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State v. Hill


March 13, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-00291.

Per curiam.


Argued January 24, 2008

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. The victims further described that one of the defendants [defendant] wore a headscarf and a face bandana to cover his appearance. The other defendant wore no disguise.

The judge noted that there was no evidence that the co-defendants talked about the robbery when they left the house. Defendant disguised himself and Emendo did not. Defendant held the gun and grabbed the victim; Emendo stood behind defendant and did not grab the victims. The two did not assist each other during the escape. "There [was] no testimony that shows Emendo and [defendant] speaking with each other, engaging in conduct or making statements evidencing an agreement."

On appeal, neither party takes issue with that summary of the victims' testimony. Therefore, although we do not have before us a transcript of Emendo's trial, we have a fair summary of the relevant evidence adduced at that trial for purposes of this appeal. We owe no deference to the trial court's legal conclusion or interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review de novo the trial court's application of the relevant legal principles to established facts. State v. Harris, 181 N.J. 391, 416 (2004).

To be admissible, the statements must cross two hurdles. First, because the statements were made out of court (i.e. not at trial) and are offered to prove the truth of their contents, they must qualify as an exception to the hearsay rule. Second, if they qualify, they must constitute "non-testimonial" statements under Crawford, lest they offend the Confrontation Clause.


We first address the hearsay exception. A hearsay statement is admissible against a party if "made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." N.J.R.E. 803(b)(5).

Our Supreme Court has laid down a three-part test to determine the admissibility of co-conspirator statements:

First, the statement must have been made in furtherance of the conspiracy. Second, the statement must have been made during the course of the conspiracy. Lastly, our courts have held that there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it. [State v. Phelps, 96 N.J. 500, 509-10 (1984) (citations omitted).]

"The first two conditions of the rule 'reflect notions that an agent's statements are vicariously attributable to a principal.'" State v. Savage, 172 N.J. 374, 402 (2002) (quoting Phelps, supra, 96 N.J. at 510).

The duty to produce independent proof of a conspiracy reduces the fear that the defendant might be convicted solely on the basis of evidence which the defendant cannot impeach. Phelps, supra, 96 N.J. at 510-11. "'Otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence.'" Id. at 527 (Handler, J., dissenting) (quoting Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680, 701 (1942)). The State must show "that 'a fair preponderance of evidence' independent of the hearsay statements supports the existence of the conspiracy and of defendant's relationship to it." State v. Clausell, 121 N.J. 298, 337 (1990) (citing Phelps, supra, 96 N.J. at 509-10).

The Court has held:

[T]he agreement to commit a specific crime is at the heart of a conspiracy charge.

Such an agreement is central to the purposes underlying the criminalization of the inchoate offense of conspiracy. Thus, under the Code "'the major basis of conspiratorial liability [is] the unequivocal evidence of a firm purpose to commit a crime'" that is provided by the agreement. State v. Roldan, 314 N.J. Super. 173, 181 (App. Div. 1998) (quoting Model Penal Code § 5.03 comment 2 (Tentative Draft No. 10 (1960)). "'The agreement is an advancement of the intention'" to commit the crime. State v. Abrams, 256 N.J. Super. 390, 401 (App. Div. 1992) (quoting State v. Carbone, 10 N.J. 329, 336-37 (1952)), certif. denied, 130 N.J. 395 (1992). [State v. Samuels, 189 N.J. 236, 245 (2007) (footnote omitted).]

The State relies on the limited proofs at Emendo's trial. The State elicited the two victims' testimony that Emendo and (probably) defendant emerged from around the corner of the house, defendant in disguise. Defendant put a gun to one victim's head and demanded money. Emendo stood behind defendant and also demanded money. When the victims pursued the assailants, they split up, with one escaping and Emendo being caught and arrested.

