STATE OF NEW JERSEY, Plaintiff–Respondent, v. RAPHAEL GARLAND, Defendant–Appellant.
DOCKET NO. A–2647–11T2
-- September 13, 2013
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).Frank J. Ducoat, Deputy Attorney General, attorney for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).
The Essex County grand jury returned Indictment No. 2009–7–2033, charging defendant Raphael Garland, and co-defendants Tyreese Evans and Ebony Johnson, with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5–2 and 2C:15–1; first-degree armed robbery of Raheem Cottle, N.J.S.A. 2C:15–1; first-degree armed robbery of Donald Mclaurin Green, N.J.S.A. 2C:15–1; first-degree murder of Cottle, N.J.S.A. 2C:11–3a(1) and (2); first-degree felony-murder of Cottle, N.J.S.A. 2C:11–3a(3); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4a.1 Defendant was subsequently tried alone.2
Upon defendant's motion at the conclusion of the State's case, the judge entered judgment of acquittal as to the robbery of Green. See R. 3:18–1. The jury found defendant guilty of conspiracy and first-degree robbery, however, it acquitted defendant of the remaining charges. After merging the two offenses, the judge sentenced defendant to an eighteen-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. This appeal followed.
Defendant raises the following points for our consideration:
[DEFENDANT]'S RIGHT TO CONFRONTATION AND THE RULES OF EVIDENCE WERE VIOLATED BY THE TRIAL COURT'S ADMISSION OF CELLULAR TELEPHONE REPORTS INTO EVIDENCE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. [ ] ART. 1, PAR[A]. 10. (Partially Raised Below)
A. The Evidence Does Not Satisfy The “Business Record” Exception To The General Ban On Hearsay And Comes Within The Purview Of The Litigation Exception To The “Business Record” Exception To The General Ban On Hearsay.
B. Admission Of The Evidence Violated [Defendant]'s Rights To Confrontation.
THIS MATTER SHOULD BE REMANDED FOR A HEARING PURSUANT TO STATE V. ROACH, 146 N.J. 208 (1996)[,] BECAUSE A SIMILARLY SITUATED CO–DEFENDANT RECEIVED A DISPARATE SENTENCE. (Not Raised Below)
[DEFENDANT]'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE AND FAILS TO COMPORT WITH THE SENTENCING PRINCIPLES OF NEW JERSEY LAW.
A. The Sentencing Court Inappropriately Found And Weighed Aggravating Factors.
B. The Sentencing Court Considered Inappropriate Information And Failed To Find Mitigating Factors Militating In Favor Of A Lesser Sentence.
C. The Sentencing Court Failed To Adhere To The Principle Of Progressive Discipline In Sentencing [Defendant].
We have considered these arguments in light of the record and applicable legal standards. On the record presented, the judge mistakenly exercised his discretion by admitting certain documents into evidence as “business records.” See N.J.R.E. 803(c)(6). Because that error “raise[s] a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached,” State v. R.B., 183 N.J. 308, 330 (2005) (citations omitted) (alteration in original), we are compelled to reverse defendant's conviction and remand the matter for a new trial.
Although our decision turns on the admission of a discrete portion of evidence at trial, we briefly summarize the testimony of the State's witnesses and other evidence adduced to provide context and explain our ultimate conclusion that reversal is necessary.
On the evening of December 29, 2008, seventeen-year old Asia Hall was at home on Myrtle Avenue in Irvington with her friend, Ieshia Cameron. Asia testified that at approximately 11:00 p.m., she and Cameron “went ․ to go get some weed.” 3 The girls were accompanied by Asia's ex-boyfriend, Keith, and two of his friends.
In the Chicken Shack restaurant, Asia purchased some “expensive weed” from a man and “went to Union with Keith” to smoke and drink. Asia took down the seller's phone number in case she “want[ed] some more.” Keith eventually drove Asia back to her home.
Once there, co-defendant Tyreese Evans, who sometimes stayed in the Hall home, asked Asia why she “got high without” him and “where [she got] the weed from.” Asia told Evans where she bought the marijuana, and he said, “I know you got [the seller's] number, you should let me rob him.” Asia claimed she did not want Evans to “do it because [she] didn't trust his friends,” notably, defendant, whom she knew and who was with Evans at the time he made these comments to Asia. Asia identified defendant in court.
Asia said Evans insisted “nothing [was] going to happen, they were just going to rob ․ the weed” and “promised ․ he wasn't going to put the gun in [anyone] else['s] hand but his.” Asia then called her contact, and she and Cameron went back to the Chicken Shack.
