On certification to the Superior Court, Appellate Division, whose opinion is reported at 389 N.J. Super. 241 (2006).
(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. J.A., State v. Sweet and State v. Dorman, also decided today.]
This appeal requires that the Court address and apply the holding of the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d. 177 (2004), that, under the Confrontation Clause of the Sixth Amendment, "[t]estimonial statements of witnesses absent from trial have been admitted only where 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. Specifically, the appeal requires that the Court determine whether two separate hearsay statements made by a severely beaten three-year-old boy -- one to his mother that "Daddy beat me[,]" and a later one to a representative of the Division of Youth and Family Services (DYFS) that "Dad says nobody beat me. I fell when I was sleeping in my room." -- are "testimonial" within the meaning of Crawford and, hence, cannot be admitted without the child testifying at and being subjected to cross-examination during trial.
In 1998, while still living with her parents, Christine gave birth to a son, N.M. Christine and her son remained with Christine's parents until 2002. At that time, they moved into the home of defendant, Ryan Buda, with whom Christine had a romantic relationship. Buda insisted that N.M. call him "Dad" or "Daddy."
Early in July 2002, shortly after the move and during a morning drive to her parents' home, where Christine's sister served as N.M.'s babysitter while Christine worked, N.M. blurted out from the back seat that "Daddy beat me." Christine asked N.M. when that had happened, and he replied: "the nighttime." Later that day, Christine's mother telephoned Christine at work and told her that N.M. had an injury to his buttocks that looked like a handprint. That evening, Christine asked Buda about the bruises. According to Buda, N.M. had fallen in the bathtub and that fall caused the bruises.
Approximately two months later, Christine returned home from work and Buda informed her that N.M. again had fallen getting out of the bathtub and bruised his head. The next day, Christine's father noticed the bruises and photographed them. Christine and her parents argued, with her parents asserting that Buda was beating N.M., while Christine refused to credit those accusations.
On October 18, 2002, Christine left N.M. in Buda's care. When she returned home from work, she found N.M. and Buda in a darkened living room. About an hour later, she noticed a "big red mark on the back of [N.M.'s] neck." Christine insisted that they go to the hospital. Buda drove them to the local medical center. Christine repeatedly asked Buda what had happened, and Buda responded that he "had no clue" and that N.M. "must have fallen."
Because the medical professionals assessing N.M. concluded that he exhibited signs of abuse, they contacted DYFS, and a member of its Special Response Unit, Miriam Nurudeen, promptly responded. Nurudeen observed N.M. was very upset, crying, and telling his grandparents that they had to take care of him now, and he wanted to go home with them. Nurudeen interviewed N.M. alone. When she asked what happened, N.M. responded that "I fell down in my room. I want to go home to grandma." Nurudeen then asked if anybody beat him. N.M. replied, "Dad says nobody beat me. I fell when I was sleeping in my room." N.M. refused to answer any more questions. N.M. remained hospitalized for two weeks due to the extent of his injuries, which included significant internal bleeding.
Buda was charged with three counts of second-degree endangering the welfare of a child and one count of third-degree aggravated assault. At the trial, Christine, Christine's parents and sister, the DYFS worker, an investigator with the Prosecutor's Office and a medical doctor testified for the State. N.M. did not testify. Buda offered the testimony of several relatives. His mother, step-mother and brother claimed to have been at Buda's house at some point on October 18, 2002, and they claimed that they did not observe anything out of the ordinary. Buda also testified, and he repeatedly denied ever striking N.M. The jury returned a verdict of guilty on all counts, and Buda was sentenced to a term of imprisonment of eight years.
The Appellate Division affirmed the trial court's finding that N.M.'s hearsay statements to his mother and the DYFS worker qualified for admission as "excited utterances" under N.J.R.E. 803(c)(2). Canvassing Crawford and other recent cases, it found that N.M.'s statement to his mother posed no problem of admissibility. In contrast, it concluded that the statement to the DYFS worker must be deemed testimonial, and, because N.M. did not testify and Buda was not afforded an opportunity to cross-examine N.M., the admission of that statement was error.
The State petitioned for certification, and Buda cross-petitioned. The Supreme Court granted both. 191 N.J. 317 (2007).
HELD: The trial court did not abuse its discretion in determining that the child's statements to his mother and the DYFS worker were properly admitted into evidence as "excited utterances" under N.J.R.E. 803(c)(2). The child's statements were not testimonial and, hence, their admission at trial did not run afoul of the Confrontation Clause.
