January 14, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TRACY ANDERSON, A/K/A TYQUAM ANDERSON, DWAYNE SPENCER, DWANE ANDERSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 IS MANIFESTLY EXCESSIVE
Defendant contends that the trial judge erred in allowing the jury to consider evidence of the motor vehicle accident, criticizing the judge for his reliance on the "res gestae" doctrine and also his admissibility analysis under N.J.R.E. 404(b). Although recent case law clarifies that the common-law doctrine of "res gestae" should no longer be applied,*fn4 Rule 404(b) independently authorized the admission of the accident-related evidence, as proof of defendant's motive to flee from the police.
Rule 404(b) governs the admissibility of other crimes, wrongs, or acts, stating such evidence is inadmissible: to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. [N.J.R.E. 404(b) (emphasis added)].
Other-crime evidence is inadmissible to prove criminal disposition, but is admissible to show a non-propensity purpose such as those listed in Rule 404(b). State v. Cofield, 127 N.J. 328, 336 (1992).
In Cofield, id. at 338, the Supreme Court established a four-prong test to determine the admissibility of Rule 404(b) evidence. Under Cofield, the evidence must be: (1) "relevant to a material issue;" (2) "similar in kind and reasonably close in time to the offense charged;" (3) "clear and convincing;" and
(4) the "probative value of the evidence must not be outweighed by its apparent prejudice." Ibid.*fn5
Additionally, in order to minimize "the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate." State v. Barden, 195 N.J. 375, 390 (2008). Sanitizing requires a trial judge to "confine [Rule 404(b) evidence's] admissibility to those facts reasonably necessary" for the probative purpose for which it is admitted. State v. Collier, 316 N.J. Super. 181, 195 (1998), aff'd, 162 N.J. 127 (1999). "Limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct, both when the evidence is first presented and again as part of the final jury charge." Rose, supra, 206 N.J. at 161. A suitable limiting instruction should "explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Barden, supra, 195 N.J. at 390 (internal quotation marks omitted).
With respect to the Rule 404(b) analysis here, the trial court was satisfied that the State's proofs of the motor vehicle accident that preceded the police chase of defendant met the Cofield standards. We agree.
As to the first Cofield prong, the trial judge found that the accident was relevant to the material issue of defendant's motive. As to the second prong, the court found that the accident evidence was close in time, as the police pursuit happened only minutes after the accident. Similarity of the acts need not be shown in this context under the second Cofield prong because the other-crime evidence was presented to show motive. See Collier, supra, 316 N.J. Super. at 194; see also Williams, supra, 190 N.J. at 131 (confirming the non-necessity of proving the second prong in certain contexts). The court also found the third prong satisfied, noting that the evidence is clear and convincing that defendant was at the scene of the accident. Notably, defendant's license plate was found at the scene and his sedan matched the description of the sedan seen leaving the area. Lastly, the court found the fourth prong of Cofield satisfied, determining that the evidence's "high probative value" on the issue of motive is not outweighed by its prejudice. The court also recognized that an appropriate jury instruction would alleviate any prejudice to defendant.
Although defendant contends that some of the details provided by the trial witnesses about the accident scene were excessive and unduly prejudicial, we are satisfied that the judge did not abuse his discretion in permitting the jury to consider the accident proofs. See State v. Frazo, 126 N.J. 112, 131 (1991) (instructing that a trial court's ruling to admit evidence under N.J.R.E. 404(b) is reviewed on appeal under an abuse of discretion standard). Moreover, the judge properly sanitized the accident-related proofs by disallowing any evidence regarding fault or the cause of the accident. There also was no evidence adduced concerning the severity of the accident, except for the uncontestable fact that the Trailblazer had been flipped on its side, nor any evidence of any injuries sustained by the vehicles' occupants. The judge also issued repeated jury instructions limiting the use of the accident proofs -- cautioning the jurors after Officer Vecchione testified about the initial 9-1-1 call, again at the end of the first day of trial, and a third time in the final charge -- that the accident evidence could only be considered as "context for the events which occurred" and the question of defendant's motive, but not for any other purpose.
Defendant further argues that the trial court should not have admitted evidence describing his reckless driving that occurred after the accident but before the police chase. As part of this argument, defendant contends that he was unduly prejudiced by the State playing the audiotapes containing Dailey's frantic calls to the police station as he pursued defendant's vehicle, arguing that the tapes were irrelevant and contained inadmissible speculation. Although we find no error in allowing Dailey to describe from the witness stand his observations of the green sedan's movements, we agree with defendant that the emotionally-charged audiotapes, which included passages characterizing defendant as a potentially dangerous individual, were unnecessary and too inflammatory to be presented to the jurors.
