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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2228-08T4
STATE OF NEW JERSEY IN THE INTEREST OF J.B., a minor.
______________________________________________ Submitted September 15, 2010 - Decided September 27, 2010 Before Judges Cuff, Fisher and Fasciale. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket Nos. FJ-19-337-08, FJ19-439-08, FJ-19-496-08, FJ-19-622-08, and FJ-19-502-08. John A. Albright, minor J.B. attorney for appellant,
David J. Weaver, Sussex County Prosecutor, attorney for respondent State of New Jersey (Jerome P. Neidhardt, Assistant Prosecutor, on the brief). PER CURIAM J.B., a juvenile, was adjudicated delinquent for having
engaged in conduct which, if engaged in by an adult, would have constituted property. erred in burglary, robbery, and trafficking in stolen
In this appeal, the juvenile argues the trial judge admitting the out-of-court statements of two
individuals involved in the offenses and in admitting Google Earth maps to prove the juvenile's whereabouts at the time of
The juvenile also argues the imposition of four
consecutive sixty-day terms in a juvenile detention facility was excessive.1 Finding no error or abuse of discretion, we affirm.
I The evidence adduced at trial revealed that, on October 24, 2007, the juvenile skipped school and spent the day with two friends, Clinton Mohn and Anthony Williams, as well as his
The group drove around in Mohn's car for most
of the day before the juvenile was returned to his home at around 11:00 p.m. After a brief verbal argument with his
mother, the juvenile went to his room upstairs and logged onto his computer, spending a few minutes accessing social networking sites. According to Mohn and Williams, who both testified at
trial, they met with the juvenile after he slipped out of his
Specifically, the juvenile was found in this matter to have engaged in acts which, if committed by an adult, would constitute: third-degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree theft, N.J.S.A. 2C:20-3(a); and trafficking in stolen property, N.J.S.A. 2C:20-7.1(b). While awaiting disposition, he pled guilty to three additional offenses: a 2C:45-3; third-degree violation of probation, N.J.S.A. possession of a controlled dangerous substance, N.J.S.A. 2C:3510(a); and harassment, N.J.S.A. 2C:33-4(b). The four consecutive sixty-day terms were imposed on adjudications of delinquency in this matter as well as the others referred to above.
Mohn and Williams were adults girlfriend were juveniles.
house at around 11:45 p.m. that night.
After driving around
town for about an hour, Mohn suggested burglarizing the home of a friend, Alex Witzl, who was away at college. Williams
apparently liked the idea; the juvenile was also "up for it." According to Mohn and Williams, the three arrived at the Witzl residence at approximately 12:30 a.m., broke into the residence, and stole various items, including a jar of coins, a samurai sword collection, and a laptop. Mohn and Williams testified the
juvenile remained in their company for several hours thereafter, as they drove around town looking for places to hide the stolen property. During this time, they visited the home of a friend,
Omar Abhoulson, who testified the juvenile was present during this visit. According to Mohn and Williams, the juvenile was returned home at around 3:00 a.m. A few hours later, the juvenile called Mohn arrived at the juvenile's However, juvenile
Mohn seeking a ride to school.
home at around 7:00 a.m., and drove him to school. after smoking a cigarette in the parking lot, the
decided to skip school, and he, Mohn and Williams spent most of the day driving around town trying to sell the stolen swords.3 Defense counsel attempted to discredit Mohn and Williams, suggesting
They succeeded in selling two of the swords to one of Mohn's friends.
between their out-of-court statements and their testimony. further insinuated Mohn and Williams were lying about
juvenile's involvement in the Witzl burglary to curry a better plea deal. In his testimony, the juvenile acknowledged he was with Mohn and Williams on the day of the burglary, but maintained he returned home at 11:00 p.m., and did not see them again until the next day at school; he adamantly denied participating in the Witzl burglary or the later attempts to sell the stolen goods. To support his alibi, the juvenile called his mother to testify. remembered burglary She corroborated some of her son's story, claiming she he came once home he at was 11:00 home, p.m. "[h]e on the night of the and
apologized, and then "proceeded to go on the computer and was on the computer until 12:30 in the morning." The juvenile's mother
also testified she was absolutely certain the juvenile was home for the entire night because she periodically checked on him throughout the evening. To records rebut and this a alibi evidence, the State produced phone which
demonstrated calls were made from the juvenile's cellphone while the phone was in the vicinity of the burglary, not in the In
vicinity of the juvenile's home, where he claimed to be.
