STATE OF NEW JERSEY v. KENNETH J. NIELSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02513-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH J. NIELSON,

Defendant-Appellant.

_____________________________________

January 30, 2014

 

Argued September 18, 2013 - Decided

 

Before Judges Waugh, Nugent and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-11-1852.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

A jury convicted defendant, Kenneth J. Nielson, of second-degree eluding, N.J.S.A 2C:29-2(b). During defendant's trial the State presented an out-of-court statement that defendant was driving the car that eluded a police officer after a high-speed chase. Without the out-of-court statement, the jury's verdict depended in large part on the weight they gave to the identification made by the officer. Under those circumstances, the admission of the out-of-court statement was plain error. We reverse and remand for a new trial.

I.

A.

A Middlesex County Grand Jury indicted defendant on one count of second-degree eluding, N.J.S.A. 2C:29-2(b), in November 2008. Following his arrest on December 12, 2008, defendant moved to exclude a police officer's out-of-court identification of him, which the court denied.

On November 6, 2009, following a three-day trial, a jury found defendant guilty on the sole count of the indictment. The court subsequently denied defendant's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The court also convicted defendant of numerous motor vehicle violations. The court sentenced defendant to an eight-year custodial term, suspended his driving privileges for one year, and imposed appropriate fines, penalties, and assessments. This appeal followed.

In its case-in-chief at trial, the State presented the testimony of two witnesses: Sayreville Police Sergeant Jeffrey Casella, the officer whom a fleeing driver had eluded, and defendant's former girlfriend, Lisa Estrella. According to Sergeant Casella, on September 5, 2008, he was monitoring northbound traffic on Route 9 as it approached the Garden State Parkway northbound entrance ramp. In that area of Route 9, there were three traffic lanes; two for cars continuing on Route 9 and a third for traffic exiting Route 9 and entering the ramp. The lane for traffic entering the ramp was separated from the others by a solid white line. When traffic backed up at that location, drivers "tend[ed] to stay in the left-hand lane to try to beat the line and cut in at the last second." The events that led to defendant's arrest began when the Sergeant observed a Ford Taurus cut in front of the line for the ramp.

As Sergeant Casella stood outside his marked patrol car on the road's shoulder where the ramp "starts [to go] up," he saw a gray Ford Taurus cross the solid white line "in an unsafe manner getting into the Parkway ramp." In an attempt to stop the Taurus, Sergeant Casella "stepped out[] [and] slowed the traffic down to direct the [Taurus] into the shoulder lane." The Taurus accelerated and the driver fled up the ramp. Sergeant Casella got into his patrol car and pursued the fleeing driver onto the Garden State Parkway, down an exit ramp, onto another street, and back to Route 9.

During the ensuing pursuit, the Taurus at times exceeded 100 miles per hour. The driver tailgated a tractor-trailer, disregarded a yield sign, changed lanes without signaling, and twice drove onto the shoulder of the road. Sergeant Casella abandoned the chase, concerned that the other driver would injure himself or others.

Sergeant Casella saw the driver's face only once. That occurred at the beginning of the incident when the driver crossed the solid white line near the Garden State Parkway entrance ramp. As the Sergeant stepped from the shoulder of Route 9 to stop the approaching Taurus, the car was approximately ten feet away. The weather was clear and sunny, and nothing obstructed the officer's view of the driver. According to Sergeant Casella, he looked directly at the driver.

On direct examination, Sergeant Casella described the driver as a "skinny male, long hair pulled back in a ponytail, [with] a short goatee on his chin." He also told the jury that the driver resembled a childhood friend. Yet, during cross-examination, Sergeant Casella admitted he gave no description of the driver when he prepared his formal police report. And, according to transmissions between Sergeant Casella and a dispatcher that were recorded during the chase, he described the driver only as "a younger male driver."

Sergeant Casella did, however, get the fleeing car's license plate number, which he reported to the dispatcher. The Taurus had not been reported stolen. It was registered to a woman who lived in Bridgewater. Sergeant Casella followed up on that information when he returned to headquarters. At trial, he explained those efforts:

Q [W]hat did you do when you got back to headquarters?

 

A I was waiting to hear back from Bridgewater trying to figure out who the driver was.

 

Q When you got back to headquarters was there anything you did in terms of information you received from Bridgewater?

 

A Dispatch advised me Bridgewater called back that the owner of the vehicle said that her daughter had possession of that vehicle and if a male would be driving that it . . . would be her daughter's boyfriend.

 

Q Did he give a name?

 

A Yes. Kenneth Nielson.

 

Sergeant Casella had the dispatcher pull up defendant's driving record. According to the driving record, defendant's license "was not valid at the time." Attached to the driving record was a color photograph of defendant, from which Sergeant Casella identified him as the fleeing driver. Sergeant Casella identified the photograph less than one half-hour "after the time [he] saw the individual driving the vehicle."

