State v. Kingkamau Nantambu , 221 N.J. 390 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Kingkamau Nantambu (A-97-13) (073589)
Argued February 2, 2015 -- Decided April 29, 2015
SOLOMON, J., writing for a unanimous Court.
In this interlocutory appeal, the Court addressed the admissibility of a recorded conversation where a
portion of the conversation was inadvertently omitted from the recording.
Atlantic City police responded to reports of a domestic disturbance between defendant Kingkamau
Nantambu and his girlfriend, Crystal Aikens. Aikens told police that defendant had threatened her with a gun. After
police located a hidden handgun in defendant’s apartment, defendant was charged with fourth-degree possession of
a defaced firearm and second-degree possession of a weapon by a convicted person.
Subsequently, Aikens called the Atlantic County Prosecutor’s Office alleging that defendant had engaged
in witness tampering. She agreed to call defendant on her cell phone and allow Detectives Ted DeSantis and Rich
Johannessen to record the conversation. Johannessen attached two earpieces to a digital audio recorder so that the
device could record the conversation while the detectives listened in. Aikens also used the “speaker phone” function
so the detectives could hear without headphones. During the conversation, defendant asked Aikens if she had been
to the Prosecutor’s Office. She replied that she had stalled them, and asked defendant for the money he had
promised her. Defendant, agreeing that he had promised her money, advised Aikens as to what to say when she was
questioned. During a discussion about the gun, defendant insisted that “[n]obody seen the gun that day.” Aikens
disagreed, claiming that she saw defendant put the gun in a case. Immediately after that statement, a beeping sound
interrupted the conversation. According to Johannessen, Aikens had moved the phone, causing the recording device
to fall and the wires to disconnect. Johannessen picked up the recorder, removed and replaced its batteries, and
replaced the wires. By the time recording resumed, approximately two minutes had passed and Aikens and
defendant were concluding their conversation. Based on the conversation, charges of third-degree bribery of a
witness, third-degree witness tampering, and fourth-degree tampering with physical evidence were added to
defendant’s existing weapons charges.
The recording was offered as evidence demonstrating defendant’s intent to tamper with the State’s witness
and showing that defendant possessed the gun for which he was charged with unlawful possession. Defendant
moved to suppress the recording, asserting that the two-minute gap rendered it inadmissible. At the suppression
hearing, DeSantis explained that the detectives heard the unrecorded portion of the conversation, during which he
claimed nothing relevant was said. Although Johannessen stated that he only could hear Aikens’ side of the
discussion, he concurred that nothing was said relating to the recorded portion of the conversation.
The trial court, relying State v. Driver, 38 N.J. 255 (1962), granted defendant’s motion, finding that the
two-minute gap rendered the recording inadmissible as substantive evidence. The court determined that it was
irrelevant whether the deletion was intentional. Rather, it only mattered that the recording was interrupted following
a very damaging statement regarding defendant’s alleged possession of the gun. On reconsideration, the judge noted
that flawed recordings may be admitted, but fundamental fairness required exclusion of this recording because the
interruption occurred at a particularly crucial point.
The Appellate Division granted the State’s motion for leave to appeal, and reversed in an unpublished
decision. Since the detectives asserted that nothing important was said during the two-minute gap, the panel rejected
the trial court’s conclusion that the conversation was interrupted at a critical point. It concluded that the omitted
portion went to the weight and probative value of the evidence rather than its admissibility. The Court granted
defendant’s petition for certification. 217 N.J. 623 (2013).
HELD: When considering the admissibility of a recording containing a partial omission, the trial court must
employ a two-part analysis. First, the trial court must determine if the omission is unduly prejudicial, conducting an
objective analysis focused on the evidentiary purposes for which the recording is being offered. If the trial court, in
its discretion, finds the omission unduly prejudicial, it must then consider whether it renders all or only some of the
recording untrustworthy, and suppress only that portion deemed untrustworthy.
