Opinion
DOCKET NO. A-3047-09T2
10-14-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PABLO S. MACHADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Paula T. Dow, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-09-1414 and 07-10-1579.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
This case involves the robbery of a taxi driver. The critical factual dispute at trial was the identification of defendant, Pablo S. Machado, as one of the robbers. Although other issues are raised by defendant on appeal, the pivotal issue before us is whether the trial court improperly admitted proofs of the taxi company dispatcher's alleged observation of defendant's cell phone number on his caller ID display.
We conclude that the trial court erred in admitting the caller ID proofs because they were founded upon multiple layers of inadmissible hearsay and thus should have been excluded under N.J.R.E. 805. We further conclude that the error was not harmless beyond a reasonable doubt and that defendant is consequently entitled to a new trial.
I.
The indictment charged defendant with second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:15-1 and 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a (count four); third-degree theft, N.J.S.A. 2C:20-3 (count five); and two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a and 2C:12-3b (counts six and seven).
The case was tried before a jury over five days in December 2008. The jury found defendant guilty of counts one, two, and six, as well as fourth-degree theft, N.J.S.A. 2C:20-3, a lesser- included offense of count five. The jury acquitted defendant of counts four and seven. Count three was dismissed on the prosecutor's motion.
The trial court sentenced defendant to a thirteen-year custodial term for the armed robbery in count two, subject to an eighty-five percent parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The court further imposed a concurrent seven-year sentence for the conspiracy offense in count one. Defendant also received a consecutive three-year sentence for violating probation.
The State's theory at trial was that defendant was one of several men who robbed the victim, Wilmer Cedillo, while he was working as a cab driver for the Acapulco Taxi Company. Defendant's counsel did not contest that Cedillo had been robbed, but instead argued that the State could not prove that his client was one of the robbers.
Cedillo, who is from Honduras, testified at trial through an interpreter. According to his account, at around 4:40 a.m. on April 24, 2007, he was dispatched to pick up customers at a certain address on Lee Avenue in New Brunswick. At the time, Cedillo was carrying about $500 in cash from previous customers. When Cedillo arrived at the Lee Avenue location, two men got into the cab. They asked to be driven to a location about one mile away.
Once the cab arrived at the requested destination, Cedillo asked them to pay the four-dollar fare. According to Cedillo, one of the passengers then pointed a gun at him, demanded money, and began striking him. Cedillo testified that about three other men, wearing masks, "came out from behind the cars" to participate in the robbery. The robbers took from Cedillo the estimated $500 in cash he possessed, a cell phone, a silver chain, and a work permit. They disconnected the CB radio in the taxi and then fled the scene. There were no third-party eyewitnesses.
After the robbery, Cedillo drove to the residence of his supervisor, Juan Perez, and he told Perez what had happened. According to Cedillo, Perez then spoke with the dispatcher on duty, who was known by the nickname "El Flaco," and told him about the robbery. Although Cedillo did not speak to the dispatcher himself at this time, he testified that the dispatcher gave Perez the ten-digit phone number of the caller who had requested the cab at Lee Avenue. As Cedillo understood the company's practices, when a call for a taxi came in, the dispatcher would see the requestor's number on a caller ID display. The dispatcher would then mark down the number in a log book that would be kept "for a week or two" and then "thrown away."
The dispatcher's actual name is not disclosed in the trial transcripts.
According to Cedillo, Perez gave him the taxi customer's phone number, which had been relayed to Perez from the dispatcher. Either Perez or Cedillo, or perhaps both of them, wrote the number down on a piece of paper. Perez directed Cedillo to report the robbery to the police and to give the police the caller's number.
Cedillo's testimony was murky on this point. On direct examination and at one point during his cross-examination, Cedillo suggested that he had written down the number himself. However, when he was asked during his cross-examination, "So Juan [Perez] wrote down the number, and he gave it to you,", Cedillo responded, "Yes. Yes. Yes."
On cross-examination, Cedillo claimed that he spoke with the dispatcher at an unspecified "later" time and confirmed the phone number. Cedillo did not indicate how the dispatcher confirmed the number, or, specifically, whether the dispatcher consulted his log book again when allegedly verifying the number's accuracy.