Cottle and Green, who sold Asia the marijuana, eventually arrived at the Chicken Shack, and the four “drove to 18th Avenue to get some Dutchess,” which Asia explained was “[w]hat you roll the weed in.” Evans phoned Asia and told her that when the group returned to Myrtle Avenue, they should park behind an orange car.
When Asia, Cameron, Cottle, and Green returned to Asia's house, defendant, Evans and Johnson approached them. Evans pulled out a gun, which prompted Cottle and his friend to “put their hands up.” Evans passed the gun to defendant while Evans “checked the boys['] pants and socks.” Cottle and Green then ran off. Asia testified that defendant fired the gun in their direction, but, at the time, she did not know that anyone had been shot. Asia spoke to Evans later that evening by phone, but she testified that she never spoke to defendant. On December 31, Asia identified defendant as the shooter from an array of photos shown to her by police.
On cross-examination, Asia admitted “taking ․ other kinds of drugs that night,” including ecstasy. When she returned from Union, Asia said she was “wasted” and “falling down over [her]self.” Asia could not remember how many people were in her home when she arrived, or if her brother, Shawn, was there.
Asia also admitted that when she first spoke to police in the early morning hours of December 30 she claimed that she was a victim of the robbery. She also told police that “the people had masks on,” and she was “[un]able to get a good look at anybody's face,” although “one of [the men] pulled down the mask” to speak to her. Asia admitted speaking to police several times after that initial interview, but she never told them that defendant shot Cottle until December 31. Asia acknowledged “there's a[ ]lot [she did not] remember about” the night of the shooting.
Cameron's testimony differed significantly from Asia's. She claimed the girls went to the Chicken Shack to get something to eat and drink, and Cottle and Green “picked [them] up.” When they returned to Myrtle Avenue, two men approached the group. One pulled out a revolver, pointed it at Cottle and Green, and “took whatever they had on them.” Cottle and Green began to run, and “one of the boys let off the revolver and hit [Cottle] in his leg. He fell on the corner.”
Cameron said Asia never told her what was about to happen, although Asia testified that she told Cameron of the plan. She denied that Asia received any phone calls during the evening. Cameron confirmed that Evans gave defendant the gun, and it was defendant who fired the shots. She identified defendant in court and also identified a photograph of defendant from an array shown to her by police on January 9, 2009. Cameron admitted also identifying “another photograph,” which “was a mistake.” 4
Cameron denied going to Union with Asia on the night in question. She claimed neither she nor Asia had been drinking, smoking marijuana, or taking ecstasy that evening. Cameron acknowledged telling police that she too was robbed by the two men wearing masks. At trial, Cameron admitted the men did not wear masks.
Asia's brother Shawn testified that he met defendant for the first time at his family's Myrtle Avenue home on the night of the robbery. He saw defendant with a silver revolver on his hip and told defendant to “get out of the house.” Defendant “[w]alked to the kitchen, ․ got his friend,” a “girl that looked like a boy with dreads,” and left.
Approximately twenty minutes later, Shawn heard gunshots. From one window, Shawn saw two men running, and, from his bedroom window, he saw Cottle fall and Green continue to run toward an alley. When asked if he saw the man with the revolver in the courtroom, Shawn said the man “look[ed] sort of like” defendant. On January 2, 2009, Shawn identified a photo of defendant as the man who had the silver revolver on the night of the shooting.
On cross-examination, Shawn testified that Evans was like a brother to him. Asia “was drunk that night,” having been “[d]rinking, smoking, pills, whatever.” Shawn admitted that he initially did not tell police that he saw defendant in the house with the gun.
Khaleed Kemp testified that he was at Asia and Shawn's home on the night of the robbery. Kemp claimed to have overheard Asia talking to Evans about robbing someone. In court, he identified defendant as being in the Myrtle Avenue house on the night in question.
On cross-examination, Kemp admitted smoking marijuana before he arrived at Asia's home. He also blamed his faulty memory about details of the evening upon “a series of football injuries,” saying “it's tough with concussions to remember.” Kemp initially could not remember if he was shown two photo arrays by police, but he ultimately confirmed that he provided a statement to police on January 6, 2009, and identified and signed the back of a photograph of defendant from a photo array shown to him on another occasion, January 13.
Several police witnesses testified regarding their investigation of the crime scene and the photographic arrays shown to the witnesses. The medical examiner, Dr. Roger Mitchell, testified that Cottle died of gunshot wounds to his torso and extremities. There were no gunshot wounds to Cottle's legs. Defendant did not testify nor call any witnesses.