1. All parties agree that N.M.'s out-of-court statements were hearsay. Both the trial court and the Appellate Division concluded that N.M.'s statements qualified as excited utterances under N.J.R.E. 803(c)(2), which exempts from the hearsay rule's proscription on admission "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard. N.M.'s hearsay statement to his mother possesses the spontaneity that rests at the core of the excited utterance exception to the hearsay rule: it was an unsolicited "blurted-out" statement made by a then three-year-old child while safely alone with his mother and away from his abuser. As acknowledged by the Appellate Division, however, the statement to the DYFS worker presents a closer question. The Court views as significant the length of time between the violence visited on N.M. and his statement to the DYFS worker. However, the Court must assess both the quality and nature of that period. In light of the intervening action-filled chaos and stress-filled events that brought the child ultimately to a hospital emergency room, the time elapsed was not of a kind likely to allow this child to deliberate and, thus, fabricate the statement. It was not until N.M. was at the hospital and, more importantly, away from Buda, that N.M. was in the position to make any utterance in respect of who beat him. In these circumstances, the Court accepts that the exciting influence had not dissipated for this three-and-one-half-year-old child at any time prior to reaching the zone of relative safety he may have begun to feel once he was in a hospital room with Buda removed from his presence. (pp. 14-23)
2. The Court also must determine whether the hearsay statements otherwise admissible under the Rules of Evidence should nonetheless be barred from use in a criminal trial as violative of the Confrontation Clause. In almost identical language, the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and New Jersey's State Constitution, N.J. Const. art. I, ¶ 10, provide that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" It is no exaggeration to suggest that Crawford affected a fundamental shift in the constitutionality of evidence jurisprudence. Prior to Crawford, the statement of an unavailable witness was admissible provided the statement "bears adequate indicia of reliability." Crawford rejected the reliability analytical paradigm and adopted a two-pronged test that provides: "Testimonial statements of a witness absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." The question whether a hearsay statement is testimonial or non-testimonial defies facile definition. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006), the U.S. Supreme Court addressed when statements made to law enforcement personnel during a 911 call or at a crime scene are "testimonial" and thus subject to the Sixth Amendment's Confrontation Clause. Davis found the statement during a 911 call to be non-testimonial because made in the course of police interrogation the primary purpose of which was to enable police to meet an ongoing emergency. By contrast, the statements made at the crime scene in response to police questioning were testimonial because there was no ongoing emergency and the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution. (pp. 24-29)
3. N.M.'s spontaneous and unprompted hearsay statement to his mother that "Daddy beat me" is non-testimonial and therefore admissible. N.M.'s hearsay statement to the DYFS worker was made in response to a question whether anyone had beaten him. Although some may intimate that the DYFS worker stands in the shoes of a police officer and, hence, that the statement was in response to a police inquiry, the Court rejects that construction. When she responded to the hospital, the DYFS worker was responding to a life-threatening emergency no different in kind than the function being performed by the 911 operator in Davis; she was seeking information from a victim to determine how best to remove the very real threat of continued bodily harm and even death from this three-year-old child. The primary obligation of a DYFS worker is not to collect evidence of past events to prosecute an offender, but to protect prospectively a child in need. One can envision circumstances where the DYFS worker serves predominantly as an agent/proxy or an operative for law enforcement in the collection of evidence of past crimes for use in a later criminal prosecution, circumstances that may well render the hearsay statements thereby procured testimonial under Crawford. Other than acknowledging that possibility, the Court need not discuss it further in this case in light of the facts presented. Viewed in its proper context, N.M.'s statement to the DYFS worker was a statement seeking to end Buda's then-present reign of terror over N.M., a statement no different than the domestic abuse victim's 911 call Davis instructs is non-testimonial. (pp. 29-37)
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, Buda's convictions are reinstated, and the cause is REMANDED to the Appellate Division for consideration of Buda's remaining issues on appeal.
JUSTICE ALBIN has filed a separate, DISSENTING opinion, in which JUSTICES LONG and WALLACE join, expressing his view that N.M.'s statement to the DYFS worker cannot be classified as an excited utterance. Further, even if the statement did qualify as an excited utterance, it is testimonial for Sixth Amendment purposes. In Justice Albin's opinion, Buda had a right to cross-examine the child whose statements directly implicated him in a crime.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE RIVERASOTO's opinion. JUSTICE ALBIN has filed a separate, dissenting opinion, in which JUSTICES LONG and WALLACE join.
