On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal involves a challenge to the trial court's admission of a police detective's hearsay testimony.
Defendant, Alexander Branch, was charged in a Union County indictment with second-degree burglary and second-degree robbery. During a three-day trial, the jury heard that on the evening of April 22, 1998, an intruder entered the Plainfield home of Kathleen O'Nieal. Ms. O'Nieal was downstairs talking with a family friend, Joseph Gannon, when they heard screams coming from the upstairs bedroom of O'Nieal's seven-year-old twins, John and Juliana. Within moments, a black man wearing a hooded sweatshirt and sucking on a lollipop came running down the stairs. Gannon and O'Nieal chased him into the kitchen. The intruder punched Gannon above the left eye before fleeing through the kitchen door.
The police arrived within minutes of receiving a 911 call. Approximately ten minutes later, Detective Jean Calvin arrived at the house. Calvin testified that the children told him they saw a "tall black male" in their bedroom. When John started screaming, the tall black male smacked him in the face. The children told Calvin that the intruder had touched a ceramic piggy bank and a small purse, and had run his hands across the hallway wall. Juliana stated that the intruder had "a gap between his teeth" and dirty hands. The children's statements were admitted as "excited utterances" pursuant to N.J.R.E. 803(c)(2). They were not called as witnesses at trial.
In his trial testimony, Gannon described the intruder as a light-skinned black man of medium build with short-cropped hair and "little to no facial hair." Gannon estimated that the intruder was five feet ten inches tall or "a little taller." Gannon had told the police shortly after the burglary that the intruder was in his mid-twenties. O'Nieal, in her testimony, gave a similar description of the intruder. She stated that the man was about five-ten or five-eleven, and late twenties to mid- to late thirties. A week after the burglary, in a sworn statement, O'Nieal told the police that the intruder had no facial hair.
Police dusted every part of the house where the intruder may have had contact. Not one identifiable fingerprint lifted from the house matched any of Branch's. A week after the robbery, Gannon and O'Nieal were showed a photographic array of six black men without facial hair. Neither could identify the intruder. The next day, Detective Calvin, after receiving information from an undisclosed source that made Branch a suspect, showed Gannon and O'Nieal another photographic array, this time of six black men with facial hair. Both Gannon and O'Nieal independently selected Branch's photograph as that of the intruder. At trial, both Gannon and O'Nieal identified Branch in court as the man who had broken into O'Nieal's home.
Branch is a forty-year-old medium-to-dark complexioned black man who had an afro-style hairdo, beard, and a thick, full mustache. He stands approximately six feet four or five inches tall. The police sketch prepared from Gannon and O'Nieal's description did not resemble Branch or the photograph of Branch selected from the photographic array. Branch did have dirty hands, consistent with his trade as a handyman, and a gap in his teeth.
Branch called witnesses who testified that he was at a different location on the evening of the burglary. They also testified that Branch had a mustache and beard at the time of the burglary.
Because of the complete lack of physical evidence linking Branch to the crime, the State's case rested primarily on O'Nieal's and Gannon's identification of Branch. The prosecutor questioned Detective Calvin regarding the reason for placing Branch's picture in the photographic array, asking if Calvin had developed a suspect "based on information received." Detective Calvin responded in the affirmative, and identified Branch as "that person."
The jury convicted Branch of second-degree burglary and second-degree robbery. The trial court sentenced him to an aggregate term of ten-years with a five-year parole disqualifier. The Appellate Division affirmed the conviction, and the Supreme Court granted Branch's petition for certification.
The police detective's testimony that he developed Branch as a suspect based on information received from an unknown source was inadmissible hearsay that violated Branch's right of confrontation. The children's out-ofcourt description of the burglar was inadmissible hearsay because the children had an opportunity to deliberate before making the statement.
