JUAN C. AGUDELO v. ALLSTATE NEW JERSEY INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3192-07T33192-07T3

JUAN C. AGUDELO,

Plaintiff-Appellant,

v.

ALLSTATE NEW JERSEY

INSURANCE COMPANY,

Defendant-Respondent.

________________________________________________________

 

Argued December 8, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1146-06.

Phillip C. Wiskow argued the cause for appellant (Gelman Gelman Wiskow & McCarthy LLC, attorneys; Mr. Wiskow, on the brief).

Brian R. O'Toole argued the cause for respondent (O'Toole & Couch LLC, attorneys; Mr. O'Toole, on the brief).

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Following a four-day trial on the issue of liability alone, the jury determined that plaintiff Juan Agudelo was sixty-three percent at fault for the motor vehicle accident in which Agudelo sustained serious injuries. Alleging that a phantom vehicle was primarily responsible for the accident, Agudelo had sued his insurer, defendant Allstate New Jersey Insurance Company (Allstate) under the Uninsured Motorist (UM) provision of his policy. Before trial, Agudelo and Allstate reached an agreement under which Allstate agreed it would pay the full $100,000 UM policy limit if plaintiff obtained a favorable verdict on liability. As a result of the jury's verdict finding Agudelo more than fifty percent at fault, a judgment of no cause for action was entered and this appeal ensued.

Plaintiff now contends the trial court committed reversible error on three evidentiary rulings. We disagree. Accordingly, we affirm.

First, plaintiff contends that witness statements of Jose Mejia should have been admitted into evidence because he was unavailable under N.J.R.E. 804(a). Second, plaintiff argues that Mejia's written statement to investigating police officers should have been admitted into evidence because it was an excited utterance under N.J.R.E. 803(c)(2). Finally, plaintiff submits that his accident reconstruction experts should have been allowed to review and rely on Mejia's witness statements in accordance with N.J.R.E. 703.

At the outset, we note the limited scope of our review. Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) ("In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion."); see also Brenman v. Demello, 191 N.J. 18, 31 (2007) ("Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard.").

The matter arises in the context of the following facts. Plaintiff Juan Agudelo owned a small trucking company, consisting of two trucks. On May 12, 2004, one of those trucks broke down by Parsippany, New Jersey, near Route 46. Agudelo left his house in Landing about 10:00 a.m. and drove on Route 46 West towards Parsippany to pick up his driver. He was in "no hurry" to get there because the truck had already been towed and the driver was simply waiting for him.

Agudelo testified he approached the entrance ramp for Route 80 East in his sport utility vehicle (SUV), a 2001 Mitsubishi Montero. As he proceeded onto the ramp, there were two yield signs. He noticed no traffic on the ramp at that point, and no traffic behind him, so he yielded and continued to drive. He estimated he accelerated to approximately thirty-five to forty miles per hour as he began merging onto the highway.

At a point when plaintiff was about fifty yards away from the entrance of the highway, he first noticed a white vehicle towards the end of the ramp. There was no indication that the vehicle was stopped; no outside lights, brake lights, or signals of any kind. Plaintiff looked to his left to check for oncoming traffic on Route 80, and observed traffic about a quarter of a mile away in the center and left lanes of the highway. There was no traffic in the right lane where he would be merging, so he continued driving. When he looked forward, he saw that the white vehicle was twenty-five yards in front of him and was stopped, blocking the entrance to Route 80. There was no shoulder on the ramp.

Plaintiff applied his brakes and attempted to maneuver the SUV to the left of the white vehicle. In doing so, he crossed the line on the left side of the ramp and entered onto Route 80 East. He did not collide with the vehicle, but he lost control of his SUV, which flipped four times across Route 80 East and came to rest partially in the left lane, and partially in the left shoulder of the highway. He was ejected and came to rest in the right lane of traffic. He was airlifted to Morristown Memorial Hospital for treatment of his injuries. The white vehicle was never identified.

