State v. Matulewicz

• Decision Date: 05 February 1985
• Citation: 198 N.J.Super. 474,487 A.2d 772
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Stanley A. MATULEWICZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 474

198 N.J.Super. 474

487 A.2d 772

STATE of New Jersey, Plaintiff-Respondent, v. Stanley A. MATULEWICZ, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 9, 1984.

Decided Feb. 5, 1985.

Shamy & Luke, New Brunswick, for defendant-appellant (George J. Shamy, Jr., New Brunswick, of counsel; George J. Shamy, Jr. and Barbara Coles Bolella, New Brunswick, on brief).

Joseph A. Falcone, Passaic County Prosecutor, for plaintiff-respondent (John C. Berndt, Asst. Prosecutor, of counsel and on brief).

Before Judges KING, DEIGHAN and BILDER.

The opinion of the court was delivered by

KING, P.J.A.D.

In this case we must decide if a State Police chemist's laboratory report identifying a controlled dangerous substance (marijuana) may be admitted into evidence as a report of a public official where the chemist who analyzed the substance was not produced as a witness. The Municipal Court judge decided that the report was admissible as a public record in a prosecution for possession of marijuana, as a disorderly person's offense under N.J.S.A. 24:21-20(a)(4) and (b). The Law Division judge agreed at the trial de novo on the record in the Superior Court. R. 3:23-8. We disagree with these rulings, reverse the conviction, and remand for a new trial. We conclude that the hearsay exception in Evid.R. 63(15)(a) was not a proper basis for admitting this crucial hearsay evidence where the forensic chemist did not testify.

Defendant was accused of smoking marijuana in public while waiting in line to enter a night club in Clifton on March 6, 1982. The police seized the suspect's cigarette after defendant allegedly dropped it on the ground. He claimed that a stranger handed him the cigarette just before the police approached him. On March 10 the alleged marijuana cigarette was taken to the State Police Laboratory for analysis. On June 28 it was returned to the Clifton Police Department unanalyzed. The cigarette was later resubmitted to the Laboratory on October 4 and returned to the Police Department on October 8 with the chemist's positive report.

When the "drug analysis result" report was offered in evidence in the municipal court defendant's counsel timely objected. R. 1:7-2. The municipal court judge overruled the objection to the chemist's report on the basis of a then-recent decision of the Law Division in State v. Malsbury, 186 N.J.Super. 91, 451 A.2d 421 (Law Div.1982). Contra, State v. Kraft, 134 N.J.Super. 416, 341 A.2d 373 (Cty.Ct.1975). On the appeal to the Law Division appellant was again found guilty; that judge found the laboratory report admissible hearsay under Evid.R. 63(15)(a)--"Reports and Findings of Public Officials" as construed by Malsbury. ¹

We agree with defendant's contention that the Evid.R. 63(15) does not justify admission of the State Police Laboratory report in this criminal case. That rule states

Subject to Rule 64, a statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

Evid.R. 64 requires that the proponent must make known in advance the intention to offer a written statement pursuant to Evid.R. 63(15) in order to provide an adverse party "with a fair opportunity to prepare to meet it." This was not done by the municipal prosecutor but even if he complied with Evid.R. 64 our decision would not differ.

As stated, under Evid.R. 63(15)(a) a public official's statement is admissible if it is a written statement of "an act done, or an act, condition or event observed by a public official if it is within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement." Under Evid.R. 63(15)(b) "statistical findings" are also admissible. The rationale of these exceptions to the hearsay rule is reportedly twofold

(1) the special trustworthiness of official written statements is found in the declarant's official duty and the high probability that the duty to make an accurate report has been performed, State v. Hudes, 128 N.J.Super. 589 (Cty.Ct.1974); 5 Wigmore, Evidence § 1632 (Chadbourn rev. 1974), and (2) to avoid the necessity of compelling a public official to leave his daily functions to testify as to an event which he will most likely not remember. Id. at § 1631.

[N.J.Rules of Evid. (Anno.1984), Comment 1 to Evid.R. 63 (15) ].

