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State ex rel J.A.

June 23, 2008

STATE OF NEW JERSEY IN THE INTEREST OF J.A., JUVENILE-APPELLANT.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 385 N.J. Super. 544 (2006).

SYLLABUS BY THE COURT

(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).

[NOTE: This is a companion case to State v. Buda and State v. Sweet and State v. Dorman also decided today.]

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d. 177 (2004), the United States Supreme Court dramatically altered the landscape of its Confrontation Clause jurisprudence, rendering unconstitutional the admission of an out-of-court "testimonial" statement unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine that person. In this juvenile delinquency case, the Court applies Crawford to determine whether statements made by a non-testifying witness to a police officer, describing a robbery committed ten minutes earlier and his pursuit of the robbers, were admissible.

The following facts were presented to the Family Part judge. On the evening of February 10, 2005, Juana Chavez, a fifty-two-year-old cable worker and part-time student, had completed class and was walking home in Paterson. Fourteen-year-old H.A. grabbed Chavez's shoulder from behind and attempted to wrest her purse from her. Chavez resisted, and was thrown to the ground. H.A. pulled the purse free and ran off. Chavez noticed that another individual was running alongside him. Chavez did not see the other individual's face, and was only able to describe him as wearing black clothing.

After Chavez picked herself up, she walked a short distance and three girls came to her assistance. The girls waved down a police officer. Chavez gave the officer a description of the person who took her purse.

Meanwhile, Officer Frank Semmel, in a separate police vehicle, received a dispatch to respond to the scene. He began patrolling the area in search of the perpetrators. Another dispatch advised Officer Semmel that a witness to the crime was following two suspects. Officer Semmel found the witness about a block and a half from the robbery scene. The witness stepped out of his car and spoke to the officer.

At trial, over J.A.'s objection, the court permitted Officer Semmel to testify to the witness's account as a present sense impression, an exception to the hearsay rule, N.J.R.E. 803(c)(1). The witness told Officer Semmel that he had observed two teenage Hispanic males "just" rob a woman. The witness further stated that he had followed the suspects. He described one of the suspects as "wearing a white and blue jacket" and the other a "red jacket and glasses." A short time later, Officer Semmel and another officer stopped two fourteen-year-old males who met the witness's description and brought them to the robbery scene. Chavez identified H.A. as the person who knocked her down and stole her purse. She could not identify J.A. H.A. then led police to the location of Chavez's purse.

Relying in large part on the statements made by the non-testifying eyewitness, the family court judge found J.A. guilty of second-degree robbery as an accomplice to H.A. and therefore entered an adjudication of delinquency. J.A. was committed to a two-year term at the State Home for Boys.

The Appellate Division affirmed J.A.'s adjudication of delinquency, finding that the family court properly admitted the non-appearing eyewitness's out-of-court statement. The panel determined that the statements were admissible under the present sense impression and excited utterance exceptions to the hearsay rule, N.J.R.E. 803 (c)(1). The panel reached that conclusion because the witness had observed a startling event, and because of the brief period between the observations and his recounting of the events to Officer Semmel. The panel also determined that the introduction of those hearsay statements did not violate J.A.'s Sixth Amendment right to confront witnesses against him. The panel found that the witness's statements were not non-testimonial because an "objective witness" would not have reasonably believed they would be available for use in a later trial. In coming to that conclusion, the panel reasoned that the statements were brief and spontaneous, and were not given in response to structured police questioning.

The Supreme Court granted J.A.'s petition for certification. 191 N.J. 317 (2007).

HELD: The hearsay statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. The statements were testimonial and, because the declarant was not produced as a witness or subject to cross-examination, the admission of the statements violated J.A.'s Sixth Amendment right to confront the witnesses against him.

1. The witness's statements relating the details of the robbery do not qualify under the present sense exception to the hearsay rule, N.J.R.E. 803 (c)(1), because the statements were not made "immediately after" the events. The statements may be admissible as an excited utterance, but the family court did not analyze the statements under the standard set for such an exception. Nor did Officer Semmel testify as to whether the witness appeared anxious or excited. Perhaps one can assume that it would have been natural for the witness to be in an excited state after observing a robbery and pursuing the robbers. Nonetheless, facts should have been elicited on the record to support such a finding. (pp. 13-21)

2. Under Crawford, the Sixth Amendment requires that the admission of testimonial hearsay evidence be conditioned on the unavailability of the witness and a prior opportunity for cross-examination of that witness. The strictures of Crawford, however, do not apply to non-testimonial hearsay. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006), the U.S. Supreme Court articulated a standard that distinguished between non-testimonial and testimonial statements. The Court described non-testimonial statements as those "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." Testimonial statements are those made in "circumstances objectively indicat[ing] 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 prosecutions." Davis involved statements of a domestic violence victim in a 911 call identifying her husband as her assailant. The Davis opinion also addressed another case with which it was consolidated, Hammon v. Indiana. Hammon concerned the admissibility of the oral report and affidavit of a domestic violence abuse victim given to police after they arrived on the scene. The U.S. Supreme Court concluded that the statements in Davis to the 911 operator regarding the identity of the perpetrator were non-testimonial and therefore admissible. The statements in Hammon, however, were deemed to be testimonial. The U.S. Supreme Court concluded that in that case, the primary purpose of the police interrogation was to investigate a crime -- to learn "what happened" rather than "what was happening." The Court further explained that the victim had been separated from the abusive husband, and there was no immediate threat to the victim and no emergency in progress. (pp. 21-30)