Two drivers, Jonathan Gerber and Jose Mejia, witnessed the accident. Gerber testified he was driving in the left lane of Route 80 East when he noticed that a truck in the center lane (driven by Mejia) was starting to brake heavily and trying to maneuver. Concerned about being beside a truck braking so heavily, Gerber began to slow his vehicle down and eventually stopped. When the truck veered towards the right, Gerber saw plaintiff's SUV, which looked like it had just been flipped over. The SUV landed on its wheels in front of Gerber in the left lane.

Gerber looked into the vehicle and determined that the windows were blown out and the driver had been ejected. At that point, Gerber took his cell phone and ran to plaintiff, who was lying in the right lane. Gerber waited at the scene and gave a statement to the investigating officer.

The second witness was Jose Mejia, an interstate truck driver who was operating the truck that had been traveling in the middle lane of Route 80 East, alongside Gerber. Mejia did not appear at trial and was never deposed. He gave a handwritten statement to the investigating police on the day of the accident. That statement said:

I was traveling E bound side on I80 [about] 1/4 mile from [the] in coming ramp [when] I noticed a car park[ed] on the ramp waiting for traffic to be clear[,] I guest [sic], when I notice[d] a SU[V] truck coming onto the hwy[.] [H]e did not realize[] about that car [that had] been stop[ped] there[.] [W]hen he try to [avoid] the car he lost control[,] flipping the car 2 time[s.] [O]n the second time[,] [the] driver came out of the car[.] [E]verything was so fast[,] I did not notice what [came] of [the] car [that] was park[ed] on [the] ramp. I stop[ped] and help[ed] the driver.

In a subsequent, clearer statement given to plaintiff's investigator, Mejia said when he was approximately one quarter of a mile from the accident scene, he noticed a small car stopped on the entrance ramp approaching Route 80. At that time, Mejia was traveling sixty-five miles per hour in the center lane, and he had a clear and unobstructed view of the entrance ramp to Route 80 and Route 80 itself. As he approached the eventual scene of the accident, he noticed a maroon SUV traveling up the entrance ramp "at a normal rate of speed." He first noticed that SUV when he was approximately 100 to 200 yards from the eventual accident scene. The statement indicates that as Mejia continued traveling and noticed that the small vehicle remained at the end of the entrance ramp, he "wondered why the vehicle had not merged onto Route 80 east." He observed the maroon SUV swerve to the left to avoid an impact with the stopped vehicle. He saw the SUV roll a number of times, and observed that the driver was ejected from the vehicle. He then pulled his vehicle over to the right side of the road and attempted to assist the injured driver. Mejia noticed that the small vehicle did not remain at the scene of the accident. He remained at the scene and provided a handwritten statement (quoted above in its entirety) to the investigating police officer.

Police and paramedics arrived at the scene of the accident within five minutes. While they were attending to Agudelo, Gerber testified that he spoke with Mejia. Their conversation, which lasted about five to ten minutes, took place within fifteen minutes of the accident. Gerber believed Mejia was "visibly shaken" and "very upset about the accident." The two men conversed, and Mejia told Gerber that "he saw the vehicle entering . . . the road and that there was a car at the end of the accelerating ramp and . . . then the SUV started to tumble into the road." Mejia also told Gerber that the vehicle was "stopped at the end of the ramp."

Detective Thomas Kelshaw was one of the first New Jersey State Police troopers on the scene to investigate the accident. He took statements from Gerber and Mejia, and wrote a police accident report. Included with the police report were Gerber's and Mejia's written statements. Mejia's statement indicated that he noticed a car "park[ed] on the ramp waiting for traffic to . . . clear." It was about fifteen to thirty minutes after the accident when the two men were given the paper on which to write their witness statements. Mejia asked Gerber what he should write. Gerber replied, "write what you saw and nothing more, nothing less."

Subsequently, plaintiff hired a private investigator who took a voluntary witness statement from Mejia; however, efforts to depose Mejia, who was residing in Texas, were unsuccessful.