The State argues that a conspiracy can be proved with circumstantial evidence, because conspiracies, by their very nature, are secretive. See, e.g., State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.) ("An implicit or tacit agreement may be inferred from the facts and circumstances."), certif. denied, 130 N.J. 18 (1992). The trial court found that this testimony did not constitute sufficient independent proof of a criminal conspiracy to justify the admission of Emendo's hearsay declarations under the co-conspirator exception. Cf. Phelps, supra, 96 N.J. at 520-23 (finding ample independent evidence of bookmaking conspiracy, including betting slips and other documentary evidence); State v. Cherry, 289 N.J. Super. 503, 522-24 (App. Div. 1995); State v. McKiver, 199 N.J. Super. 542, 545-47 (App. Div. 1985) (finding independent evidence of an extortion conspiracy from the presentation of the same white envelope by two individuals on consecutive days).

The State, citing Phelps, asks us to consider Emendo's "reliable" hearsay statements in conjunction with the independent evidence to find the existence of a conspiracy, because the hearsay "clarif[ies] and provide[s] meaning, color and context to" defendant's and Emendo's conduct in September 2005. This approach, however, would bootstrap the hearsay to the level of competent evidence, contrary to the jurisprudence of both the United States and New Jersey Supreme Courts.

It also misreads Phelps. The Court there noted that the independent proof requirement "does not preclude the trial court . . . from considering some hearsay evidence in conjunction with independent evidence. If the independent evidence is substantial, the trial court may also consider a coconspirator's hearsay statements that it decides are reliable and trustworthy to determine whether the State has met its burden." Phelps, supra, 96 N.J. at 511 (emphasis added). Thus, courts may consider a co-conspirator's reliable hearsay declaration if "there is other evidence substantial enough to engender a belief in the conspiracy's existence and the defendant's participation in it." Id. at 518-19 (emphasis added).

First, we agree with the trial court that there is a lack of substantial other evidence to justify consideration of the corroborative value of the hearsay evidence. In the hypothetical illustrating the principle set forth in Phelps, a government agent overhears a drug seller inform the buyer of the physical description of the carrier. Assuming the buyer turns State's witness, and the "entire description turned out to be correct," the State could introduce the seller's description, in conjunction with the carrier's arrival at the scene as described and with the drugs, to prove the carrier conspired with the seller to deliver drugs. Id. at 512. The buyer's own testimony about the agreement to purchase from the seller, and the later arrival of another individual with drugs, support the finding of a conspiracy in a way that the facts in this case do not.

Further, unlike in Phelps, Emendo's conflicting hearsay statements, made in circumstances in which he was attempting to obtain an advantage in his own criminal case, lack indicia of reliability and trustworthiness. We find no error in the trial court's refusal to factor the hearsay statements into the analysis. And, we agree with the judge's finding that there is insufficient evidence to establish the existence of a conspiracy.

Even if a conspiracy existed when the crime was committed on September 18, 2005, we are of the view that Emendo's statements six weeks later, on November 2, 2005, were not made "in furtherance of" and "during" the conspiracy. "A conspiracy continues until its objective is fulfilled. If a statement is made after the conspiratorial objective is completed, it is generally not admissible under the co-conspirator exception." Savage, supra, 172 N.J. at 403 (citation omitted). The Court relied on State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div.), certif. denied, 152 N.J. 187 (1997), which found statements relating to past events to be in furtherance of a conspiracy when they "serve some current purpose, such as to promote cohesiveness, [or] provide reassurance to a co-conspirator." In Taccetta, a very broad conspiracy, encompassing a plan to control organized criminal enterprises in New Jersey through the dispute resolution system devised by La Cosa Nostra, was involved, in which unarrested co-conspirators, whose conversations were sought to be admitted under N.J.R.E. 803(b)(5), remained capable of carrying out the ongoing conspiracy. Id. at 252.