We cannot agree that Evid.R. 63(15)(a) is an appropriate shortcut for law enforcement officials which eliminates the need to present the testimony of forensic chemists in drug prosecutions. Here we are not concerned with routine observations of acts, conditions or events observed or recorded by presumably neutral public officials. We are concerned here with the examination and evaluation of crucial evidence against a defendant made after the commencement of a criminal prosecution and for use in that prosecution. The marshalling, evaluation, and presentation of evidence is the major step in the adversarial process of criminal prosecution. Simply because this is the daily business of the prosecutor, the police officer, or the forensic chemist, does not bring this within the "official observations" exception found in Evid.R. 63(15)(a). The special trustworthiness and expediency rationales for this hearsay exception are not sufficient to overcome the State's traditional duty in a criminal prosecution to prove every element of the offense beyond a reasonable doubt by competent evidence. See State v. Ingenito, 87 N.J. 204, 210-217, 432 A.2d 912 (1981), where Justice Handler stated that in criminal cases the "fact-finding function is all inclusive and encompasses the evaluation of the credibility of witnesses and the weight and worth of evidence." Id. at 211, 432 A.2d 912. In Ingenito the Court held that application of the doctrine of collateral estoppel could not be used to spare the State of its duty to prove an element of the offense. Here we conclude that the report of a forensic investigator, offered without any foundation testimony, also "constitutes an invasion of the ... ultimate decisional function." Id. at 213, 432 A.2d 912. ²

Judge Conford reviewed in detail the history of the problem of the admission of facts and conclusions derived by official investigators in Phillips v. Erie Lackawanna R.R. Co., 107 N.J.Super. 590, 259 A.2d 719 (App.Div.1969), certif. den. 55 N.J. 444, 262 A.2d 700 (1970). In that case we held that the factual conclusions of a hearing examiner of the public utility commissioners relating to a supposedly hazardous grade crossing and the Board's decision and order directing installation of protective lights and bells were hearsay and were not admissible under Evid.R. 63(15) relating to reports and findings of public officials in a civil damage action arising out of a grade-crossing accident. As Judge Conford so precisely noted, "[t]he broad subject of admissibility of official statements containing factual conclusions derived from investigatory proceedings has constituted a controversial area in the law of evidence and has evoked differing points of view." Id. at 594, 259 A.2d 719. Judge Conford also pointed up that where "reports by officials [have been] offered under the business records exception to the hearsay rule [ Evid.R. 63(13) ] our courts have taken a rather cautious approach in respect of admissibility of conclusionary data contained in such reports," ibid., citing Brown v. Mortimer, 100 N.J.Super. 395, 405, 242 A.2d 36 (App.Div.1968); Rogalsky v. Plymouth Homes, Inc., 100 N.J.Super. 501, 506, 242 A.2d 655 (App.Div.1968), certif. den. 52 N.J. 167, 244 A.2d 298 (1968). Cf. Fagan v. City of Newark, 78 N.J.Super. 294, 316-318, 188 A.2d 427 (App.Div.1963).

The historical background of the adoption of Evid.R. 63(15) obviated the need to "enter into the policy debate" over the breath of admissibility of official conclusions in this context. Id. 107 N.J.Super. at 595, 259 A.2d 719. This historical background "demonstrate[d] clearly the intent of the drafters not to allow in evidence conclusionary material resulting from official investigations embodied in statements or reports of the official or agency involved." Ibid. A review of the process of development of our present Evid.R. 63(15) makes very clear, as described by Judge Conford, id. at 595-599, 259 A.2d 719, that our rules have definitely rejected the proposal in the Uniform Rules of Evidence that official investigatory conclusions should be included as admissible hearsay. As he observed, the deliberative and drafting process precedent to adoption constituted an "outright desertion of the principle of admissibility of all investigatory findings or conclusions and a reversion to the limitation to statistical findings" only. Id. at 598, 259 A.2d 719. Judge Conford concluded his detailed analysis in Phillips by remarking on the "unmistakable intent to exclude from evidence factual findings or conclusions, aside from statistical findings, by official investigatory bodies, insofar as admissibility is posited upon the exception to the hearsay rule constituted by Rule 63(15)." Id. at 599, 259 A.2d 719. In the case before us, the State's chemist's report of his quantitative and qualitative analysis of the alleged dangerous substance is obviously beyond the narrow admissible class of official investigatory findings, i.e., "statistical findings," allowed by the exception.

The Comments in the Report of the New Jersey Supreme Court on Evidence 191-192 (March 1963) are also illuminating. The Committee recommended that the Supreme Court adopt a version of 63(1...