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State v. Coder

SUPREME COURT OF NEW JERSEY


May 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRY W. CODER, DEFENDANT-APPELLANT.

On certification to the Superior Court, Appellate Division.

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).

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

Argued February 17, 2009

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.

I.

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 said to her immediately following the sexual assault. Once Denise completed her testimony, Joyce -- by then four years old -- was called to the stand.

In response to questions posed by the court, Joyce did not remember being with her friend Susan in the basement of her apartment building; she did not remember "something with a man in the basement[;]" and she did not "remember speaking to a policeman[.]" The assistant prosecutor then asked Joyce if she knew "why you're here today[,]" whether "there are places on your body that nobody's supposed to touch[,]" whether she ever went into the basement with Susan, and whether "anything ever happen[ed] with you and [Susan] that made you feel sad[.]" In each instance, Joyce shook her head "no." Defense counsel waived cross-examination. No one -- neither the trial court, nor the prosecutor, nor defense counsel -- ever asked Joyce to corroborate her mother's testimony, that is, if she ever told her mother that defendant had touched her and that it hurt where he touched her.

Defining the question presented as whether Denise, Joyce's mother, would be permitted to testify as to Joyce's two out-of-court statements, the trial court directly inquired whether defendant was objecting to their admission. Defense counsel advised that he was "going to leave that in your discretion, Judge." The trial court then observed that Rule 803(c)(27) explicitly addresses statements made by "a child under the age of 12 relating to sexual misconduct committed with or against that child[.]" Parsing the Rule into its component parts, the trial court first addressed the provisions of N.J.R.E. 803(c)(27)(a), noting that such statements are "admissible in a criminal proceeding if . . . the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time to provide him with a fair opportunity to prepare to meet it." After receiving uncontested assurances from the State that there had been compliance with the notice provisions of Rule 803(c)(27)(a), the trial court moved on to subsection (b) of the Rule, ruling that, based on "a hearing conducted pursuant to Rule 104, [and] that on the basis of the time, content and circumstances of the statement[,] there is a probability that the statement is trustworthy[.]"

The trial court then shifted its focus to the application of N.J.R.E. 803(c)(27)(c), which provides that, as a condition precedent to the admission of a hearsay statement under the "tender years" exception, "either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse[.]" The trial court remarked that "we did hear from [Joyce], now age four, and she's just about communicative, and all the references to the defendant, to the basement, to any contact, she has denied." The trial court ultimately determined that Denise could testify as to Joyce's hearsay statements, finding that Joyce "is available to testify [and that] the fact that she doesn't recollect is just something I have to consider in the totality of the circumstances." In sum, the trial court ruled that it would "permit [Denise] to testify in regard to . . . the verbal responses from her daughter [Joyce]."

After Denise testified at trial concerning the statements Joyce had made on the date of her assault, the trial court explained to the jury that one of the trial court's tasks as a judge, is to make a determination as to the ability of a witness to testify, especially when it comes to somebody of very tender years as [Joyce] is four now. And when this thing allegedly happened she was three.

So we had a hearing yesterday out of the presence of the jury. And she sat up here and I asked her some questions about who she was and where she was. And she whispered in the lowest whisper as you could possibly understand. But I asked her questions about this incident. And she had no recollection at all. She didn't remember anything or anybody. Her answer was no, I don't know, don't know, don't know, she knew nothing.

So rather than put her back on the stand and go through the same thing, I've asked both counsel if this would be acceptable for me to advise you. Ms. [assistant prosecutor] you agreed I guess.

[Assistant Prosecutor]: Yes, sir.

THE COURT: Mr. [defense counsel] you agreed also. So rather than bring her up here . . . you know who she is and she's not going to testify today.

Defendant was convicted of four of the remaining seven counts: 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 sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b); fourth-degree lewdness, in violation of N.J.S.A. 2C:14-4(b)(1); and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). He later was sentenced to an aggregate of eleven years imprisonment, with a minimum of seventy-one months to be served without parole, together with appropriate penalties and assessments.