1. The United States and the New Jersey Constitutions guarantee a criminal defendant the right to confront "the witnesses against him." An established exception to the hearsay rule will not run afoul of the right of confrontation. A police officer generally may testify that he went to the scene of a crime based "upon information received" in order to show that he was not acting in an arbitrary manner. When a police officer testifies concerning an identification made by a witness, however, the reason why the officer placed a photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, the Court disapproves of a police officer testifying that he placed a suspect's picture in a photographic array "upon information received." In the present case, the jury only needed to know that the police fairly displayed the photographs to the witnesses and that that process led to a reliable identification. The detective implied that he had information from an out-of-court source, known only to him, implicating Branch in the burglary. That hearsay was contrary to this State's evidentiary rules and decisional law, and violated the Federal and State Confrontation Clauses. (pp. 8-18)
2. The Court must determine whether the admission of the detective's testimony was plain error, since there was no objection made at trial. The question under the "plain error" rule is whether there is reasonable doubt that the jury would have ruled other than it did. The State's evidence was far from overwhelming. No physical evidence linked Branch to the scene of the crime. Moreover, the descriptions given by witnesses differed markedly from Branch's appearance. The Court strongly senses from the record that this was a close case. In light of the total record, the detective's damaging hearsay testimony may have tipped the scales, and its admission constitutes plain error. (pp. 18-19)
3. Branch also challenges the trial court's decision to allow Detective Calvin to testify to the out-of-court statements that John and Juliana made to the Detective on the evening of the burglary. Detective Calvin elicited two critical facts from Juliana that had not been mentioned earlier by the children - that the intruder had a gap in his teeth and dirty hands. The State contends that Juliana's out-of-court statement was admissible as an excited utterance under N.J.R.E. 803(c)(2). At common law, an excited utterance was grouped along with several hearsay rule exceptions (verbal act, present sense impression, and statement of then existing mental, emotional, or physical condition) under the umbrella of res gestae. Res gestae literally means "things done." Spontaneous declaration evidence was considered res gestae when a witness's statements were "so connected with an act" that the statements were deemed to be part of the overall transaction. In addition to spontaneity, there were two components to admissibility of this form of res gestae. The words had to be spoken during the transaction, and they could not be the product of forethought or deliberation. In recent times, the res gestae concept has been broadened and the requirement for strict contemporaneity has been modified. Courts have determined that a spontaneous declaration will be admissible even if not coincident with the exciting stimulus, provided that in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval. The current trend to minimize the declarant's opportunity to deliberate when deciding the admissibility of a proffered excited utterance is a significant break from the common law, which frowned on the introduction of past narratives through hearsay. (pp. 19-35)
4. The essential elements of an excited utterance are 1) a statement relating to a startling event or condition; 2) made while the declarant was under the stress of excitement caused by the event or condition; and 3) without opportunity to deliberate or fabricate. N.J.R.E. 803(c)(2). There is little question that Juliana's statement satisfied the first two elements. The Court here focuses on whether Juliana had an opportunity to deliberate. In doing so, the Court looks to a number of factors, including the shock effect of the burglary on Juliana, the time elapsed between the event and her statement, the continuing influence of the excitement caused by the burglary, the circumstances surrounding the taking of the statement, and whether the statement was in response to questions. Juliana had spoken both to her mother and a police officer at separate times before the arrival of Detective Calvin. And, Juliana responded to questions posed by the detective. The record suggests that words were not gushing from Juliana in an excited, unreflective manner, but rather that she was thinking about her responses, i.e., deliberating. The Court does not imply that Calvin acted improperly or that there is anything wrong with a child giving careful consideration to an officer's question. But the excited utterance exception is just that - an exception to the hearsay rule, and it should not be construed so broadly that it renders the hearsay rule ineffectual. (pp. 35-39)
5. Although the Court decides this case based on an interpretation of an evidentiary rule, its analysis is informed by the principles undergirding the Confrontation Clause jurisprudence of our federal and state constitutions. In that regard, the Court takes notice of a recent watershed decision of the United States Supreme Court, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L Ed. 2d 177 (2004). In Crawford, the United States Supreme Court held that "testimonial" hearsay (certain prior testimony and police interrogations) cannot be introduced into evidence unless there is a showing that a declarant is unavailable and that the defendant had a previous opportunity to cross-examine the declarant. The Crawford Court rejected another test that allowed a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. (pp. 39-43)
6. Branch requests that the Court construe the State Constitution's Confrontation Clause to require either that the declarant testify or that the declarant be unavailable as a condition to the admissibility of an excited utterance. The Court declines to do so, but believes the issue deserves careful study. The Court therefore submits the matter to the Supreme Court Committee on the Rules of Evidence to consider whether a rule change would be advisable. (p. 44)
The Appellate Division's judgment is REVERSED, and the matter is REMANDED for a new trial consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, WALLACE and RIVERASOTO join in JUSTICE ALBIN's opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Albin
The right of a party to confront witnesses in court is one of the principal values protected by the hearsay rule. The rule generally shields a party from damning out-of-court statements, which are offered for their truth but are not subject to the truth-testing rigors of cross-examination. Our evidentiary rules and case law recognize many exceptions to the hearsay rule that promote both the efficiency and the fact-finding integrity of trials. This appeal explores whether hearsay used by the State to convict defendant of burglary and robbery fell within legitimate exceptions to the hearsay rule.
