STATE OF NEW JERSEY v. KINGKAMAU NANTAMBU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KINGKAMAU NANTAMBU,

Defendant-Respondent.

___________________________________________

October 29, 2013

Submitted October 7, 2013 - Decided

Before Judges Kennedy and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-08-1986.

James P. McClain, Acting Atlantic County Prosecutor, attorney for appellant (James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Mazraani & Liguori, L.L.P., attorneys for respondent (Joseph C. Liguori, on the brief).

PER CURIAM

By leave granted, the State appeals from that portion of a March 4, 2013 Law Division order,1which granted defendant Kingkamau Nantambu's motion to suppress a tape-recording containing two conversations between defendant and Crystal Aikens. The State also appeals from the order denying its motion for reconsideration. For the reasons that follow, we reverse.

I.

On April 26, 2010, Atlantic City Police Detective David Smith responded to a 911 call regarding a domestic disturbance at defendant's apartment. Defendant's girlfriend, Crystal Aikens, met Detective Smith outside the apartment and told him that defendant had threatened her with a gun during an argument. As Smith was speaking with Aikens, defendant was inside the apartment on the phone informing a police dispatcher that he needed medical attention because Aikens had assaulted him with a knife. When defendant went outside, the officers arrested, handcuffed, and placed him in the back of the police patrol vehicle.

Medical personnel arrived and treated several cuts on defendant's bicep and wrist. Detective Smith then transported defendant to the police station. While in transit, defendant told Smith he had nothing to hide, stating: "[Y]ou can check my box. I'll open it. Here's the key. Check my lock box because she said . . . there's a gun in the box. . . . I have no problem with it." Detective Smith asked defendant if he would consent to a search of the apartment "to end this one way or the other[,]" and defendant agreed. Smith then turned his vehicle around and returned to defendant's apartment.

Defendant signed a written consent form authorizing the search of the apartment, his safe, and his vehicle. Smith advised defendant of the scope of the search and his right to stop the search at any time. Defendant was present during the search and opened his safe, but no gun was found. However, one of the officers found a gun under a child's bed in the bedroom and defendant was arrested for possession of the gun and brought to the police station.

Defendant was first indicted on June 22, 2010. Before trial began, Aikens called the Atlantic County Prosecutor's Office and left a voicemail message indicating that she had been subjected to witness tampering.

On August 2, 2011, Aikens allowed detectives to record her telephone conversation with defendant. Aikens called defendant while the detectives contemporaneously listened to and recorded the conversation. Aikens told defendant she had been contacted by the Prosecutor's Office but she "stalled them." She then expressed concern that she might get in trouble and told defendant she had been "stressed out." Defendant told her he had spoken with his lawyer and reassured Aikens:

[DEFENDANT]: No you can't get in trouble. He said as long as you don't say it's yours. They can't charge you with nothing. You know what I am saying?

[AIKENS]: Yeah, so you said as long as I don't say what?

[DEFENDANT]: As long as you don t say it's yours. They can't charge you with nothing.

[AIKENS]: As long as I don't say it's mine?

[DEFENDANT]: Yeah, you go in there and say oh yeah, it's my gun, then they going to charge you but as long as you don't say it's yours. Cause I know you ain't going to say. So they ain't going to charge you.

[AIKENS]: Why the hell would I say it was mine?

[DEFENDANT]: It's just a [hypothetical]. We ain't saying that you are going to say that shit. But what I am saying is that is the only way they would be able to charge you with anything. You know what I am saying. He said they can't charge you with perjury because you never made an official statement as to who the joint belonged to. So they can't get you with perjury. Or anything of that nature.

[AIKENS]: I want to know what my old statement was that I wrote down cause they will probably try to catch me in a lie. What if they try to, what if I say something. What if they try to catch me in a lie or something? Then what I am I going to say then I am going to be in trouble.

[DEFENDANT]: They can't, he told me yesterday after I spoke to him, you ain't get no number or call or missed call from a 732 number?

[AIKENS]: No.

Approximately eight minutes into the conversation, another call came into Aikens's phone and she interrupted her conversation with defendant to take the call. While Aikens spoke with the third party, Detective Richard Johannessen stopped the recording. The call between Aikens and defendant was reinitiated and Johannessen began the recording while Detective Ted DeSantis listened to the conversation through headphones. After about two minutes of conversation between Aikens and defendant, the recording device fell off a table onto the floor. One of the detectives reconnected the device but the call ended shortly thereafter.