1. Relevant evidence is admissible under N.J.R.E. 402 unless “its probative value is substantially outweighed by the
risk of undue prejudice.” N.J.R.E. 403. Determinations on the admissibility of evidence are generally made outside
the presence of the jury in a Rule 104 hearing. A trial court’s evidentiary rulings are reviewed for abuse of
discretion, but no deference is accorded to the court’s legal conclusions. (pp. 13-14)
2. In State v. Driver, 38 N.J. 255 (1962), this Court set forth the standard for the admissibility of a recording in a
criminal trial, requiring analysis of whether: (1) the device could record the conversation or statement; (2) its
operation was competent; (3) the recording was authentic and correct; (4) no changes, deletions or additions were
made; and (5) any alleged confessions were elicited voluntarily. The second and fourth Driver factors are at issue
here. No prior case law exists in which this Court has defined what was meant by operator competence or parsed
the effect of an unintentional omission. Since determining whether the recording should have been excluded calls
for an application of the law to the facts, the Court reviews the trial court’s decision de novo. (pp. 14-16)
3. The second and fourth Driver factors are safeguards designed to ensure the trustworthiness of a recording. In
State v. Cusmano, 274 N.J. Super. 496 (App. Div. 1994), the Appellate Division examined the operator-competence
factor and concluded that trustworthiness is the polestar for the admissibility of a recording. Applying New Jersey
jurisprudence since Driver and federal decisional law considering the admissibility of incomplete recordings, the
panel held that determinations of operator competence must be viewed liberally. The Court agrees with this
conclusion, finding that courts should focus on the reliability of the recording rather than the actions or
qualifications of the operator. In light of technological advances since Driver, which have made recording devices
more reliable and easy to use, the operator competency factor no longer requires separate consideration. (pp. 16-18)
4. Turning to the fourth Driver factor, pursuant to the established standards governing the admissibility of
recordings, the Court finds no basis to conclude that the exclusion of a recording in its entirety is required merely
because an omission rendered a portion of the recording unduly prejudicial. Rather, in such circumstances a trial
court should conduct a Rule 104 hearing to determine whether the omission renders all or part of the recording
unreliable and inadmissible. The recording should be admitted to the extent that it contains competent and relevant
evidence, while the portion deemed unduly prejudicial should be redacted. (pp. 18-19)
5. Here, the Court finds no basis to disturb the trial court’s finding that the omission of defendants’ response to
Aikens’ accusatory statement was unduly prejudicial to defendant. Turning to the question of whether the defect
requires exclusion, the Court reiterates that this decision is entrusted to the trial court’s discretion, which must take
into account the evidential purpose served by the recording, including considering whether the recording is
probative of one or multiple theories of the case. Where, as here, the recording contains competent relevant
evidence relating to two distinguishable evidentiary purposes, the question becomes whether the recording must be
precluded in its entirety. Relying on N.J.R.E. 105 and the Appellate Division’s persuasive reasoning in State v.
Zicarelli, 122 N.J. Super. 225 (App. Div. 1973), the Court concludes that redaction is appropriate in such
circumstances. Here, although the omission renders a portion of the conversation unduly prejudicial with respect to
the weapons charge, nothing in the record suggests that the omission created a risk of undue prejudice with respect
to the bribery and witness-tampering charges. Thus, according appropriate deference to the trial court’s findings, the
Court holds that the recording was admissible up to and including the point at which defendant stated “[n]obody
seen the gun that day.” (pp. 19-25)
6. Where a recording contains a partial omission, trial courts must determine whether the omission is unduly
prejudicial and, if so, whether the omission renders all or only some of the recording inadmissible. Although the
Driver analysis remains relevant to these determinations, a recording’s shortcomings with respect to one factor do
not automatically necessitate exclusion of the entire recording. Rather, the court should consider the Driver factors
together, on a case-by-case basis, to determine whether and to what extent a recording contains competent relevant
evidence. (pp. 26-27)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-97 September Term 2013
073589
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KINGKAMAU NANTAMBU,
Defendant-Appellant.
Argued February 2, 2015 – Decided April 29, 2015
On certification to the Superior Court,
Appellate Division.
Joseph C. Liguori argued the cause for
appellant (Mazraani & Liguori, attorneys).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
In this interlocutory appeal, we address the admissibility
of a recorded conversation where a portion of the conversation
was inadvertently omitted from the recording. The recording in
question is a phone conversation between defendant Kingkamau
Nantambu and his girlfriend, Crystal Aikens. It was made during
a police investigation into allegations by Aikens that defendant
had engaged in witness tampering related to a prior indictment
for weapons offenses. The recording was interrupted when the
1
recording device fell to the ground, causing the wires to
disconnect and the device to shut off. Critically, the
recording stopped directly after Aikens stated that she had seen
defendant with the gun that formed the basis of the weapons
charges against him; defendant’s response, if any, was not
recorded.
The question presented is whether an inadvertent omission
that renders a portion of a recording unreliable requires
suppression of the entire recording. Having carefully reviewed
the evidentiary concerns animating our decision in State v.
Driver, 38 N.J. 255 (1962), and accounting for the technological
advances that have taken place over the past half century since
that decision, we take this opportunity to emphasize that
reliability is the decisive factor in determining the
admissibility of a recording. A review of Driver and its
progeny indicates that the decision whether to admit a recording
into evidence is a highly fact-sensitive analysis, requiring
consideration not only of any gaps or defects in the recording
but also the evidential purposes for which the recording is
being offered. Nothing in our review of case law or evidentiary
rules requires suppression of an entire recording when only part
of that recording has been omitted or is found unreliable.