Defendant appealed and, in an unpublished decision, the Appellate Division affirmed defendant's convictions and sentence. Addressing specifically "defendant's claim that because [Joyce] did not testify at trial, the admission of her out-of-court statements was a violation of the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, supra[,]" the panel noted that "'[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.'" (quoting Id. at 68-69, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203). It noted that, although Crawford "declined to define 'testimonial,'" that term "'applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.'" (quoting Id. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203).

Seeking further definition for the term "testimonial," the panel looked to Davis, supra, which explained:

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. [Id. at 822, 126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237 (footnote omitted).]

It additionally noted that "'interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator[,]' constituted 'testimonial hearsay[,]'" id. at 826, 126 S.Ct. at 2276, 165 L.Ed. 2d at 240, and that "'it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate[,]'" id. at 822 n.1, 126 S.Ct. at 2274 n.1, 165 L.Ed. 2d at 237 n.1.*fn4

Turning to the application of its reasoning, the Appellate Division initially disagreed "with the judge's finding that [Joyce] was 'available' to testify." It noted that "[w]hile she was physically present, her responses on voir dire demonstrate that cross-examination would have been utterly fruitless." For that reason, the panel determined that Joyce "was unavailable for Confrontation Clause purposes." However, the panel "conclude[d] that [Joyce]'s several statements to her mother were not testimonial." It reasoned as follows:

The statements were made before any police involvement. The first statement made to [Denise] was made before the police were even contacted about the incident. Additionally, the statement was made shortly after the incident occurred when [Joyce] was frightened, nervous and very scared. The record also shows that while the statements were in response to questioning, the questions were open-ended and designed to determine if [Joyce] was physically injured. The second statement came within an hour of the alleged assault when [Denise], while waiting for police, sought to determine the events that caused [Joyce] to point to her vagina and buttocks and to say, "Mommy, it hurts." There is no indication in the record that [Denise] was asking these questions in the hopes of obtaining evidence for a future prosecution against defendant. This was simply a situation where a mother was attempting to determine if her young daughter was injured, and if so, how and to what extent. There was no confrontation violation under the circumstances.

We granted defendant's petition for certification to determine whether the trial court abused its discretion in admitting Joyce's out-of-court statements under N.J.R.E. 803(c)(27). 196 N.J. 341 (2008). We also granted the application of the Attorney General for leave to appear as amicus curiae. For the reasons that follow, we affirm the judgment of the Appellate Division.

II.

Defendant's challenge to the admission of Joyce's hearsay statements is two-fold. First, he claims that Joyce's statements do not meet the criteria for admission under the "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), and, hence, their admission constituted an abuse of discretion. Second, defendant asserts that, even if Joyce's hearsay statements qualified under the "tender years" hearsay exception, their admission nevertheless violated his Confrontation Clause rights.

In response, the State urges the converse: that Joyce's hearsay statements properly qualified under the "tender years" exception to the prohibition against hearsay, and that statements of a child-victim to his or her parents about abuse suffered are non-testimonial and, for that reason, do not raise Confrontation Clause concerns.

Amicus the Attorney General of New Jersey argues that the trial court laid a proper foundation for the admission of Joyce's hearsay statements pursuant to the "tender years" exception, and that no constitutional infirmity infected that determination.

As a threshold matter, we address the analytical paradigm that applies whenever a hearsay statement is offered into evidence. We then apply that analysis to the "tender years" exception embodied in N.J.R.E. 803(c)(27). Finally, we consider whether the absence of confrontation rights in respect of Joyce's hearsay statements violated the Confrontation Clause.*fn5

III.

Our Rules of Evidence provide the basic blueprints for the admission of evidence. As an initial inquiry, we examine whether evidence tendered is relevant, that is, whether it is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action."