Johannessen later discovered that part of the conversation between Aikens and defendant, after the device had fallen to the floor, had not been recorded. Johannessen suggested that the recorder's audio file was not properly closed when it fell. This incomplete recording is the basis of the controversy herein.

Based on the intervening events, defendant was subsequently charged in a superseding indictment with the additional charges of bribery of a witness, N.J.S.A.2C:28-5(d), and witness tampering, N.J.S.A.2C:28-5(a).

Defendant moved to suppress the telephone recordings and the court conducted a hearing. At the conclusion of the hearing, the court was troubled with two different explanations of how the recording device fell from the table:

Detective DeSantis says that Detective Johannessen was holding [the recorder] the entire time. He was clear as clear could be. Detective Johannessen says, no, it was laying on the - - on this tabletop of this green trash compacting or whatever the device was.

And while I think competency is a very harsh word, I'm not prepared to say that the detective was incompetent. But what is totally unexplained is how did this recorder drop? Neither of them said that Miss Aikens, when she took the other phone call, pulled it and it fell off. There's absolutely no explanation whatsoever. A competent operator wouldn't allow that to happen.

But more importantly to me is the detective - - the testimony of Mr. Johannessen - - Detective Johannessen is that when the recorder hit the ground, it stopped recording, the conversation continued and it was two minutes potentially before he was able to get everything back up and running. First he said he tried and he couldn't - - he couldn t get it and then finally he got it back up and running and then rerecorded the rest of the conversation.

But it's clear to me that there is a particular part of that conversation that took place that is not recorded. And from the State's brief, it says of the four criteria, "No changes, additions or deletions have been made." Does that mean intentional deletions or does that mean accidental deletions? I don't think it matters. It means deletions. They did not record that entire telephone conversation.

And since they did not record that entire telephone conversation, I am not going to allow the tape of that partially recorded telephone conversation be used at trial. So the tape is out.

II.

The standard of review applicable to a motion to suppress evidence is a substantial level of deference to the trial court's discretion in excluding evidence pursuant to N.J.R.E. 403. See, e.g., Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). "The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). If the findings have been "'reached on sufficient credible evidence'" then "'[t]he findings of the trial judge will not be disturbed[.]'" State v. Cusmano, 274 N.J. Super. 496, 517 (App. Div. 1994) (quoting State v. Godfrey, 131 N.J. Super. 168, 174 (App. Div. 1974), aff d, 67 N.J. 267 (1975)). "However, if in exercising discretion, a 'trial judge misconceives the applicable law or misapplies it to the factual complex, . . . it is the duty of the reviewing court to adjudicate the controversy in light of the applicable law in order that a manifest denial of justice be avoided.'" Ibid. (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)).

At the outset, we note that the court never found or even suggested that the failure to record the entire conversation was the result of intentional misconduct by the police. The court would not even categorize the actions of the detectives as incompetent. Thus, we begin our review with the assumption that the malfunction was accidental and caused by the recording device falling to the floor. The question presented to us then is whether an inadvertent failure to record one portion of a conversation justifies the exclusion of the entire tape. We conclude it does not.

The decisions in State v. Driver, 38 N.J. 255 (1962), and Cusmano, compel the admission of the recording into evidence. In Cusmano, we held that, "the omission of only a portion of a conversation is not a basis to exclude the appropriate use of any portion of the conversation which has otherwise been properly recorded." Cusmano, supra, 274 N.J. Super. at 514 (citing State v. Zicarelli, 122 N.J. Super. 225, 239-40 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973)). Under Cusmano, the only types of deletions, omissions, gaps, and unintelligible or inaudible parts in the recording of a conversation that will warrant the recording's exclusion from evidence are those that raise questions concerning whether the recording is a trustworthy record of statements actually uttered during a conversation by the parties to it. Id. at 502 (citing State v. Dye, 60 N.J. 518, 531, cert. denied, 409 U.S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972)). In Cusmano, we followed the Zicarelli and Dye reasoning that an omission of a portion of a conversation is not a basis to exclude the rest of it properly recorded. Id. at 514-17.