The opinion of the court was delivered by: Justice Rivera-soto
This appeal, and three additional cases also decided today,*fn1 require that we address and apply the holding of the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), that, under the Confrontation Clause of the Sixth Amendment, "[t]estimonial statements of witnesses absent from trial have been admitted only where 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.
Specifically, this appeal requires that we determine whether two separate hearsay statements made by a severely beaten three-year-old boy -- one to his mother that "Daddy beat me[,]" and a later one to a representative of the Division of Youth and Family Services (DYFS) that "Dad says nobody beat me. I fell when I was sleeping in my room." -- are "testimonial" within the meaning of Crawford and, hence, cannot be admitted without the child/declarant testifying at and being subjected to cross-examination during trial.
We conclude, as the Appellate Division did, that the trial court did not abuse its discretion in determining that the child's statements to his mother and the DYFS worker were properly admitted into evidence as "excited utterances" under N.J.R.E. 803(c)(2). We also conclude that, in the circumstances presented, the child's separate statements to his mother and to the DYFS worker were not testimonial and, hence, their admission at trial did not run afoul of the Confrontation Clause.
In November 1998, while still a teenager living with her parents, Christine gave birth to a son, N.M.*fn2 Christine and her son remained with Christine's parents until 2002, when she began a serious romantic relationship with defendant Ryan Buda. As that relationship blossomed, Christine and N.M., by then three years old, moved into defendant's home. At that time, defendant insisted that N.M. call defendant "Dad" or "Daddy." In early July 2002, shortly after the move and during a morning drive to her parents' home, where Christine's sister served as N.M.'s babysitter while Christine worked, N.M. blurted out from the back seat that "Daddy beat me." Christine asked N.M. when that had happened and he replied: "the nighttime." Later that day, Christine's mother telephoned Christine at work and told her that N.M. had an injury to his buttocks; Christine's mother thought the injury to N.M.'s buttocks looked like a handprint. Christine's mother and sister took photographs of N.M.'s bruises.
That evening, Christine asked defendant about N.M.'s bruises. According to defendant, N.M. had fallen in the bathtub and that fall caused the bruises. Christine accepted defendant's explanation.
Approximately two months later, Christine returned home from work and defendant informed her that N.M. again had fallen getting out of the bathtub and had bruised his head. Christine again accepted that explanation. The next day, Christine's father -- N.M.'s grandfather -- noticed the bruises and photographed them. When Christine arrived at her parents' home to pick up N.M., she and her parents argued: they asserted that defendant was beating N.M., while Christine refused to credit her parents' accusations. Christine's parents refused to return N.M. to Christine for several days, a demand to which Christine acquiesced.
On October 16, 2002, Christine again took N.M. to her parents' house to be babysat while Christine worked. Later that day, Christine's father brought N.M. to Christine's sister's home, to be babysat for the remainder of the day. Their routine was disrupted in another respect: instead of Christine picking up N.M., it was defendant who went to pick up N.M. and bring him home. When N.M. saw that defendant, and not his mother, was the person picking him up, N.M. became upset and started crying. Defendant and Christine's sister began yelling at each other, and Christine's sister accused defendant of being a child abuser. Eventually the police were called and, after a telephone call to Christine, defendant took N.M. home, but only after the police physically had to carry him out of the house against his will and place him into defendant's car.
Two days later, on October 18, 2002, Christine varied her routine. Instead of delivering N.M. to either her parents or her sister for baby-sitting while she worked, she left N.M. in defendant's care. When she returned home from work, she entered a darkened living room, lit only by a television set N.M. was watching; defendant was in the house, nearby. About an hour later, she checked on N.M. more closely and noticed "a big red mark on the back of [N.M.'s] neck." Christine "started panicking" and "yell[ed]" that "[w]e got to go to the hospital." Christine and defendant rushed N.M. to the local community medical center's emergency room, where he was immediately seen. While N.M. was being examined, Christine repeatedly asked defendant what had happened, and defendant responded that "[h]e had no clue what happened to [N.M.]" and that N.M. "must have fallen."
