes, there were intermittent gaps which totaled less than sixty seconds. Ibid. The trial court barred the use of the tapes because of these gaps; again, we overturned that decision, deeming the omissions insignificant. Id. at 517.
The State has also cited to us several out-of-state authorities. Our examination of these authorities leads us to conclude that they, as well, are distinguishable. In State v. Rossignol, 580 A.2d 152 (Me. 1990), the court found no error in the trial court's decision to admit a videotape of defendant's confession despite its poor sound quality. That occurred, however, on rebuttal, only after the defendant took the stand and testified to a significantly different version of how the police secured his statement than the State had offered on its direct case. Id. at 153.
In State v. Wilson, 552 P.2d 931 (Kan. 1976) there were two tapes, a videotape without sound, and an accompanying audio tape. The court found no error in the trial court's use of the two together.
Whitehead v. State, 574 S.E.2d 351 (Ga. Ct. App. 2002), is akin to Cusmano and Vandever; the recording, while audible, was incomplete because the batteries in the device lost power.
People v. Rivera, 691 N.Y.S.2d 4 (App. Div. 1999), aff'd, 729 N.E.2d 339 (2000), and People v. Wemette, 728 N.Y.S.2d 805 (App. Div.), leave to appeal denied, 764 N.E.2d (2001), are similarly unpersuasive. In Rivera, supra, key portions of the recording of a drug transaction were sufficiently audible so that "the jury need not have speculated about what had transpired." 691 N.Y.S.2d at 10. In Wemette, supra, the defendant was charged with several offenses, including public lewdness. 728 N.Y.S.2d at 806. The trial court admitted a videotape taken by defendant's neighbor which showed him standing on his front porch wearing only a pair of socks. Id. at 807.
In sum, we are unable to categorize as an abuse of the trial court's discretion its resulting conclusion that wholesale exclusion was necessary to afford a fair trial to defendant. We thus affirm that portion of the trial court's ruling.
The State sought to introduce the video portion of the tape in order to demonstrate defendant's demeanor during this interview. It noted that at no point during the more than three-hour interview did defendant express shock, anger, or grief. It pointed out in its brief to us, and our review confirms, that defendant at various points during the interview appears relaxed and at ease, repeatedly placing his hands behind his head and leaning back in his chair. On several occasions, he places one of his feet on the desk as he converses. The trial court concluded that the video portion should be excluded in its entirety because the jury would, again, have no context against which to measure those actions and would be left to speculate about what was being said on the tape.
To the extent the trial court held that entirety of the video portion of this tape could not be played before the jury, we agree and would affirm. There are portions of the video tape, for instance, in which defendant's facial expressions are not entirely clear. The prosecution should not be allowed to argue from those ambiguities. There are other aspects of the video portion, however, in which defendant's relaxed posture and appearance could be considered striking in light of the situation which existed. We are unable to perceive a policy justification for excluding from the jury's consideration the most accurate representation of defendant's demeanor at the time. The prosecution should be entitled to select one or two brief excerpts to play before the jury which are fairly representational of the entirety of defendant's demeanor during the interview. It should not be permitted to play an excessive number to avoid undue prejudice to defendant. If there is an excerpt the defense wishes to play, it should be afforded a similar opportunity. The defense is, of course, entitled to argue that the fact that defendant may not have been overcome with grief is not evidential of his guilt. It may also argue that defendant was, in essence, in a state of shock from what had occurred and was acting as he did to repress that memory of what he had seen.
Toward the end of defendant's interview, both officers left the interview room for a period of time. The camera continued to run. Defendant can be seen opening the desk drawer and looking into it, several times. The desk had a round opening in its top surface and defendant can be seen exploring that hole on several occasions, finally plugging it with the water bottle he had with him. After repeatedly opening and closing the desk drawer, defendant looks down and discovers a recording device, with a wire attached. He studies the device for a time and then follows that wire and then tries, unsuccessfully, to rip out the wire, evidently seeking to destroy the device. He then goes back to his chair and sits for a short time. He then gets up and goes to the chair in which Detective Johnson had been sitting, on which the detective had left his jacket. Defendant then rifles through the jacket, evidently looking for something.