In this case, a police detective testified that he included defendant's picture in a photographic array because he had developed defendant as a suspect "based on information received." The same detective also testified to the out-of court descriptions of the burglar given by two non-testifying child victims. Defendant claims that the detective's testimony was inadmissible and highly prejudicial hearsay that denied him a fair trial. The Appellate Division affirmed defendant's convictions, finding that the detective followed the command of State v. Bankston, 63 N.J. 263 (1973), when he testified about the photographic array, and finding that the children's descriptions of the burglar were excited utterances admissible under N.J.R.E. 803(c)(2). We disagree and now reverse.
We hold that the detective's testimony that he developed a suspect based on information received from an unknown source was inadmissible hearsay that violated defendant's right of confrontation. We also hold that the one out-of-court description of the burglar that is truly in issue did not meet the definition of an excited utterance because the child-declarant had an "opportunity to deliberate" before making her statement.
Defendant Alexander Branch was charged in a Union County indictment with second-degree burglary (N.J.S.A. 2C:18-2) and second-degree robbery (N.J.S.A. 2C:15-1). During a three-day trial, the jury heard the following evidence. On April 22, 1998, at approximately 8:30 p.m., Kathleen O'Nieal was talking with a family friend, Joseph Gannon, in the television room of her Plainfield home when she heard screams coming from the upstairs bedroom of her seven-year-old twins, John and Juliana. Within moments, a light-skinned black man of medium build wearing a hooded sweatshirt and sucking on a lollipop appeared downstairs. O'Nieal and Gannon, both startled, shouted at the intruder and chased him into the kitchen. Once there, the intruder tried but was unable to open the back door. He turned and punched Gannon above the left eye, causing a gash, then managed to open the door, and fled.
During the tumult, the children raced downstairs, and John quickly called 911. Within minutes, City of Plainfield Police Officer Daniel Kollmar arrived at the house and interviewed Gannon, O'Nieal, and the children. Police officers, with the assistance of a K-9 unit, also canvassed the immediate neighborhood but were unable to apprehend the intruder. Juliana told Officer Kollmar that she was asleep in her bedroom when she awoke to the sight of an intruder in the hallway. She screamed, prompting the intruder to enter her bedroom and place his hand over her mouth. At that point, her brother John awoke and the burglar moved towards him, slapping the side of his face, which left a reddish mark. Juliana and John observed the intruder touching the hallway walls, a stocking, and a purse hanging on the doorknob.
Before Officer Kollmar's arrival, Juliana had told much the same story to her mother. Juliana mentioned to her mother that the intruder had touched her piggy bank and asked where he could find her mother's purse. After covering her mouth, the intruder smacked John in the face when he began to scream. Both children ran towards the stairs, but were passed by the intruder.
