On certification to the Superior Court, Appellate Division.
(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).
In this criminal action involving claims of sexual assault on a three-year-old child, the Court determines whether the child's out-of-court statements, as testified to by her mother, were admissible at trial.
Defendant Terry Coder was the superintendent of the apartment building in which the victim, Joyce, lived. On August 28, 2001, when Joyce was three years old, Coder invited her and her friend, eleven-year-old Susan, into the basement of the apartment building. There, Coder pulled his pants and Joyce's pants down and sexually touched her. Witnessing this, Susan ran out of the basement and straight to Joyce's apartment, where she told Joyce's mother, Denise, what had happened and that Joyce was still in the basement. Denise went to get Joyce and found her climbing the stairs. After examining Joyce, Denise found no obvious injuries. Denise asked Joyce if anything hurt, and Joyce pointed to her vagina and buttocks. Denise called police and, while waiting for their arrival, Joyce again pointed to her vagina and said, "Mommy, he touched me."
An indictment charged Coder with crimes that included assault, lewdness, and endangering the welfare of a child. The court conducted a hearing to address the admissibility at trial of Denise's testimony concerning what Joyce told her on the day of the assault. After Denise testified about Joyce's statements, Joyce was called to the stand. In response to the court's questions, Joyce denied remembering the incident, and shook her head "no" when asked questions such as whether there were places on her body that no one was supposed to touch or whether she had ever been in the basement with Susan. Defense counsel waived cross-examination and did not object to the admission of Joyce's hearsay statements at trial. Applying the tender years exception to the hearsay rule, the court found that Joyce was available to testify and that her failure to recall was a factor that went to the "totality of the circumstances." In sum, the court ruled that it would permit Denise to testify at trial about Joyce's statements.
After Denise testified at trial concerning the statements Joyce had made on the day of the assault, the trial court explained to the jury that a hearing had taken place at which Joyce was unable to recall the incident and therefore she would not be testifying. The jury found Coder guilty of second-degree assault with a minor, second-degree attempt to commit sexual assault, fourth-degree lewdness, and third-degree endangering the welfare of a child. Coder was sentenced to eleven years imprisonment with a minimum of seventy-one months to be served without parole.
On appeal, Coder argued, in part, that because Joyce did not testify at trial, the admission of her out-of-court statements violated the Confrontation Clause. In an unpublished decision, the Appellate Division affirmed Coder's convictions and sentence. The panel disagreed with the trial court's finding that Joyce was available to testify, explaining that even though she was physically present, her responses had indicated that any cross-examination would be fruitless. After finding that Joyce was "unavailable" for Confrontation Clause purposes, the panel concluded that Joyce's statements to her mother were not testimonial because the statements were made before police involvement, shortly after the incident when the child was frightened, and there was no indication that Denise was asking the child questions in the hopes of obtaining evidence for a future prosecution against Coder. The panel found, therefore, that Coder's Confrontation Clause rights were not violated.
HELD: In defendant's criminal trial on charges of sexual assault on a minor, the out-of-court statements by the victim-a three-year-old child-as testified to by her mother, were properly admitted because the statements were relevant and admissible under the tender years exception to the hearsay rule. Additionally, because the child's statements were not testimonial, they did not implicate the defendant's Confrontation Clause rights.
1. Under New Jersey's Rules of Evidence, relevant evidence is admissible at trial with certain exceptions. Joyce's out-of-court statements to her mother constituted relevant evidence that was not otherwise subject to a relevance bar. The Court turns, therefore, to the question whether Joyce's out-of-court statements were not admissible because they were hearsay. N.J.R.E. 801(c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Joyce's out-of-court statements spoke to the core matter asserted; that is, whether Coder had assaulted and endangered her. As a result, the statements were hearsay and the admissibility of those statements through her mother's testimony at trial hinges on whether an exception to the hearsay rule applies. (Pp. 13-15).
2. Joyce's statements were offered at trial through her mother under the "tender years" exception to the hearsay rule. The tender years exception, N.J.R.E. 803(c)(27), consists of three component parts. The first requires that the proponent of a hearsay statement of a child sexual abuse victim provide advance notice of the statement "at such time as to provide the adverse party with a fair opportunity to meet it." There was no question that the State provided Coder ample notice that Joyce's hearsay statements would be offered at trial. Second, the exception requires that the trial court conduct a hearing and determine the trustworthiness of the statements. Here, the trial court conducted the hearing and, on the basis of the time, content and circumstances of the statement, found that the statements were trustworthy. Coder has not made a serious challenge against the trial court's determinations on either of these points. At issue is the final component, which requires either that the child testify or that the child is unavailable as a witness and admissible evidence corroborates the act of sexual abuse. (Pp. 15-18).