In accordance with his supervisor's instructions, Cedillo walked to a New Brunswick police station. He reported the robbery in Spanish to Patrolman Edward Bobadilla, who speaks some Spanish. According to Officer Bobadilla's trial testimony, Cedillo described both perpetrators in the cab as being about Cedillo's own height, i.e., five feet, eight inches tall, and in their early twenties. Cedillo stated that one wore a white sweater and the other wore a black sweater. Cedillo also told Bobadilla that he recognized one of the robbers from before. In addition, Cedillo gave Bobadilla the telephone number he had obtained for the caller who had requested the cab.
Defendant's height is five feet, four inches.
After Detective John Selesky received Officer Bobadilla's initial investigation report, he ran the phone number that Cedillo had provided through the police department's in-house computer system. The results initially came back negative. At that point, Detective Selesky subpoenaed the calling records for the telephone number from the phone company. The phone account was a "pay per" account, in which a cell phone is purchased and a specified number of minutes is included in the price.
Apparently, given the nature of the "pay per" account, the phone did not identify outgoing calls from defendant's cell phone. No telephone records were offered into evidence by the State.
About three months later, Detective Selesky received certain records back from the phone company, and he then re-ran the phone number through the department's in-house computer system. This time the number came back associated with defendant, based on information that defendant had provided to the police on a separate occasion.
Having made this connection to defendant's account, Detective Selesky arranged a photographic array to see if Cedillo would identify defendant as one of the robbers. The array was administered in July 2007 by Officer Sergio Matias, who was otherwise unconnected to the case and who spoke Spanish. This was the first time ever that Officer Matias conducted a photographic array, and he made several mistakes. For instance, Matias left the room before having Cedillo sign the back of the photograph that he had selected. In addition, the instruction sheet given to Cedillo was in English rather than Spanish because the Spanish version of the form could not be located. In any event, Cedillo identified defendant from the photographic array, and defendant was arrested the following day.
At trial, Cedillo, Officer Matias, and Detective Selesky testified on behalf of the State. Cedillo's supervisor Perez did not testify, nor did "El Flaco," the dispatcher. The defense called Officer Bobadilla, in order to point out inconsistencies in Cedillo's narrative of events and his identification of his attackers. Defendant did not testify.
During the course of his testimony, Cedillo identified defendant in the courtroom as one of the men who had robbed him. Even so, there were several aspects of Cedillo's testimony that undermined his identification. For example, Cedillo stated that he could not describe what defendant looked like on the night of the robbery and that the principal robber was Puerto Rican. He denied ever having seen defendant before the robbery, despite having told Bobadilla on the night of the crime that he recognized one of the passengers who had robbed him. Cedillo also vacillated on whether one of the robbers had sat next to him during the cab ride.
Defendant is Honduran, not Puerto Rican.
Most importantly for purposes of this appeal, defendant's trial attorney objected to Cedillo's testimony concerning the caller ID information, arguing that the testimony was based upon inadmissible hearsay. Defendant further argued that the admission of those proofs, without having the opportunity to cross-examine at trial either the dispatcher or Perez, violated his constitutional rights under the Confrontation Clause.
The trial judge overruled defendant's objection to the caller ID proofs. In her bench ruling, the judge agreed with defendant that the proofs in question were hearsay because they comprised out-of-court statements offered for their truth. However, the judge accepted the prosecutor's argument that the dispatcher's statement of the number was an admissible present sense impression under N.J.R.E. 803(c)(1). The judge added that the hearsay was, in her view, "inherently reliable." The judge also rejected defendant's claim of an unconstitutional denial of confrontation, concluding that the statements at issue were not "testimonial." Consequently, the caller ID proofs were admitted into evidence over defendant's objection.
In his closing argument, the prosecutor stressed the match between the phone number assigned to defendant and the caller ID information supposedly provided by the dispatcher. The prosecution argued to the jurors that the match of the numbers was "the crux of the case." The prosecutor also suggested that it was mathematically improbable — with the odds being "in the millions" — that the numbers would match unless defendant was, in fact, one of the robbers.
After hearing a readback of Officer Bobadilla's testimony, the jury rendered its verdict on the second day of deliberations. Eight months later, defendant was sentenced to the custodial terms previously described, and this appeal followed.