During the trial and outside the presence of the jury, defense counsel advised the judge that he was objecting to the State's introduction of “phone records regarding the direct connect calls ․ attributed to [defendant] and Miss Hall.” Counsel expressed a “concern in terms of foundation ․ regarding the business record exception to the hearsay rule.” He noted the State's intention to introduce the records through the testimony of a detective, who secured a communication data warrant (CDW) to obtain the documents.
The prosecutor explained his intention to call detective Robert Prachar, a detective in the Homicide Squad of the Essex County Prosecutor's Office, who obtained certain records from “Sprint” in response to a CDW. The prosecutor argued the documents were “inherently reliable.”
The judge, however, noted that Prachar was “not the custodian of the records for Sprint.” He observed that, although the documents were furnished in response to the CDW, “how does that address the hearsay objection to the business documents themselves?” The judge indicated he was not going to rule on the issue presently.
Subsequently, Prachar testified at a N.J.R.E. 104(a) hearing held outside the presence of the jury. The detective applied for, and was granted, CDWs for Cottles's, Asia's, Cameron's and defendant's cell phones.5 Prachar served the CDWs on Sprint Nextel, requesting “any and all information pertaining to these phones, the subscriber information, name and address usually attached in a ․ direct connection line, a chirp number, a chirp line.” Prachar explained that a “chirp” is the sound emitted by a phone equipped with a “walki[e-]talki [e] two[-]way radio” that permits a direct connection between that phone and another so equipped. He identified Nija Garland as the subscriber for a direct connect number, 175*304*725, that repeatedly appeared as “chirps” on the documents Sprint produced for Asia's telephone. Prachar testified that upon speaking to defendant's sister, he found out that Nija Garland was her “two [-] or three[-]year[ ] old” daughter.
Prachar identified one document as “part of the phone log from Asia's phone.” His review of that document, exhibit S–86, indicated six chirps between the two phones between 11:33 and 11:39 p.m. on the date of the shooting, roughly the time immediately prior to the robbery and when Asia claimed she and Evans were in contact. Prachar testified that S–86 was “a document ․ [he] received from the phone company[,]” and “not a summary chart that [he] compiled.”
Regarding his experience with CDWs, Prachar testified that he had made similar comparisons between phone records “[d]ozens of times” before. On cross-examination, however, Prachar acknowledged that he did not know what some of the information on the exhibit meant. He admitted having no “classroom” training and relying upon conversations he had “with cell phone company carriers” for explanations of the information. Defense counsel objected to the record, noting, “I don't think ․ [Prachar] can explain or is competent as to what it all means, it's not self-evident and I think that's a problem.”
The judge found that Prachar had conducted between twenty and forty homicide investigations, with “more than twenty involving [CDWs],” and he “had additional conversations with the service providers as to the operation of cell phones and chirp phones.” The judge further noted that S–86 was not a “summary chart,” but rather was “the business document provided by the service provider,” and Prachar's testimony regarding the two phones was based “on the business document itself.” The judge concluded: “I find it admissible based upon the certification and the underlying document will be admissible under the business record exception.” 6
The judge then asked defense counsel if he had any further objection. He responded, “No.”
Before the jury, Prachar testified that he obtained CDWs for Asia's and defendant's phones. Prachar explained what a “chirp” was, and how a direct connection phone worked. Prachar identified a document, exhibit S–89, obtained from Sprint that included the “chirp number” and subscriber information for defendant's phone number. The subscriber was Nija Garland.
Without objection, Prachar was asked if, “[b]ased upon [his] investigation,” he ascertained who Nija Garland was. Prachar responded, “Nija Garland was ․ a three[-]year[-]old daughter of [defendant's] sister who at the time was his legal guardian as well.” 7 Focusing on the time period between approximately 11:30 p.m. on December 29, 2008, and 12:30 a.m. on December 30, and using S–86 as an exhibit, Prachar identified for the jury “each time that Asia ․ spoke with and chirped [defendant] on his phone and ․ the chirp numbers.”
S–86 was admitted into evidence at the end of the State's case and presumably was provided to the jury during its deliberations.
Defendant first argues that the judge erred by admitting the Sprint records into evidence because the State failed to establish they were business records, admissible as an exception to the hearsay rule pursuant to N.J.R.E. 803(c)(6). We conclude that the Sprint records should not have been admitted, but for a slightly different reason.
It is well-established that “[a] trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion.” State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). “However, [w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence, our review is de novo.” Konop v. Rosen, 425 N.J.Super. 391, 401 (App.Div.2012) (citations and quotation marks omitted) (alteration in original).