Instead, the trial court should conduct an N.J.R.E. 104 hearing
to evaluate which portions of a recording are reliable, and
2
which portions must be redacted. The trial court should admit
the recording to the extent it is deemed reliable, redacting
only the portion of the recording deemed unreliable due to an
omission or defect. We therefore vacate the Appellate
Division’s order, which admitted the recording in its entirety,
and remand for further proceedings.
I.
The following facts are derived from the evidentiary
hearings held in response to defendant’s pretrial motions.
Atlantic City Police Detective David Smith responded to reports
of a domestic disturbance at defendant’s residence. Aikens
greeted Detective Smith outside defendant’s apartment and told
him that defendant had threatened her with a gun. Detective
Smith arrested defendant and transported him to the police
station.
En route to the police station, defendant consented to a
search of his apartment. Detective Smith returned to the
apartment and, after a brief search, found a handgun hidden
under a child’s bed. Defendant was subsequently charged with
fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-
3
3(d), and second-degree possession of a weapon by a convicted
person, N.J.S.A. 2C:39-7.1
After defendant filed an unsuccessful motion to suppress
the gun, Aikens left a voice mail with the Atlantic County
Prosecutor’s Office indicating that defendant had engaged in
witness tampering. The next day, Aikens met with Detectives Ted
DeSantis and Rich Johannessen at the Prosecutor’s Office. At
the detectives’ request, Aikens agreed to call defendant on her
cell phone and to allow the detectives to record the
conversation, a process commonly referred to as a “consensual
intercept.”2 To facilitate better cell phone reception and to
avoid background noise that might indicate to defendant that
Aikens was at the Prosecutor’s Office, the call was conducted in
the parking lot behind the Prosecutor’s Office.
Detective Johannessen attached two earpieces to a digital
audio recorder, which allowed the recording device to record the
conversation while the detectives simultaneously listened to the
1The indictment also charged defendant with possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-5(d). That charge was
omitted from the superseding indictment, discussed infra.
2 Consensual intercepts are governed by the New Jersey
Wiretapping and Electronic Surveillance Control Act, N.J.S.A.
2A:156A-1 to -34, which sets forth a variety of protocols. We
have held that the statute “demands strict adherence to its
protocols.” State v. K.W., 214 N.J. 499, 503 (2013). No
argument was raised regarding adherence to the statute’s
requirements.
4
conversation using headphones. The detectives also directed
Aikens to use the cell phone’s “speaker phone” function, which
allowed them to overhear the conversation without the
headphones.
During the conversation, defendant asked Aikens if she had
gone to the Prosecutor’s Office. Aikens replied that she had
“stalled” the Prosecutor’s Office by telling them she would
“come next week.” She and defendant then had the following
discussion:
[Aikens]: [Y]ou said yesterday you were
going to give me some money.
[Defendant]: What happen?
[Aikens]: You said yesterday you was going
to give me some money, [b]out when I come
from the Prosecutor’s office.
[Defendant]: I got you. . . . I told you
yesterday.
. . . .
[Aikens]: Am I going to have to go to trial
too? Cause they didn’t send me no subpoena
or nothing.
[Defendant]: Now another thing my lawyer
was saying, was . . . if you let the
prosecution know in advance that your
statement is going to be that it wasn’t his
gun I don’t know who[se] gun it was. Then
there’s nothing they can do as far as
charging anybody. You know what I am
saying?
[Aikens]: I did not tell them, I ain’t tell
them I put the gun nowhere.
5
After defendant assured Aikens that he would get her money,
Aikens stated that she was concerned that she might “get in
trouble,” and that she was “really stressed out” about the
situation. Defendant responded that he had spoken with his
lawyer, and that she would not “get in trouble . . . as long as
you don’t say [the gun is] yours.” The following exchange
ensued.
[Defendant]: 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 . . . .
[Aikens]: Why the hell would I say it was
mine?
[Defendant]: It’s just a h[y]pothetical. 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. . . . He said they can’t
charge you with perjury because you never
made an official statement.
. . . .
[Defendant]: You didn’t see the gun that
day.
[Aikens]: Huh?
. . . .
[Aikens]: You said I didn’t see it that day?
[Defendant]: Nobody seen the gun that day.
6
[Aikens]: Yes I did. I saw you putting it in
the case when we was arguing in the room. I
did. And Keisha heard us in there arguing.
Immediately after Aikens stated that she saw defendant with
the gun, a beeping sound interrupted the conversation.
Detective Johannessen asked whether the recorder’s battery had
died. Aikens indicated that she received an incoming call from
a friend, told her friend that she would call her back, and
resumed the conversation with defendant. However, according to
Detective Johannessen at that moment Aikens moved the phone and
“pulled the wires down,” causing the recording device to fall
and the wires to disconnect from the cell phone. Detective
Johannessen picked up the recorder, noticed that it appeared
“dead,” removed and replaced the battery, and replaced the wires
for the earpieces. By the time recording resumed, approximately
two minutes had passed and Aikens and defendant were concluding
their conversation.