II.
Defendant raises the following points for our consideration:
POINT IWe focus our discussion on the evidentiary issues concerning the caller ID hearsay, as they prove to be dispositive of the appeal.
IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY. (Not Raised Below)
POINT II
THE ADMISSION OF A STATEMENT FROM A NON-TESTIFYING WITNESS VIOLATED THE RULE AGAINST HEARSAY AS WELL AS THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AS INTERPRETED IN CRAWFORD V. WASHINGTON.
A. The Hearsay Violation.
B. The Confrontation Clause Violation.
POINT III
THE AGGREGATE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE, AND MERGER SHOULD HAVE BEEN ORDERED.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "Hearsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802. When there are multiple layers of hearsay, every layer must satisfy a hearsay exception in order for the statement to be admissible. N.J.R.E. 805. Because there were multiple layers of hearsay in this case and not all of the layers satisfied an exception, the caller ID evidence was admitted in error.
In the present case, the caller ID proofs, as presented through the testimony of Cedillo, were inadmissible hearsay. There are clearly multiple out-of-court statements involved here, specifically: (1) the dispatcher's entry of the displayed number in his log book; (2) the dispatcher's oral statement to Perez, after apparently consulting the log book and refreshing his recollection; and (3) Perez's oral statement to Cedillo conveying the number.
The trial judge admitted the caller ID proofs largely upon the premise that the proofs satisfied the hearsay exception for present sense impressions under N.J.R.E. 803(c)(1). Significantly, the State does not adopt that reasoning in its brief on appeal. Instead, the State argues that the caller ID display itself is not a statement of a person being offered for its truth and thus is not hearsay under the definition in N.J.R.E. 801.
In making this argument, the State points to several cases from other jurisdictions discussing the admission of phone numbers presented on caller ID displays. Those cases generally hold that the contents of the caller ID displays are not hearsay because they are not "statements" generated by a person, and, thus, there is no out-of-court declarant whose credibility can be questioned. See, e.g., Tatum v. Commonwealth, 440 S.E.2d 133, 135 (Va. Ct. App. 1994); Bowe v. State, 785 So. 2d 531, 532 (Fla. Dist. Ct. App. 2001) (holding that caller ID displays and pager readouts are not hearsay because they are not statements generated by a person); Inglett v. State, 521 S.E.2d 241, 245 (Ga. Ct. App. 1999) (holding that computer-generated data automatically appearing on a phone screen are not hearsay because they are "not [] out-of-court statements by any person or the conclusion of a third party not before the court" (quoting Caldwell v. State, 495 S.E.2d 308, 310 (Ga. Ct. App. 1997))), certif. denied, 2000 Ga. LEXIS 39 (2000).
Consistent with these reported cases, we agree that caller ID displays do not constitute hearsay statements by a human declarant. However, even though the State is right that a caller ID display is not a "statement," that glosses over the fact that, in this case, the taxi dispatcher who observed the display did not testify, nor did the victim's supervisor who obtained the number from the dispatcher.
The caller ID cases on which the State mainly relies, as well as other similar cases that reached the same conclusion, are distinguishable from the scenario before us in at least one crucial aspect: in those cases, the recipient of the phone call was the one who observed the caller ID display and who testified at trial as to what he or she observed on the display.
In Bowe v. State, for example, a detective set up a drug deal with defendant, through a confidential informant who contacted the defendant using a special line set up at the Sheriff's Office. Bowe, supra, 785 So. 2d at 531. The detective testified at trial that the name that appeared on the caller ID connected to the phone line in the Sheriff's Office was that of the defendant. Id. at 532. Similarly, in State v. Schuette, 44 P.3d 459, 594 (Kan. 2002), both the recipient of a phone call and his fiancée, who was also present at the time the call was received, testified as to the phone number that appeared on the caller ID display. See also Inglett, supra, 521 S.E.2d at 245 (in which a police officer observed the caller ID display on a phone that rang while he was executing a search warrant and later testified at trial as to the contents of that display); Tatum, supra, 440 S.E.2d at 135 (in which a victim's father received a phone call from defendant's home, noted the number displayed on his caller ID device, and then testified as to that phone number); Culbreath v. State, 667 So. 2d 156, 162 (Ala. Crim. App. 1995) (in which the defendant's ex-wife activated her phone's caller ID function after receiving several harassing calls and in her trial testimony identified the phone number displayed for the subsequent harassing calls).
