State ex rel. J.A.
State ex rel. J.A.
Opinion of the Court
The opinion of the court was delivered by
Following a bench trial, juvenile, J.A., was adjudicated delinquent of an act which, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C.15-1. He was sentenced to a two-year term at the Training School for Boys at Jamesburg. J.A. appeals, arguing that it was reversible error to admit the hearsay statement of a non-testifying eyewitness. We disagree, and affirm.
According to the State’s proofs, on February 10, 2005, shortly before 9:30 p.m., J.C. exited a bus at 28th Street in Paterson and began walking home, carrying a purse and a book bag. She was approached from behind by two juveniles, later identified as J.A. and H.A.
Responding to the victim’s screams, three young women approached and helped J.C. by lending her a cell phone to call her son and by flagging down a police car. Soon, backup police arrived, including Officers Belton and Semmel, who were responding to a police radio broadcast of a purse snatching at 20th Avenue and East 31st Street. J.C. informed the officers that her purse was “snatched by two individuals,” one of whom wore a red-hooded sweatshirt and black jacket. The responding officers began patrolling the area for suspects.
As a result of this information, Officer Semmel located J.A. and H.A. walking down the street. The juveniles matched the witness’ earlier description, as J.A. had a red jacket and glasses and H.A. wore a white and blue jacket. The juveniles were brought back to the robbery scene where J.C. identified H.A. as the one who snatched her purse, but was unable to identify J.A. as the other assailant.
J.A. and H.A. were arrested and given their Miranda
At trial, the victim and several police officers testified for the State. The State did not produce the eyewitness, who apparently refused to appear to testify. Consequently, Officer Semmel was permitted to testify as to the statements conveyed to him by the witness. The juvenile did not call any witnesses. In summation, defense counsel argued that J.A. was merely present at the scene, but had not been an accomplice to the robbery.
(i)
N.J.R.E. 803(c) permits the admission of certain extrajudicial statements of a declarant as substantive evidence regardless of the availability of the witness. Two such exceptions allow for the declarant’s hearsay statements as present sense impressions, N.J.R.E. 803(c)(1), and excited utterances, N.J.R.E. 803(c)(2). Both exceptions make admissible statements of “observation” as well as statements “descri[bing] or expla[ining]” an event or condition. N.J.R.E. 803(c)(1). Thus, a present sense impression is:
A statement of observation, description, or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate.
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Somewhat related is an excited utterance, defined as:
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.
[N.J.R.E. 803(c)(2).]
These rules are based on the premise that the present sense impression formed from perceiving an event or condition as it unfolds, or the “ ‘|e]xcitement caused by the observation of a startling event[,] ensures the reliability of a spontaneous statement about it made at or near the time of the event’s occurrence.’ ” In re Registrant, C.A., 146 N.J. 71, 98, 679 A.2d 1153 (1996) (quoting Biunno, Current N.J. Rules of Evidence, comment 10 on N.J.R.E. 803(e)(2) (1994-95)); State v. Burris, 357 N.J.Super. 326, 332, 815 A.2d 481 (App.Div. 2002) (hearsay testimony by witnesses who overheard telephone conversation between victim
The factors to be considered in determining whether the declarant had an “opportunity to deliberate or fabricate” include “ ‘the element of time, the circumstances of the [incident], the mental and physical condition of the declarant, the shock produced, [and] the nature of the utterance____’” State v. Branch, 182 N.J. 338, 360, 865 A.2d 673 (2005) (quoting Riley v. Weigand, 18 N.J.Super. 66, 73, 86 A.2d 698 (App.Div. 1952)). With respect to the amount of time elapsed, it is clear that contemporaneous or nearly contemporaneous statements will qualify. Thus, for purposes of N.J.R.E. 803(c)(1), it has been determined that a telephoned statement to police by an informant, who insisted upon remaining anonymous, made while witnessing an event described in the statement, may be “so inherently reliable as to be admissible at trial as an exception to the hearsay rule.” State v. Marsh, 162 N.J.Super. 290, 299, 392 A.2d 672 (Law Div. 1978), aff'd sub nom. State v. Williams, 168 N.J.Super. 352, 403 A.2d 28 (App.Div. 1979).