N.J.R.E. 401. If the evidence is deemed relevant, our Rules are clear: "[e]xcept as otherwise provided in these [R]ules or by law, all relevant evidence is admissible." N.J.R.E. 402.*fn6 That general proposition -- that relevant evidence is presumptively admissible -- establishes the backdrop against which we consider the admission of Joyce's out-of-court statements. In particular, because it cannot be disputed that Joyce's out-of-court statements to her mother constitute relevant evidence not otherwise subject to a relevance bar, we turn to whether those out-of-court statements are hearsay.

A.

In a strikingly similar context, we recently addressed the admission of an out-of-court statement by a child sexual abuse victim as follows:

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[,]" and N.J.R.E. 802 starkly explains that "[h]earsay is not admissible except as provided by [the Evidence Rules] or by other law." Stated differently, "the hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant." State v. Long, 173 N.J. 138, 152 (2002). The opposite also holds: "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." Ibid. (citation omitted). [Buda, supra, 195 N.J. at 292.]

Buda's reasoning applies four-square here. As in Buda, "[a]ll parties agree, as they must, that defendant was charged with assaulting and endangering [Joyce] and, for that reason, [Joyce]'s out-of-court statements speaking to the core matter asserted -- whether defendant had assaulted and endangered [Joyce] -- were hearsay." Ibid. The legal conclusion thus becomes inescapable: "the[] preliminary admissibility [of those hearsay statements] hinges on whether an exception to the hearsay rule applies." Id. at 292-93. We therefore must turn to whether Joyce's hearsay statements are admissible under an exception to the hearsay rule.

B.

Joyce's out-of-court hearsay statements were offered at trial through her mother, Denise, as qualifying under the "tender years" exception to the hearsay rule. As codified in N.J.R.E. 803(c)(27), the "tender years" exception provides in full as follows:

Rule 803. Hearsay Exceptions Not Dependent on Declarant's Unavailability. The following statements are not excluded by the hearsay rule:

(c) Statements Not Dependent on Declarant's Availability. Whether or not the declarant is available as a witness:

. . . . (27) Statements by a Child Relating to a Sexual Offense. A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

Assuming the proffered hearsay statement qualifies as one made "by a child under the age of 12 relating to sexual misconduct committed with or against that child[,]" the "tender years" exception consists of three component parts. The first, under N.J.R.E. 803(c)(27)(a), requires that the proponent of a hearsay statement of a child sexual abuse victim must provide advance notice of the statement "at such time as to provide the adverse party with a fair opportunity to prepare to meet it[.]" Here, there was no question that the State provided defendant ample notice that Joyce's hearsay statements concerning the sexual abuse she suffered at defendant's hands would be offered at trial. Second, under N.J.R.E. 803(c)(27)(b), the trial court must conduct a hearing under Rule 104(a)*fn7 and determine whether "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy[.]" Again, in this case, the trial court conducted a Rule 104 hearing concerning the admissibility of Joyce's hearsay statements and ruled that "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy[.]" No serious challenge is mounted against the trial court's determinations in respect of the satisfaction of both subsections (a) and (b) of N.J.R.E. 803(c)(27).

The true core of the dispute between the parties rests in the trial court's determinations in respect of the final two-part prong of the "tender years" exception: whether the victim-witness "testifies at the proceeding" or whether the victim-witness "is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse[.]"

N.J.R.E. 803(c)(27)(c)(i) and (ii). It is on that conflict that we now focus.

C.

The trial court determined at the Rule 104 hearing that Joyce was "available" as a witness pursuant to N.J.R.E. 803(c)(27)(c)(i) and, hence, all conditions precedent to the admission of her hearsay statements through her mother were present. Defendant challenges that conclusion, and we are compelled to agree. The transcript of the Rule 104 hearing makes clear that Joyce, by then four years old, did not recall the events that occurred when she was three. Indeed, her failure of recollection was so severe that defendant waived any cross-examination of her. Yet, the trial court nevertheless concluded that Joyce "is available to testify [and that] the fact that she doesn't recollect is just something I have to consider in the totality of the circumstances." That conclusion was in error.