The circumstances in Taccetta can hardly be compared to those present here. This isolated street crime bears no relevant resemblance to the long-term, broad-based, and ongoing conspiratorial activities in Taccetta. We do not view Emendo's statements at his plea colloquy or in his note to have constituted the kind of cohesiveness or reassurances to a co-conspirator that were envisioned in Taccetta. Indeed, the thrust of Emendo's statements was to provide the State with evidence against defendant. Although Emendo may have been attempting to minimize defendant's role, and thus his culpability, in the crime, there is no escaping the fact that the overriding purpose and effect of his statements was to inculpate defendant, not to help him avoid prosecution.

Thus, even if a conspiracy had existed, its existence ended with the commission of the substantive crime, along with Emendo's capture and arrest and defendant's escape. Emendo's later statements were not made in the course of or in furtherance of any possible conspiracy. We note that defendant and Emendo were charged with conspiring to unlawfully possess a handgun, possess a handgun for unlawful purposes, and commit armed robbery. They were not charged with conspiring to hinder apprehension or prosecution. Emendo alone was charged with that substantive offense in count six, and he was convicted of it, along with the related false swearing offense in count seven.

The State argues that the judge essentially adopted the jury's acquittal of Emendo on the conspiracy count in concluding there was no conspiracy. This, the State argues, was erroneous for two reasons. First, Emendo's trial was a separate proceeding, and the evidence presented at defendant's trial might have been different. Second, the State correctly points out that a lower burden of proof applies, namely that the State was required to prove count one in Emendo's trial beyond a reasonable doubt, but it is only required to establish a conspiracy by a preponderance of the evidence for admission of a co-conspirator statement.

On the first point, we reiterate what we pointed out earlier, namely that the State has proffered no additional independent evidence of the existence of a conspiracy beyond that presented through the victims' testimony at Emendo's trial. In these circumstances, we find no mistaken exercise of discretion in the treatment by the judge of Emendo's trial as the functional equivalent of an N.J.R.E. 104 hearing with respect to defendant's trial. As to the second point, the judge expressly addressed it, and, distinguishing between the two burdens of proof, made it clear that the evidentiary determination made for defendant's trial was correctly based upon the preponderance standard.

The State also questions how the judge could have allowed the conspiracy count to go to the jury in Emendo's trial if there was not sufficient evidence from which a jury could be convinced beyond a reasonable doubt that a conspiracy existed. The judge pointed out that in Emendo's trial, "the conspiracy count was properly submitted to the jury because the State had successfully introduced the letter of Emendo Hill under the hearsay exception against Emendo as a statement made by the defendant." That evidence in Emendo's trial could have provided a sufficient basis, in connection with all other evidence, for a jury finding of the existence of a conspiracy.


Because we have concluded that neither of the disputed statements by Emendo are admissible under New Jersey's co-conspirator statement exception to the hearsay rule, a Crawford analysis is not necessary. However, for the sake of completeness, we go on to consider whether, if the statements were admissible under N.J.R.E. 803(b)(5), they would nevertheless be excludable as a violation of defendant's right of confrontation.

Both the Federal and New Jersey Constitutions protect the right of criminal defendants to confront the State's witnesses against them. State v. Budis, 125 N.J. 519, 530 (1991); see Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed. 2d 923, 927-28 (1965) (applying Sixth Amendment to state prosecutions). The language of the New Jersey right mirrors that of the Sixth Amendment, each provision providing that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007). Despite our Supreme Court's willingness to read the New Jersey Constitution to afford greater civil liberties in some contexts than our federal counterpart, the New Jersey confrontation clause "has been held to provide protections to our citizens co-extensive with the Sixth Amendment." Kent, supra, 391 N.J. Super. at 386 (Stern, J., concurring).

We have noted that the right to "confront" embraces the right to question the State's witnesses without improper restriction and to elicit favorable testimony on cross- examination. State v. Byrd, 393 N.J. Super. 218, 230-31 (App. Div. 2007) (citing Budis, supra, 125 N.J. at 530-31). Framed against the historical abuse of ex parte affidavits to convict criminal defendants, the inclusion of the Confrontation Clause in the Bill of Rights sought to afford an accused the opportunity to view his or her accusers "face to face" and to cross-examine them as to the basis for their testimony.