response, the juvenile testified that Mohn borrowed his phone on
the night of the burglary -- he claimed he placed it on his bedroom morning. After findings, weighing the trial the judge evidence found the and making credibility the windowsill -and did not return it until the next
charged conduct and imposed consecutive sixty-day terms in a juvenile correction facility. The juvenile appealed, raising the following arguments for our consideration: I. THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING THE HEARSAY STATEMENTS OF J.B.'S CO-DEFENDANTS INTO EVIDENCE IN THEIR ENTIRETY, AS PRIOR CONSISTENT STATEMENTS UNDER N.J.R.E. 607 (Partially Raised Below). A. The Prior Inconsistent Statements Made By J.B.'s Co-Defendants Presented Legitimate Avenues For Cross-Examination By Defense Counsel; However, Their Prior Consistent Statements Were Inadmissible Hearsay, Unaccompanied By Any Sufficient Charges Of Recent Fabrication Or Improper Influence Or Motive. B. The Prior Consistent Statements Of J.B.'s Co-Defendants Were Inadmissible Hearsay, As They Were Offered Simply To Prove The Truth Of The Matter Asserted And To Bolster The Credibility Of The State's Two Key Witnesses. II. THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING GOOGLE EARTH PHOTOGRAPHS INTO EVIDENCE WITHOUT PROPER AUTHENTICATION.
III. THE FOUR CONSECUTIVE SIXTY-DAY TERMS OF DETENTION IMPOSED WERE MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION. We find no merit in these arguments and affirm.
II In considering the admissibility of Mohn and Williams's
out-of-court statements, it is important to understand how they were used during trial. During cross-examination, the juvenile's attorney attempted to discredit Mohn and Williams by revealing the differences
between their out-of-court statements and their trial testimony. In one instance, counsel asked Mohn why he told police the
juvenile was the first person to enter the Witzl residence, only to later testify that the juvenile followed Mohn into the house. In addition, while cross-examining Williams, the juvenile's
attorney asked why he told police the juvenile never went home on the night of the burglary, only to testify at trial that Mohn dropped the juvenile off at home and picked him up again at around 11:45 p.m. differences between The juvenile's attorney pointed out other the out-of-court statements and Mohn and
Williams's testimony. As a result, during redirect examination, the prosecutor sought to introduce Mohn and Williams's out-of-court statements pursuant to N.J.R.E. 803(a)(2), to demonstrate that those prior
statements were consistent with their trial testimony as a means of eviscerating the attack on their credibility. attorney objected, claiming the statements The juvenile's inadmissible
because they were "long and voluminous," and contained "lots of improper questions," and, also, because both Mohn and Williams appeared to testify. concluding voluminous, that, The trial judge rejected these objections, the statements could be might redacted have and, been even
though both witnesses testified, their out-of-court statements were admissible as prior consistent statements. Just before summations were to commence, the juvenile's
attorney renewed his objection, arguing his use of the out-ofcourt statements during cross-examination of Mohn and Williams did not render the statements admissible pursuant to N.J.R.E. 607: [T]he relevan[t] rule is 607 [and pursuant to that rule,] the only way that [prior consistent] statements come in is if there is the suggestion of recent fabrication. And merely the opposing lawyer pointing out inconsistencies, contradictions in a witness'[s] testimony from the witness stand which is always done and that's typical cross examination, that is not what that [the] rule has in mind for a recent fabrication. In rejecting this argument, the judge explained there was "an implied charge" by the juvenile's attorney:
that the witnesses had created fabrication as late as May of 2008. the[re] were stories that had changed the beginning and . . . therefore [p]rosecution had a right to show that regard to the critical fact of juvenile] being present during the . burglary, that [the juvenile] was in there.
this That from the with [the . . fact
In this appeal, the juvenile claims the statements were inadmissible because they "were offered by the State simply to show that [the juvenile] committed the offenses charged by
bolstering the credibility" of the declarants.
In other words,
the juvenile argues that "the State introduced the statements simply to prove the substantive truth of the matter," i.e., that the juvenile, while in the company of Mohn and Williams,
participated in the burglary.4
As a general matter, a party may not introduce evidence for the sole purpose of bolstering his own witness's credibility. See 1 McCormick on Evidence § 47 at 219 (6th ed. 2006).