We agree with the State that some evidence of defendant's driving behavior upon leaving the accident location, but before he was pursued by Officer Barrett, was relevant and admissible to provide the jurors with a full context of the sequence of events that culminated with the stop of defendant's vehicle. Such proof was relevant "intrinsic evidence" of defendant's overall behavior in attempting to drive away to another location. See Rose, supra, 206 N.J. at 180 (preserving the State's ability to present such "intrinsic evidence," notwithstanding the Court's abolition of the "res gestae" doctrine). Officer Barrett's pursuit began only a few minutes after defendant left the accident scene. A simple in-court narrative of Dailey's observations of defendant's movements would have adequately fulfilled this purpose.
The State went too far, however, in dramatizing the factual context by playing the 9-1-1 audiotape segments over defense counsel's objection. Having listened to the audiotapes ourselves, and having also reviewed the transcript of the taped conversations, we agree with defendant that the tapes were too prejudicial to be played for the jury. We underscore some of the most troublesome passages from the audio transcript:
Dispatcher: Long Branch Police
MC Dispatcher: Monmouth County with a motor vehicle hit and run . . . Dailey: Listen, I'm on Third, I'm on
Third . . .
MC Dispatcher: Sir, sir. I have the caller on the line. He's following the vehicle. Where are you now h[u]n?
Male caller: Third, Third Avenue, Third Avenue right by the train station.
MC Dispatcher: Third Avenue by the train station.
Dispatcher: Wait, wait . . .
MC Dispatcher: This is, this car is involved with the, ah overturned. Dispatcher: Stay, stay on the phone with me.
Dailey: I'm on the phone with you but
I don't know what this guy's fucking capable of . . . Dispatcher: (inaudible)
Mc Dispatcher: OK, OK, I do not want you to endanger yourself. What's your name?
Dailey: Chris. .
MC Dispatcher: Chris what?
Dailey: Chris Daley [sic]. Relax, relax.
MC Dispatcher: What's your phone number? Dailey: He's pulling out, making a right on Third, and he's going straight down Third now.
Dispatcher: Which, which way towards ah
Dailey: Towards, towards, towards, pass the Rite Aid. Pass, pass the train station towards Branch.
Dailey: He's making a right . . . Unk. Female voice He's not going there.
(background voices inaudible)
Dispatcher: Which way, which way is he going? (background voices inaudible) Dispatcher: Wa, wait, County, County, just stay off the phone for a minute, which way is he going?
Dailey: (inaudible) he's picking up people, he's picking up people, I can't (inaudible) . . .
Dispatcher: Which way?
Dailey: Right there, right there.
(background voices inaudible)
Dispatcher: Which way?
Dailey: Right here, right here, right here.
Dispatcher: Are the cops there?
Dailey: Right there, right there, right there, right there, right there, right there, right there, right there! (inaudible) . . .
MC Dispatcher: All right, all right. Dispatcher: Are the cops there?
Mc Dispatcher: Are the cops there?
Dailey: They're coming, they're coming but they blew, they blew by me. I was trying to them [sic] my beams. Dispatcher: They (inaudible).
MC Dispatcher: OK, tell your girlfriend to calm down cause . .
Dailey: Ya gotta calm down, ya gotta, calm down.
MC Dispatcher: I can't hear both of you. Dailey: Ya gotta calm down, ya gotta calm down.
Dispatcher: Is he on Third Avenue?
Dailey: I'm on Third Avenue. These, these guys, I'm in a black Audi. These guys got to follow me. (horn beeping). Dispatcher: The black Audi's following them. A black Audi is following the car. Which, which, which way?
Dailey: I got three cops, they're all going the right direction, they're all going, there we go, I got, I think I got them.
Dispatcher: You got the cops?
Dailey: We're good to go. This guy's making moves right now, he's weaving in and out.
Dispatcher: The, the, the, just stay on the phone with me here.
Dailey: I'm on the phone with you. Dispatcher: Now you're on Third Avenue still?
Dailey: Coming up on Branch, he's coming up on Branch. Dispatcher: Branch?
MC Dispatcher: Branch and Third?
Dailey: He's coming up on Branch, he's coming on Branch. Dispatcher: What street?
Dailey: (inaudible) there he goes green car he's got his blinker on, he's got his blinker on. He just made a right, he just made a right. Dispatcher: To, to, to where?
Dailey: Yeah, right on Branch. Dispatcher: Where you at now, what street?
Dailey: Right turn, right turn, right turn, right turn.
Dispatcher: I can hear the sirens. Did, did you . . .
Dispatcher: What, what street you on now?
Dispatcher: Chris are you there? Dispatcher: Lost him.
Dailey: Hello, I'm sorry, I'm here.
Dispatcher: Ok, are the cops there now?
Dailey: Yeah, well, I don't know if we, if don't know if he went, he went tearing down [B]ranch or if he made a right. All three, all three cops made a right. He kind of got away from us.