The cross-examination privilege occupies paramount importance in light of the Clause's primary purpose to promote "the integrity of the factfinding process." Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2662, 96 L.Ed. 2d 631, 641 (1987). This is because the right to cross-examine adverse witnesses remains "the principal means by which the believability of a witness and the truth of his testimony are tested," Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed. 2d 347, 353 (1974), and the "'greatest legal engine ever invented for the discovery of truth.'" California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed. 2d 489, 497 (1970) (quoting 5 Wigmore on Evidence § 1367 (3d ed. 1940)).

The development of the various hearsay exceptions, however, raised questions about the effect of the evolving law of evidence on the Confrontation Clause. State v. Rivera, 351 N.J. Super. 93, 101 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). Even though "hearsay rules and the Confrontation Clause are generally designed to protect similar values and stem from the same roots," White v. Illinois, 502 U.S. 346, 353, 112 S.Ct. 736, 741, 116 L.Ed. 2d 848, 857 (1992) (citations and internal quotation marks omitted), the admission of out-of-court statements falling within "firmly rooted hearsay exceptions" was permitted, notwithstanding the Confrontation Clause, because they were "so trustworthy that adversarial testing c[ould] be expected to add little to [their] reliability." Id. at 357, 112 S.Ct. at 743, 116 L.Ed. 2d at 860. Formal expression of this approach appeared in 1980 with the United States Supreme Court's holding that the out-of-court statement of an unavailable declarant could be admitted, even absent prior opportunity for the defendant to cross-examine the declarant, if the statement fell within a "firmly rooted hearsay exception" or otherwise bore "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed. 2d 597, 608 (1980).

After a wholesale reevaluation of the Confrontation Clause's effect on the admission of hearsay evidence in criminal prosecutions, the Court abrogated this "reliability" approach in Crawford, supra, 541 U.S. at 60-69, 124 S.Ct. at 1369-74, 158 L.Ed. 2d at 198-203. Relying on the English and colonial experience with the admission of ex parte witness examinations as substantive evidence, the Court concluded that the Framers drafted the Confrontation Clause to address the use at trial of out-of-court statements that were "testimonial" in nature. Id. at 53, 124 S.Ct. at 1365, 158 L.Ed. 2d at 194. See also Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273, 165 L.Ed. 2d 224, 237 (2006) ("It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause."). This was because the text "applie[d] to 'witnesses' against the accused-in other words, those who 'bear testimony'" in order to prove some fact in question. Crawford, supra, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed. 2d at 192.

After a thorough review of the historical record, the Court held that the Confrontation Clause precludes the admission of testimonial hearsay evidence, regardless of its reliability, unless "the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S.Ct. at 1369, 158 L.Ed. 2d at 197. This is because the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Id. at 61, 124 S.Ct. at 1370, 158 L.Ed. 2d at 199. The Court noted that the Roberts test's focus on the "reliability" of hearsay evidence often resulted in the admission of "plainly testimonial statements despite the absence of any opportunity to cross-examine." Id. at 64, 124 S.Ct. at 1372, 158 L.Ed. 2d at 201.

It is clear that the Court's decision to abrogate the Roberts test represents a "sea change in criminal practice" that now requires trial courts to assess the "testimonial" nature of hearsay evidence prior to its introduction against criminal defendants. State v. Buda, 389 N.J. Super. 241, 258 (App. Div. 2006) (Sabatino, J., concurring), certif. granted, 191 N.J. 317 (2007). Although the Crawford Court declined to provide a comprehensive definition of the word "testimonial," it noted that some types of statements were testimonial under any definition of the term. At the very least, the term applied to "prior testimony at a preliminary hearing, before a grand jury, or at a former trial" and to statements elicited during police interrogation. Crawford, supra, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. Beyond these general categories, however, the majority cited with disapproval the admission of accomplice confessions and plea allocutions: out-of-court statements which a criminal defendant would rarely have the opportunity to cross-examine. Id. at 63-64, 124 S.Ct. at 1371-72, 158 L.Ed. 2d at 200-01 (collecting cases).