Although Rule 803(c)(27)(c) does not define its meaning plainly when it juxtaposes a child-witness "testif[ying] at the proceeding" against the child-witness being "unavailable as a witness[,]" helpful informational guidance is found within the Rules of Evidence themselves. N.J.R.E. 804(a) sets forth a clear and cogent definition of the "unavailability" of a witness. It provides that [e]xcept when the declarant's unavailability has been procured or wrongfully caused by the proponent of declarant's statement for the purpose of preventing declarant from attending or testifying,*fn8 a declarant is "unavailable" as a witness if declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or

(2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the statement; or

(4) is absent from the hearing because of physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at trial[.] [N.J.R.E. 804(a).]

Clearly, Joyce's inability or unwillingness to testify at the Rule 104 hearing concerning the events of August 28, 2001, coupled with the fact that she was not even called as a witness at trial, rendered her "unavailable" under N.J.R.E. 804(a)(3) because she did not recall the events. For those reasons, we conclude that the trial court abused its discretion when it concluded that the condition precedent codified at N.J.R.E. 803(c)(27)(c)(i) was satisfied.

That, however, does not end the inquiry. The "tender years" exception further provides that, even if the child-witness is unavailable, the child-witness's hearsay statement concerning sexual abuse nonetheless may be admissible if "there is offered admissible evidence corroborating the act of sexual abuse[.]" N.J.R.E. 803(c)(27)(c)(ii). And, in this case, there was corroboration: Susan testified to having witnessed defendant pulling his pants and Joyce's pants down, and sexually touching Joyce. Therefore, because Joyce's hearsay statements concerning the sexual abuse she suffered satisfied all three prongs -- subsections (a), (b) and (c)(ii) -- of the "tender years" exception, the trial court did not abuse its discretion in admitting those statements through Joyce's mother. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) ("In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion."); Brenman v. Demello, 191 N.J. 18, 31 (2007) ("Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard.").

D.

Because Joyce was "unavailable" to testify at trial, we also must determine whether the admission of her hearsay statements violated defendant's Confrontation Clause rights. We need not linger long on this point.

Crawford, supra, explains that 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." 54 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed. 2d at 199. Not all hearsay evidence, however, is interdicted by the Confrontation Clause. As Crawford made clear, "[t]he constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement." Id. at 51, 124 S.Ct. at 1364, 158 L.Ed. 2d at 192-93. Thus, only "testimonial" statements trigger a defendant's Confrontation Clause rights. See Id. at 53-54, 124 S.Ct. at 1365, 158 L.Ed. 2d at 192 (explaining that Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination").

Buda specifically addressed the question presented in this appeal. In that case, a child-victim told his mother that "Daddy beat me." Buda, supra, 195 N.J. at 304. The Court concluded that the child-victim's hearsay statement qualified under an exception to the hearsay rule*fn9 and did "not bear the indicia of 'a formal statement to government officers' but instead [is] akin to 'a casual remark to an acquaintance[.]'" Ibid. (quoting Crawford, supra, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed. 2d at 192). We therefore held that the child-victim's "statement to his mother that 'Daddy beat me' is non-testimonial." Ibid.

For Confrontation Clause purposes, we discern no substantive difference between the child-victim's statement to his mother in Buda and Joyce's statements to her mother here: both were given to the children's respective mothers, and neither mother acted "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." Id. at 307. 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[,]" Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2274, 165 L.Ed. 2d at 237 (footnote omitted), we do not hesitate in concluding that Joyce's hearsay statements to her mother were non-testimonial and, hence, defendant's Confrontation Clause rights were not compromised by the admission of those statements into evidence.

IV.

In sum, we conclude that Joyce's out-of-court statements, as testified to by her mother, were relevant; that their probative value was not substantially outweighed by their prejudicial effect, and were not otherwise subject to a relevance or privilege bar; that they were offered to prove the truth of the matter asserted and, therefore, were hearsay; that they were admissible under the "tender years" exception to the hearsay rule; and that they were not "testimonial" and, thus, did not implicate defendant's Confrontation Clause rights. For those reasons, 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.

Chief Justice Rabner PRESIDING


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