March 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VERNON SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 05-12-2554-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Winkelstein and Gilroy.
In December 2005, a Monmouth County grand jury indicted defendant on ten counts. The first five counts pertained to a June 9, 2005, robbery of Gerald Brown, which were tried separately and are the subject of a separate appeal. See State v. Smith, No. A-3982-06 (App. Div. March 26, 2009).
Counts six through ten pertain to a June 10, 2005 robbery of Xiao Chen and are the subject of this appeal. Those counts are as follows: count six, first-degree armed robbery; count seven, third-degree aggravated assault with a deadly weapon, a metal baseball bat; count eight, second-degree aggravated assault; count nine, third-degree possession of a weapon, a metal baseball bat, for an unlawful purpose; and count ten, fourth-degree unlawful possession of a weapon, a metal baseball bat.
The jury convicted defendant of counts six and seven; count eight, amended to third-degree aggravated assault with bodily injury; and counts nine and ten. The court merged counts seven, eight and nine with count six, and sentenced defendant on count six to a term of sixteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., and to a concurrent five-year term on count ten. The court ran these sentences consecutive to the sixteen-year prison term it had imposed after defendant's conviction of first-degree robbery on the severed counts of the indictment. State v. Smith, supra, No. A-3982-06.
On appeal, defendant raises the following issues:
POINT I: THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION BY ADMITTING THE HEARSAY STATEMENT OF THE VICTIM IN THE ABSENCE OF ANY OPPORTUNITY FOR CROSS-EXAMINATION. U.S. CONST., AMENDS VI, XIV; N.J. CONST. (1947) ART. 1, PAR. 10.
POINT II: THE CONVICTION WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND XIV; N.J. CONST. (1947), ART 1, PAR. 10 (NOT RAISED BELOW).
POINT III: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject defendant's arguments and affirm.
On June 10, 2005, the victim, Xiao Chen, was a delivery person for the Panda Restaurant in Neptune Township. That evening, defendant and two acquaintances, Eris Nash and her sister, Marlena Nash, were sitting on the Nashes' porch on Winding Ridge Drive in Neptune. Eris Nash ordered food from the Panda Restaurant for delivery to the Nash home.
Before the delivery person arrived, the Nash sisters went into the home, but defendant waited on the porch. When she heard the doorbell ring, Eris "went downstairs to get it. And [she] looked out through the peephole and [saw the deliveryman] get hit. And at that time [she] put the chain on the door and got [her] sister and left . . . through the back door." When asked if she saw who was striking the deliveryman, she testified that it was defendant.
The Nash sisters left the home and did not call the police. At 9:21 p.m., the police received a dispatch that an assault, with a head injury, had been committed at the Nashes' home. Neptune Police Officer Christopher McKinley was dispatched to the home, and arrived three minutes after the call. When he arrived, he saw the victim, Chen, standing against a vehicle with blood on his face, bleeding from the back of his head. In broken English, Chen told the officer that he was struck in the head with a stick-like object about two feet in length. Chen described his assailant as a black male, about five foot eight inches tall, thin, with short hair and wearing a black t-shirt. While the officer was speaking with him, Chen's legs went weak and he collapsed. Officer McKinley, a certified EMT, administered first aid to Chen. He placed an oxygen mask on Chen and put pressure against Chen's head wound. While he was administering first aid, Henry Lin, who worked with Chen, arrived, and was able to help the officer translate Chen's statements.
The Neptune First Aid Squad responded and placed Chen in the back of the ambulance and transported him to the hospital. As the EMTs were attempting to place Chen in the ambulance, he became unconscious for about fifteen seconds. At the hospital, Chen received eleven staples for his head wounds.
Three days later, the officers interviewed Eris and Marlena Nash. They told the police that they were in the house when the assault occurred. They gave no further details at that time.
Eris testified that the following day, defendant told them that he attacked the deliveryman because he wanted the money. The next day, Marlena called the police to come to her home so defendant could turn himself in. When he arrived, Detective Brian Fromhold asked defendant why he was giving himself up, and defendant told the police "because of the delivery food guy."
The police arrested defendant and took him to police headquarters where he admitted that he struck the deliveryman twice with a metal bat so he could take his money. At trial, defendant testified, but he denied taking part in the incident. He claimed that he lied when he told the police officers that he did it.