Because the medical professionals assessing N.M. concluded that N.M. exhibited signs of abuse, they contacted DYFS's Office of Child Abuse Control, and a member of its Special Response Unit, Miriam Nurudeen, promptly responded. After speaking with an investigator from the County Prosecutor's Office who, also having responded to a call, was already at the hospital, as well as the examining physician, Nurudeen interviewed N.M. Upon entering the room where N.M. was being examined in his grandparents' presence, she observed that N.M. was "very upset" and "was crying[,]" telling his grandparents that "they had to take care of him now, and he wants to go home with them." Nurudeen also observed N.M.'s bruises. After coaxing the grandparents to leave the room, Nurudeen interviewed N.M. alone. When asked what had happened, N.M. responded that "I fell down in my room. I want to go home to grandma." Nurudeen then "asked him if anybody beat him." N.M. replied: "Dad says nobody beat me. I fell when I was sleeping in my room." She explained that when "I tried to talk to him after that,  he didn't want to answer anymore questions. And I didn't want to put anything in his mouth, so I stopped the interview."
Once N.M. was assessed, he was transferred via ambulance to Jersey Shore University Medical Center, where he remained hospitalized for two weeks due to the extent of his injuries and the internal bleeding resulting from them.
Dr. Steven Kairys, the Medical Center's Chairman of Pediatrics and the Director of the Child Protection Center, described N.M.'s condition shortly after his admission to the Medical Center as follows:
When I saw [N.M.] the day after admission, he had extensive injuries primarily to the head, the scalp, the eyes, the ears, the back of the neck. That's where really most of the injuries were. There was a combination of extensive bruising that  covered large parts of his neck and scalp. Both eyes were bruised [and] were beginning to show what's called raccoon eyes, bleeding blood around the eyes. Both ears were swollen red. There was bruising both in the earlobes, themselves, as well as behind the earlobes. There was bruising along the neck. And that was the major area of his injuries.
He did have a couple of other areas of much, much lesser injury. He had a small bruise along his left flank. And he had two or three very small quarter-inch bruises on his scrotum, two on the right side, one on the left side.
He further explained that N.M. was suffering from "a significant amount of blood loss." He explained that "in [N.M.'s] case since it wasn't blood loss from the GI track or blood loss from  a major gaping wound that was oozing blood, it was blood loss into the skin, into the scalp, and the neck[,]" or, in other words, internal bleeding. Dr. Kairys further noted that "[t]he pattern [of N.M.'s injuries] was very striking" because "it was fairly extensive bilateral and anterior, on both front and back injury to the head area." Based "on the pattern and the absence of bruising elsewhere in the body[,]" he opined that the injuries were not the result of a fall, and that they had been inflicted on N.M. on the day he was hospitalized and not before.
Defendant was charged with three counts of second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a), and one count of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7).*fn3 At his trial, Christine, Christine's parents, Christine's sister, the DYFS worker, the investigator from the County Prosecutor's Office and Dr. Kairys testified on behalf of the State. Significantly, N.M. did not testify at defendant's trial. After defendant's motion for judgment of acquittal pursuant to Rule 3:18-1 was denied, defendant offered the testimony of several of his relatives.
Jonathan, defendant's youngest brother, explained that he saw N.M. on October 18, 2002 and observed nothing wrong with him; he testified that they played cars and watched television together that afternoon. However, Jonathan also testified that, on that day, he was unable to see N.M.'s face "[b]ecause the only lights that were on was the one right next to the couch and the one in the kitchen. And we were - - and, now, I'm standing in front of the light, so not much light gets to him to see him."
Defendant's mother, Joyce, testified that she had been in defendant's house during most of the day on October 18, 2002 and did not observe anything out of the ordinary. Defendant's other brother, Sean, also testified. According to Sean, he had been living in the same house with defendant when Christine and N.M. initially moved in. He explained that N.M. "took a spill" coming out of the bathtub, which accounted for the July 2002 bruising noted by Christine's mother and sister, and that he moved out "a week or two after the bathroom incident."
Jessica, defendant's step-mother, also testified. She explained that, on October 18, 2002, she went to defendant's house to drop off an invitation for the upcoming wedding between Jessica and defendant's father. She noted that she spoke with both Christine and defendant for approximately twenty minutes that evening and that nothing appeared amiss. Following Jessica's testimony, defendant offered two character witnesses, who testified solely in respect of defendant's character for truthfulness, as provided in N.J.R.E. 404(a)(1).