Defendant was the only person in the room at the time of these actions, and the trial court's earlier findings with respect to the poor quality of the sound recording was not material to this segment. The State sought to play that portion of the videotape, contending that defendant's actions displayed a consciousness of guilt. The trial court denied this request. According to the trial court, the reasons for defendant's actions are not apparent from the tape and they occurred after he had been left alone in the room for a significant period of time after he had asked to leave. According to the trial court, these actions could have equally been due to defendant's frustration at being made to wait for so long a period. It stated its ruling in the following fashion:
The State argues that the fact that the tape shows defendant searching Detective Sergeant Johnson's pockets, his jacket or something was there, and ripping out wires in the interview demonstrates an effort to undermine the investigation of his wife's death. And the State suggests that this shows a consciousness of guilt. In some instances, this Court, as well as case law agrees that actions by a defendant could constitute consciousness of guilt. In this situation, I disagree. At the time the defendant ripped out the wires, he was left in an interrogation room for 30 or 40 minutes after he was told that he was free to leave and was told it would be just a few minutes to get a ride back to Manasquan.
I find it's highly speculative as to what his -- his actions were in that room and it would be highly speculative for the jury to make a determination that that's any evidence of consciousness of guilt. Those actions could easily be accounted [for] by the defendant's anger toward being held after being told he could leave, especially on the day that his wife died. I find that portion of the video is similar to all the other portions and that showing it could mislead and prejudice the jury, especially when several different explanations could be given for his action. The State's suggestion that it's consciousness of guilt is highly speculative.
We would note that from our review of this tape, defendant does not appear to display any visible frustration during the course of these actions. He makes no attempt to walk out the door of the room in which he was sitting. He does not pace back and forth; he does not run his hands through his hair or wring his hands; he does not bang upon the wall. If defendant's attorney wishes to argue to the jury that his client acted as he did out of frustration and anger at being held, he can present that argument. The State, however, should not be precluded from arguing to the jury the inferences that it would draw from that same conduct. We thus reverse that aspect of the trial court's ruling.
The trial court was clearly disturbed by several aspects of the testimony of Detective Johnson and Officer Tischio, both of whom testified during these pre-trial hearings. At one point, toward the end of the second tape, Detective Johnson leaves the room while Officer Tischio remains. Defendant can clearly be heard stating, in essence, that he is becoming concerned that the two officers are treating him as a suspect and that he wants to consult with an attorney. Detective Johnson returns to the room shortly thereafter and resumes questioning defendant. Officer Tischio did not tell Detective Johnson that defendant invoked his right to consult an attorney and during the pre-trial hearings Officer Tischio testified that he did not hear defendant make that statement. The trial court characterized that testimony as incredible.
The trial court was also clearly disturbed by the admission of Detective Johnson that he was aware of the poor quality of the audio recording by the time he prepared his report and then destroyed the notes. The trial court characterized Detective Johnson's actions as incredible.
Both Detective Johnson and Officer Tischio testified during the course of these pretrial hearings and were unable, viewing the tape, to reconstruct completely portions of the interview where the tape was inaudible. The trial court then concluded that neither officer would be permitted to testify about anything that transpired during that interview. The State argues that the trial court abused its discretion when it made this restrictive ruling, and we agree.
In the course of denying the State's motion for reconsideration of this aspect of its earlier ruling, the trial court gave the following explanation:
Based upon these actions [Tischio's testimony and Johnson's destruction of his notes] as well as Johnson's inability to recall things from the interview, I find that he would be unable to supply a credible analysis of the inaudible tape. Under [Rule] 403, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury.
In this case, there were two people who would have been able to give insight to the audible portions of the tape, both Detective Sergeant Johnson and Officer Tischio I find are unable to recall specifically what occurred. And the notes that might have been of assistance were destroyed. Any statements made by these officers concerning their recollections would be incomplete, misleading, and I find highly prejudicial; therefore, I find pursuant to [Rule] 403 that -- that those -- their recollections and their testimony in regard to that conversation would be very prejudicial, risk the undue prejudice to the defendant, it would confuse issues and would mislead the jury.
