On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 00-1-53.
Before Judges Braithwaite, Coburn,
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this case we address, for the first time in New Jersey, whether a hearsay statement, both self-inculpatory and inculpatory of defendant, made by a co-defendant to police officers at the time of arrest, was properly received in evidence as an excited utterance under N.J.R.E. 803(c)(2). We conclude that such a statement, even assuming that it meets the requirement of the evidence rule, is so inherently unreliable that its admission in this case violated defendant's right to confrontation; accordingly, we reverse his conviction.
Defendant, Daniel D. Rivera, was convicted by a jury on all counts of an indictment charging the following offenses: possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35- 5a(1) and -5b(3) (count two); distribution of cocaine, N.J.S.A. 2C:35-5a(1)-5b(3) (count three); employing a juvenile in drug distribution, N.J.S.A. 2C:35-6 (count four); conspiracy to distribute cocaine, N.J.S.A. 2C:35-5 and 5-2 (count five); use of paging device while engaged in a drug offense, N.J.S.A. 2C:33-20 (count six).
Defendant was sentenced on count four to a prison term of nine years with five years of parole ineligibility. Terms of five years were imposed on count three, and eighteen months on count six, both concurrent with the sentence on count four. Counts one, two, and five were merged into count three. Appropriate monetary penalties, as well as a two-year license suspension, were also imposed.
On December 9, 1999, Detective James Mooney of the Atlantic City Police Department, assigned to the Narcotics Special Investigation Squad, phoned pager number 653-2529 and received a return call showing 441-0932 on his caller ID. Mooney then cross-referenced the number with an address book which indicated that the number was for a residence at 61 North Martin Luther King Boulevard in Atlantic City.
The next evening, December 10, at approximately 7:00 p.m., Mooney called the same number from a pay phone at South Martin Luther King Boulevard. The call was returned and Mooney said, "Hello[,] Dan." A Hispanic male replied, "Yeah." Mooney then asked about "get[ting] two bags of rock," meaning two bags of crack cocaine. The voice answered, "Yeah, I got it, but I'm in Pleasantville right now, you're gonna have to wait 15 minutes." They agreed that Mooney would call back.
At approximately 8:23 p.m., Mooney, from the same pay phone, called the same beeper number and added "zero two," which in code meant two bags. Less than three minutes later he received a call. Mooney answered, "Hi[,] Dan." The same Hispanic voice responded, "Yeah, where you gonna be?" Mooney said, "The parking lot of Studio Six," an Atlantic City nightclub. The voice stated, "Okay, I'll be there." As a result of the conversation, a police surveillance was set up outside the Schoolhouse Apartments, located at 61 North Martin Luther King Boulevard.
At approximately 8:30 p.m., a sixteen-year-old Hispanic male, subsequently identified as J.M., exited the Schoolhouse Apartments and proceeded to walk down an alleyway in the direction of the Studio Six parking lot, with Detective Tom Guercioni following twenty feet behind him. As J.M. reached the end of the alley, Detectives Glen Abrams and Louis DePaul, in plain clothes, approached him in an unmarked vehicle and exited. The juvenile, appearing to be shocked and nervous, threw two small bags of crack cocaine to the ground. Very excited and in a loud voice, he told the detectives that he was delivering crack for Danny Rivera and that Danny, who lived in Apartment 524B of the Schoolhouse Apartments, could tell them that the crack did not belong to J.M.
Approximately ten minutes after stopping J.M., Mooney, Guercioni, Abrams, and DePaul arrived at the Schoolhouse Apartments and proceeded to the fifth floor, via the stairs, intending to apprehend defendant. En route, at the second-floor landing, they met up with defendant who was going downstairs. As defendant started to turn away from the detectives, Guercioni asked him his name. Defendant identified himself and stated that he lived in 524B. Mooney recognized defendant's voice as that of the person whom he had spoken to earlier on the phone. According to the detectives, defendant acknowledged that an activated pager, which was on his belt, belonged to him. The pager was removed and Mooney pushed a retriever button on it which revealed stored numbers. Among the numbers he saw was that of the pay phone he had called from and the code that he had used. Defendant, who was placed under arrest, was searched, as was Apartment 524B. No drugs were found.
Defendant, age twenty-five and having prior convictions in 1994-95 for receiving stolen property and conspiracy to commit burglary, for which he received probation, testified in his defense. Defendant recalled that on December 10, 1999, he was in Apartment 524B, which belonged to Katherine Bruce, his girlfriend, and the mother of two of his children. Defendant, who was baby-sitting for the children while Bruce worked, was visited by various friends. As they all had decided to go bowling and play pool, defendant arranged for a neighbor in the building to take care of the children.
Prior to defendant's leaving, J.M., a friend's brother-in- law, arrived at the apartment and asked if he could use the phone. Defendant consented, and J.M. made several calls from the apartment. Because defendant wanted to contact Jennifer Shaner, another girlfriend and mother of his other children, and did not want Bruce to be alerted by her caller ID if Shaner called him on the apartment phone, he asked to use a pager that J.M. had. Accordingly, after J.M. gave him the pager, defendant used a neighbor's phone in the building and called Shaner, leaving the pager number. Shaner subsequently beeped the pager three times and left the message "hello" and "besos," meaning "kisses," which the police, according to defendant, thought to be a code for drugs after they confiscated the pager. When the detectives arrested defendant, he was on his way to join his friends and J.M., all of whom had previously left the apartment. ...