Faced with the dual police objective to investigate and prosecute criminal activity and to protect the community, the Court provided additional guidance as to when statements made to law enforcement personnel are "testimonial" in Davis, supra:

Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [547 U.S. at __, 126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237.]

The Court concluded that statements made to a 911 operator during an emergency are "non-testimonial," whereas statements to investigating officers after they secure the scene of prior domestic violence and begin to ask formal questions are "testimonial." Id. at __, 126 S.Ct. at 2276-78, 165 L.Ed. 2d at 240-42.

We have applied this test in a number of cases. See, e.g., State v. Nyhammer, 396 N.J. Super. 72, 87-88 (App. Div. 2007) (finding videotaped statement of unavailable child victim "testimonial" as it was prepared for use at defendant's trial), certif. granted, ___ N.J. ___ (2008); Byrd, supra, 393 N.J. Super. at 231 (noting that statements made by declarant during formal interrogation were testimonial); State v. Burr, 392 N.J. Super. 538, 567 (App. Div.) (finding that child's statement to investigator one week after report of abuse was "unquestionably testimonial hearsay"), certif. granted, 192 N.J. 478 (2007); Kent, supra, 391 N.J. Super. at 368-70 (precluding the introduction of a blood sample certificate and laboratory report as "testimonial" because they were produced to aid prosecution of DWI offense); Buda, supra, 389 N.J. Super. at 255-57 (refusing to permit the introduction as "excited utterances" of testimonial statements made by young child to a DYFS worker because the worker went to the hospital to gather evidence for possible court proceedings). We also provided a pre-Davis analysis of "testimonial statements" in State ex rel. J.A., 385 N.J. Super. 544, 555-56 (App. Div. 2006) (permitting, as "non-testimonial," the introduction of statements made to police in aid of apprehending the defendant), certif. granted, 191 N.J. 317 (2007).

In light of these emerging legal principles, we first address the classification of Emendo's note to defendant for Confrontation Clause purposes. As law enforcement personnel did not elicit the note's substance through official interrogation, the focus on the note's "primary purpose" complicates the issue. Cursory review of Crawford, supra, demonstrates that the note was not "'[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed. 2d at 192 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). Emendo's out-of-court statement did not "bear testimony" against defendant in the way an affidavit, deposition, confession, prior trial or grand jury testimony, preliminary hearing statement, or answer to police interrogation would. Being "non-testimonial," the letter's admission would not offend the Confrontation Clause's historical thrust.

Emendo's plea allocution requires deeper analysis. At first glance, its disallowance seems to follow from the Court's recognition in Crawford that the admission of a co-defendant's plea allocution, without prior opportunity to cross-examine, offends the Confrontation Clause's preclusion of these "plainly testimonial statements" under such circumstances. Id. at 64, 124 S.Ct. at 1372, 158 L.Ed. 2d at 201 (citing six circuit court cases that erroneously permitted the introduction of plea allocutions under the "statement against penal interest" hearsay exception). An allocution does not require the same scrutiny as the 911 calls, on-site statements to emergency response personnel, present sense impressions, or excited utterances discussed in Davis and this court's previously-mentioned recent decisions.

The State concedes that Emendo entered into a plea bargain with the State and promised to cooperate with police and to testify truthfully in any subsequent trial against his cohort. To provide the factual basis for the plea, Emendo made the challenged ex parte statements, under oath, to a judicial officer. The State elicited this testimony to establish defendant's involvement in the armed robbery. Identification of the co-perpetrator was not essential to prove Emendo's guilt. The victims' uncertainty as to defendant's identity and defendant's immediate arrest after the allocution belie the State's unconvincing and unfounded argument that the purpose of the plea was not to procure evidence against defendant. The plea agreement explicitly required Emendo to testify truthfully at all future proceedings. A repudiation of the plea allocution at defendant's future trial would have provided the State sufficient cause to vacate Emendo's plea as a juvenile and to try him as an adult.