We are unable to perceive what it is about this case which, in the mind of the trial court, distinguished it from the vast number of cases in which officers have testified from their reports, prepared from notes which they have destroyed. Defendant's attorney is free to cross-examine these officers at length about the decision to destroy the notes armed with knowledge of the poor quality of the recording and the jury is free to infer, if it deems it appropriate, that the destroyed notes would not support the officers' testimony.
The trial court, in the course of its rulings on this issue, referred to Tischio and Johnson as "incredible." It is apparent, however, that the trial court was using the word "incredible" in two different ways. It described as "incredible" Tischio's testimony that he did not hear defendant invoke his right to consult with an attorney. That was a clear comment on Tischio's credibility, to which we owe appropriate deference. It later described Johnson's testimony that he destroyed his notes as "incredible." The trial court did not mean that it did not accept Johnson's testimony as to what he did; clearly the trial court did accept it. Rather, the trial court was conveying its sense of puzzlement as to why Johnson would have acted in such a manner. While we may share the trial court's puzzlement and dismay that Johnson acted as he did, absent a finding that Johnson acted in bad faith and to hinder the defense (a finding completely absent from this record) we can find no justification for barring the officers from recounting the substance of this interview. The trial court concluded that their testimony as to the substance of this interview would, by simple force of the absence of Detective Johnson's notes, be "misleading." The one does not necessarily flow from the other, however. If Detective Johnson had taken no notes at all, he would, in the ordinary course, be permitted to testify at trial as to what defendant said to him. We cannot perceive what policy objective is achieved by the sanction the trial court imposed.
The Supreme Court has, on several recent occasions, expressed its disapproval of the apparently routine practice in the past of police officers destroying their notes after they finish preparing their reports. State v. Branch, 182 N.J. 338, 367 n.10 (2005); State v. Cook, 179 N.J. 533, 542 n.3 (2004).
In neither case did the Court imply that a consequence of such destruction would be to bar the testimony of the officer.
The Court recently had occasion to once again comment upon the practice in a case that bears certain similarities to the issue before us, State v. P.S., ___ N.J. ___ (2010). The defendant in that matter was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second-degree sexual assault, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Slip op. at 2-3. The victim was defendant's step-daughter, who was nine or ten years old at the time of the offenses. Id. at 3, 6. After she reported these incidents to her mother, she was interviewed by a member of the prosecutor's office who was a specialist in interviewing children. Id. at 3-4. She understood the interview was being videotaped in accordance with her regular practice, but at the conclusion of the interview, learned that the recording machine had malfunctioned. Id. at 10. She did not want to subject the child to the stress of another interview and prepared notes of all she recalled of her questions and the girl's answers. Ibid. From those notes, she prepared a report; after the report was filed, she discarded her notes. Ibid.
She was nonetheless permitted to testify to the jury about the substance of her interview with the girl. Id. at 19-20.
The Court noted that the absence of the tape itself was but one factor to be considered in the totality of the circumstances. Id. at 22-23. While it again expressed its disapproval of the destruction of interview notes and directed that such notes "should not be destroyed but should be maintained through trial for use in a case in which the tape is lost or, for some reason, unusable," id. at 23, its opinion contains no hint that misguided but otherwise routine destruction of notes should result in the preclusion of testimony.*fn2 Here, while the trial court noted that Detective Johnson was unable to recall portions of the interview, it made no finding that the report he prepared did not incorporate or reflect the substance of his notes. We thus reverse that portion of the trial court's ruling that barred the two officers from testifying about their interview of defendant. That testimony, of course, must exclude anything after defendant first expressed the desire to consult an attorney.
On the other hand, to the extent that the State was seeking to have the officers view the videotape in the presence of the jury and provide to the jury their explanation of what was being said during the repeated periods of inaudibility, we agree that would be improper and we would affirm that portion of the trial court's ruling.
The final argument raised on appeal is that the trial court erred in barring evidence about this interview during rebuttal. We are satisfied that this aspect of the trial court's ruling was premature. The trial court was not in a position to know what would constitute proper rebuttal until the defense put in its case. Only if something arose during that defense presentation that bore on some aspect of that interview would the trial court be able to assess whether such rebuttal would be appropriate.
In sum, the orders under review are affirmed in part and reversed in part, and the matter is remanded to the trial court for further proceedings.