On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1750.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Parrillo and Sabatino.
After a two-day jury trial, defendant Tracy Anderson was found guilty of the second-degree offense of eluding a police officer, N.J.S.A. 2C:29-2b. Defendant had been chased and apprehended by the police after driving his car from the scene of a motor vehicle accident.
During the course of the trial, the prosecution played for the jury, over defense counsel's objection, audiotaped recordings of two telephone calls that a civilian had placed to a 9-1-1 operator while the civilian had been following defendant in his own car. The 9-1-1 recordings contain dramatic and highly prejudicial subjective statements by the civilian to the police conveying his perceptions of defendant's erratic driving and his supposed dangerousness.
Because the unredacted audiotapes could have unduly prejudiced the jury's objective assessment of whether defendant's conduct created a risk of death or injury -- thereby elevating the offense from a third-degree to a second-degree crime -- we conclude that the trial judge erred in allowing the tapes to be played. We therefore reverse defendant's conviction of eluding and remand for a new trial, at which the audiotapes shall not be played and the transcript of the recordings shall not be admitted. However, we affirm the trial court's separate determinations on the admissibility of other evidence. We also sustain the trial court's finding that defendant is guilty of the motor vehicle violations of reckless driving, N.J.S.A. 39:4-96, and failure to stop at a stop sign, N.J.S.A. 39:4-144.
On June 7, 2009, Officer Gary Vecchione of the Long Branch Police Department received a call shortly after 7:00 p.m. reporting an accident at the intersection of Cottage Place and Second Avenue in Long Branch. The female caller stated that there was a vehicle flipped over on its side and that she had seen a green Maxima sedan leaving the area. After the call, Officer Vecchione dispatched other officers to the accident scene.
Responding to the dispatch, Officer Kristie Buble arrived soon thereafter at the accident scene. She observed a silver Trailblazer on its side with approximately ten people gathered around it. According to Officer Buble, some of the people were pointing north on Second Avenue. Officer Buble noticed damage to the Trailblazer's front driver's side door. She also recovered a New Jersey license plate that was lying on the ground at the scene of the accident, near the front of the Trailblazer.
Shortly after the accident, Sergeant Michael Schulz, who was working at the police station, received a 9-1-1 call from a civilian, Christopher Dailey. Dailey had been coming home from the beach with his girlfriend, and had parked his car, an Audi, at the corner of Second Avenue and Cottage Place. Dailey and his girlfriend were both seated in Dailey's car when they heard an automobile collision. According to Dailey, he looked up into his rearview mirror and saw a vehicle on its side. Dailey also noticed a green sedan drive away from the accident scene, which started traveling north on Second Avenue. Dailey, with his girlfriend still in the passenger seat, began to follow the sedan in his Audi.
Dailey called 9-1-1 when he started following the green sedan. In an animated conversation with Sergeant Schulz, Dailey related the direction of the sedan and described its appearance. While he was still on the 9-1-1 call, Dailey observed the sedan stop at the train station, where another person got into the vehicle. According to Dailey, the sedan pulled into the train station and parked, partly on the street and partly on the sidewalk. Dailey provided Sergeant Schulz with the license number of the sedan, which matched the number on the license plate recovered from the accident scene.
Dailey continued following the sedan until Police Officer Tracey Barrett arrived and began following the vehicle in her squad car. Upon catching up with the sedan, Officer Barrett turned on her overhead lights and siren. Officer Barrett was then traveling south on Third Avenue behind the sedan. There were no cars between her and the sedan.
While she was still in pursuit, Officer Barrett noticed the green sedan turn right on Bath Avenue and then go through a stop sign without stopping. The sedan continued onto Bath Avenue, drove over railroad tracks, and then made a left turn on Indiana Avenue.
Officer Barrett estimated that during her pursuit the green sedan was traveling at approximately thirty-five to forty miles per hour. She based this speed estimate on her observations and experience, and not on any radar measurement. The posted speed limit in the area was twenty-five miles per hour. She also noted that there were several places where the sedan could have safely pulled over.
Officer Barrett observed the sedan turn into the parking lot of the Long Branch High School, and then continue through a connecting parking lot. There was a group of approximately fifteen to twenty teenagers in the area. The sedan finally came to a stop in that parking lot.
After stopping, the sedan driver got out of his vehicle. Officer Barrett ordered the driver back into the car, and he complied. There were two passengers in the car. The driver was arrested and thereafter identified as defendant in these charges.
Officer Barrett observed substantial damage to the front end of the sedan. In particular, the sedan was missing a portion of the front bumper and also its front license plate. The rear license plate had the same number as the license plate that had been recovered near the accident scene.