In Dye, the Court held that "partial inaudibility is no more valid reason for excluding recorded conversations than the failure of a personal witness to overhear all of a conversation should exclude his testimony as to those parts he did hear. Unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy the recording is admissible, and the decision should be left to the sound discretion of the trial judge." Dye, supra, 60 N.J. at 531 (quoting Monroe v. United States, 234 F.2d 49, 55, cert. denied, 352 U.S. 873, 77 S. Ct. 94, 1 L. Ed. 2d 76 (1956)).

The motion judge's speculation that the unrecorded portion of the conversation contained a "crucial point," is untethered to any evidence in the record and flatly contradicted by the testimony of one witness who listened to the unrecorded conversation. Detective DeSantis explained that "[n]othing of any consequence" was discussed during that portion. He testified that there was some conversation between defendant and Aikens about how the call was disconnected, "did you lose me, I lost you, something like that, [but] [a]s far as anything pertaining to our case, nothing was mentioned."

Detective Johannessen, who was not listening through headphones, was able to hear Aikens's side of the conversation and testified that "nothing that was said in the prior portion or in the latter portion that was recorded was discussed in, you know, any more detail than what it - - you know, it was the same type of conversation."

Nor do we agree with the motion judge that it would be "unfair and inappropriate" to admit the recording, as it would "place in front of the jury [Aikens's] accusation with absolutely no response from Mr. Nantambu other than to force him, give up his Fifth Amendment rights to get on the stand and say this is what I would have said . . . ." That conclusion ignores defendant's recorded statement urging Aikens to lie and claim the gun was hers while promising her she would avoid criminal liability.

The Court in Driver established the test for admissibility of sound recordings as whether it is "competent and relevant," requiring that it

be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.

[Driver, supra, 38 N.J. at 287.]

We also disagree with the motion judge's interpretation of the fourth prong of the Driver test. The judge found that the failure to record two minutes of a ten-minute conversation constitutes a change, addition, or deletion. As in Cusmano, "the tapes sought to be utilized at trial had not been spliced, thus eliminating any consideration of 'change' or 'additions' to the tapes." Cusmano, supra, 274 N.J. Super. at 513. In Cusmano, we defined "deletions" as "the elimination from a tape of material which has been recorded, either by splicing, rerecording, or erasure." Ibid. Although we noted that deletions might also connote "omission in recording" resulting from the purposeful or accidental termination of the recording, here there is no allegation by defendant or any finding by the court that the officers intentionally caused the recorder to drop to the floor, interrupting the recording. Ibid. It was an accident.

The facts here are similar to those in Cusmano, where we held that the trial court erred in determining the operator was "incompetent" for failing to record the entire conversation. Id. at 512. We concluded "[a] determination of operator competence must be viewed liberally." Ibid. We noted that the operators in Cusmano "may not have approached their responsibilities seriously or they may have performed their task haphazardly, . . . but they did produce substantially audible tape recordings of the telephone conversations with insignificant omissions." Id. at 513. We found a logical explanation for the gaps in the recording likely was either the suction device falling off the receiver or the plug connecting the tape recorder becoming dislodged. Id. at 516.

Similarly, we are satisfied that the detectives here were not incompetent but rather encountered an unanticipated incoming call, which caused the first interruption, and an unexpected accident, which caused the recorder to fall to the floor, disconnecting the wires. The motion judge found only inconsistent explanations for the recorder falling to the ground, not the type of purposeful splicing or deletions we discussed in Cusmano that would result in disallowing the use of the entire tape at trial. Id. at 515.

It was an abuse of the motion judge's discretion to suppress the taped conversation between defendant and Aikens. As we held in State v. Vandever, 314 N.J. Super. 124, 129 (App. Div. 1998), certif. denied, 178 N.J. 32 (2003), the fact that a portion of the conversation between defendant and Aikens "may not have been recorded, may go to weight and probative value of the evidence[,]" not to its admissibility.

Reversed.

1 Both orders appealed from are dated March 4, 2013, although the order denying the State's motion for reconsideration indicates that defendant's motion to suppress was granted on January 28, 2013. While the court placed its reasons for granting the motion on the record on January 28, 2013, no order was entered on that date.