STATE OF NEW JERSEY v. EDWIN MCGOLDRICK

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5585-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDWIN MCGOLDRICK,

     Defendant-Appellant.
__________________________

                   Submitted October 31, 2019 – Decided January 15, 2020

                   Before Judges Nugent and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 17-03-
                   0178.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alicia J. Hubbard, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Charles A. Fiore, Gloucester County Prosecutor,
                   attorney for respondent (Jonathan I. Amira, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      In a single-count indictment, a grand jury charged defendant, Edwin

McGoldrick, with violating  N.J.S.A. 2C:40-26(b), the fourth-degree crime of

driving while one's license is suspended for a second or subsequent driving-

while-intoxicated (DWI) or refusal-to-submit-to-a-chemical-breath-test offense.

A petit jury found defendant guilty as charged, following which the trial judge

tried and convicted defendant of several related motor vehicle offenses,

including DWI,  N.J.S.A. 39:4-50.

      For defendant's fourth-degree crime, the judge sentenced him to serve 365

days in jail, with 180 days of parole ineligibility. For the DWI, the judge

sentenced defendant to a consecutive 180-day jail term.        The judge also

suspended defendant's driving privileges for ten years, ordered him to spend

forty-eight hours in an intoxicated driver resource center, and imposed

appropriate fines, penalties, and surcharges.

      On appeal, defendant makes one argument:

            THE TRIAL COURT ERRED IN ADMITTING A
            HEARSAY STATEMENT THAT THE ORIGINAL
            CALL TO THE SCENE WAS FOR AN
            INTOXICATED DRIVER INVOLVED IN A CRASH.
            THAT TESTIMONY WAS IRREL[E]VANT AND/OR
            HIGHLY     PREJUDICIAL     AND      IMPROPER
            HEARSAY TESTIMONY. U.S. CONST. AMENDS.
            V, VI, AND XIV; N.J. CONST. ART. I, PAR. 9, 10.
            U.S. CONST. AMENDS. V, VI, AND XIV; N.J.
            CONST. ART. I, PAR. 9,10.

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We agree the trial court erred by admitting unduly prejudicial hearsay evidence

and thus reverse.

      On the morning the trial started, before jury selection, counsel and the

court discussed the assistant prosecutor's intention to elicit from the arresting

officer testimony that defendant had an odor of alcohol on his breath. In view

of stipulations that narrowed the factual disputes to one, namely, whether

defendant was driving, the court precluded the prosecutor from doing so. The

court and counsel agreed the assistant prosecutor would "lead" the officer

through his testimony about approaching defendant. According to the court,

leading the officer through testimony and avoiding a reference to alcohol would

be "cleaner."

      During trial of the indictable offense, the State presented one witness,

Washington Township Police Officer Ryan Kelly. Defendant also presented one

witness, his wife. The parties stipulated that on September 5, 2016, "defendant's

New Jersey driver's license was suspended . . . and/or revoked for a second or

subsequent violation of driving while intoxicated or refusal to submit to a

chemical breath test and . . . defendant knew his license was suspended or

revoked."




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      Officer Kelly, a patrolman when he arrested defendant, now a detective,

testified that while on patrol at approximately 9:00 p.m. on September 5, 2016,

he was dispatched to an accident scene. Specifically, he said:

            I was dispatched to a crash. An off-duty officer was
            there. I didn't get his name. I think he left before I got
            there. But the original call was there was an intoxicated
            male that was stuck off the road after he crashed his car.

      Defendant objected to this testimony.       The attorneys had a sidebar

discussion with the court. The record states, "[s]idebar discussion, not audible."

Following the sidebar discussion, the judge said and did nothing. The judge

gave no curative instruction following the sidebar conference, nor did he give a

curative instruction when he charged the jurors before they began to deliberate.

      Upon arrival at the accident scene, Kelly observed a single vehicle

"wedged up on the side of the road," its passenger-side tires flat and "ground

into the curb" or stuck. The driver's door was open. Defendant was "leaning

back into the corner of the open driver's door." No one else was present. Kelly

estimated that he had arrived within five minutes of receiving the dispatch.

      According to Kelly, he approached defendant, who said, "I just made a

wide left turn. Why are you making a big deal about this? I -- I just missed the

curb." After learning defendant had a suspended license, Kelly placed him under

arrest.

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      Defendant's wife testified she was the car's driver, not defendant. Earlier

that evening, her daughters had come to her house to wish her a happy birthday,

which was the next day. Because she had to work the following morning, she

did not drink that evening.

      During the evening, defendant, who was drinking, was unkind and

obnoxious, belittling her and calling her derogatory names. Around 8:00 p.m.,

defendant said he wanted cigarettes. His wife said she would get them, and she

headed for the Toyota Camry they jointly leased. Defendant followed her and

asked to come along, promising to "be good," and he sat in the passenger seat.

Not long after leaving their development, defendant began calling his wife

names. As he taunted her, she saw a skunk in the road, made a wide turn to

avoid it, and crashed into the curb. Furious with defendant and upset she had

wrecked the car, defendant's wife threw the car keys at him, told him to handle

the situation, ran "about two miles down the road," walked the rest of the way

to her home, and went to bed.

      The next day defendant told his wife he had been arrested. Because she

was angry and "wanted him to squirm for a while," she did not talk with police,

and waited until July 2017, roughly four months after defendant's indictment, to

tell her husband's investigator she was the driver. She claimed to have had a


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"change of heart" because she felt it was wrong to let her husband "get in trouble

for this."

      The jury disbelieved defendant's wife and found him guilty on the sole

count of the indictment. Defendant appealed.