Furthermore, the substance of the plea allocution does not support the State's contention that Emendo's testimony (to the effect that defendant "did nothing during the crime and just did what he was told to do") sought to spare defendant from all criminal prosecution. There was no factual basis to conclude that Emendo used the BB gun to coerce defendant into the commission of armed robbery. Thus, Emendo's testimony would support criminal charges against defendant. It is fair to conclude that Emendo's one lie (if it was a lie) attempted to limit defendant's criminal exposure, but this did not strip the plea allocution of its "testimonial" effect to prove some facts against defendant.

Given defendant's inability to cross-examine Emendo's plea allocution, a plain reading of Crawford appears to require the preclusion of this hearsay evidence. However, the State argues that Crawford contains an exception for co-conspirator statements that were made in furtherance of the conspiracy during an official proceeding that contain characteristics of "testimony." The Court observed:

[T]here is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. [Id. at 56, 124 S.Ct. at 1367, 158 L.Ed. 2d at 195-96 (third emphasis added) (footnote omitted).]

We are unpersuaded that this language permits the State to invoke the co-conspirator statement hearsay exception to justify admission of Emendo's otherwise "plainly testimonial" statement.

The Supreme Court explained the rationale for the introduction of statements "in furtherance of a conspiracy" in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed. 2d 390 (1986). The Court noted that the introduction of these statements "actually furthers the Confrontation Clause's very mission which is to advance the accuracy of the truth-determining process in criminal trials." Id. at 396, 106 S.Ct. at 1126, 89 L.Ed. 2d at 399 (citations and internal quotation marks omitted). "Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court." Id. at 395, 106 S.Ct. at 1126, 89 L.Ed. 2d at 398.

Thus, the logical force of the exception derives from the inherent reliability of exchanges between the members of a criminal undertaking. Not surprisingly, the presumption of reliability fades considerably when a former conspirator chooses to provide "testimonial statements" to the government. Id. at 395, 106 S.Ct. at 1126, 89 L.Ed. 2d at 399 ("The declarant himself may be facing indictment or trial, in which case he has little incentive to aid the prosecution, and yet will be equally wary of coming to the aid of his former partners in crime."). The exception also reflects the government's limited ability to prosecute crimes "where much of the offense is effectuated through unwritten statements passed from one to another." Phelps, supra, 96 N.J. at 509. The success of a conspiracy requires the participants' shared commitment to engage in illegal conduct and to avoid prosecution. Accordingly, it is difficult to envision the making of "testimonial statements," as Crawford and Davis define that term, to further the aims of a criminal agreement.

On the contrary, when an out-of-court declarant makes statements "in furtherance of" a conspiracy to a government official, the statements will almost always be made unknowingly to a government informant. See, e.g., United States v. Hargrove, 508 F.3d 445, 448-49 (7th Cir. 2007) (upholding the admission of tape-recorded statements by co-conspirator to undercover informant in racketeering conspiracy case); United States v. Hendricks, 395 F.3d 173, 183-84 (3d Cir. 2005) (noting that statements to an informant would be non-testimonial under the Confrontation Clause). Such statements are "non-testimonial," and do not implicate the Confrontation Clause's core concern, because the informant's success follows from the ability to minimize formality and to appear as a casual acquaintance to the unwitting declarant.

These considerations, and the dearth of cases addressing the State's novel claim, lend apparent support to the argument that the Court's broad assertion carved out an exception that statements in furtherance of a conspiracy are, by their nature, non-testimonial and therefore do not fall within Crawford's proscription. We do not agree. While the Court's dicta may apply to typical co-conspirator statements as being non-testimonial in nature, we do not read the language as establishing a per se exception for all co-conspirator statements. Each such statement must be evaluated on its particular facts.