However, once a witness's credibility has been attacked, a party may attempt to repair any perceived damage. Ibid. N.J.R.E. 607
permits the use of a prior consistent statement to repair the The juvenile notes in his appeal brief that this issue was "partially raised below," apparently recognizing his trial attorney only invoked N.J.R.E. 607, and not both N.J.R.E. 607 and N.J.R.E. 803(a)(2), as he now argues. Because we agree the judge did not abuse his discretion regardless of the grounds the juvenile may have asserted, we need not consider whether any part of the argument contained in Point II was properly preserved for appeal.
credibility of a witness, but only when an adverse party has suggested the witness's testimony is either the product of
"recent fabrication" or the witness had an "improper influence or motive" to testify falsely. See also State v. Johnson, 235
N.J. Super. 547, 555 (App. Div.), certif. denied, 118 N.J. 214 (1989). consistent N.J.R.E. statement 803(a)(2) in also permits use of a prior to
Any nuances or theoretical differences that may
exist between the two rules, see, e.g., Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(a)(2) (2010), have no relevance here. of the statement In essence, under either rule, the proponent must demonstrate that the witness has been
accused of either a "recent fabrication" or "improper influence or motive" as a basis for the statement's admission. In reviewing a trial judge's decisions regarding the
admission of evidence, we do not intervene unless the ruling constituted an abuse of discretion. State v. Muhammad, 359 N.J.
Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). We find no abuse of discretion here; indeed, we conclude the trial judge properly admitted the out-of-court statements. Specifically, counsel posed an array of questions about a number of key differences between the out-of-court statements and the versions recounted by Mohn and Williams during their direct examination. Counsel's obvious objective was to suggest
and Williams fabricated
point between the time they spoke to police and the time of trial. elicit Furthermore, the the juvenile's attorney to also sought to by
demonstrating hoped to
during cross-examination a better plea deal for
that Mohn and from the
transpired during the cross-examination of Mohn5: Q. And as part of your plea, you indicated on the form that with the charges that were pending against you before you entered into the plea bargain, you were looking at a maximum time of a[n] approximation of 26 and a half years, is that right? A. Yes. Q. $98,000 in fines? A. Yes, sir. Q. And as a result of the plea bargain, you were expecting to receive a flat four years? A. Yes, sir. Q. Right? And one of the things that you had to do to get the benefit of that plea bargain was to testify against [the juvenile], right? A. Yes, sir. And, in his cross-examination of both Mohn and Williams, the juvenile's
The cross-examination of Williams was nearly identical.
severely due to his age. In essence, counsel not only attempted to detail the
differences between the witnesses' out-of-court statements and their testimony, but also insinuated Mohn and Williams were not presenting testimony. an accurate recitation of the facts in their
In those circumstances, it was quite reasonable --
and hardly an abuse of discretion -- for the judge to conclude that the out-of-court statements could be admitted under either N.J.R.E. 607 or N.J.R.E. 803(a)(2).
III To discredit the juvenile's alibi that he was at home
during the time of the burglary, the prosecutor introduced phone records, which showed several calls made from the juvenile's cellphone at the time of the burglary. Unrebutted testimony
from a Verizon representative demonstrated that a cellphone call is first transmitted to the cell tower closest to the caller.6 Here, the telephone cellphone records at established time of that the calls from the were
transmitted to the cell tower located at 3000 Continental Drive
The Verizon representative testified that this was not necessarily true when calls are made at peak hours. However, it was neither argued nor suggested that the use of the juvenile's cellphone at or around the time of the burglary was at a peak hour.
in Mount Olive (the "Continental tower").
To demonstrate the
calls were more likely placed nearer the Witzl residence than the juvenile's residence -- where the juvenile said he was at the time of the burglary -- the prosecutor sought to prove that the Continental tower was the closest to the Witzl residence and that if the juvenile were at home during the burglary, as he asserted, any calls made from his cellphone would have been
transmitted to the cell tower located at 16 Bridget Way in Byram (the "Bridget tower"). In seeking to prove the juvenile's house was closer to the Bridget tower than the Continental tower, the prosecutor
produced a satellite photograph generated by the Google Earth software program7; the photograph was represented to be an aerial snapshot of Sussex County with computer-generated markings at the estimated locations of the two residences and the two cell towers. The juvenile's attorney objected, asserting there was The
no "foundation in terms of how accurate [Google Earth] is."
judge sustained the objection and barred use of the Google Earth photograph as substantive proof of the distances between the two locations
Google Earth is an internet-based program that provides a virtual globe through a compilation of, among other things, satellite imagery, maps, terrain, buildings, and other structures. In short, it is a virtual repository of countless overhead photographs of the entire globe. See Google Earth Home Page, http://www.google.com/earth (last visited Sept. 20, 2010).