      On appeal, defendant argues the trial court improperly permitted the jury

to consider Kelly's testimony about the content of the call that resulted in his

being dispatched to the accident scene. Defendant asserts the hearsay statement

from the unidentified caller was unduly prejudicial for several reasons. First,

the hearsay statement that the driver was intoxicated was not relevant to the

issue the jury was to decide, namely, whether defendant was driving. Next, the

hearsay statement established the one disputed issue in the case, operation, and

thus unfairly bolstered the State's case through a witness defendant could not

cross-examine. Defendant adds that the hearsay statement violated the court's

pretrial ruling prohibiting the State from introducing evidence of alcohol. Last,

the statement implied an unnamed off-duty police officer had information

defendant had been operating the crashed vehicle. Defendant contends the trial

court compounded the prejudice by not giving either a prompt curative

instruction or a curative instruction during its general charge to the jury.




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      In response, the State argues the testimony constituted "admissible

hearsay because although made by an unknown declarant, it simply described

why Officer Kelly responded to the scene, and only for that purpose." The State

also argues one can infer from the off-the-record sidebar following defendant's

objection that the court ruled the statement admissible. The State asserts the

trial court did not abuse its discretion in doing so. The State also asserts the

hearsay statement did not imply defendant was intoxicated. Although conceding

Officer Kelly's testimony "assisted in proving the defendant's guilt," the State

insists "independent evidence established credibility and reliability."

      Appellate review of a trial court's evidentiary determinations is limited to

examining such decisions for an abuse of discretion. Hisenaj v. Kuehner,  194 N.J. 6, 12 (2008). The reviewing court may not "create anew the record on

which the trial court's admissibility determination was based." Ibid. Generally,

a trial court's evidentiary determinations are given considerable latitude and will

not be disturbed unless the decision was so "wide of the mark that a manifest

denial of justice resulted." State v. Kuropchak,  221 N.J. 368, 385-86 (2015)

(quoting State v. Marrero,  148 N.J. 469, 484 (1997)). If the trial court has made

"a clear error in judgment" which constitutes an abuse of discretion, the




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appellate court "must then determine whether any error found is harmless or

requires reversal." State v. Prall,  231 N.J. 567, 580-81 (2018).

      Here, admission of the hearsay statement was erroneous and requires

reversal. The State concedes the statement of the unknown caller was hearsay.

"Hearsay is not admissible except as provided by [the New Jersey Rules of

Evidence] or by other law." N.J.R.E. 802. The hearsay exclusionary rule is

particularly important in a criminal case where the right of a criminal defendant

to confront witnesses is grounded in federal and state constitutional law. U.S.

Const. amend. VI; N.J. Const. art. I, ¶ 10. "The Confrontation Clause generally

prohibits the use of out-of-court testimonial statements by an absent witness who

has not been subject to cross-examination." State v. Roach,  219 N.J. 58, 85

(2014) (Albin, J., dissenting) (citing Crawford v. Washington,  541 U.S. 36, 51

(2004)).

      Thus, though "witnesses may testify that they took certain investigative

steps based 'upon information received[,]' . . . [t]hey cannot repeat specific

details about a crime relayed to them by a radio transmission or another person

without running afoul of the hearsay rule." State v. Luna,  193 N.J. 202, 217

(2007) (citing State v. Bankston,  63 N.J. 263, 268-69 (1973)). Moreover, an

officer "may not imply to the jury that he possesses superior knowledge, outside


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the record, that incriminates the defendant." State v. Branch,  182 N.J. 338, 351

(2005).   Such hearsay testimony will be disallowed "[w]hen the logical

implication to be drawn from the testimony leads the jury to believe that a non -

testifying witness has given the police evidence of the accused's guilt."

Bankston,  63 N.J. at 271.

      Kelly's testimony concerning the unidentified caller's hearsay statement

violated these well-established prohibitions, so we must determine whether they

were harmless error. See Prall,  231 N.J. at 581. Under the harmless error

standard, "[t]he question is whether there is a reasonable possibility that the

[error] complained of might have contributed to the conviction."        State v.

Dennis,  185 N.J. 300, 302 (2005) (quoting Chapman v. California,  386 U.S. 18,

23-24 (1967)). Here, such a reasonable possibility exists.

      The hearsay statement defendant was intoxicated was prejudicial. The

trial court's pretrial ruling excluding the mention of alcohol on defendant's

breath demonstrated the court's opinion that any probative value associated with

defendant having consumed alcohol was substantially outweighed by the risk of

undue prejudice or other countervailing factors. See N.J.R.E. 403. Despite the

court's ruling and the assistant prosecutor's agreement not to elicit such




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testimony, the officer provided hearsay evidence not merely of alcohol on

defendant's breath, but of defendant's intoxication.

      Of greater significance, concerning the sole element at issue, operation,

the outcome of the trial turned on whether the jury believed Kelly or defendant's

wife. This turned out not to be an easy task for the jury, as the jurors requested

to have the testimony of each witness replayed in its entirety.

      Perhaps of greatest significance, the court provided no limiting

instruction. For that reason, even if, as the State suggests, the statement was

admissible for the limited purpose of demonstrating why the officer responded

to the accident scene, the jury did not know that and could have considered it

for the truth of its content. The content established the single disputed issue in

the case, whether defendant or his wife was operating the Camry.

      In short, the hearsay statement of the unidentified caller should not have

been admitted, was not harmless, and requires reversal. Hence, we reverse and

vacate the judgment of conviction in its entirety, defendant's conviction of the

motor vehicle offenses having been predicated in part upon the jury's verdict.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




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