Can Recording Police Radio Transmissions, Possibly Containing Hearsay, Be Used to Convict a Defendant for Eluding?
Appellate Docket No.: A-2958-17T2
Decided September 1, 2020
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division reviewed whether admission of recordings of police radio transmissions, possibly containing hearsay, used to convict a defendant for eluding.
In State v. Worsley, defendant left a Long Branch bar and backed his vehicle into an unoccupied car, damaging its bumper. He drove away and pulled into a strip mall across the street from the bar. Larry Lundy, Jr., an off-duty police officer working as a bouncer, saw the accident and called 911. Defendant walked back to the bar and paced back and forth on the sidewalk, muttering to himself.
When officers responded, defendant got back into his car, traveling the wrong way through a one-way entrance, nearly hitting another vehicle. When the officer activated his emergency overhead lights, defendant did not stop. Instead, he sped up, nearly colliding with another parked car, drifting back and forth in the road. Defendant spun out, crashed into a pole, but continued to drive away. After running a red light defendant stopped the car.
The officers arrested defendant and transported him to a police station. His blood alcohol content was determined to be 0.14 to 0.15, almost twice the legal limit to drive. A grand jury indicted defendant, charging him with second degree eluding, N.J.S.A. 2C:29-2(b).
Prior to trial, the State moved to admit eight recordings of radio transmissions between Officer Kennedy and a police dispatcher. After an objection by defendant, the State agreed that two of the recordings contained inadmissible hearsay because the dispatcher repeated to the officer what Lundy had said on the 911 call. Defendant’s counsel had no objection, however, to the admissibility of the remaining recordings.
During the trial, the State attempted to introduce a verbal exchange between the officer and the defendant, however it was later found to be provided to the prosecutor by the officer two weeks after the incident. Defendant’s counsel objected and the judge instructed the jury to disregard the verbal exchange.
After the conviction, defendant moved for a new trial on the basis of the discovery violations. The Court denied the motion for failure to file within the ten day time limit and because of the court’s limiting instructions stated to the jury was enough to deny defendant a new trial.
Defendant appealed, arguing the evidence errors committed by the State and trial court required a new trial. The Appellate Division affirmed, ruling that the motion for a new trial was time barred, and the defendant was now arguing for the exclusion of additional recordings that were not objected to at the time of trial, a higher burden defendant did not meet on appeal. The Appellate Division found the trial court’s limiting instructions were appropriate and did not warrant a new trial because of the overwhelming evidence through the officer’s testimony of defendant’s actions.
Although it may seem obvious that defendant committed second degree eluding, this is important to highlight the importance of defense counsel’s need to object to the State’s admission of evidence, and to have an awareness of filing deadlines. First, defense counsel’s failure to object to the admission of the additional recordings, but later trying to appeal, arguing those recordings should have been excluded, resulted in the Appellate Division reviewing the error under a higher standard than if defense counsel would have objected. In addition, the motion for a new trial came one day later than the 10 day limit, which would have been grounds for denial alone, despite the motion being denied on substantive grounds as well as this procedural error.
In short, if you are facing trial, you need to make sure your defense attorney gives your case the time and attention necessary to make appropriate pretrial motions. Your criminal lawyer should also be able to object at each and every opportunity so as exclude evidence and force the State to prove its case beyond a reasonable doubt. Your attorney should also be aware of filing deadlines and be sure to make timely applications so they are not time barred. If your attorney fails to object or timely make a motion, it could have adverse consequences on your case.
If you have been charged with any, first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you adverse results.
At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
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