Prior to trial, plaintiff's counsel argued that plaintiff's experts should be allowed to rely on Mejia's statements pursuant to N.J.R.E. 703. The judge ruled as follows on the admissibility of that evidence:

If an expert uses an out-of-court statement as the basis for his conclusion, such statement is hearsay and it's inadmissible unless it falls under an exception. One such exception is where the declarant is unavailable . . . .

. . . .

In this case, it's my ruling that the plaintiff has failed to demonstrate that the witness was unavailable. Accordingly, we're going to bar the statement and certainly find that its probative value is outweighed by the prejudice that would be to the [respondent]. So, I'm barring [all] the statement[s].

At trial, however, some of the barred statements were conveyed to the jury through other means. For example, Detective Kelshaw testified that he did not speak with plaintiff at the scene of the accident, but he included in his report that there was a vehicle in front of him on the ramp. He indicated he obtained this information from Mejia's witness statement. When asked whether the witness statement indicated whether the "phantom vehicle" was slowing, stopped, or moving fast, Detective Kelshaw responded at one point that the statement indicated that the car was "parked."

Also, in his testimony, Gerber recounted his conversation with Mejia; he was allowed to state what Mejia told him after the judge ruled that those statements were excited utterances. That testimony included Mejia's statement that there was a vehicle stopped on the entrance ramp.

While plaintiff's accident reconstructionist was not permitted to refer to the content of Mejia's statements, the expert was still able to testify that he understood plaintiff saw "a vehicle stopped in the acceleration lane ahead of him" and "he ha[d] to take a drastic steering maneuver to avoid that." More fully, the expert stated:

As he's traveling up the ramp, he sees no other traffic ahead of him. And at some point as he nears the top of the ramp, he takes a look to his left for approaching traffic along Route 80 eastbound. When he looks back, he sees a vehicle stopped in the acceleration lane ahead of him. By the time he realizes that the vehicle is stopped, he has to take a drastic steering maneuver to avoid that. And eventually his car overturns, and he slides and comes to rest in the left eastbound lane of the roadway.

Plaintiff argues that Mejia's written statements should have been admitted because Mejia was unavailable in spite of plaintiff's diligent efforts to procure his attendance at trial. That argument is without merit. Pursuant to N.J.R.E. 802, "[h]earsay is not admissible except as provided by these rules [New Jersey Rules of Evidence] or by other law." Hearsay is defined as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "The hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant." State v. Long, 173 N.J. 138, 152 (2002).

After defining "unavailable" in N.J.R.E. 804(a), paragraph (b) of that rule identifies certain circumstances when statements that are hearsay "are not excluded by the hearsay rule if the declarant is unavailable as a witness." N.J.R.E. 804(b). The number of such circumstances is limited. Included are testimony in prior proceedings, N.J.R.E. 804(b)(1); statements under belief of imminent death, N.J.R.E. 804(b)(2); statements against interest, N.J.R.E. 804(b)(3); statements of personal or family history, N.J.R.E. 804(b)(4); trustworthy statements by deceased declarants, N.J.R.E. 804(b)(6); and voters' statements, N.J.R.E. 804(b)(7). Here, Mejia's statements do not fall within any of the categories of hearsay exceptions for unavailable declarants. Thus, even assuming that Mejia was "unavailable," no exception exists under N.J.R.E. 804 to admit the statements he gave to the investigating police and to plaintiff's investigator.

Plaintiff also contends his written statement to the investigating police officer was an excited utterance and should have been admitted under that exception. Regardless of the declarant's availability, N.J.R.E. 803(c)(2) recognizes as an exception to the hearsay rule a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." As noted by the Supreme Court:

[Excited utterances] are admissible under the rationale that excitement suspends the declarant's powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self-interest and therefore rendered unreliable. We [have] explained that a statement constitutes an excited utterance when the circumstances reasonably warrant the inference that the statement was made as an uncontrolled response to the shock of the event before reasoned reflection could have stimulated a self-serving response.