Defendant then testified. He repeatedly denied ever striking N.M., either on October 18, 2002, or at any earlier time. He asserted that his mother was with him the entire day of October 18, 2002, and that neither of them observed anything happen to N.M. on that day. He rejected all of the allegations of child abuse leveled against him, claiming that they were the product of Christine's parents, who did not want their daughter and grandson moving out of their home and into defendant's house. When asked why he had not disclosed earlier that his mother had been with him that entire day, he claimed that he did not want to place her in jeopardy, as there was an outstanding warrant for her arrest. However, defendant had no explanation for the fact that his mother had transported both defendant and his youngest brother Jonathan to the police station for questioning and waited for them for over two hours while sitting on a bench in the station's common area.
On January 14, 2005, the jury returned a verdict of guilty on all counts and, on March 4, 2005, defendant was sentenced to a term of imprisonment of eight years.
Defendant appealed, arguing that (1) the evidence was insufficient to support the guilty verdict; (2) the admission of the child/victim's hearsay statements violated defendant's constitutional rights to confrontation; (3) certain jury instructions were in error; and (4) his sentence was improper. Addressing solely defendant's second point, the Appellate Division reversed. State v. Buda, 389 N.J. Super. 241 (App. Div. 2006). At the outset, the panel concluded that the trial court did not abuse its discretion in finding that N.M.'s hearsay statements to his mother and the DYFS worker qualified for admission as "excited utterances" under N.J.R.E. 803(c)(2), "declin[ing] to hold that the inferences preclude the finding that both statements were made in response to a 'startling event' while N.M. was 'under the stress of excitement caused by the event or condition' and were made 'without an opportunity to deliberate or fabricate.'" Id. at 247 (citations omitted).
The Appellate Division then noted that "[r]ecent case law requires reconsideration of the admission of the excited utterances in light of the Confrontation Clause." Id. at 248. Canvassing both Crawford, supra, and Davis, supra, it differentiated between N.M.'s July 2002 spontaneous statement to his mother that "Daddy beat me[,]" and N.M.'s October 2002 statement to the DYFS worker that "Dad says nobody beat me. I fell when I was sleeping in my room." In respect of the former, the panel concluded that "the statement or 'blurt out' to N.M.'s mother after the first incident in July would pose no problem under Crawford or Davis in terms of admissibility[.]" Id. at 256.
In contrast, the panel further concluded that "[t]he October statement involved in this case was taken when N.M. was no longer in danger and there was no 'ongoing emergency'[, and, therefore,] the statement must be deemed testimonial, and admissible only if the declarant was unavailable and defendant had a prior opportunity to cross-examine the declarant." Id. at 255-56 (quoting Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2274, 165 L.Ed. 2d at 237). Noting that N.M. did not testify at trial, that defendant was not afforded an earlier opportunity to cross-examine N.M., and that there was no claim that "defendant somehow prevented the witness from testifying, which can be deemed a forfeiture or waiver of the Sixth Amendment right to confrontation[,]" id. at 256, the panel reasoned that admission of N.M.'s statement to the DYFS worker was error. It concluded that "[a]s the statement in question was both offered and received for the substance of what was said, and because there is no contention or basis for a finding of harmless error in terms of its impact on any count, we reverse the conviction[s] on all counts." Ibid. It further concluded that "a statement to a DYFS worker who reports to a hospital in response to a call concerning possible child abuse, even if taken outside the presence of a police officer or prosecutor's investigator, is taken to gather evidence for use in court proceedings if it is decided that action for protection of the child is required." Id. at 256-57.
The State petitioned for certification, and defendant cross-petitioned; we granted both. State v. Buda, 191 N.J. 317 (2007). We also granted leave to the Attorney General of New Jersey and to the Association of Criminal Defense Lawyers of New Jersey to appear as amicus curiae. For the reasons that follow, we affirm in part and reverse in part the judgment of the Appellate Division, we reinstate defendant's convictions, and we remand the cause to the Appellate Division for consideration of defendant's remaining points on appeal.
Focusing exclusively on the Appellate Division's conclusion that N.M.'s October 2002 statement to the DYFS worker was "testimonial" and, hence, barred from admission under Crawford and Davis unless (1) N.M. was unavailable to testify at trial, and (2) defendant had been afforded an earlier opportunity to cross-examine N.M., the State argues that the Appellate Division failed to consider objectively all of the circumstances surrounding that statement. That analysis, the State urges, leads to the conclusion that the statement was not "testimonial." It asserts that neither this declarant, nor anyone else similarly situated, would have expected the October 2002 statement to have been used against a defendant ...