Approximately ten minutes after the police first received the 911 call, Detective Jean Calvin arrived at the house, where he spoke with Officer Kollmar, O'Nieal, Gannon, and the children. Detective Calvin testified that the children told him that they saw a "tall black male" in their bedroom and that Juliana asked the intruder, "'Who are you?'" The intruder responded by placing his hand over her mouth and telling her to "keep quiet." According to Calvin, "[a]t that time John said he started screaming and the tall black male smacked him in the face and told him to keep quiet." The children told Calvin that the intruder had touched a ceramic piggy bank and a small purse, and that he had run his hands across the hallway wall. Juliana informed the detective that the intruder had "a gap between his teeth" and dirty hands. The children's statements to O'Nieal, Kollmar, and Calvin were admitted as "excited utterances" pursuant to N.J.R.E. 803(c)(2). The children were not called as witnesses because, as their mother testified, they had "been through enough."
In his trial testimony, Gannon described the intruder as a light-skinned black man of medium build in his thirties with short-cropped hair and "little to no facial hair." Gannon estimated that the intruder, who was wearing sneakers, blue jeans and a dark sweatshirt, was five feet ten inches tall or "a little taller." Shortly after the burglary, however, Gannon told the police that the intruder was in his mid-twenties. O'Nieal, in her testimony, gave a similar physical description of the intruder. She stated that the man was "about five-ten or -eleven" and "could have been anywhere from late twenties to mid-thirties, late thirties." O'Nieal said that she did not "really notice any facial hair," but if there was any, "it was light." A week after the burglary, in a sworn statement, O'Nieal told the police that the intruder had "no facial hair."
On the night of the burglary, every part of O'Nieal's house where the intruder may have had contact was dusted for fingerprints. The next day, detectives returned to the house and dusted for more fingerprints. Not one identifiable fingerprint lifted from the house matched any of defendant's. The next day, Gannon met with a State Police artist who produced a sketch based on Gannon's description. A week later, Detective Francis Wilson displayed separately for Gannon and O'Nieal a photographic array of six black men without facial hair. Neither could identify the intruder from any of the photographs.
The next day, May 1, 1998, Detective Calvin separately showed Gannon and O'Nieal another photographic array, this time of six black men with facial hair. Both Gannon and O'Nieal independently selected defendant's photograph as that of the intruder. At trial, both identified defendant in court as the man who had broken into O'Nieal's home.
That day, the police arrested defendant, a forty-year-old medium-to-dark complexioned black man who had an afro-style hairdo, a beard, and a thick, full mustache and who stood approximately six feet four inches or six feet five inches tall.*fn1
The police sketch did not resemble either defendant on the day of his arrest or the photograph of defendant selected by O'Nieal and Gannon.*fn2 Defendant had dirty hands, consistent with his trade as a handyman, and a gap in his teeth. Defendant provided the following information in a signed statement to Detective Wilson. At the time of his arrest, he had been in the business of home repair and gutter cleaning for more than ten years. On April 22, at approximately 8 p.m., he and Paul Bennett were doing siding work at a Plainfield home owned by the proprietor of a deli and liquor store. As was his routine that week, defendant arrived at work mid-morning and left at about 9:15 or 9:30 p.m., walking from the job site to his apartment on West Front Street.
Defendant called as witnesses Clara Anderson and her son Richard, both of whom had known him for twenty-five years. They testified that on the evening of the burglary defendant was cutting down a tree in their yard. Richard and his mother recalled that defendant had a mustache and beard at the time. Richard also remembered that defendant was missing a front tooth.*fn3
In addition, defendant called as witnesses a retired Newark Fire Department detective, Gerald Highsmith, and a Plainfield Police Officer, Stanton Williams. Highsmith testified that shortly after 9 p.m. on April 22, defendant showed up at Highsmith's Plainfield home to chat with him. Highsmith stated that defendant had a beard and mustache and that defendant's appearance at his front door was no different than his appearance in court. Officer Williams testified that when he saw defendant, either on the day of or the day after the burglary, defendant had facial hair and a "short afro" hairstyle. Both Highsmith and Williams estimated that defendant stood six feet four inches tall.
The jury convicted defendant of second-degree burglary and second-degree robbery. The trial court sentenced defendant on those convictions to concurrent ten-year State Prison terms with five-year parole disqualifiers. The Appellate Division affirmed the conviction. We granted certification, State v. Branch, 179 N.J. 307 (2004), and now reverse.