Aikens also provided the detectives with text messages sent
by defendant to Aikens over a four-day period. In those text
messages, defendant asked, “Do you prefer the Wii or the cash?”;
and stated, “My lawyer said he’s going to call you in a bit, . .
. I really need you to help me out here.”
Based on defendant’s communications with Aikens, an
Atlantic County Grand Jury returned a superseding indictment
7
charging defendant with third-degree bribery of a witness,
N.J.S.A. 2C:28-5(d); third-degree witness tampering, N.J.S.A.
2C:28-5(a); and fourth-degree tampering with physical evidence,
N.J.S.A. 2C:28-6(1); in addition to the weapons offenses.
Defendant moved to suppress the recording, asserting among
other arguments that the two-minute gap rendered the recording
inadmissible. At the suppression hearing, the prosecutor argued
that the recording, considered together with defendant’s text
messages to Aikens, was relevant to show that defendant offered
Aikens either a video-game system or cash to change her
testimony. The assistant prosecutor also argued that defendant
admitted in the recorded conversation to possessing the gun that
formed the basis of the weapons charge against him.
The prosecutor then presented the testimony of Detectives
DeSantis and Johannessen. Detective DeSantis stated that he had
never conducted a consensual recording before, and that
Detective Johannessen handled the technical aspects of the
operation. Johannessen confirmed that he managed the recording,
including connecting the recorder to the phone and reconnecting
the device after it fell. Johannessen stated that he used the
recording device “somewhat frequently,” and that before using it
he “always check[s] it to make sure the battery[ is] fresh.
Usually I’ll play it safe and put a fresh battery in each time.”
Johannessen also stated that it took “approximately 15 or 20
8
seconds” to reconnect the device after it fell, and speculated
that the recording did not resume for another minute and forty
seconds because “the [digital audio] file wasn’t closed
properly.”
Detective DeSantis testified that, because the phone was
“on speaker the entire time,” he could hear both sides of the
conversation during the period the phone was disconnected from
the recorder, and that “[a]s far as anything pertaining to our
case, nothing was mentioned.” Detective Johannessen similarly
testified that, “to [his] recollection,” nothing was said in the
unrecorded portion of the conversation that related to the
recorded portion of the conversation. However, at variance with
DeSantis’s testimony, Johannessen stated that he was only able
to hear Aikens’ side of the conversation after the recorder fell
“because the cords were disconnected from the recorder.”
The motion judge considered the factors for admissibility
of a recording set forth in Driver, and determined that the two-
minute gap rendered the recording inadmissible as substantive
evidence and granted defendant’s motion. The judge determined
that it was irrelevant whether the deletion was intentional; it
mattered only that the recording was interrupted just after
Aikens made a “very damaging” statement regarding defendant’s
possession of the gun, depriving the listener of an opportunity
to hear defendant’s response. The judge added that although he
9
was not making a finding that the detectives were incompetent,
“[a] competent operator wouldn’t” have allowed the recorder to
fall.
At the hearing on the prosecutor’s motion for
reconsideration, the judge acknowledged that recordings may be
admitted even when there are gaps in the recording. He
nevertheless determined that the recording was inadmissible
because the recording stopped “at a particularly crucial point
of that conversation,” when Aikens stated that she saw defendant
with the gun.3 The judge affirmed his previous order, concluding
that the recording did not include “substantially all” of the
pertinent conversation and therefore is inadmissible as a matter
of “fundamental fairness.”
The Appellate Division granted the State’s motion for leave
to appeal, and reversed in an unpublished decision. The panel,
noting that the trial judge did not find the omission in the
recording was the result of intentional misconduct,
3 The judge was also concerned that admitting Aikens’ accusation
“with absolutely no response from [defendant]” would require
defendant to “give up his Fifth Amendment rights” because his
only opportunity to respond would be “to get on the stand and
say this is what I would have said.” Defendant does not raise
this argument and, given our resolution of this matter, we need
not address its applicability here. See In re Civil Commitment
of D.Y., 218 N.J. 359, 379 (2014) (“As a general principle, ‘we
strive to avoid reaching constitutional questions unless
required to do so.’” (quoting Comm. to Recall Menendez v. Wells,
204 N.J. 79, 95 (2010))).
10
characterized the question presented as “whether an inadvertent
failure to record one portion of a conversation justifies the
exclusion of the entire tape.” The panel, relying on State v.
Dye, 60 N.J. 518, 531, cert. denied, 409 U.S. 1090, 93 S. Ct.