As previously noted, however, neither rule requires the statement to have been made contemporaneously with the event being described nor even, in the case of excited utterances, immediately after the event causing the nervous excitement. See State v. Long, 173 N.J. 138, 159-60, 801 A.2d 221 (2002); State v. Baluch, 341 N.J.Super. 141, 182, 775 A.2d 127 (App.Div.) (stating
Thus, statements made by eyewitnesses to a ear accident some twenty minutes after it occurred were admissible where “[t]here was more than ample evidence to conclude that the witnesses were still under the stress of the event____” Truchan v. Sayreville Bar & Rest., Inc., 323 N.J.Super. 40, 50, 731 A.2d 1218 (App.Div. 1999). Likewise, a delay of fifteen minutes between the occurrence of the event and the statement sought to be introduced is not necessarily too long a period to bar admission of the statement under N.J.R.E. 803(c)(2). See Atamanik v. Real Estate Mgmt, Inc., 21 N.J.Super. 357, 91 A.2d 268 (App.Div. 1952). In Lazarchick, supra, 314 N.J.Super. at 524, 715 A.2d 365, the statement of an assault victim to his mother when he arrived home not more than an hour after the attack was ruled admissible. Similarly, in State v. Swint, 328 N.J.Super. 236, 246-247, 255, 745 A.2d 570 (App.Div.), certif. denied, 165 N.J. 492, 758 A.2d 651 (2000), the court held that statements about the identity of his assailants made by the victim of a kidnapping, assault, and torture approximately one hour after he escaped from the site of the assault to his brother’s home were admissible under N.J.R.E. 803(e)(2).
In contrast here, the eyewitness had just observed what may reasonably be considered a startling event — two individuals knocking a woman down and snatching her purse. His reaction was spontaneous and coincident with the occurrence, leaving no pause for premeditation. Although the actual robbery was relatively short in duration, the episode continued as the witness followed the assailants for two blocks within a period of no more than two minutes, during which time he simultaneously reported the events and characters as he perceived them to be. Shortly thereafter, when the witness encountered Officer Semmel, he recounted the events that had just transpired in his presence and
(ii)
J.A. nevertheless argues that admission of the hearsay statements violated his Sixth Amendment right to confrontation as interpreted by Crawford, supra. That case holds that hearsay evidence that is “testimonial” may not be admitted against a criminal defendant unless the declarant is unavailable and defendant has had a prior opportunity to cross-examine. Crawford, supra, 541 U.S. at 59,124 S.Ct. at 1369,158 L.Ed.2& at 197. This is because, as Crawford makes clear, in a criminal prosecution any hearsay permitted under state rules of evidence is also subject to the defendant’s Sixth Amendment “ ‘right ... to be confronted with the witness against him.’ ” Id. at 38, 124 S.Ct. at 1357, 158 L.Ed.2d at 184 (quoting U.S. Const, amend. VI). Thus, Crawford holds that the Sixth Amendment prohibits use of “testimonial” statements without the opportunity to cross-examine.
Although the Supreme Court did not provide a comprehensive definition of “testimonial,” it gave examples of the type of statements at the core of the definition, including “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. at 1374, 158
In the wake of Crawford, courts have held that statements made to police “in response to structured police questioning,” Id. at 53, n. 4,124 S.Ct. at 1365 n. 4, 158 L.Ed.2d at 194 n. 4, or contained in a formal statement, such as an affidavit, are “testimonial.” See, e.g., Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (holding that statements victim made to police after they tracked down suspects, and in response to pointed questioning, were testimonial), cert, denied sub nom., Mungo v. Greene, 544 U.S. 1002, 125 S.Ct. 1936, 161 L.Ed.2d 778 (2005); United States v. Jordan, 357 F.Supp.2d 889, 900-01 (E.D.Va. 2005) (holding that witness’s statement to police was testimonial because police asked whether she would be available to testify in court, even though she appeared at police station of her own accord, and told her story with minimal prompting); Hammon v. State, 829 N.E.2d 444, 458 (Ind.) (holding that the affidavit that the witness signed was testimonial), cert. granted, — U.S. -, 126 S.Ct. 552, 163 L.Ed.2d 459 (2005); Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549, 561 (2005). The reasons some courts focus on whether the questioning was “structured” is because “structured questioning ... evidence^] ... a purpose to elicit ‘testimonial’ statements.” Hammon, supra, 829 N.E.2d at 453.