N.J.R.E. 803(c)(6) excepts from the hearsay rule:
A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
“The purpose of the business records exception is to ‘broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness.’ ” Liptak v. Rite Aid, Inc., 289 N.J.Super. 199, 219 (App.Div.1996) (quoting State v. Hudes, 128 N.J.Super. 589, 599 (Cty.Ct.1974)).
“The standard for the admissibility of business records has remained constant.” State v. Sweet, 195 N.J. 357, 370 (2008), cert. denied, 557 U.S. 934, 129 S.Ct. 2858, 174 L. Ed.2d 601 (2009). The proponent of the evidence must satisfy a three-prong test:
First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.
[Ibid. (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985) (internal quotation marks omitted)).]
The “rule does not require the testifying witness to have personally participated in the creation of the document or to know who actually recorded the information.” Hahnemann Univ. Hosp. v. Dudnick, 292 N.J.Super. 11, 17 (App.Div.1996) (citation omitted). “A witness is competent to lay the foundation for systematically prepared computer records if the witness (1) can demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record.” Id. at 18. Accord Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007); see also Garden State Bank v. Graef, 341 N.J.Super. 241, 245 (App.Div.2001) (permitting employee of successor bank to certify as to the loan history printouts reflecting transactions with predecessor bank because his position “render[ed] him ‘sufficiently familiar with the record system used’ ․ enabl[ing] him to ‘establish that it was the regular practice of [the successor bank] to make the record’ ”) (quoting Hahnemann Univ. Hosp., supra, 292 N.J.Super. at 18).
The parties have not cited, and we have not found, any published New Jersey decision that deals with the specific question of whether cell phone records, furnished by a telecommunications carrier in response to a CDW, constitute business records under N.J.R.E. 803(c)(6).8
Defendant argues that S–86, which is not a phone bill but rather a log of phone calls to and from Asia's cell phone, and the other records produced by Sprint “were not kept in the ordinary course of business” because they were furnished solely in response to the CDWs.9 We do not agree that the documents produced fail to qualify as business records simply because they were supplied in response to a CDW.
The Ohio Supreme Court considered and rejected that conclusion in State v. Hood, 984 N.E.2d 1057 (Ohio 2012). There, the Court recognized that:
[T]he regularly conducted business activity of cell-phone companies is not the production of evidence for use at trial. The fact that records are used in a trial does not mean that the information contained in them was produced for that purpose. Even when cell-phone companies, in response to a subpoena, prepare types of records that are not normally prepared for their customers, those records still contain information that cell-phone companies keep in the ordinary course of their business.
[Id. at 1065.]
The court ultimately concluded the records were inadmissible because they had not been properly authenticated.10
The Tenth Circuit reached a similar conclusion in United States v. Yeley–Davis, 632 F.3d 673 (10th Cir.2011). There, the court rejected the defendant's argument that because “the records were not telephone bills, but rather ‘exhibits prepared especially and only for trial,’ ” they were not admissible as business records. Id. at 679. The court concluded “these records were kept for Verizon's business purposes” and “in the course of Verizon's regularly conducted business.” Ibid.
However, on the record provided, we cannot conclude whether S–86 and the other documents referenced by Prachar contained information “made in the regular course of business.” Sweet, supra, 195 N.J. at 370 (citation omitted). Prachar did not so testify. He simply indicated that the records he received from Sprint in this case were similar to those he received in other cases in response to CDWs.
Nor can we conclude that the State, as the proponent of the evidence, carried its burden regarding the other predicates for admissibility. Prachar provided no description regarding “the method and circumstances of the preparation of the writing.” Ibid. (citation omitted). More importantly, Prachar was not “competent to lay the foundation” in that he could not “demonstrate that the ․ record [wa]s what the [State] claim[ed]” it was, and he was not “sufficiently familiar with the record system used.” Hahnemann Univ. Hosp., supra, 292 N.J.Super. at 18.11 The detective was undoubtedly familiar, based upon conversations he had with various services providers and prior experience, with the meaning of the records' contents; but that is not the test for admissibility.
In short, we are compelled to conclude that the State failed to prove the necessary predicate facts to establish the admissibility of S–86, and Prachar's testimony regarding the actual content of other documents, pursuant to N.J.R.E. 803(c)(6). We hasten to add without necessarily deciding beforehand that, if the case is tried again and the proper foundation is laid, the documents may indeed be admissible pursuant to N.J.R.E. 803(c)(6).12
The State argues that even if the records were improperly admitted, the error was harmless. In particular, it argues that the jury had the eyewitness testimony of Asia and Cameron, the out-of-court identifications made by the witnesses, as well as the corroborative testimony of Shawn and Kemp. However, it is very clear that each witness had significant issues affecting his or her credibility. Indeed, on the most critical point—whether defendant had the gun and fired the fatal shots—the jury did not believe Asia or Cameron beyond a reasonable doubt.