699, 34 L. Ed. 2d 675 (1972), and State v. Cusmano, 274 N.J.
Super. 496 (App. Div. 1994), determined that the recording
should be admitted. The panel explained:
[T]he 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 the questions
concerning whether the recording is a
trustworthy record of statements actually
uttered during a conversation by the parties
to it.
Citing the detectives’ testimony that nothing important was
said during the unrecorded portion of the conversation, the
panel rejected the motion judge’s finding that the conversation
was cut off at a critical point. The panel concluded that the
omitted portion goes to the weight and probative value of the
evidence rather than its admissibility.
We granted defendant’s petition for certification. State
v. Nantambu, 217 N.J. 623 (2013).
II.
Defendant maintains that the recording should be suppressed
because two factors of the test set forth in Driver, supra, 38
N.J. at 287, were not met, namely: (1) the operators were not
11
competent, and (2) the recording contained omissions. He argues
that the detectives operating the recorder were not competent
because they chose to conduct the recording “outside in a non-
secure area.” That decision, defendant contends, led to an
interruption in the recording at “the most important aspect of
the conversation.”
Defendant asserts that the recording was interrupted at a
critical point in the conversation because the recording stopped
just after Aikens stated that she saw defendant with the gun on
the day of his arrest. Defendant argues that Aikens’ statement
was clearly designed to elicit an admission from him that the
gun was his, and that the omission of his response renders the
recording unduly prejudicial because it asks the jury to
speculate as to what, if any, reply he gave. Defendant further
notes that the omission relates to the most serious offense with
which he has been charged.
The State responds that the existence of an audible
recording alone establishes the competency of both the operators
and the recording device. The State argues that the
unintentional omission of a “small segment” of an eighteen-
minute conversation does not render the entire recording
inadmissible under Driver. The State echoes the appellate
panel’s conclusion that, unless the recording was rendered
untrustworthy by the omission, the recording should be deemed
12
admissible. The State adds that suppression of the entire
recording was an abuse of discretion because it deprived the
jury of the most reliable proof available.
Put succinctly, the issue before this Court is whether an
omission rendering only a portion of a recording untrustworthy
requires exclusion of the entire recording. Whether the
recording in this case is admissible requires this Court to
refine the meaning and application of two factors from the
Driver test: operator competency and omission from the recorded
conversation.
III.
We begin by acknowledging fundamental evidentiary
principles. “Once evidence is deemed relevant, it is
admissible, N.J.R.E. 402, unless ‘its probative value is
substantially outweighed by the risk of [] undue prejudice,’
N.J.R.E. 403, or some other bar to its admission is properly
interposed.” Brenman v. Demello, 191 N.J. 18, 34-35 (2007)
(alteration in original). This determination is generally made
outside the presence of the jury in a N.J.R.E. 104 hearing.
See, e.g., State v. Wakefield, 190 N.J. 397, 482 (2007), cert.
denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817(2008); State v. Collier, 316 N.J. Super. 181, 196 (App. Div.
1998), certif. denied, 158 N.J. 71 (1999). The trial judge has
broad discretion to exclude evidence as unduly prejudicial
13
pursuant to N.J.R.E. 403. See State v. Nelson, 173 N.J. 417,
470 (2002); State v. Swint, 328 N.J. Super. 236, 253 (App.
Div.), certif. denied, 165 N.J. 492 (2000).
“‘[A] trial court’s evidentiary rulings are entitled to
deference absent a showing of an abuse of discretion, i.e.,
there has been a clear error of judgment.’” State v. Harris,
209 N.J. 431, 439 (2012) (alteration in original) (quoting State
v. Brown, 170 N.J. 138, 147 (2000)). However, we accord no
deference to the trial court’s legal conclusions. See, e.g.,
State v. Mann, 203 N.J. 328, 337 (2010). Thus, we uphold the
facts found by the motion judge to the extent they are supported
by sufficient credible evidence in the record, but “apply the
law as [we] understand[] it” to those facts. Ibid.; State v.
Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145,
125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
IV.
A.
With these standards in mind, we briefly review the state
of the law on admissibility of incomplete recordings. This
Court in Driver, supra, set forth the standard for the
admissibility of a recording in a criminal trial:
[T]he speakers should be identified and it
should 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,
14
(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.
[38 N.J. at 287.]
In Driver, we considered the admission of a taped recording
of the defendant’s statement to the police that was so “garbled”
and “full of static and other foreign sounds” that “it was
unintelligible and inaudible for the most part.” Id. at 288.
Indeed, the trial judge acknowledged the recording was
inaudible, but admitted it nonetheless. Ibid. We noted that,
in most situations, an audio recording “may be an invaluable
aid,” and “may be more satisfactory and persuasive evidence than
[a] written and signed document.” Id. at 287. Thus, even a
flawed audio recording is “not inadmissible per se, so long as
its capacity to record accurately, and the other conditions
precedent [are] established.” Id. at 288. Nevertheless, the
audio recording in that case was so unintelligible that “[b]asic
fairness demanded its exclusion.” Ibid.Driver did not, however, elaborate on the two factors at
issue in this appeal -- factor two, relating to the operator’s
competence, and factor four, whether the recording contained
changes or deletions. Specifically, this Court has neither
defined what was meant by operator competence nor parsed the
effect of an unintentional omission or deletion.
15
B.
Both the motion judge and the Appellate Division understood
the standards governing the admission of an audio recording to
require an absolute conclusion: either the recording contains an
omission that is unduly prejudicial to defendant and therefore
the recording must be excluded in its entirety, or the omission
in the recording is not unduly prejudicial and must be admitted
in its entirety. As stated above, the motion judge determined
that the omission, though inadvertent, was unduly prejudicial
and ruled the recording inadmissible. The appellate panel, for
its part, disagreed that the omission was prejudicial and held
that the recording should have been admitted. As an application
of law to the facts, we review this determination de novo. See
State v. Brown, 216 N.J. 508, 545 (2014) (“When a case involves
mixed questions of law and fact, the Court provides deference to
the supported factual findings of the trial court, but reviews
de novo the application of legal principles to such factual
findings.”).
V.
The second and fourth Driver factors disputed here are
interrelated in that both are safeguards designed to ensure the
trustworthiness of the recording. The Appellate Division
examined the operator-competence factor in Cusmano, supra, and
concluded that trustworthiness is the polestar for the
16
admissibility of a recording. 274 N.J. Super. at 514-17. In
that case, the motion judge determined that a ninety-minute
recording of a taped conversation between the defendants and the
witnesses to the crime, in which defendants attempted to
persuade the witnesses not to testify, was inadmissible because
the operator of the recording device was not competent and the
recording contained omissions. Id. at 498-99. The panel,
looking to New Jersey jurisprudence since Driver and federal
decisional law considering the admissibility of incomplete
recordings, held that “[a] determination of operator competence
must be viewed liberally.” Id. at 499-502, 509-12.
The panel cited the Court of Appeals for the Eighth
Circuit, stating that “‘[t]he fact that [the operator]
successfully made the tape recordings [] satisfies the
competency requirement.’” Id. at 511 (second alteration in
original) (quoting United States v. Franklin, 747 F.2d 497, 498
(8th Cir. 1984)); see also United States v. Hughes, 658 F.2d 317(5th Cir. 1981) (holding because “the paramount purpose of the
inquiry is to insure the accuracy of the recording[,] . . . the
government’s failure to show the competency of either the
operator or the machine was overshadowed by the evidence which
demonstrated the reliability of the tapes.” (citation omitted)),
cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463(1982). Thus, the panel determined that the question was not
17
whether, as the motion judge found, the operators “approached
their responsibilities seriously” or “performed their task
haphazardly,” but whether they “produce[d] substantially audible
tape recordings of the telephone conversations with
insignificant omissions.” Cusmano, supra, 274 N.J. Super. at
513.
We agree with Cusmano and the federal cases interpreting
the operator-competency factor liberally, focusing on the
reliability of the recording rather than the actions or
qualifications of the operator.4 In light of technological
advances in the forty years since Driver, which have made
recording devices more compact, reliable, and easy to use, the
second Driver factor -- the operator’s competence -- no longer
requires separate consideration.
Also, as in Cusmano, this case is distinguishable from
Driver in that the momentary disruption in the recording did not
create a “continuous audibility problem [that] rendered the
4 In any event, unlike in Cusmano, the motion court here stopped
short of finding the interruption in the recording was the
result of operator incompetence. And properly so, as the record
indicates the recording was interrupted not because of a
technical mistake on the part of the operators but because
Aikens unexpectedly pulled the connecting wires taut, causing
the recorder to fall. Thus, even if the operators’ choices and
qualifications were valid considerations, we would reject
defendant’s suggestion that the detectives incompetently
operated the recorder because they made the strategic choice to
conduct the consensual intercept outside.
18
entire tape incomprehensible.” Id. at 512-13. Applying the
established standards governing the admissibility of recordings,
we find no basis to conclude that exclusion of a recording in
its entirety is required merely because an omission rendered a
portion of the recording unduly prejudicial. Rather, we hold
that a trial court should conduct a hearing pursuant to N.J.R.E.
104 to determine, in his or her discretion, whether an omission
or similar flaw in the recording renders all or part of that
recording unreliable and therefore inadmissible as unduly
prejudicial under N.J.R.E. 403. The trial court should admit
the recording to the extent that it contains competent and
relevant evidence and redact the portion of the recording deemed
unduly prejudicial. The recording here, though incomplete, was
entirely audible. We turn then to the question of whether and
to what extent the omission requires exclusion. This inquiry
proceeds in two parts.
First, trial courts must determine in a N.J.R.E. 104
hearing whether an omission renders a recording unduly
prejudicial. As Driver and its progeny make clear, the
existence of an omission or defect in a recording does not
automatically warrant suppression. Rather, “if a tape is
partially intelligible and has probative value, it is admissible
even though substantial portions thereof are inaudible.” State
v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.), certif.
19
denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71,
38 L. Ed. 2d 120 (1973).
Whether an omission renders a recording unduly prejudicial
depends upon the extent to which the omission adversely affects
the evidentiary purpose or purposes for which the recording has
been offered. Where, for example, the trial judge determines in
his or her discretion that the omission reduces the probative
value of the balance of the recording to such an extent that it
is substantially outweighed by the risk of undue prejudice, then
the recording should be excluded under N.J.R.E. 403. See Dye,
supra, 60 N.J. at 531; Driver, supra, 38 N.J. at 288; Cusmano,
supra, 274 N.J. Super. at 514-15. The motion judge here
determined that the omission of defendant’s response to Aikens’
accusatory statement was unduly prejudicial to defendant. We
find no basis to disturb that finding.
The Appellate Division rejected the motion judge’s finding
that the gap in the recording was unduly prejudicial for three
reasons. First, the panel characterized as speculative the
motion judge’s finding that the recording was cut off at a
“crucial point.” We disagree. The recording cut out before
defendant could respond to Aikens’ statement that she saw
defendant “putting [the gun] in the case when we was arguing.”
Defendant’s response to that accusatory statement was critical
to assessing that statement’s probative value.
20
Second, the panel found that Detective DeSantis’ testimony
that nothing of consequence was said during the unrecorded
portion of the conversation “flatly contradicted” the motion
judge’s finding. However, Detective DeSantis testified that he
was unable to recall what specifically was said after the
recorder was disconnected and gave no indication what, if any,
response defendant gave to Aikens’ accusatory statement.
Further, Detective Johannessen testified that after the recorder
became disconnected he was able to hear only Aikens’ side of the
conversation. Thus, despite his testimony to the contrary, he
could not corroborate DeSantis’ assertion that nothing of
consequence was said during the fifteen to twenty seconds it
took to reconnect the recording device.
Finally, the panel stated that defendant admitted in the
recording to possessing the gun, which ameliorated any prejudice
resulting from the gap in the recording. However, at no point
in the recorded conversation did defendant admit to possessing a
gun; nor did he directly ask Aikens to claim that the gun was
hers. We therefore find the motion judge did not abuse his
discretion in concluding that the omission of defendant’s
response to Aikens’ accusatory statement casts serious doubts
about the admissibility of the recording.
We therefore proceed to the second part of the inquiry:
whether the omission, if unduly prejudicial, requires
21
suppression of all or part of the recording. We reaffirm that
the question of whether a defect in a recording warrants
exclusion is a matter entrusted to the trial judge’s discretion.
Driver, supra, 38 N.J. at 288; see also Daniel E. Feld,
Annotation, Omission or Inaudibility of Portions of Sound
Recording as Affecting its Admissibility in Evidence, 57
A.L.R.3d 746 (1974) (“Many courts, with or without expressly
stating the general rule, have stated that the admission of a
recording that is partially inaudible or that reproduces only
part of a statement or conversation is largely a matter within
the trial court’s discretion.”). However, that discretion must
take into account “the evidential purpose which the tape
served.” Zicarelli, supra, 122 N.J. Super. at 239.
When assessing the evidential purpose of the recording, the
trial court must consider whether it is probative of one or
multiple theories of the case. Only then can the court properly
determine whether the omission “was so substantial as to render
the recording as a whole untrustworthy.” Dye, supra, 60 N.J. at
531 (citations and internal quotation marks omitted); see
Cusmano, supra, 274 N.J. Super. at 514-15. Where, as here, the
recording contains competent relevant evidence relating to two
distinguishable evidentiary purposes, the question becomes
whether the recording must be precluded in its entirety.
22
Although we have not squarely addressed this question before,
our rules of evidence provide some guidance.
Where evidence is admissible for one purpose but not for
another, the trial court “upon request[] shall restrict the
evidence to its proper scope and shall instruct the jury
accordingly.” N.J.R.E. 105. Thus, to the extent it remains
competent and relevant, the trial court may admit an otherwise
admissible recording while redacting a portion deemed
inadmissible due to an omission or defect. See Wakefield,
supra, 190 N.J. at 482-83 (approving trial court’s admission of
victim impact statement with redaction of “inflammatory
comments”); State v. Figueroa, 358 N.J. Super. 317, 325-26 (App.
Div. 2003) (approving trial court’s admission of confession with
redaction of references to other crimes).
The Appellate Division’s reasoning in Zicarelli, which we
find persuasive, further suggests redaction is appropriate in
this case. There, the Appellate Division addressed Zicarelli’s
contention that the trial court erred in admitting taped
conversations between Zicarelli and Policastro, the State’s
witness, because the taped recording was “largely inaudible and
unintelligible.” Zicarelli, supra, 122 N.J. Super. at 238-39.
Zicarelli and Policastro had known each other for fifteen years,
during which time Policastor “acted as a courier for Zicarelli
23
in carrying ‘pay-offs’ to certain public officials.” Id. at
238.
The Appellate Division held that, although “a substantial
part” of the recording was inaudible,
the tape of the conversation between
Policastro and Zicarelli . . . proved the
intimacy between them and, considered with
Policastro’s direct testimony, the
relationship of that intimacy to the central
conspiracy of suppressing prosecution of the
gambling enterprise headed by Zicarelli.
Therefore, it had probative value to that
extent, and was admissible for that purpose.
[Id. at 239.]
The Appellate Division then distinguished Driver, noting that
the inaudibility of the tape [in Driver] was
central to the purpose for which it was
offered and, because it was largely
inaudible . . . it would have been grossly
unfair to admit it. As said above, the
Policastro-Zicarelli tape had probative
value for reasons other than what was said.
Inaudibility had no relevance to those
reasons.
[Id. at 239-40.]
Similarly, the recorded conversation between defendant and
Aikens was probative in more than one respect: (1) defendant’s
responses to Aikens’ claim that he owed her money creates an
inference that defendant was offering Aikens money to alter her
testimony; (2) defendant’s statements about what Aikens’
testimony might be suggests he was coaching her to deceive the
prosecution; and (3) Aikens’ statement that she saw defendant
24
with a gun supports the State’s assertion that defendant
possessed the gun for which he has been charged. The failure to
record defendant’s response, if any, to Aikens’ statement that
she saw defendant with a gun renders that portion of the
conversation unduly prejudicial with respect to the weapons
charge. However, there is nothing in the record to suggest that
the omission created a risk of undue prejudice with respect to
the bribery and witness-tampering charges. Nor does it appear
that the omission has any impact on defendant’s response that
“[n]obody seen the gun that day.”
According appropriate deference to the motion judge’s
findings, we hold that the recording was admissible up to and
including the point at which defendant stated: “Nobody seen the
gun that day.” Admitting the recording beyond that point
unfairly asks the jurors to speculate about the content of
defendant’s reply, see State v. Frost, 158 N.J. 76, 86 (1998)
(finding prosecutor’s comments that “unfairly invite[] the jury
to speculate” improper); see also McKnight v. State, 1 N.E.3d
193, 202-03 (Ind. Ct. App. 2013) (finding tape recording “must
be of such clarity and completeness to preempt speculation in
the minds of jurors as to its content” (quoting Dearman v.
State, 743 N.E.2d 757, 762 (Ind. 2001)); whereas excluding the
recording before that point needlessly deprives the State of
competent, relevant, and admissible evidence.
25
VI.
In conclusion, we hold that a trial court must employ a
two-part analysis when considering the admissibility of a
recording containing partial omissions. The court must first
determine if the omission is unduly prejudicial; that is, does
the omission adversely impact the trustworthiness of the
recording. That is an objective analysis that should focus on
the evidentiary purposes for which the recording is being
offered. If the trial court in its discretion finds the
omission unduly prejudicial, it must then consider whether the
omission renders all or only some of the recording
untrustworthy, and suppress only the portion of the recording
that is rendered untrustworthy.
While the Driver analysis remains relevant to the above
determinations, a recording’s shortcomings with respect to one
factor do not automatically necessitate exclusion of the entire
recording. Rather, the court should consider the factors set
forth in Driver together, on a case-by-case basis, to determine
whether and to what extent the recording contains competent
relevant evidence.
The recording here was offered for two evidentiary
purposes: to demonstrate defendant’s intent to tamper with the
State’s witness and to show that defendant possessed the gun for
which he was charged with unlawful possession. The
26
unintentional omission rendered untrustworthy and unduly
prejudicial only the portion of the recording in which Aikens
accused defendant of possessing the gun; it did not adversely
affect the balance of the recording.
VII.
Accordingly, the judgment of the Appellate Division
admitting the recording in its entirety is reversed, and the
matter is remanded to the trial court for further proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.
27
SUPREME COURT OF NEW JERSEY
NO. A-97 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KINGKAMAU NANTAMBU,
Defendant-Appellant.
DECIDED April 29, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7