Clearly, not all hearsay implicates the Sixth Amendment’s core concerns. Crawford, supra, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203. Thus, courts have found that spontaneous or volunteered statements to law enforcement officers, or statements that are in response to open-ended or minimal questioning by law enforcement, particularly those at the scene of the crime, are not
Even when the statements are elicited by on-the-spot police questioning, they tend not to be of the same nature as those in response to more formal and official police interrogation. Rather, in such instances the purpose in eliciting the statement is typically not to produce or preserve evidence in anticipation of a potential criminal prosecution, but directed instead to determining in the first instance “whether an offense has occurred, protection of victims or others, or apprehension of a suspect.” Id. at 457.
Recently, the Third Circuit in United States v. Hinton, 423 F.3d 355 (3d Cir. 2005), articulated the test as such: “[Statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial are testimonial.” Id. at 360. Under this test, the court found as testimonial the victim’s identification of defendant while the victim was riding around in the patrol car with the police looking for the man who had threatened him. Id. at 357. The court reasoned that the victim “made the statement with knowledge that the officers were acting in their official capacity.” Id. at 361. In contrast, the court concluded that the other hearsay statement that had been admitted into evidence, the victim’s 911 call for help, was non-testimonial, because it seemed to fit none of the formulations of testimonial found in Crawford. Id. at 361-62.
There is no blanket rule for determining whether statements obtained from victims or witnesses from police officers are “testimonial” or non-testimonial. Rather, the determination requires a case-specific, fact-based inquiry. Hammon, supra, 829 N.E.2d at 455. In this regard, courts have invariably stressed the type of statement, the intent of the declarant, or the purpose of the official procedures used to elicit the statement. The approach we adopt considers all these factors in the totality of circum
So tested, we are satisfied that the eyewitness’s brief, spontaneous, volunteered communication to the police in this case does not come within Crawford’s proscription and, as such, does not offend the Sixth Amendment’s Confrontation Clause. The challenged statement was not given in response to “structured police questioning” nor, as we understand the record, with the intent that it be “preserved” for future use in a criminal prosecution against defendant. Rather, it was a report of a crime, rendered to assist law enforcement in the apprehension of a suspect and the protection of the public, rather than any subsequent prosecution.
We perceive nothing in the manner or mode of its making that would render the statement the functional equivalent of testimony. The statement had neither a formal nor official quality. On the contrary, it was made without reflection or deliberation, simultaneous with the witness’ perception of the unfolding events, and therefore the focus was clearly on communicating information instead of preserving it. As previously noted, the statement had sufficient indicia of reliability to qualify it as a present sense impression or excited utterance, otherwise worthy of admission. Having found its nature “non-testimonial”, we conclude the Sixth Amendment’s Confrontation Clause does not require its exclusion.
Affirmed.
Co-defendant, H.A., entered a guilty plea on April 13, 2005, just prior to the commencement of J.A.'s trial.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966).
Our State's Constitution’s Confrontation Clause, N.J. Const, art. 1, K 10, does not require that the declarant testify or be unavailable as a condition to the admissibility of an excited utterance. Branch, supra, 182 N.J. at 362, 371, 865 A.2d 673. However, noting other states’ decisions construing their state constitutions to require the declarant's testimony or unavailability, the Court in Branch referred the matter to the Supreme Court Committee on the Rules of Evidence for further study. 182 N.J. at 371-72, 865 A.2d 673.
Reference
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- STATE OF NEW JERSEY IN THE INTEREST OF J.A., JUVENILE-APPELLANT
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