Officer Barrett issued defendant motor vehicle summonses, including for reckless driving and for failure to stop at a stop sign.*fn1 Defendant apparently was not issued, however, a summons for speeding. According to Officer Barrett's testimony, her entire pursuit of defendant's sedan was an estimated seven-tenths of a mile.*fn2 Officer Barrett did not observe defendant swerve in his lane, hit any curb or other vehicle, or observe a vehicle swerve out of his way.
Defendant was subsequently indicted and charged with second-degree eluding, N.J.S.A. 2C:29-2b. Defendant moved to dismiss the indictment, arguing that there was insufficient proof that his conduct posed a risk of death or injury to another person, and thereby no basis to elevate the charged offense from third-degree eluding to second-degree eluding. The trial judge denied the dismissal motion, finding that the manner in which the officer testified that defendant was driving, in addition to the observed presence of children in the schoolyard, if believed by a jury, provided a sufficient indication that other persons had been placed in danger.
Before the start of the trial, defendant moved in limine to exclude the evidence of the motor vehicle collision that had preceded the police chase. The trial judge denied the motion, concluding that the prior motor vehicle accident was admissible under N.J.R.E. 404(b) as proof of defendant's motive to elude the police. The judge additionally reasoned that the accident was a relevant portion of the overall sequence of events, and thus was admissible under a "res gestae" theory. The judge also provided limiting instructions explaining that the motor vehicle accident was not an issue in this case, and that defendant's actions in leaving the accident scene could not be considered as proof of bad character, but only for the limited purpose of giving a context for the police's actions and showing defendant's motive for his own actions.
During the course of the trial, the State presented testimony from Officers Buble, Vecchione, Barrett, Sergeant Schulz, and a police detective who was assigned to maintain the audiotaped 9-1-1 calls. The State also presented testimony from Dailey, who described his observations of the green sedan's movements. During the course of Dailey's testimony, he was not asked any questions about his perception of the sedan driver's dangerousness or the driver's supposed mindset. Defendant did not testify, nor did he call any witnesses.
The State's proofs also contained multiple presentations of the statement that Dailey made to the 9-1-1 operator while he was chasing the green sedan. Officer Schultz, who testified that Dailey was in a "very excited" state, related to the jury the substance of what Dailey told him on the calls. In addition, over defense counsel's objection, the jury was allowed to hear a recording of the 9-1-1 calls. Defense counsel essentially argued that the 9-1-1 tapes were unduly prejudicial because they contained several emotionally-charged statements by Dailey as he spoke with Sergeant Schulz while simultaneously pursuing defendant in his car.
The trial judge initially expressed reservations about the probative value of the 9-1-1 audiotapes, characterizing them as "pretty irrelevant" in light of the fact that defendant had been charged with eluding the police, not Dailey. Nevertheless, the judge ultimately ruled that the tapes could be played for the jury for the limited purposes of showing motive and that the police had received Dailey's calls and had responded to them. Consequently, the tapes were played for the jury in open court.*fn3
Afterwards, the judge provided a limiting instruction, explaining that Dailey's comments on the calls should be disregarded "as proving or as being evidence of the fact that those things may have happened or any of those things are true." Rather, "[t]he purpose of the call[s] and the introduction of the tape[s] is to show that the police received the call[s] and were responding to the call[s]."
During the prosecutor's summation, he played back for the jury excerpts of Dailey's 9-1-1 calls. The excerpts included Dailey's repeated and excited exclamation that the sedan was "right there" in front of Dailey's Audi.
In describing the elements of second-degree eluding during the jury charge, the judge explained that the State had to prove beyond a reasonable doubt that defendant's flight or attempt to elude created a risk of death or injury to any person. The judge further explained to the jury that if it found this element was not proven, but all of the other elements of eluding had been demonstrated, then the jury was to find defendant only guilty of third-degree eluding, and not the more serious form of eluding.
After deliberations, the jury found defendant guilty of second-degree eluding. Thereafter, the judge separately found defendant, based upon the evidence that had been presented at trial, guilty of the motor vehicle offenses of reckless driving and failure to stop for a stop sign.
The judge sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility. Defendant's motion for reconsideration of the sentence was denied.
On appeal, defendant raises the following points:
THE CIRCUMSTANCES OF THE EARLIER MOTOR VEHICLE ACCIDENT, THE EMOTIONAL REACTION OF SPECTATORS, AND MR. ANDERSON'S ALLEGED RECKLESS DRIVING FOLLOWING THE ACCIDENT, BUT BEFORE THE ELUDING, WERE INADMISSIBLE N.J.R.E. 404(B) EVIDENCE POINT II
THE TRIAL COURT'S IMPOSITION OF A TEN YEAR SENTENCE FOR THIS MITIGATED ELUDING ...