As the underscored passages clearly reflect, the jurors were provided with a vivid, highly-sensational presentation of what Dailey perceived as he followed the green sedan. Dailey's calls are clearly frantic. He is frequently yelling as he speaks to the 9-1-1 operator. Dailey's girlfriend is also yelling in the background, and he instructs her several times to "relax" and "calm down." Dailey gratuitously states that he does not "know what this guy's fucking capable of." He also yells "Right there, right there, right there, right there, right there, right there, right there, right there" when the police drive by and he is trying to get their attention. Dailey further declares that the driver is "weaving in and out" and went "tearing down" the road.
On the whole, the 9-1-1 audiotapes are highly inflammatory, inviting the jurors to sense a feeling of drama and chaotic danger. The courtroom testimony of Schulz and Dailey was more than sufficient to establish that a green sedan had left the accident scene and that a civilian had then followed the car, which led to Officer Barrett's involvement. It was totally unnecessary and unduly prejudicial for the audiotapes of Dailey's 9-1-1 calls to be played in these circumstances.
N.J.R.E. 403 establishes a court's authority to exclude relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." (Emphasis added). The trial court here should have exercised that authority and excluded the 9-1-1 audiotapes. Although they surmount the hearsay rule as present sense impressions and excited utterances, see N.J.R.E. 803(c)(1) and (2), the tapes were far too vivid, inflammatory, and cumulative of the trial testimony to be played. Dailey's pejorative statement that he does not know what "[defendant is] fucking capable of," even if it is analyzed as a lay opinion under Rule 701, lacks a proper foundation, and it unnecessarily portrays defendant as a dangerous and bad individual.
The prejudice to defendant was accentuated by the prosecutor's decision to replay an excerpt of the 9-1-1 audiotapes as part of his closing argument.
We are mindful that our scope of review on evidential rulings of this nature is limited, and trial judges are rightly accorded substantial discretion on such rulings. See, e.g., State v. Nelson, 173 N.J. 417, 470 (2002); State v. McDonald 120 N.J. 523, 577-78 (1990). Even so, that discretion was misapplied here in allowing the tapes to be played. Indeed, the trial judge's original instinct to question the relevancy of the tapes was, in retrospect, correct. There is also no indication that the judge had the benefit of listening to the audio version of the tapes before ruling them admissible. The cold transcript does not adequately replicate the dramatic shouting and emotion that is conveyed when the tapes are heard.
The limiting instruction that the trial judge provided was insufficient to ameliorate the likely prejudice flowing from the audio presentation. A pivotal issue in this case is whether defendant was guilty of third-degree eluding -- as to which there is no presumption of incarceration, see N.J.S.A. 2C:44-1(e) -- or, alternatively, second-degree eluding, as to which a custodial term is presumed. See N.J.S.A. 2C:44-1(d). The critical difference of gradation is whether defendant's conduct while eluding posed a risk of injury or death. See N.J.S.A.
2C:29-2b. That objective assessment by the jurors could easily have been tainted by hearing the dramatic audiotapes, including Dailey's profane exclamation of fear concerning what defendant was "capable of."
These considerations similarly lead us to conclude that the audiotapes fail the fourth prong*fn6 of the Cofield test for the admission of evidence pursuant to N.J.R.E. 404(b). Unlike narrative courtroom testimony describing in retrospect the sequence of events after the accident, the contemporaneous utterances on the audiotapes had the clear capacity to cause the jurors to perceive defendant as a dangerous and threatening individual. The excitement and histrionics conveyed in the audiotapes easily could have made it difficult for the jurors to confine their use of this evidence to the permissible considerations under Rule 404(b) of factual context and defendant's motive. See Collier, supra, 316 N.J. Super. at 194-95 (concluding in that case that, while some evidence of other-crimes was admissible to show motive, the court erred in admitting certain specific details which had a great potential for prejudice).
For these reasons, we reverse defendant's conviction of second-degree eluding and remand for a new trial. The audiotapes shall not be played for the jury at the second trial. However, we leave intact the trial judge's independent findings of defendant's guilt on the traffic violations, as we presume that the judge was not prejudiced by the audiotapes in adjudicating those issues and also because defendant's guilt of those offenses is obvious from the record.
Because we are remanding for a new trial, we need not address in detail defendant's claim that his sentence was excessive. Given defendant's prior criminal record, which includes multiple adult convictions, it will suffice for us to say that the sentence does not shock our conscience, and that the judge did not abuse his discretion in weighing the applicable sentencing factors. See State v. Bieniek, 200 N.J. 601, 612 (2010).
Defendant's conviction for eluding is reversed and remanded for a new trial. In all other respects, the trial court's determinations are affirmed.