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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...