Earth is a tool that a lot of people are using . . . I don't know that [its] [reliability has] been established at this
point." The prosecutor subsequently called Detective Duffy to
testify regarding what the judge referred to as "the predicate information" required to assess the value of his Google Earth photographs. The detective testified how he personally visited
each of the residences and cell towers in question, and measured the distances between those locations on the odometer of his police cruiser. The prosecutor offered this testimony as
evidence of the reliability of Google Earth and to demonstrate that the Continental tower was closer to the Witzl residence and the Bridget tower was closer to the juvenile's residence. In order to illuminate the significance and accuracy of the detective's geographic testimony, the prosecutor showed the
detective an atlas map of Sussex County that contained markings at the estimated locations of the two cell towers.8 prosecutor photographs: provided the the first detective was an with two image Then, the Earth area
Google of an
containing the Witzl residence and the Continental tower; the second was an overhead image of Byram and Sparta that contained computer-generated markings at the estimated locations of the
The juvenile's attorney did not object to the State's use of this map.
two residences and the two cell towers.
Defense counsel again
objected, but this time the judge overruled his objection: The [c]ourt finds that other than very recently what would have happened is . . . that the State would have brought in an atlas map and ask[ed] somebody familiar with the area to point on the map where different locations are and how you would get there. And this is just an updated manner of getting the same information. If the [d]efense wants to show that the information is incorrect, they can certainly do it by either cross examination or they can do exactly what I just suggested and bring in an atlas map and show where the exhibit that the State is offering is incorrect. In appealing, the juvenile claims the trial judge erred in allowing because the they State were to not use the two Google Earth photographs pursuant to
N.J.R.E. 901. no testimony
Specifically, the juvenile complains "there was that the Google Earth images were accurate
reproductions of what they purported to represent at the time of the incident in question, or that the purported representations had not changed between the time of the incident and the taking of the images." Trial courts generally enjoy broad discretion in admitting "replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received in evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154,
admitted ordinarily turns on whether it sufficiently replicates whatever it is designed to illustrate. Bus Operations, 357 N.J. Super. 1, Persley v. N.J. Transit 14 (App. Div.), certif.
denied, 177 N.J. 490 (2003); Balian v. Gen. Motors, 121 N.J. Super. 118, 126 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973). Of course, demonstrative evidence must be properly
authenticated before it can be admitted, Rodd, supra, 373 N.J. Super. at 165, which, such as in the case of a photograph, "requires testimony establishing that: (1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or in the alternative the scene has not changed
between the time of the incident in question and the time of the taking of the photographs." Biunno, supra, comment 4 on
N.J.R.E. 901; see also Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46-47 (App. Div. 2001). In applying these standards, we conclude the trial judge did not abuse his discretion in allowing the prosecutor to use the two Google Earth photographs in order to illuminate
Detective Duffy's testimony about the distances between the cell towers and locations in question. agree with the juvenile's However, even if we were to argument, we cannot
conclude this purported error was capable of producing an unjust
result, particularly when the photographs were not offered as substantive proof of the distances between the residences and the cell towers but merely as illustrative aids to the
testimony. (App. Div.)
See State v. Scherzer, 301 N.J. Super. 363, 434-35 (upholding the State's demonstrative use of a
replica baseball bat because the record contained testimony that a baseball bat was used against the victim), certif. denied, 151 N.J. 466 (1997). Because they the were images were not to was was offered prove nearer nearer as the the the
substantive underlying Continental
evidence, facts tower
unnecessary residence house
-- that and
Bridget tower -- and their exclusion would not have altered the trial in any material or meaningful way. judge expressed his own skepticism about Indeed, the trial the reliability of
gauging the distance between objects by way of a Google Earth map as opposed to a map taken from an atlas, upon which the judge placed his reliance. Moreover, authentication inconsequential during his the of by interesting Google the Earth question maps of State was the regarding further the
rendered attorney beyond a
concession that the
reasonable doubt that the juvenile's cellphone was at the Witzl residence during the burglary. As a result, the only disputed
fact to be resolved regarding the cellphone was not its location
at the time of the burglary but the location of the juvenile at that time. This required that the judge determine whether the
juvenile's claim that he lent his cellphone to Mohn that night was credible. numerous good The judge found the juvenile was not credible for reasons; that finding is entitled to our
deference.9 We lastly find insufficient merit in the arguments
contained in the juvenile's Point III to warrant discussion in a written opinion. Affirmed. R. 2:11-3(e)(2).
Indeed, the juvenile's story about lending the cellphone to Mohn was demonstrated by the judge as nonsensical in light of the calls -- at the time of the robbery -- between the juvenile's cellphone and Mohn's. As the judge rhetorically asked during his oral decision, if Mohn was in possession of both cellphones, why would he place a call on one to the other?