Jury hearing “Out of Court consistent Statements” of a police officer used bolster his credibility ruled reversible error warranting a new trial!
State of New Jersey vs RICHARD D. GRAY, JR. appellate division decided March 20, 2019
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
At around 1 a.m. on November 8, 2014, Penns Grove Police Department Patrolman Christopher Hemple went to the One Stop Deli for a property check. Inside the store, Hemple recognized defendant. Hemple knew there was an outstanding warrant for defendant. He told defendant he was under arrest, and placed a handcuff on his right hand. Hemple called for backup, a struggle ensued, and defendant ran from police.
Hemple chased after defendant, who ran through a driveway and jumped over a wall. Sergeant John Stranahan joined the pursuit and caught up to defendant when he was climbing a six-foot-tall metal fence. Stranahan attempted to grab defendant at the top of the fence, but instead pushed defendant to the ground. Defendant allegedly reached into the front of his pants and dropped what Stranahan said was a gun. Stranahan drew his weapon, scaled the fence, caught, and handcuffed defendant. Defendant denies he had a gun and said he stopped running because he got tired, and when the officer told him to get on the ground, he complied.
Stranahan searched defendant and found cash, three small vials of marijuana, and a bottle of codeine cough syrup with the label scratched off. Stranahan turned defendant over to Hemple who placed him in the patrol car. Stranahan went back to recover the weapon defendant allegedly dropped and found two guns, a black handgun and a smaller silver handgun. Stranahan secured the guns and brought them back to his patrol car. Stranahan then asked Hemple what route defendant took during the chase, followed it back towards his patrol car, and found a larger container of codeine cough syrup. Both guns recovered were operable, and the guns were not registered to defendant. Neither gun was tested for fingerprints.
Stranahan read defendant his Miranda rights in the patrol car on the drive to the station. While in the vehicle, Stranahan questioned defendant about the guns and the cough syrup and defendant admitted he possessed the cough syrup found on him. He denied knowledge of the guns and the larger bottle of cough syrup. The police Mobile Video Recorders (MVR) recorded conversations between Stranahan and the other officers prior to the interrogation, as well as the interrogation of defendant.
The next issue in this case is whether other statements made by Officer Stranahan were properly presented to the jury. We had discussed in the prior blog the Miranda statements captured on the MVR. Prior to the Miranda warnings however, the MVR captured a conversation between Officer Stranahan, Officer Hemphill, and another unknown officer discussing the events that transpired in the facts listed above. At trial defendant counsel merely objected to ‘relevance’ of the statements however the court allowed the entire contents of the MVR. The issue is not one of relevancy but rather whether the out-of-court statement by Stranahan was is being used to buttress his credibility for the following MVR miranda testimony in violation of Evidence Rule 607.
New Jersey Rule of Evidence 607 prohibits a prior consistent statement of a witness from being used to support the credibility of that same witness except in circumstances when the witness is being charged with a recent fabrication or improper influence our motive….
So the question in this circumstance was whether the other conversations recorded on the MVR were improper R: 607 consistent statements, were they relevant, and did they improperly influence a jury in supporting and believing Stranahan.
The appellate division determined that the trial court did not weigh the prior consistent statement evidence issue at the time and as a result the defendant may have been prejudiced at the time of trial. The fact that officer Stranahan and Hemphill discussed with another unidentified officer, who did not come to court and testify, that the defendant was going to be charged with the guns the drug possession as well as the assault on the officer could have been highly prejudicial. During one exchange Stranahan stated to the other officer that he knew the defendant was a dealer. The court determined that the conversations between the officers discussing the events in the near deli were not present since impressions, where hearsay statements made by an officer for the truth of the matter asserted.
Once the judge made a determination that this was improper prior consistent statement testimony the next determination is whether this prejudicial evidence was unduly prejudice to the defendant in front of the jury. The court determined that the risk of prejudice was too high and the trial courts omission of any discussion regarding the risk of undue prejudice was an abuse of discretion when it allowed the jury to hear the conversation. The case was remanded for a new trial.
Just as my other blog, the bigger issue here is the successful used by the state of the mobile vehicle recorder/body cam to secure the Miranda warnings memorialized on video and the defendant’s waiver of his rights and voluntarily communicating. As a result, the fact that there was no Miranda form signed, reflects the ‘best evidence rule” is the MVR and the body camera. This is consistent with the NJ attorney general prior guidelines that all statements of any defendant in any criminal matter must be secured by video if it takes place at the police department. In this circumstance the office or use the mobile video camera in the cruiser to memorialize the conversation and the waiver of Miranda. This is a clear picture of things to come especially with the introduction and legalization of marijuana in New Jersey. All sorts of questions concerning the level of intoxication of a marijuana DWI defendant secured in the back of a police cruiser with the camera turned on him will be answered with MVR and body cameras.
Jeffrey S. Hark, Esq.