3. Like in Hammon, the non-testifying witness here told the police officer "what had happened." There was no ongoing emergency -- no immediate danger -- implicating either the witness or the victim. This Court's reading of Davis leads it to conclude that a declarant's narrative to a law enforcement officer about a crime, which once completed has ended any "imminent danger" to the declarant or some other identifiable person, is testimonial. Accordingly, the admission of Officer Semmel's testimony relating the testimonial statements of the non-appearing eyewitness violated the juvenile's Sixth Amendment right to confront the witnesses against him. Without the non-testifying witness's account and description of J.A., it is unlikely that a successful prosecution could have been mounted against him. For that reason, the Court cannot say that the admission of the testimonial hearsay was harmless. (pp. 30-36)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Family Part for a new trial.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that the majority should not address the constitutional issue without first having determined that the statements are admissible hearsay, a determination that could make resolution of the constitutional issue unnecessary.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, and HOENS join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Albin

Argued February 5, 2008

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), the United States Supreme Court dramatically altered the landscape of its Confrontation Clause jurisprudence, rendering unconstitutional the admission of an out-of-court "testimonial" statement permitted by state hearsay rules, unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine that person. In returning to the Framers' original understanding of the Confrontation Clause, the Court barred the use of testimonial statements, taken in the course of police questioning and unchallenged by cross-examination, as a substitute for in-court testimony. Id. at 50-52, 124 S.Ct. at 1363-64, 158 L.Ed. 2d at 192-93.

In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006), the Supreme Court made clear that not all statements elicited by law enforcement will be deemed testimonial. Thus, non-testimonial statements are those "objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," and testimonial statements are those "objectively indicat[ing] 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." Id. at 822, 126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237.

In this juvenile delinquency case, we must determine whether statements made by a non-testifying witness to a police officer, describing a robbery committed ten minutes earlier and his pursuit of the robbers, were admitted in violation of our state hearsay rules and the Sixth Amendment's Confrontation Clause. The statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. In light of Crawford and Davis, we now hold that those hearsay statements were testimonial. Because the declarant was not produced as a witness or ever subject to cross-examination, the admission of those statements violated the juvenile's Sixth Amendment right to confront the witnesses against him.

I.

A.

J.A. was charged in a complaint with an act of juvenile delinquency, which if committed by an adult would constitute a second-degree robbery under N.J.S.A. 2C:15-1. These are the facts presented at trial before a Family Part judge.

On February 10, 2005, at approximately 9:30 p.m., Juana Chavez, a fifty-two-year-old cable worker and part-time student, had completed class and was walking to her home in Paterson. While on 31st Street heading toward 20th Avenue, fourteen-year-old H.A. grabbed Chavez's shoulder from behind and attempted to wrest her purse from her. She resisted, clinging to her purse, and was thrown to the ground. With Chavez lying prone, half on the street and half on the sidewalk, her knees bleeding and her books scattered about, H.A. then pulled the purse free from her shoulder and ran off. As H.A. fled, Chavez noticed that another individual was running alongside him. Whereas Chavez was able to see H.A.'s face and identify his clothing -- a black jacket over a red-hooded sweater -- she was only able to describe the other individual as wearing black clothing. She did not see the second individual's face.

After Chavez picked herself up, she walked a short distance to the corner of 31st Street and 20th Avenue where three girls came to her assistance, one offering her cell phone so that Chavez could call the police. Because of the difficulty she has speaking English, Chavez decided to call her son, who told her to wait at that location until he arrived. Within ten minutes, however, the girls waved down a police officer and explained to him that Chavez had been the victim of a robbery. Chavez gave Officer Frank Belton a description of the person who pushed her to the ground and took her purse.

Meanwhile, at 9:31 p.m., while on patrol, Officer Frank Semmel received a dispatch from headquarters to respond to the area of 20th Avenue and East 31st Street. On arriving at the scene, Officer Semmel observed that a police unit was already tending to the robbery victim. He then began patrolling the area in search of the perpetrator(s). Another dispatch received by Officer Semmel gave a description of one suspect and advised that "a witness to the crime" was following two suspects. Within approximately two minutes of receiving that last dispatch, Officer Semmel arrived at Public School 30, "[a]bout a block and a half to two blocks" from the robbery scene,*fn1 where he found the witness. The witness stepped out of his car and spoke to the officer.

At trial, over J.A.'s objection, the court permitted Officer Semmel to testify to the witness's account as a present sense impression, an exception to the hearsay rule, N.J.R.E. 803(c)(1).*fn2 The witness told Officer Semmel that he had observed two teenage Hispanic males "just" rob a woman on 31st Street and East 20th Avenue and that they were "walking down East 25th towards 21st Ave." The witness further stated that he had "followed the suspects" as far as the school. He described one of the suspects as "wearing a white and blue jacket" and the other a "red jacket and glasses."*fn3

Over his police radio, Officer Semmel transmitted the direction in which the suspects were last seen walking and resumed his patrol. Halfway between 20th and 21st Avenues, Officer Semmel and another Paterson police officer stopped two Hispanic fourteen-year-olds who were wearing the clothing described by the witness. H.A. and J.A. were detained as "possible suspects in a robbery," handcuffed, placed in the back of Officer Semmel's patrol car, and brought to the robbery scene, where Chavez was waiting.*fn4 Chavez identified H.A. as the person who knocked her down and stole her purse. She could not identify J.A. as the person accompanying H.A. in his ...


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