Sergeant Casella also learned that the Taurus might be located in Old Bridge at the residence of Lisa Estrella, whose mother owned the Taurus. He went to Estrella's residence, spoke with her, and issued a traffic summons to her for "allowing the suspect to drive while suspended." Sergeant Casella estimated that he met with Estrella at 2:00 p.m., approximately two hours after he first encountered the Taurus, but the computer-aided dispatch report for that day showed that he met with Estrella approximately ten minutes before 3:00 p.m. Defendant was not at Estrella's residence. He had gone to his father's house.

According to Estrella, who the State also called as a witness, she regularly drove her mother's Ford Taurus. Defendant, her former boyfriend, was not permitted to drive the Taurus but had driven it once in April 2008 when she gave birth to her child. She let defendant keep tools at her house, including his welder. She kept some of those tools in the trunk of her car so that if she ever broke down she would have the tools with her.

On September 5, 2008, at approximately 11:00 a.m., defendant, who was a licensed mechanic and helped Estrella maintain her car, came to her apartment in Old Bridge to get tools from the trunk of the Taurus. Someone dropped him off. She gave him the keys to the Taurus and he returned within a couple of hours. When defendant came back, he gave her the keys and left; he was wearing mechanic's clothes and his demeanor was normal. As defendant was leaving, Estrella saw him get into a red pickup truck. The police came to her house "[w]ithin an hour" after defendant left.

Estrella never saw defendant drive the Taurus that day. She did not see whether the person who dropped defendant off left defendant or stayed with him after she gave defendant the keys, because she lived on the second floor and could not see the other person. However, she did see a red Ford pickup truck. During the time defendant was gone, Estrella made no attempt to check on her car, because she trusted defendant. When defendant returned the keys, he rang her doorbell, handed them to her, and left. She saw him get into the same red pickup truck. When the police arrived at her house, she told them she had no idea the Taurus was gone. She thought it had been there the entire time. When she walked outside with the police, the Taurus was there.

On cross-examination, Estrella identified a photograph of defendant's friend, Joseph Martin, whom defendant would later testify was driving the car when the incident occurred. Estrella described Martin as "tall" and "thin, skinny." Martin had a "beard or a goatee and a little mustache," and when she had met him, he had long hair. Estrella told the jury that defendant and Martin did "not really" look alike.

After Estrella testified, the State rested. Defendant presented the testimony of Alan Bandics, who worked in the trial operations section of the Middlesex County Prosecutor's Office. Bandics testified that he had pulled Martin's records, which included a photograph. Martin's license was suspended. The records also revealed Martin's age, height, and weight. Martin died before defendant's trial began.

Defendant testified on his own behalf. He told the jury that on September 5, 2008, he went to Estrella's apartment because he was supposed to "do a side job" for a friend and needed his tools. The friend, Martin, drove him to Estrella's apartment. They were the same age. When they arrived at the apartment, defendant got the keys from Estrella, removed his tools from the Taurus, and went to a nearby parking lot with Martin, where he worked on Martin's pickup truck. Martin took the Taurus to get additional materials defendant needed to fix his truck. Martin was gone for approximately three hours.

Shortly after Martin returned, defendant finished the repairs and returned the Taurus keys to Estrella. Estrella told him that "her mother called and the police are concerned about the car." Defendant left with Martin. Defendant denied attempting to "flee, run, [or] resist arrest" when he was arrested three months later on December 12, 2008. He did, however, acknowledge that his license was suspended on September 5, 2008.

In rebuttal, the State called Sayreville Police Lieutenant Patrick Kiernan and also recalled Sergeant Casella. The Lieutenant testified that on August 7, 2008, he stopped the Taurus and issued two summonses to the driver, whom he identified as the defendant. Lieutenant Kiernan's testimony refuted defendant's testimony that he had driven the Taurus only on one occasion, in April 2008, when he drove Estrella home from the hospital after she gave birth to her child.

Sergeant Casella looked at the photograph of Martin, testified that he did not recognize Martin, and insisted that Martin was not the person driving the Taurus on September 5, 2008.

II.

Defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S WADE MOTION BECAUSE THE IDENTIFICATION PROCEDURE UTILIZED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE.

 

 

 

 

POINT II

 

THE STATE'S USE OF LIEUTENANT KIERNAN AS A REBUTTAL WITNESS TO PRESENT EVIDENCE ABOUT MOTOR VEHICLE SUMMONSES THAT WERE ALLEGEDLY ISSUED TO THE DEFENDANT APPROXIMATELY ONE MONTH EARLIER ON AUGUST 7, 2008, IN CONNECTION WITH A MOTOR VEHICLE STOP, WAS IRRELEVANT TO THE ISSUE OF WHETHER OR NOT THE DEFENDANT ELUDED THE POLICE ON SEPTEMBER 5, 2008 AND SHOULD NOT HAVE BEEN ADMISSIBLE DURING TRIAL, THEREFORE REQUIRING REVERSAL OF DEFENDANT'S CONVICTION.