In this case, "El Flaco," the dispatcher who allegedly observed the caller ID display, could not be located for trial, and he did not testify. The phone number came into evidence exclusively through Cedillo's testimony. Because Cedillo himself did not obtain the phone number directly from the caller ID display, there are several layers of out-of-court communications, each raising its own separate hearsay issue. As we have already noted, those multiple communications include: (1) the dispatcher's entry in his log book, (2) the dispatcher's oral statement communicating the phone number to Perez, and (3) Perez's communication of the phone number to Cedillo.
At best, only the dispatcher's recording in the log book of the number that he had seen on the caller ID display could surmount the hearsay rules. In this limited respect, we agree with the trial judge that this act could be considered a present sense impression because the dispatcher apparently wrote down the phone number as he viewed the caller ID display, without having an opportunity to fabricate or deliberate. A present sense impression is "a statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). In interpreting "immediately after," the New Jersey Supreme Court has recognized that a delay of mere minutes between the occurrence of the event and a recounting of the event could take a statement out of the realm of the present sense impression exception. State ex rel. J.A., 195 N.J. 324, 339-40 (2008). In State ex rel. J.A., for example, a delay of ten minutes between a robbery and a non-testifying witness's account of that robbery did not fall within the "immediately after" requirement of the present sense impression exception. Id. at 340. In the present case, the dispatcher's contemporaneous notation of the incoming number displayed on the caller ID could have been admitted as a present sense impression.
Although it was not offered into evidence at trial, the log book itself also could have qualified as admissible hearsay. According to Cedillo's testimony, the dispatcher customarily writes down the customer's phone number for each fare and maintains those numbers in the temporary log book kept by the company. Had the log book been preserved and offered into evidence at trial, it would likely come in as a business record under N.J.R.E. 803(c)(6), as:
[A] statement contained in a writing or other record of acts, events [or] conditions . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other
record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
[N.J.R.E. 803(c)(6).]
According to Cedillo's testimony, it was a regular practice for the taxi cab company to maintain such records. However, the log book was not offered as evidence. Cedillo testified that the log books are generally destroyed every two weeks, and apparently the log book was inexplicably not retained in this case, despite the reported robbery.
The critical failures in the remaining links of the hearsay chain are the dispatcher's alleged communication of the telephone number to the supervisor, Perez and Perez's communication of the number to Cedillo. Both of those communications were plainly offered for their truth. See N.J.R.E. 802. The statements do not fit any hearsay exception, and the State does not posit any applicable exceptions for them in its brief. It was fundamentally erroneous to admit that hearsay against this criminal defendant without offering his attorney a chance to cross-examine both the dispatcher and Perez.
Notably, our State has rejected the adoption of a "catchall" or "residual" hearsay exception analogous to Federal Rule of Evidence 807. The federal provision allows the admission of hearsay statements that do not meet any of the enumerated hearsay exceptions, provided that the statements have other "equivalent circumstantial guarantees of trustworthiness" and satisfy certain other criteria. See Fed. R. Evid. 807 (formerly codified at Fed. R. Evid. 803(24) and Fed. R. Evid. 804(b)(5) and then consolidated into Fed. R. Evid. 807). In 1991, the Supreme Court Committee on Evidence opposed the adoption of a comparable rule in New Jersey, noting that the federal catchall is controversial and that it "would represent a radical departure from New Jersey practice." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(24) [Not Adopted] (2001). The Supreme Court accepted the Committee's recommendation, and our State's evidence rules thus continue to lack a residual exception founded upon a hearsay statement's inherent or perceived reliability. See State v. Brown, 170 N.J. 138, 152-53 (2001); State v. Bunyan, 154 N.J. 261, 268 (1998).
Consequently, the trial judge's reliance upon generic reliability principles in admitting the caller ID hearsay statements in this case was misplaced. Regardless of reliability, it was vital for the hearsay statements to meet enumerated exceptions in the New Jersey Rules of Evidence, and they did not. For that matter, we question the trial court's assumption that the dispatcher's spoken words transmitting the caller's number to Perez and Perez's own communication to Cedillo were necessarily reliable or accurate.