Consistent with the rationale for the excited utterance exception . . . when deciding whether there was an opportunity to fabricate or deliberate, a court should consider the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance. Although each of these factors is important, the crucial element is the presence of a continuing state of excitement that contradicts fabrication and provides trustworthiness. Thus, in this fact-sensitive analysis, a court must determine whether the facts and circumstances reasonably warrant the inference that declarant was still under the stress of excitement caused by the event.

[State v. Cotto, 182 N.J. 316, 327-28 (2005) (citations, internal quotation marks and editing marks omitted).]

In State v. Branch, 182 N.J. 338, 370 (2005), the Court found that statements made to a police officer approximately twenty minutes after a burglary and ten minutes after a 911 call reporting the burglary were not admissible under the excited utterance exception. In doing so, the Court concluded that the child victim in that case had an opportunity to deliberate, relying primarily on the fact that the victim spoke separately to her mother and another police officer before making the statements at issue, and that there was no record of how the questions that elicited the statements had been posed to the victim. Id. at 366-67. The Court was also reluctant to invoke the exception because the victim was apparently available as a witness but still did not testify. Id. at 367. The Court stated that "a spontaneous declaration will be admissible, even if not 'concomitant or coincident with the exciting stimulus,' provided that 'in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval.'" Id. at 361 (quoting Cestero v. Ferrara, 57 N.J. 497, 502 (1971)).

Similarly, in Cotto, the Court found that statements robbery and assault victims made to a police officer fifteen to twenty minutes after their assailant left the premises and five minutes after those victims called the police were not admissible as excited utterances, as the victims had an opportunity to deliberate. Cotto, supra, 182 N.J. at 330-31. The Court reasoned that time lapse is not the most important consideration, but rather the nature of the statement determines its admissibility. Id. at 330. The victims' statements were responses to police questioning and therefore constituted a narrative of a past occurrence, rather than "exclamatory" statements "coincident with the happening" of the incident. Ibid.

Recently, the Supreme Court has held that statements made hours after an incident at issue may constitute an excited utterance. State v. Buda, 195 N.J. 278, 297-98 (2008). In that case, a three-and-a-half-year-old child abuse victim made a statement to a Division of Youth and Family Services (DYFS) worker several hours after the abuse occurred. Id. at 286-87. The Court held that the statements were admissible as excited utterances. Id. at 296-97. The Court reasoned that while the length of time between the violence visited on the child and his statement to the DYFS worker was "significant," the "quality and nature of that period" was telling because the statement was made by a "sobbing, emotional child in a strange and frightening place" shortly after the child was taken from the abuser's control to a place of relative safety. Id. at 297-98. Specifically, the Court found that "[i]n light of the intervening action-filled chaos and stress-filled events that brought that child ultimately to the hospital emergency room, the time elapsed was not of a kind likely to allow the child to deliberate and, thus, fabricate the statement." Id. at 297.

In addition, this court has stated that a written statement prepared at the request of the police will rarely qualify as an excited utterance. State v. Conigliaro, 356 N.J. Super. 54, 69 (App. Div. 2002). In Conigliaro, the victim of a sexual assault went to the police station approximately three hours after the assault and made detailed oral statements to police recounting the facts of the crime. Id. at 61-62. Almost immediately thereafter, the victim memorialized her statement in writing at the request of the police. Ibid. While the court held that the oral statement made to police officers was admissible because there was evidence that the victim was still visibly upset and nervous due to the trauma of the attack, id. at 64, the panel deemed the lower court's admission of the written statement as an excited utterance to have been error. Id. at 69.

The panel observed that "[t]he very nature of the reflective process involved in preparing a narrative written statement suggests that its admission would be the exception, rather than the rule." Ibid. The panel also stated:

We do not hold that a written statement can never constitute an excited utterance. There could well be circumstances under which the victim's continuing state of excitement or anxiety and the temporal proximity of the statement to the event would provide sufficient guarantees of trustworthiness to justify admission, or there could be that rare situation in which the victim was physically unable to provide an oral statement.