3. The hearing transcript demonstrates that Joyce did not recall the events that occurred when she was three. The trial court's conclusion that Joyce was "available to testify" was not correct. In part, N.J.R.E. 804(a) defines unavailability as including a lack of memory of the subject matter of the statement. Joyce's inability to testify at the hearing concerning the events of August 28, 2001, rendered her "unavailable." The tender years exception provides, however, that if the child-witness is unavailable, hearsay statements may be admissible if there is offered admissible evidence corroborating the sexual abuse. In this case, Susan testified to having witnessed Coder pulling down his pants and Joyce's pants and sexually touching Joyce. Because Joyce's hearsay statements satisfied all three prongs of the tender years exception, the trial court did not abuse its discretion in admitting those statements through Joyce's mother. (Pp. 18-21).
4. Because Joyce was unavailable to testify at trial, the Court determines also whether the admission of her hearsay statements violated Coder's Confrontation Clause rights. The Confrontation Clause commands that the reliability of evidence be tested through cross-examination. However, only testimonial statements trigger Confrontation Clause rights. In a previous case, the Court ruled that a child's statement was not testimonial because it did not bear the indicia of a formal statement to government officers, but instead was akin to a casual remark to an acquaintance. The Court finds that the same result applies here. Because Joyce's hearsay statements lack any indicia that they resulted from law enforcement efforts to establish or prove past events potentially relevant to later criminal prosecution, Joyce's statements to her mother were non-testimonial and, therefore, Coder's Confrontation Clause rights were not compromised by the admission of the statements into evidence. (Pp. 21-23).
5. Joyce's out-of-court statements, testified to by her mother, were relevant, their probative value was not outweighed by their prejudicial effect, they were not subject to a relevance or privilege bar, they were hearsay but were admissible under the tender years exception, and they were not testimonial and, thus, did not implicate Coder's Confrontation Clause rights. (P. 23-24).
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.
The opinion of the court was delivered by: Justice Rivera-soto
This appeal focuses on the tension between evidence admitted under an exception to the hearsay rule and the Confrontation Clause*fn1 concerns initially highlighted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), as explained and amplified in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006), and as interpreted and applied in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), State v. Buda, 195 N.J. 278 (2008), and State in the Interest of J.A., 195 N.J. 324 (2008).*fn2 Following the roadmap outlined in N.J.R.E. 803(c)(27), both the trial court and the Appellate Division ruled that the out-of-court statements of sexual assault made by a three-year-old girl to her mother, although hearsay, were admissible under the "tender years" exception to the hearsay rule, and that the admission of those hearsay statements did not run afoul of the Confrontation Clause.
Once a trial court determines that a hearsay statement made by an unavailable declarant is admissible under an exception to the hearsay rule, an additional task remains: the determination of whether the otherwise admissible hearsay statement nonetheless is barred under the Confrontation Clause, that is, whether the statement is testimonial. Our application of that paradigm in this case leads us to hold that the three-year-old's hearsay statements were admitted properly. We therefore affirm the Appellate Division's judgment.
The relevant facts require little explanation. Defendant Terry Coder was the superintendent of the apartment building in which Joyce,*fn3 a three-year-old child, lived. On August 28, 2001, defendant invited Joyce and her friend, eleven-year-old Susan, into the basement of the apartment building, purportedly to see different colored pieces of wood. Because defendant was known to both girls and Susan previously had been in the basement with defendant to see defendant's model train set, they agreed and followed defendant into the basement. While there, defendant pulled his pants and Joyce's pants down, and sexually touched Joyce. Witnessing this, Susan tried to grab Joyce and leave; defendant prevented their escape by holding on to Joyce. Susan, telling defendant she had to use the bathroom, ran out of the basement and straight to Joyce's apartment, where she told Denise, Joyce's mother, what had happened and that Joyce was still in the basement.
Denise went to get her daughter, only to encounter a frightened Joyce climbing the stairs. Denise took her daughter into their apartment and examined her; there were no physical injuries she could identify. Denise then asked her daughter if anything hurt, and Joyce said "it hurts" as she pointed to her vagina and buttocks. Denise called the police and, while waiting for their arrival, Joyce again pointed to her vagina and buttocks and said, "Mommy, he touched me." Shortly after the police arrived and were informed of those events, defendant was taken to the police station, where he denied touching Joyce but admitted exposing himself to the girls while in the basement. Defendant was arrested, and the Monmouth County grand jury later returned a ten-count indictment that charged defendant with first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1); second-degree sexual assault with a minor at least four years his junior, in violation of N.J.S.A. 2C:14-2(b); second-degree attempt to commit aggravated sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1); two counts of second-degree attempt to commit sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1); third-degree attempt to lure or entice a child, in violation of N.J.S.A. 2C:13-6; fourth-degree lewdness, in violation of N.J.S.A. 2C:14-4(b)(1); third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3(a); and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a).
Before jury selection, the State moved to dismiss three of the ten counts. The trial court then conducted two Rule 104 hearings. See N.J.R.E. 104. During the first of these, defendant sought to suppress the statement he had given the police when he was first taken to the station house; that motion was denied. In the second Rule 104 hearing, the trial court addressed "the testimony regarding Rule 803(c)(27) statements of witnesses of tender age or victims of tender age." The trial court received the testimony of Joyce's mother, Denise, who testified as to what Joyce had ...