Because Chen's whereabouts were unknown, he did not testify at trial. The State offered McKinley's testimony as to what Chen told him. The trial judge conducted an N.J.R.E. 104 hearing concerning the admissibility of McKinley's statements, and ruled that although his testimony as to what Chen told him was hearsay, the statements were admissible under N.J.R.E. 803(c)(2) as an excited utterance and under N.J.R.E. 803(c)(1) as a present sense impression. The court also found that the testimony concerning Chen's initial statements to the officer that he had been robbed, and his brief description of the perpetrator, did not violate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) because it was non-testimonial in nature; the testimony described the colloquy between the victim and the police officer, which "involved an ongoing emergency" and was aimed at what was happening when the officer responded to the scene and found the bleeding victim. The court ruled, however, that the officer's testimony concerning Chen's statements as interpreted by his co-worker was testimonial because it sought to prove what happened. Consequently, the court found that it was inadmissible.
In his first point on appeal, defendant challenges the court's decision to admit Officer McKinley's testimony as to what Chen told him. We reject defendant's arguments.
A present sense impression is "a statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). Here, although the time at which Chen was attacked is not exactly clear, the circumstances show that Officer McKinley arrived on the scene soon thereafter; Chen was still at the scene. He was bleeding and appeared to be in shock. Chen collapsed while speaking to officer McKinley, and he became unconscious while the EMTs were attempting to place him into the ambulance. Under these circumstances, his explanation to Officer McKinley was his present sense impression as to what occurred when he was attacked.
These facts also support the court's ruling that Chen's statements to Officer McKinley qualify under N.J.R.E. 803(c)(2) as an excited utterance. This exception to the hearsay rule applies to "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." N.J.R.E. 803(c)(2). For substantially the same reasons that the testimony qualified under N.J.R.E. 803(c)(1), it also qualified under N.J.R.E. 803(c)(2).
That takes us to whether the testimony was a violation of Crawford, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177. We agree with the trial judge that it was not.
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. [State v. Buda, 195 N.J. 278, 301 (2008) (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed. 2d 224, 237 (2006) (footnote omitted)).]
That is the case here. McKinley's testimony as to what Chen told him did not violate Crawford because Chen's statements were non-testimonial. Chen was unavailable for cross-examination at trial as he had disappeared. At the time McKinley questioned him, Chen appeared to be in shock, he was bleeding, and he collapsed during the conversation. Indeed, while speaking with Chen, McKinley administered first aid by placing an oxygen mask on Chen and tried to suppress the bleeding from Chen's head lacerations. McKinley's questions to Chen were in an effort to meet an ongoing emergency, which is a non-testimonial situation.
Nevertheless, even if we conclude that the court erred by permitting McKinley to testify as to what Chen told him, the evidence of defendant's guilt was so overwhelming that the admission of the hearsay testimony was harmless beyond a reasonable doubt. Defendant confessed to the crime. Eris Nash testified that she witnessed defendant commit the crime. Consequently, if it was error to admit the evidence, the error was not sufficient "to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2. Thus, despite the challenged testimony, there is no basis to reverse defendant's conviction.
For substantially the same reasons we reject defendant's argument that the convictions were not supported by the evidence. That argument requires no additional discussion. R. 2:11-3(e)(2).
Finally, we reject defendant's challenge to his sentence. The court imposed a sixteen-year prison term consecutive to the sentence the court imposed on defendant for the conviction for the first-degree robbery of Gerald Brown. That robbery occurred on June 9, 2005, the day before the robbery that was the subject of defendant's trial here. See State v. Smith, supra, No. A-3982-06. This was a separate crime, with a separate victim, and warranted a consecutive sentence. State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The mid-range of sixteen years for a first-degree robbery conviction was appropriate, especially considering defendant's prior record, which included the earlier robbery conviction. That defendant turned himself in and gave a full statement was not worthy of a mitigating factor that would outweigh the aggravating factors. Although the real-time consequences of the sentence are serious, so were defendant's actions.
We conclude that in sentencing defendant the court appropriately exercised its discretion based on findings grounded in credible evidence; the judge applied the correct legal principles in exercising his discretion; the judge appropriately weighed the aggravating and mitigating factors based on the evidence; and the sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).
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