[Ibid. (internal citations omitted).]

There is no indication that Mejia was operating under the sway of the excitement when he wrote his statement, and his narration of what he had witnessed was certainly not spontaneous. Mejia's conversation with Gerber took place fifteen minutes after the accident, whereas Mejia's handwritten statement given to Detective Kelshaw was prepared as much as thirty minutes after the accident. Significantly, Mejia asked Gerber what he should write and Gerber replied, "write what you saw and nothing more, nothing less." This reinforces the likelihood that Mejia engaged in some sort of thought process and reflection before writing the statement. That would remove it from the realm of a spontaneous excited utterance.

Even if the written statement were an excited utterance, its exclusion was harmless. Ostensibly, the statement might have bolstered plaintiff's credibility by showing that an independent witness saw a vehicle "park[ed]" on the entrance ramp, but the presence of another vehicle was not seriously disputed. Moreover, there was significant testimony throughout, including testimony from Gerber, Detective Kelshaw, and plaintiff's expert that indicated that the white vehicle was "stopped." The inadmissible evidence was therefore cumulative, at best.

Neither did the trial judge abuse his discretion by determining that Mejia's statements were not admissible under N.J.R.E. 703. The rule allows experts to base their opinions on otherwise inadmissible facts or data as long as they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]" N.J.R.E. 703. However, an inadmissible statement relied upon as the basis of an expert's opinion is not automatically made admissible as substantive evidence, i.e., as proof of the truth of the matter asserted by the inadmissible statement. State v. Farthing, 331 N.J. Super. 58, 77 (App. Div.), certif. denied, 165 N.J. 530 (2000). As recently stated by the New Jersey Supreme Court:

Although the rule permits a hearsay statement . . . to be referred to by a testifying expert for the purpose of apprising the jury of the basis for his opinion, it does not allow expert testimony to serve as "a vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence.'"

[Agha v. Feiner, 198 N.J. 50, 63 (2009) (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002) (alteration in original), aff'd, 177 N.J. 229 (2003)).]

Here, plaintiff's expert was not prevented from relying on Mejia's statement. He was prevented from introducing the statement through his testimony. Indeed, the expert made it clear that he relied on what Mejia claimed he saw. There was not, however, an independent basis for admitting the otherwise inadmissible hearsay statements. As such evidence was not admissible substantively, we find no warrant to disturb the trial court's evidentiary rulings.

 
Affirmed.

Plaintiff's handwritten statement contained haphazard punctuation and capitalization. Some capitalizations have been altered without corresponding notation, while alterations to punctuation have been noted.

The judge, after conducting a N.J.R.E. 104 hearing, determined that under the circumstances Mejia's statement was an excited utterance, and was therefore admissible. Gerber would be allowed to testify at trial about this conversation.

As detailed in the trial judge's amplification of certain rulings, counsel for plaintiff sent Mejia a letter in January 2005, and another on July 13, 2007, advising Mejia of the trial date. Counsel also asked Mejia to advise of his availability for either a deposition or trial, but counsel did not hear back from Mejia. Another letter was sent to Mejia on August 5, 2007 advising that the trial had been pushed back. Regarding the most recent trial date, a telephone inquiry was made to a number referenced in the investigator's report. That phone number had been disconnected, so a second attempt was made at Mejia's place of employment, whereupon plaintiff was advised that Mejia left that employer in 2005. Counsel conducted no postal searches.

The trial judge did allow Gerber to testify regarding statements Mejia made to him at the scene of the accident. These statements were permitted as excited utterances and that ruling is not a subject of challenge on this appeal.

Though not articulated as such, the trial court in this case appears to have made a similar distinction in allowing Gerber to recount Mejia's oral statements but not admitting the written statement Mejia prepared at the request of the investigating police officers.

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A-3192-07T3

March 9, 2010