Recognizing these deficiencies in the credibility of the State's witnesses, the assistant prosecutor in summation argued the significance of the phone records. The prosecutor called the exhibit “scientific evidence” that was the “final piece in the puzzle.” He told the jury the records showed “they [ (Asia and defendant) ] were in contact,” and “[w]e can only imagine what those conversations were about.”
However, the testimony from Asia was that she spoke to Evans and never spoke to defendant at all. Cameron denied there were any phone conversations. Most importantly, although there was no objection at trial, Prachar was permitted to use the records to identify the “chirp” number that appeared on the log of Asia's phone as being registered to Nija Garland. In what was blatant hearsay, he was also permitted to testify that Nija Garland was the infant daughter of defendant's sister, something he could have only known if told by someone else who did not testify. See, e.g., State v. Branch, 182 N.J. 338, 351 (2005) (holding that a “police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant”).
Taken together, the records and Prachar's testimony did more than corroborate Asia's account of the shooting and her use of the phone to contact Evans. The “scientific evidence” served to place defendant at the scene of the crime directly participating in an active conspiracy to rob Cottle through the use of a cell phone registered to his three-year old niece.
“ ‘The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.’ ” State v. Bakka, 176 N.J. 533, 547–48 (2003) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
We are constrained to conclude that the admission of S–86 and Prachar's testimony regarding that exhibit and other records he obtained pursuant to the CDWs was not harmless error. We therefore reverse the judgment of conviction. In light of our decision, we do not address the arguments defendant raises regarding the sentence imposed.
Reversed and remanded. We do not retain jurisdiction.
1. FN1. At the time of the incident, defendant was a juvenile. He was indicted after a referral hearing in the Family Part. See N.J.S.A. 2A:4A–26.
2. FN2. According to defendant's brief, Johnson pled guilty to conspiracy to commit robbery and was sentenced to five years imprisonment. Evans pled guilty to first-degree aggravated manslaughter, second-degree conspiracy to commit robbery, and second-degree unlawful possession of a weapon. Evans was sentenced to a ten-year term. Neither co-defendant testified at trial.
3. FN3. Because other members of the Hall family testified, to avoid confusion we refer to them by their first names. We intend no disrespect by this informality.
4. FN4. It is unclear from the record what other photograph Cameron identified.
5. FN5. The CDW for the cell phone facility attributed to defendant was issued on January 21, 2009, several weeks after the CDWs for the other phones.
6. FN6. We are unsure what “certification” was produced. There is none in the appellate record, and none was specifically referenced during Prachar's testimony. The judge was perhaps referencing a certificate authenticating the records. See N.J.R.E. 902(h).
7. FN7. Defendant's appendix includes records supplied by Sprint providing the subscriber information for various chirp numbers. We cannot tell with certainty if they are a portion of exhibit S–89. We only note that the subscriber information for “Nijah Garland” indicates her birthdate was “10/11/1991.”
8. FN8. Our attention was drawn to the unpublished opinion of our colleagues in State v. Evans, No. A–1530–08 (App. Div. June 24, 2011) (slip op. at 12–15), where the panel, although finding the error harmless, concluded that the judge mistakenly exercised his discretion by admitting phone records supplied in response to a CDW. Our colleagues noted that the testifying detective was unable to confirm “whether the document was prepared in the ordinary course of business[,]” and his testimony did not “satisfy the other foundational criteria for admissibility.” Id. (slip op. at 14).
9. FN9. We consider the contention only in the context of our Rules of Evidence, and not in conjunction with defendant's Confrontation Clause argument. In this regard, we note that the out-of-state decisions that follow considered the issue in the context of whether the documents were “testimonial” in nature, as that term has been used by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed.2d 177 (2004), and its progeny.
10. FN10. In Hood, supra, 984 N.E.2d at 1066 (citations omitted), the court set forth the conditions for admissibility of a business record under Ohio law:(i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event or condition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the “custodian” of the record or by some “other qualified witness.”
11. FN11. Defendant points to a cover letter from Sprint that apparently accompanied some of the documents furnished in response to the CDWs. We are not sure it was provided to the trial judge. In that letter, the Sprint representative notes: “If the records contained in the attached package are utilized in trial proceedings, and if you require a records custodian for authentication, be advised that Sprint does not have local representatives.” The letter further provided contact information for Sprint's legal department.
12. FN12. The State correctly points out that defendant never raised the Constitutional Confrontation Clause argument before the trial judge. We refuse to consider the argument for the first time on appeal given the limitations of the record.