Addressing the facts here, involving Emendo's plea allocution, the State argues that "it is perfectly reasonable to envision a case where a coconspirator talks with police officers and prosecutors and, pursuant to their questioning, lies to them in an effort to lead them astray and, thus, help his fellow conspirators from being arrested or fully prosecuted." This argument implies that the ex parte declarant's knowing perjury should be imputed to the defendant under the hearsay exception for co-conspirator statements. In support of its argument, the State relies primarily on United States v. Stewart, 433 F.3d 273 (2d Cir. 2006). There, the federal government instituted insider trading probes to investigate suspicious sales of ImClone stock in December 2001. Id. at 280. Concluding that the two co-defendants misled investigators about their sale of large volumes of stock prior to the announcement that the company failed to receive approval for a key pharmaceutical product, the government indicted them for conspiracy to obstruct justice, make false statements, and commit perjury. Id. at 280-81. Following conviction, each co-defendant challenged the admission of the other's prior statements to FBI and SEC investigators. Id. at 290.

The Second Circuit rejected the Confrontation Clause arguments. It concluded:

Although the statements at issue, having been made during interviews with government officials in the course of an investigation, do have characteristics of Crawford's "core class of 'testimonial' statements," in the context of the crimes for which Defendants were convicted, the challenged statements are part and parcel of co-conspirators' statements made in the course of and in furtherance of Defendants' conspiratorial plan to mislead investigators. [Id. at 291 (emphasis added) (citations omitted).]

Given the conspiracy's primary objective to obstruct investigation, the court rejected the co-defendants' attempt to bar the admission of truthful portions of the otherwise testimonial hearsay. Id. at 291-92. It did not need to resolve "the tension between the 'in furtherance' rule allowing uncross-examined statements and the 'testimonial' rule prohibiting them" because of the specific charges. Id. at 292. The "essence" of the conspiracy to obstruct justice charge "necessarily contemplate[d] that the conspirators would provide false information to government agencies during the course of their investigation and during interrogations that would produce testimonial statements of one or the other of them." Ibid.

While the Second Circuit did not limit the introduction of testimonial co-conspirator statements to obstruction of justice cases, we perceive no basis to extend the court's rationale to the alleged conspiracy to commit armed robbery here. At the time of the alleged agreement, the essence of an armed robbery conspiracy does not necessarily require the wherewithal to give false answers to government inquiry. Conversely, an obstruction of justice conspiracy requires the use of deception and misrepresentation because the concerted action aims to hide the commission of an already-completed substantive offense. Despite the State's repeated assertion that Emendo and defendant attempted to hinder defendant's prosecution for armed robbery, the indictment did not charge them with conspiracy to hinder prosecution or to obstruct justice. There is no competent evidence that the two agreed to make false testimonial statements to impede law enforcement.

Rather, the State struggles to find any basis to admit the entire plea allocution and all of the plainly testimonial statements it contains that inculpate defendant. To do so, it points to one allegedly untrue statement in Emendo's plea allocution (the reference to his ownership of the BB gun), and argues that this lie "furthers the conspiracy." Citing Stewart, the State seems to imply that Emendo made all of the statements, truthful and untruthful, to further the conspiracy. This endrun to admit the "plainly testimonial" plea allocution does not find support in Stewart. Relying on the special circumstances of an obstruction of justice conspiracy, the Second Circuit permitted the introduction of both truthful and untruthful testimonial statements because an out-of-court declarant would need to pepper his or her falsehoods with truthful statements to successfully obstruct government investigation. Ibid. Otherwise, the investigators would not believe the declarant and the obstruction conspiracy would fall flat. Ibid. That is not the case here.

Accordingly, we reject the State's invitation to resolve the tension between generally admissible co-conspirator statements and inadmissible testimonial statements against this criminal defendant with respect to Emendo's plea allocution. Thus, even if a conspiracy were established, the plea allocution would be inadmissible because it would deprive defendant of his rights under the Confrontation Clause.


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