 

A. REBUTTAL TESTIMONY ABOUT THE PRIOR MOTOR VEHICLE STOP ON AUGUST 7, 2008 SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 404(b) AND N.J.R.E. 403 BECAUSE THE EVIDENCE WAS NOT RELEVANT, WAS UNDULY PREJUDICIAL, AND MAY HAVE DISTRACTED THE JURY FROM THE ULTIMATE ISSUE ON THE CASE, RESULTING IN THE DEFENDANT'S CONVICTION.

 

B. LIEUTENANT KIERNAN'S REBUTTAL TESTIMONY SHOULD HAVE BEEN EXCLUDED FROM TRIAL BECAUSE THE STATE FAILED TO PROVIDE DEFENSE COUNSEL WITH DISCOVERY.

 

C. LIEUTENANT KIERNAN'S REBUTTAL TESTIMONY SHOULD HAVE BEEN BARRED BECAUSE THIS EVIDENCE COULD HAVE BEEN INTRODUCED AS PART OF THE STATE'S CASE IN CHIEF.

 

D. EVEN IF EVIDENCE ABOUT THE PRIOR AUGUST 7, 2008 MOTOR VEHICLE STOP WAS ADMISSIBLE, THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE NO LIMITING INSTRUCTION WAS PROVIDED BY THE TRIAL COURT AT THE TIME THAT THE TESTIMONY WAS HEARD OR DURING THE JURY CHARGE INSTRUCTING THE JURORS ON THE SPECIFIC LIMITED PURPOSE FOR WHICH THE EVIDENCE COULD BE CONSIDERED. (partially raised below).

 

POINT III

 

BECAUSE THE TRIAL COURT DENIED DEFENSE COUNSEL'S REQUEST TO CHARGE THE JURY WITH HABIT EVIDENCE, THE DEFENDANT WAS DENIED A FAIR TRIAL.

 

POINT IV

 

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY [ON] FLIGHT, THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THE STATE'S THEORY THAT THE DEFENDANT FLED AFTER THE ELUDING OFFENSE.

 

POINT V

 

SERGEANT CASELLA'S TESTIMONY ABOUT HIS CONVERSATION WITH THE POLICE DISPATCHER IN WHICH HE WAS ADVISED THAT THE OWNER OF THE FORD TAURUS SAID TO AN UNIDENTIFIED POLICE OFFICIAL IN BRIDGEWATER THAT HER DAUGHTER HAD POSSESSION OF THE CAR AND IF A MALE WAS DRIVING IT THAT WOULD BE THE DEFENDANT WAS INADMISSIBLE DOUBLE HEARSAY THAT WAS TESTIMONIAL IN NATURE AND SHOULD HAVE BEEN EXCLUDED FROM TRIAL AND ITS INCLUSION VIOALATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM. (not raised below).

 

POINT VI

 

THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL, OR, IN THE ALTERNATIVE, A NEW TRIAL.

 

POINT VII

 

THE SENTENCE IMPOSED WAS EXCESSIVE.

 

POINT VIII

 

REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE WADE HEARING, TRIAL AND SENTENCING.

 

A.

 

We agree with defendant's argument in Point V that Sergeant Casella's testimony concerning the Sayreville dispatcher's information that the Taurus's owner told someone in Bridgewater that if a male was driving a car it was defendant, violated defendant's Sixth Amendment right to confront his accusers and requires that his conviction be reversed.

The Sixth Amendment's Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" More than forty years ago, our Supreme Court addressed the issue of an accused's right to confront witnesses in the context of police officers testifying at trial about why they took certain action during an investigation. The Court explained that the hearsay rule is not violated when a police officer testifies during a criminal prosecution that he took certain action based "'upon information received.'" State v. Bankston, 63 N.J.263, 268-69 (1973) (quoting McCormick on Evidence 248, p. 587 (2d ed. 1972)). "However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule . . . [and] the accused's Sixth Amendment right to be confronted by witnesses against him." Ibid. That is precisely what happened here.

The State asserts that it elicited the testimony not for the truth of the statement made by the Taurus's owner, but rather to explain "the officer's viewing of defendant's photograph on file with the Division of Motor Vehicles." That argument overlooks the Supreme Court's holding in State v. Branch, 182 N.J. 338, 352 (2005), "disapprov[ing] of a police officer testifying that he placed a defendant's picture in a photographic array 'upon information received.'"

The Court explained in Branch that "[e]ven such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source." Ibid. The Court further explained that "[i]n contexts other than a photographic identification, the phrase 'based on information received' may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." Ibid.

