On appeal from Superior Court of New Jersey, Law Division, Mercer County, Nos. 06-02-0263 and 05-03-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
A jury convicted defendant Marty Alston of first-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3a; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Two counts of aggravated assault, one in the third degree and one in the fourth degree, were dismissed. Alston was tried with his co-defendant, Alexis Anderson, who was convicted of the same offenses. The trial court sentenced Alston to an aggregate seventeen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and Anderson to an aggregate twenty years in prison, again subject to NERA. Alston and Anderson have each appealed their convictions and sentences. Because these appeals arise out of the same factual complex and raise certain of the same issues, we consolidate them for purposes of this opinion. After reviewing the record in light of the contentions presented on appeal, we affirm but remand with respect to defendant Anderson to correct the judgment of conviction which incorrectly lists N.J.S.A. 2C:12-1b(4) rather than N.J.S.A. 2C:15-1.
In the late afternoon of October 13, 2005, Shawn Riley was walking down the street in Trenton when a green minivan pulled up alongside him. Three men jumped out of the van, holding guns, and began to beat Riley. He was pushed into the van but as the van took off, its door somehow opened; Riley hung out of the van screaming for help as it sped down the street. At some point, some of Riley's clothes were taken, as were his cell phone, wallet and keys. The van slowed down as it headed down Martin Luther King Boulevard toward Olden Avenue, and Riley was able to jump out. He knocked on the door of a nearby house, and the occupants summoned an ambulance.
During the time that Riley was held in the van, five 9-1-1 calls were placed to report what was happening. There was testimony at trial that the procedure upon receipt of such calls is for the operator immediately to enter the information received into the computer aided dispatch ("CAD") system. There was also testimony that the tapes of the actual calls were no longer available and that the CAD summaries are the only official records of these 9-1-1 calls.
The first call was received at 5:36 p.m. There is an accompanying CAD record stating, "[M]ale being beat in the street, caller states someone has a gun." It continues, "Caller states they just put a guy in a van and fled, green van" and "Just pulled off down Evans onto MLK towards Five Points" and "All black hoodies, the victim was in a red button-down plaid shirt and jeans."
The second call was received at 5:38 p.m. The CAD entry records "Possible green Windstar, they went down Princeton Avenue towards Fuld" and "Dark green Windstar van."
The third call was received at 5:39 p.m. The CAD entry records "Caller states that it's a green Astro van, victim is hanging out the van screaming for help, went down MLK paid phone caller from 923 MLK."
Another call was also received at 5:39 p.m. The CAD entry records "Caller states three black males in black hoodies were dragging a male in a red button-down shirt into a green van. States he was screaming for help and trying to get away. Last seen hanging out of the van bleeding."
The final 9-1-1 call also came in at 5:39 p.m. The CAD entry records "Vehicle made right on Olden towards Trenton, possible now going back towards Junior One, male bleeding hanging out of it."
These 9-1-1 calls were not all received by the same 9-1-1 operator. Accordingly, the memorializing 9-1-1 CAD entries were not all written by the same author.
When these calls were received, four members of the Mercer County Regional Violent Crime Interdiction Task Force were on patrol together: Barry Volkert, Jr., a New Jersey State parole officer; Detective Michael Schiaretti III of the Trenton Police Department; Officer Ryan Forrester also of the Trenton Police Department; and Investigator Toth of the Mercer County Sheriff's Department. Hearing the dispatches, they went in search of the green minivan.
Within a few minutes, they saw a green minivan parked, with two black males getting out. Officer Volkert testified that "they appeared very nervous and they split up", one going to the right, one going to the left. One, subsequently identified as Anderson, had a laceration on his face.
Forrester ordered Alston to stop as he walked away and Alston did so. Forrester saw blood on Alston's T-shirt and asked where it came from; Alston responded he had been in a fight.
Officer Schiaretti followed Anderson and ordered him to stop. He testified that Anderson reached toward his waist and Schiaretti ordered him to stop, not knowing if he was reaching for a weapon. Schiaretti frisked Anderson and found some marijuana, as well as a digital scale and a pair of handcuffs.
The officers observed blood on the outside of the van, on the driver's side window and door, and blood on the floor between the two front seats. However, they did not attempt to enter the van at that time and towed it to a crime scene unit garage.
The police later obtained a warrant to search the van. The front passenger door and seat were covered in blood. Within the van, the police found a handgun with blood on the frame and the handle, a pair of jeans, a pair of black gloves, a single glove, a cell phone case, a roll of duct tape, a roll of electrical tape, an aluminum bat completely wrapped in electrical tape and a leather restraining instrument with a chain to bind someone. The search did not turn up any black hoodies and neither Alston nor Anderson was wearing a black hoodie when he was stopped. The van was registered in Alston's name. DNA testing revealed the presence of Riley's blood in the van and on Anderson's clothing.
Riley did not identify Alston or Anderson from a photo array the police prepared. The police also attempted to locate the individuals who had called 9-1-1 but were unsuccessful. 9-1-1 records listed the addresses from which the calls had been placed but when police went to those addresses, no one would respond to their knocking on the doors.