Although it is unnecessary for us to resolve the constitutional issues presented here under the Confrontation Clause, we do note that the United States Supreme Court, in its most recent cases on the subject, has rejected the notion that "reliable" testimonial hearsay can be admitted against a criminal defendant without cross-examination. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194-95 (2004) (repudiating the former reliability-based constitutional tests for admission, as expressed in Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 608 (1980)); see also Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705, 2713-14, 180 L. Ed. 2d 610, 619-20 (2011).
The error here in admitting the hearsay statements concerning the caller ID number was compounded by the trial court's denial of defense counsel's request for a limiting instruction with respect to that evidence. The judge's denial was based on her impression that Perez had written down the phone number in Cedillo's presence and her belief in Cedillo's claim that he had confirmed the phone number with the dispatcher on a later occasion. These are also matters of reliability, which have no impact on the hearsay analysis under New Jersey law. The proof should not have been presented to the jury in the first place, and the omission of a limiting instruction to constrain its evidential use increased the prejudice to defendant.
In light of our conclusion that the proofs were inadmissible under N.J.R.E. 805 and other hearsay principles, there is no need for us to reach the constitutional issue of whether the out-of-court caller ID display statements were "testimonial" under Crawford, supra, and its progeny applying the Confrontation Clause. See State v. Saunders, 75 N.J. 200, 229 (1977) (disfavoring courts from reaching constitutional grounds for a decision when it is unnecessary to do so).
The admission of the caller ID proofs over defendant's objection was unquestionably harmful error. An error is harmful if there is reasonable doubt that the error contributed to the verdict. State v. Macon, 57 N.J. 325, 338 (1971); State v. Slobodian, 57 N.J. 18, 23 (1970), certif. denied, 62 N.J. 77 (1972). The phone number culled from the caller ID display played a crucial role in linking defendant to the robbery, and that linkage was a significant consideration for the jury. Indeed, Detective Selesky stated that the phone number was the only piece of information in the police investigation report that led him to identify defendant by name. It was not until the match between the phone number and defendant was made that Selesky was able to proceed with the photo array, which led to Cedillo's positive identification.
As the detective acknowledged, without the phone number providing a nexus to the robbers, "we didn't know anything about who did it."
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Furthermore, as we have already noted, the prosecutor emphasized the importance of the caller ID number in his summation, describing it as the "crux of the case," and as providing "corroboration, that level of certainty, to support the identification."
We are also mindful that the trial testimony raised significant questions about the reliability of Cedillo's identification of defendant. There were multiple inconsistencies between Cedillo's account at trial and the version that Cedillo had provided to Officer Bobadilla, as to several details bearing upon identification. For example, there were discrepancies in Cedillo's statements as to whether defendant was sitting in the front passenger seat or the back seat, what clothing defendant was wearing, and whether Cedillo had recognized defendant from a past encounter. These discrepancies add to the harmfulness of the error in admitting the caller ID proofs.
Finally, we find it significant that during its deliberations, the jury specifically asked if they could review Detective Selesky's testimony about the phone company's report. This request further underscores the pivotal nature of the proofs concerning the telephone number.
For these many reasons, we conclude that there is a reasonable likelihood that the caller ID evidence played an important role in the jury's verdict and that the error in admitting that proof was sufficiently harmful to require a new trial.
Having determined that a new trial must be ordered because of these multiple violations of the hearsay rules, we need not provide a detailed analysis of the other issues defendant has raised on appeal. We simply note in passing that, on a retrial, we agree with defendant that a jury charge on accomplice liability should be issued, consistent with State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993), particularly in light of defendant's acquittal of the weapons offense in the first trial and the possibility that the other cab passenger was the one who wielded the gun. We also note that defendant's claims of an excessive and improper sentence are unpersuasive, except for the necessary merger of the convictions for conspiracy and armed robbery, as agreed to in the State's brief. See State v. Bieniek, 200 N.J. 601, 612 (2010) (emphasizing the high degree of deference that must be accorded to trial courts on sentencing issues).
Reversed and remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION