STATE OF NEW JERSEY VS. CHRISTOPHER G. ORSINI (17-07-0488, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3238-17T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHRISTOPHER G. ORSINI,
Defendant-Respondent.
_______________________________
Submitted May 21, 2018 - Decided August 24, 2018
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
17-07-0488.
Esther Suarez, Hudson County Prosecutor,
attorney for appellant (Erin M. Campbell,
Assistant Prosecutor, on the brief).
Condon & Theurer, attorneys for respondent
(Kathleen M. Theurer, on the brief).
PER CURIAM
The State appeals on our leave from a March 12, 2018 order
denying its motion to admit the recording of a 911 call and a
March 14 order granting defendant's motion to suppress a citizen
video capturing a car theft. We reverse.
The essential facts are easily summarized. On a May
morning last year, a teenager left her father's red Ford Focus
running outside their home in Jersey City while she ran inside
to retrieve something she had forgotten. When she emerged
moments later, she saw the car being driven down the street with
her house keys, clothing and wallet inside. The theft was
captured on their neighbor's security camera, although the image
is not sharp enough to identify the thief. The next day, a
woman made a panicky 911 call claiming she was following a man
in a red Ford Focus, who had just punched her and stolen her
wallet.
Defendant was apprehended shortly after the 911 call in the
vicinity of where police located the car, about ten blocks from
where the victim reported the robbery. He was identified in a
show-up by the 911 caller. She claimed he was the man who
reached into her car, punched her and stole her wallet while she
waited for her daughter's school to let out, and then drove off
in the red Ford Focus with her in pursuit. Defendant was
indicted on one count of third-degree receiving stolen property,
the Ford Focus, and one count of second-degree robbery.
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Following a Driver1 hearing, the court ruled both the video
and the tape of the 911 call inadmissible. The court deemed the
911 call testimonial, finding the statements made by the caller
"were not made in the course of an ongoing emergency" and that
she never "requested any assistance to resolve an ongoing
emergency." The court rejected the State's assertion that the
call was admissible as a present sense impression under N.J.R.E.
803(c)(1), relying on State ex rel. J.A., 195 N.J. 324, 346
(2008). Specifically, the court found:
the call was placed what appears to be four
minutes after the alleged robbery and the
victim merely repeated the suspect's license
plate number and the fact that she had been
robbed. The victim never indicated that she
was injured or in need of any medical
assistance. This emergency that the State
suggests was ongoing at the time of the call
was only exacerbated by the victim's choice
- chase the suspect.
The court noted the caller "can and will likely testify,"
and concluded admitting the 911 call "would constitute needless
presentation of cumulative evidence not necessary or materially
probative to establish whether the victim was, in fact, robbed"
and thus that its "potential prejudice" substantially outweighed
its probative value. The court also ruled the 911 tape was
procedurally barred under R. 3:9-1(e), because the State only
1
State v. Driver, 38 N.J. 255 (1962).
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notified the court of its intent to use it after the plea cutoff
date and a month before trial.
As to the video, the court described it as consisting of
different clips or camera angles showing first an African-
American man walking down the street in dark clothing and a knit
cap; then a young woman apparently looking for something in the
red Ford Focus, who gets out and walks away from the car out of
the frame; next an African-American man, who may or may not be
the same man as in the first clip, crossing the street, getting
in the Ford Focus and immediately driving it away; and finally
the young woman reappearing and "walk[ing] into the street
looking around for the car."
Although acknowledging the video qualified for admission
under Driver, the court questioned its probative value. The
court noted the State would "still need . . . the person who
. . . left the car running" to testify it was stolen, and
identify items recovered in the car, which "would be the better
evidence in this case." Further, the court noted defendant was
not charged with stealing the car, only receiving stolen
property, and "that the risk of confusion of these issues or
misleading the jury are too great" and a limiting instruction
inadequate to counter the potential prejudice. The court
ultimately concluded it "just [did not] believe that under these
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circumstances [the video's] probative value is sufficient given
the potential prejudice as it would confuse the jury and
certainly mislead it in term of the charges as they're presented
here."
The State appeals, arguing no rule or case requires the
State to pre-admit a 911 recording prior to trial, and that the
recording is not testimonial and clearly admissible under J.A.
The State further argues the surveillance video is likewise
admissible, "bears directly" on one element of the State's
proofs, and that it is for the State, and not the court, to
decide what admissible evidence will best prove its case. We
agree.
Although we generally defer to a trial court's evidentiary
rulings, reviewing them only for abuse of discretion, "we do not
defer to a ruling that is based on a mistaken interpretation of
an evidence rule, or that misapplies the rule." State v.
R.J.M., 453 N.J. Super. 261, 266 (App. Div. 2018). Our review
of the trial court's application of the law to the facts, of
course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).
911 calls made in the throes of an emergency are textbook
examples of nontestimonial hearsay statements that do not
implicate the Sixth Amendment's Confrontation Clause and are
admissible in a criminal trial "subject to traditional
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limitations upon hearsay evidence." Davis v. Washington, 547
U.S. 813, 821 (2006). In Davis, the Court refined its
formulation of the "testimonial statements" it deemed critical
for Sixth Amendment purposes in Crawford v. Washington, 541 U.S.
36, 53-54 (2004), holding that:
[s]tatements are nontestimonial when made in
the course of police interrogation under
circumstances objectively indicating that
the primary purpose of the interrogation is
to enable police assistance to meet an
ongoing emergency. They are testimonial
when the circumstances objectively indicate
that there is no such ongoing emergency, and
that the primary purpose of the
interrogation is to establish or prove past
events potentially relevant to later
criminal prosecution.
[Davis, 547 U.S. at 822 (footnote omitted).]
Our own Supreme Court applied that definition in J.A., a
case involving the statement of an eyewitness to a robbery who
followed the perpetrators, much like the victim of the robbery
here. 195 N.J. at 337. While in pursuit of the robbers, the
eyewitness telephoned the police and provided a description of
the suspects, which was then broadcast over the police radio.
Id. at 330. Within two minutes of receiving that dispatch, an
officer found the witness and interviewed him about what he saw.
Ibid.6 A-3238-17T3
The Court found the eyewitness's statement to the officer,
made several minutes after the witness left off his pursuit of
the robbers, did not qualify as a present sense impression
exception to the hearsay rule under N.J.R.E. 803(c)(1) because
it was not "made while or immediately after the [witness] was
perceiving the event." Id. at 337-40. The Court further found
the witness's report to the officer "ran afoul of the
Confrontation Clause" as a testimonial statement because
"[t]here was no ongoing emergency — no immediate danger —
implicating either the witness or the victim, both of whom were
in the company of police officers" when the eyewitness made the
statements the State sought to admit. Id. at 340, 348.
Importantly for our purposes, the Court contrasted the
witness's statements to the dispatcher "relating . . . events as
they were unfolding." Id. at 337. The Court noted those
statements, which were not offered in evidence, "would have fit
within the classic definition of a present sense impression."
Ibid. Addressing whether such statements would be considered
testimonial, the Court stated that "[h]ad the prosecution
introduced the contemporaneous statements of the eyewitness to
the 911 operator, assuming that he was relating the robbery in
progress and pursuit, the Confrontation Clause analysis might
well have been different." Id. at 348 n.13.
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It is different here because the State is seeking to admit
the victim's call to the 911 operator while she was pursuing her
assailant, not the statements she subsequently made to the
police detailing the crime. A review of the 911 call makes the
point. The call begins, not with the victim identifying herself
or explaining the emergency, but shouting out the license plate
number for the red Ford Focus. We quote the start of the call:
Caller: [license plate number]
911 Operator: Excuse me?
Caller: [license plate number]
911 Operator: Hello?
Caller: Hello? Can I get a cop please?
I'm – I'm chasing a car, he tried to rob me.
His driver's plate is [repeats the license
plate number], and he – he has my stuff.
And he just – he jumped in my car and he
chased – he grabbed all my stuff.
911 Operator: Why are you chasing him?
Caller: [indiscernible]
911 Operator: Hello? Ma'am, all you gave
me was a plate, so I can't really help you.
I can't send somebody [indiscernible] the
plate. I need a[n] address.
Caller: I'm – I'm – right now we're on, um,
we're about to be on – on the Boulevard.
911 Operator: Ma'am, you're gonna have to
stop. You're gonna have to stop. You're
gonna have to stop what you're doing, so I
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can send you some help. Who is – do you
know this person?
Caller: I don't know him. [indiscernible]
911 Operator: He jumped in your car and
stole stuff?
Caller: Yes! Yes. Please, I know he'll –
we're on Bergen. We're on Bergen. He's
right on the [indiscernible] right now!
911 Operator: He's on – in a bicycle or a
car?
Caller: No, it's a car, red Ford Focus.
The driver's plate is [again repeats the
license plate number]. And it's a Ford –
red Ford Focus.
A review of the tape makes plain the caller was relaying
events as they were occurring, that is, her pursuit of the man
who robbed her, and those that had just happened, that is, the
robbery itself, and that she was seeking police assistance for
an ongoing emergency. The caller was not safely in the company
of a police officer recounting recent events. She is on the
phone to the 911 operator, crying and frantically trying to
obtain help. That the victim may have chosen to "exacerbate"
the emergency by giving chase does not affect the analysis.
Applying N.J.R.E. 803(c)(1) and J.A. to these facts, we have no
hesitation in finding the victim's 911 call qualifies as a
present sense impression exception to the hearsay rule and is
nontestimonial under J.A.
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We further reject that admission of the tape was
procedurally barred by operation of R. 3:9-1(e). Although R.
3:9-1(e) references sound recordings, defendant made no
objection to the authenticity of the recording of the 911 call,
which the State turned over in discovery at the beginning of the
case. We, accordingly, reject the court's finding that the
State's failure to have made known its intention to admit the
911 call prior to plea cutoff barred its admission under R. 3:9-
1(e). Defendant cites no case supporting such an interpretation
of the rule, and our own research has not revealed one.
Turning briefly to the video, we acknowledge the State's
point that in order to convict defendant of receiving stolen
property pursuant to N.J.S.A. 2C:20-7, it must prove, among
other things, that the red Ford Focus was actually stolen. See
State v. Hodde, 181 N.J. 375, 384 (2004). The video makes that
point in dramatic fashion.
The court was satisfied as to the video's admissibility
under the Driver test but expressed confusion "in terms of the
value of the evidence and . . . what it was being proffered to
show." At another point, the court stated it did not think the
video "necessarily is the best proffer for the evidence"
presumably to prove defendant's receipt of the stolen Ford
Focus.
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Although we ordinarily defer to the trial court's
assessment of the undue prejudice of relevant evidence under
N.J.R.E. 403, see State v. Nantambu, 221 N.J. 390, 402-03
(2015), our concern here is the court's apparent failure to
recognize the probative value of the video to the State's
proofs, and the State's discretion in choosing the admissible
evidence it will present to the jury in carrying its burden to
establish each element of every charge, see McLean v. Liberty
Health Sys., 430 N.J. Super. 156, 169 (App. Div. 2013) (quoting
Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div.
1994)).
There is certainly no question but that the video is
relevant evidence under N.J.R.E. 401. It obviously has a
tendency to prove the red Ford Focus was stolen, a fact of
consequence in a prosecution for receipt of stolen property.
See State v. Cole, 229 N.J. 430, 447-48 (2017). Although we can
appreciate the court's concern about the risk of the jury
concluding defendant was the man in the video, and thus that he
stole the car, a simple limiting instruction that the State has
not charged defendant with stealing the car and does not contend
defendant is the man in the video should be sufficient to
address the risk of any potential prejudice. See id. at 455-56
(discussing use of limiting instructions); see also Ocasio v.
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Amtrak, 299 N.J. Super. 139, 159-60 (App. Div. 1997) (holding
that total exclusion of evidence is error where prejudice can be
minimized through limiting instructions or other means). We
cannot find such an instruction would be too complicated or
confusing for the jury to follow. See State v. Hockett, 443
N.J. Super. 605, 616 (App. Div. 2016).
Reversed.
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