On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-09-1414 and 07-10-1579.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011 - Decided
Before Judges A. A. Rodriguez and Sabatino.
This case involves the robbery of a taxi driver. The critical factual dispute at trial was the identification of defendant, Pablo S. Machado, as one of the robbers. Although other issues are raised by defendant on appeal, the pivotal issue before us is whether the trial court improperly admitted proofs of the taxi company dispatcher's alleged observation of defendant's cell phone number on his caller ID display.
We conclude that the trial court erred in admitting the caller ID proofs because they were founded upon multiple layers of inadmissible hearsay and thus should have been excluded under N.J.R.E. 805. We further conclude that the error was not harmless beyond a reasonable doubt and that defendant is consequently entitled to a new trial.
The indictment charged defendant with second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:15-1 and 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a (count four); third-degree theft, N.J.S.A. 2C:20-3 (count five); and two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a and 2C:12-3b (counts six and seven).
The case was tried before a jury over five days in December 2008. The jury found defendant guilty of counts one, two, and six, as well as fourth-degree theft, N.J.S.A. 2C:20-3, a lesser- included offense of count five. The jury acquitted defendant of counts four and seven. Count three was dismissed on the prosecutor's motion.
The trial court sentenced defendant to a thirteen-year custodial term for the armed robbery in count two, subject to an eighty-five percent parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The court further imposed a concurrent seven-year sentence for the conspiracy offense in count one. Defendant also received a consecutive three-year sentence for violating probation.
The State's theory at trial was that defendant was one of several men who robbed the victim, Wilmer Cedillo, while he was working as a cab driver for the Acapulco Taxi Company. Defendant's counsel did not contest that Cedillo had been robbed, but instead argued that the State could not prove that his client was one of the robbers.
Cedillo, who is from Honduras, testified at trial through an interpreter. According to his account, at around 4:40 a.m. on April 24, 2007, he was dispatched to pick up customers at a certain address on Lee Avenue in New Brunswick. At the time, Cedillo was carrying about $500 in cash from previous customers. When Cedillo arrived at the Lee Avenue location, two men got into the cab. They asked to be driven to a location about one mile away.
Once the cab arrived at the requested destination, Cedillo asked them to pay the four-dollar fare. According to Cedillo, one of the passengers then pointed a gun at him, demanded money, and began striking him. Cedillo testified that about three other men, wearing masks, "came out from behind the cars" to participate in the robbery. The robbers took from Cedillo the estimated $500 in cash he possessed, a cell phone, a silver chain, and a work permit. They disconnected the CB radio in the taxi and then fled the scene. There were no third-party eyewitnesses.
After the robbery, Cedillo drove to the residence of his supervisor, Juan Perez, and he told Perez what had happened. According to Cedillo, Perez then spoke with the dispatcher on duty, who was known by the nickname "El Flaco,"*fn1 and told him about the robbery. Although Cedillo did not speak to the dispatcher himself at this time, he testified that the dispatcher gave Perez the ten-digit phone number of the caller who had requested the cab at Lee Avenue. As Cedillo understood the company's practices, when a call for a taxi came in, the dispatcher would see the requestor's number on a caller ID display. The dispatcher would then mark down the number in a log book that would be kept "for a week or two" and then "thrown away."
According to Cedillo, Perez gave him the taxi customer's phone number, which had been relayed to Perez from the dispatcher. Either Perez or Cedillo, or perhaps both of them, wrote the number down on a piece of paper.*fn2 Perez directed Cedillo to report the robbery to the police and to give the police the caller's number.*fn3
In accordance with his supervisor's instructions, Cedillo walked to a
New Brunswick police station. He reported the robbery in Spanish to
Patrolman Edward Bobadilla, who speaks some Spanish. According to
Officer Bobadilla's trial testimony, Cedillo described both
perpetrators in the cab as being about
Cedillo's own height, i.e., five feet, eight inches tall,*fn4
and in their early twenties. Cedillo stated that one wore a
white sweater and the other wore a black sweater. Cedillo also told
Bobadilla that he recognized one of the robbers from before. In
addition, Cedillo gave Bobadilla the telephone number he had obtained
for the caller who had requested the cab.
After Detective John Selesky received Officer Bobadilla's initial investigation report, he ran the phone number that Cedillo had provided through the police department's in-house computer system. The results initially came back negative. At that point, Detective Selesky subpoenaed the calling records for the telephone number from the phone company. The phone account was a "pay per" account, in which a cell phone is purchased and a specified number of minutes is included in the price.*fn5
About three months later, Detective Selesky received certain records back from the phone company, and he then re-ran the phone number through the department's in-house computer system. This time the number came back associated with defendant, based on ...