On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-00291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli.
Defendant, Laquawn Hill, is the subject of five counts of Middlesex County Indictment No. 06-02-00291, charging him and his co-defendant, Emendo Hill (Emendo), with: (1) second-degree conspiracy to commit the crimes of possession of a handgun, possession of a weapon for unlawful purposes, and armed robbery, N.J.S.A. 2C:5-2; (2) first-degree armed robbery, N.J.S.A. 2C:15-1; (3) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; (4) second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a; and (5) fourth-degree aggravated assault by pointing a firearm at or in the direction of two individuals under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(4). The indictment also charged Emendo in count six with third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4), and in count seven with fourth-degree false swearing, N.J.S.A. 2C:28-2a.*fn1
As a result of various pretrial rulings, it was determined that the two defendants would be tried separately. Emendo has been tried. He was acquitted of the conspiracy charge in count one, but convicted on all remaining counts. He has been sentenced.
The State moved in limine for a ruling to allow it to admit in evidence two out-of-court statements made by Emendo. The State did not intend to call Emendo as a witness at defendant's trial. The State proffered these statements under the co-conspirator exception to the hearsay rule. See N.J.R.E. 803(b)(5). The judge ruled the statements inadmissible, and we granted the State's motion for leave to appeal. The State argues that both of Emendo's statements qualify for admission under N.J.R.E. 803(b)(5) and do not violate defendant's right of confrontation as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). We disagree with the State and affirm.
Defendant and Emendo are cousins. In September 2005, defendant was sixteen years old and Emendo was seventeen years old. The State alleges that on September 18, 2005, defendant and Emendo approached two strangers, Jose Menjivar and Yuri Echeverria, on a New Brunswick street. According to the State, defendant pointed a gun at the victims, while Emendo grabbed one by the shirt and demanded their money. The victims resisted and the two perpetrators fled. The victims caught Emendo, pulled him to the ground, and held him until the police arrived. The victims positively identified Emendo as one of the perpetrators. The other perpetrator, who had his face covered with a bandana during the robbery, got away. When later shown photo arrays including defendant's photograph, one of the victims could not make an identification, while the other was about eighty percent sure of his identification of defendant as the second perpetrator.
Emendo was detained in a juvenile facility from the date of the crime. By November 2, 2005, Emendo and the State reached an agreement by which the State would not seek waiver to adult court in exchange for which Emendo would plead guilty and, in his plea allocution, identify his cohort and agree to testify truthfully in any future proceedings. It was further agreed that Emendo would receive a four-year sentence at a juvenile correctional facility.
On November 2, 2005, Emendo pled guilty and gave the following sworn testimony. He lived in Sayreville, but on the afternoon of September 18, 2005, he was at his mother's New Brunswick home with his stepfather and defendant. Without having any prior conversation with defendant, he and defendant left the home for the purpose of walking to downtown New Brunswick. Emendo had in his possession a BB handgun that he owned. As they walked down the street, Emendo told defendant to hold the BB gun because they were going to rob two people. Emendo said that defendant covered his face with a bandana. Emendo then demanded that the victims give them everything they had in their pockets. The victims did not comply. The victim Emendo was holding "resisted, took his shirt off, and we started running." Emendo was caught and held until the police arrived. He did not know what happened to the BB gun. The following exchange also took place:
Prosecutor: Prior to the incident taking place where was it agreed that your cousin would hold the BB gun?
Witness: In October . . .(?) right before it happened.
On the same day, November 2, 2005, defendant was arrested. He was detained at the same juvenile facility in which Emendo was housed. Still on November 2, 2005, Emendo attempted to pass a note he had written to defendant. The note was intercepted by a corrections officer. In relevant part, it said:
Anyway I know you going to court tomorrow so just tell them exactly what happened. The only lie I told them was that the bb gun was mine and that I told you what to do. I told you to put the gun to dude head and everything. I tried my hardest to take all the weight because I had to put your name in it.
Subsequently, the Family Part judge rejected Emendo's plea agreement because Emendo got into a fight with another juvenile in the detention facility. Both defendants were waived to adult court, and the indictment was returned against them. In pretrial proceedings, the court determined that the note would be admissible in evidence against both defendants under the co- conspirator statement exception to the hearsay rule, conditioned upon prior introduction of sufficient independent proof of a conspiracy. The court determined that Emendo's plea allocution could not be used against Emendo, but could be admitted against defendant for the same reason and subject to the same condition as the note. Because of this ruling, the State chose to try the defendants separately. There was no objection.
As we have stated, Emendo was separately tried as an adult. The note was admitted in evidence in his trial. He was acquitted of the conspiracy count but convicted of all other charges. He has been sentenced as an adult. We have not been furnished with a transcript of that trial.
After the pretrial rulings on the admissibility of the note and Emendo's plea allocution, but before Emendo's trial, defendant moved for leave to appeal. The State did not oppose the motion, and we granted it. The motion pertained only to the plea allocution. Defendant argued that its admission in evidence would violate his confrontation rights as expounded in Crawford. On April 10, 2007, we remanded for reconsideration in light of Crawford.
Prior to reconsideration in accordance with the remand order, however, the judge to whom the case was then assigned (who was not the same judge that made the earlier pretrial rulings) presided over Emendo's jury trial in May 2007.*fn2
The judge then conducted the remand proceedings, culminating in a written opinion on July 26, 2007 denying the State's motion in limine to admit at defendant's trial, without Emendo's live testimony, the relevant portion of Emendo's note and plea allocution from November 2, 2005. Procedurally, the judge determined that although a hearing pursuant to N.J.R.E. 104(a) would normally be required to resolve the admissibility issue, the sole basis proffered by the State for admissibility was the co-conspirator exception, the only independent evidence of the possible existence of a conspiracy was the testimony of the two victims, which had been fully presented at Emendo's trial, and the State proffered no additional evidence in that regard. Therefore, over the State's objection, the judge in effect treated Emendo's trial as the N.J.R.E. 104 hearing regarding the admissibility of the two disputed items at defendant's trial.
In her written decision, the judge summarized the relevant testimony of the two victims at Emendo's trial as follows:
[B]oth victims were called by the State as witnesses to describe the incident. The two victims (Menjivar and [Echeverria]) stated the defendants appeared out of a corner by a house. One of the defendants had a gun.
Victim Menjivar states he was grabbed by the shirt by the one with a gun and asked for his money - 3 times. The other assailant [Emendo] was standing behind the armed man (like covering him) and was also asking for the money 2-3 times. The other victim [Echeverria] states the unarmed defendant was standing back, yelling give him your money but the unarmed assailant did not touch either victim. The victims determined the gun was inoperable and they began to attack the assailants. Menjivar states he slipped out of his shirt while he punched the guy with the gun. [Echeverria] took off his belt to strike the assailants and the assailants took off running. ...