The State also argues that because defendant did not object to Sergeant Casella's testimony, defendant's argument must be evaluated under a plain error standard, and Sergeant Casella's testimony did not amount to plain error. We agree that the plain error standard applies but disagree with the State's position that Sergeant Casella's testimony did not amount to plain error.

When a party argues for the first time on appeal that the admission of prejudicial evidence to which that party did not object at trial requires a retrial, we review the argument under the plain error standard. R. 2:10-2. Under this standard of review, we disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011). Such is the case here.

Obviously the State had to prove that defendant was the eluding driver to convict him beyond a reasonable doubt. The only direct evidence of that critical fact was Sergeant Casella's testimony. Sergeant Casella had observed the eluding driver for only a short period of time and had not given a detailed description of the eluding driver either during the chase or in his report.1

The Taurus owner's out-of-court assertion, that if a male was driving the car it was defendant, corroborated Sergeant Casella's identification of defendant. As we have said, Sergeant Casella's identification of defendant was the sole direct evidence that defendant was driving the car. Under those circumstances, the admission of the out-of-court statement was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also, Branch, supra, 182 N.J. at 353-54 (finding plain error in a close case where "the detective's damaging hearsay testimony that defendant was a suspect in the eyes of the police 'based on information received' may have tipped the scales"); State v. Dehart, 430 N.J. Super. 108, 110-12 (App. Div. 2013) (explaining that it was plain error for a detective to have testified that he selected the defendant's photograph to include in a photo array because a customer had provided defendant's name as the person who was involved in a robbery).

We also reject the State's argument that defendant did not object to Sergeant Casella's testimony because the testimony supported his defense that the Sergeant "rushed to judgment." Although defendant did argue in his closing argument that "this case is about a rush to judgment," he appeared to base the argument primarily on Sergeant Casella's obtaining and observing defendant's photograph and other information from motor vehicle records. The State's supposition about defendant's motive for failing to object to such damaging, incompetent evidence is speculative.

B.

Although we have reversed defendant's conviction, we address some additional issues defendant raises that may recur at defendant's retrial. First, we disagree with defendant that the trial court should have granted his motion to suppress Sergeant Casella's out-of-court identification. Rather, we agree with the trial court that nothing about Sergeant Casella's investigative procedures was so highly suggestive so as to taint the reliability of his identification of defendant. Stated differently, this was not one of those "rare cases . . . [in which] highly suggestive procedures that so taint the reliability of a witness' identification testimony will bar that evidence altogether." State v. Chen, 208 N.J. 307, 328 (2011). The jury must "determine how reliable that evidence is, with the benefit of cross-examination and appropriate jury instructions." Ibid.

Next, we agree with defendant that the court should not have instructed the jury on flight. An instruction on flight "is appropriate when there are 'circumstances present and unexplained which . . . reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Latney, 415 N.J. Super. 169, 175-76 (App. Div. 2010) (alteration in original) (quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). A court must bear in mind, however, that "[t]he potential for prejudice to the defendant and the marginal probative value of evidence of flight or escape mandate careful consideration of the nature of the evidence to be admitted and the manner in which it is presented." Mann, supra, 132 N.J. at 420. Where the inference is attenuated, evidence relevant only to flight should not be introduced. See id. at 419-20.

Here, the State contends the jury instruction on flight was appropriate because defendant was not at Estrella's residence when the police arrived after learning that she was using her mother's Taurus. The State reasons that the jury could have inferred defendant "left because he did not want to be there when the police came and inquired about the incident, especially since he knew he had a suspended license." But there were no "'circumstances present and unexplained which . . . reasonably justif[ied] an inference that . . . [defendant left] with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" Latney, supra, 415 N.J. Super. at 175-76 (first alteration in original) (quoting Mann, supra, 132 N.J. at 418-19). He did not live with Estrella and the State presented no evidence that they attempted to locate him later that day or at any time before he was indicted.

To the contrary, Sergeant Casella testified on cross-examination that even though he had become aware of defendant's address from defendant's driving history, he never contacted any police officers to attempt to locate defendant at that address. Given those circumstances, any inference that defendant "fled" from Estrella's residence due to consciousness of guilt was so attenuated that the court should not have instructed the jury on flight. Absent new evidence, the court should not instruct the jury on flight when the case is retried.

Defendant's remaining contentions concerning trial errors are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The court did not err by permitting the State to rebut defendant's testimony that he had only driven the Taurus on one occasion; or by refusing to instruct the jury on custom and habit with respect to defendant paying fines for motor vehicle violations, as defendant had requested. Nor did the court err by denying defendant's motion for a new trial.

In view of our decision reversing defendant's convictions, we need not address his contention that his sentence is excessive.

Reversed and remanded for a new trial.

1 Although the Sergeant did not say at trial how long he had observed the driver, he testified at the Wade hearing that it was only "[s]everal seconds."