Alston took the stand and testified in his defense. He said that he had come out of the New Wave Supermarket on Martin Luther King Boulevard and walked toward his van when he was approached by a "large-frame male" who forced him into the driver's seat while the man got into the rear. He said he saw the man only a brief moment because the man twisted the rear view mirror so Alston could not see behind him. The man shouted at him, "Motherfucker drive." The man kept shouting different directions as to where Alston should drive. Alston said that at one point they stopped and another man was forced into the van. He said, "There was yelling, screaming, and then I was ordered to drive again." He said the man ordered him to "run that motherfucker over" but Alston refused to do so. Alston said he had never before seen his co-defendant Anderson until the two were arrested.
Alston continued that the bat was in the car because he played with the fire department baseball team. He testified that the restraints that were in the van were actually sex toys. During cross-examination the prosecutor asked Alston if his wife would testify to corroborate the sexual nature of the restraints. Anderson did not testify at the trial.
On appeal, defendant Alston raises the following arguments:
Point 1 The trial court violated defendant's confrontation rights or rights under the Rules of Evidence by admitting, without limiting instruction, summaries of 911 emergency calls.
Point 2 The trial court violated defendant's right to a fair trial by failing to remove potentially tainted jurors during trial.
Point 3 The prosecutor violated defendant's right to a fair trial with improper comments during summation and by suggesting during cross-examination of defendant that defendant had a burden to produce witnesses; the jury charge was insufficient to cure the harm.
Point 4 The trial court erred in denying defendant's motion to suppress evidence seized by police.
Point 5 Defendant's sentence is excessive and improper.
Alston contends that the CAD summaries of the 9-1-1 calls reporting the speeding van with Riley hanging out of it and screaming for help were inadmissible hearsay and also violated his right of confrontation under Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006). We disagree with both contentions.
There are two aspects to the hearsay analysis. Hearsay is "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." N.J.R.E. 801. Hearsay is not admissible as evidence unless the proffered material fits within one of the enumerated exceptions. N.J.R.E. 802.
The 9-1-1 summaries utilized at trial constituted double hearsay: what the callers told the operators constituted hearsay as did the memorializing entries composed by the operators. The trial court dealt only with the second aspect and ruled the summaries admissible as business records, N.J.R.E. 803(c)(6). That ruling was correct as far as it went. The trial court did not consider the question of whether the embedded hearsay within those CAD summaries was admissible under another exception to the hearsay rules.
Having considered the matter, we are satisfied that those statements are admissible under N.J.R.E. 803(c)(2) as excited utterances. An excited utterance is "[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). The Supreme Court has summarized the factors that must inform the analysis whether a proffered statement is admissible as an excited utterance.
Consistent with the rationale for the excited utterance exception, . . . when deciding whether there was an opportunity to fabricate or deliberate, a court should consider the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance. [State v. Buda, 195 N.J. 278, 293 (2008) (quoting State v. Cotto, 182 N.J. 316, 328 (2005)).]
The most important factor "is the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness. Thus, in this fact-sensitive analysis, a court must determine whether the facts and circumstances reasonably warrant the inference that the declarant was still under the stress of excitement caused by the event." Ibid. "[A] spontaneous declaration will be admissible, even if not concomitant or coincident with the exciting stimulus provided that in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval." Id. at 296 (quoting State v. Branch, 183 N.J. 338, 361 (2005)).
In determining whether a proffered statement was made while still under the sway of an exciting influence, it is appropriate to look at the totality of the surrounding circumstances. Buda, supra, 198 N.J. at 297. In that case, the Court concluded that a statement made by a three-year-old child to a DYFS worker in a hospital emergency room several hours after he arrived was admissible as an excited utterance. Ibid. Although the Court noted the passage of several hours, it also stressed the necessity to assess both the quality and nature of that period. In light of the intervening action-filled chaos and stress-filled events that brought that 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. In other words, the circumstances of this incident and the mental and physical condition of the declarant did not permit the disqualifying opportunity to deliberate or fabricate. [Ibid.]
Here, although the record is silent as to the mental and physical condition of the various declarants, the totality of the circumstances similarly rebuts the existence of an opportunity to deliberate or fabricate. We note, for instance, that we are dealing with a series of 9-1-1 calls, placed from different locations and at different times, but very close in time to one another. Yet all have a unifying theme and description. It strains credulity to think that different individuals, at different places and times, all placed fabricated 9-1-1 calls reporting what is, in essence, one event.
Finally, we note that "[t]rial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." Id. at 294. Although the trial court's hearsay evidentiary analysis may have been incomplete, its ultimate determination was correct.
We turn now to the question whether the admission of these CAD entries violated defendant's right under the Sixth Amendment to the United States Constitution to confront witnesses against him. Our New Jersey constitution provides a similar protection to a defendant. N.J. Const. art. I, ¶ 10.
The United States Supreme Court held in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed. 2d 177, 203 (2004), that testimonial hearsay is admissible against a defendant only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. If these 9-1-1 CAD entries are testimonial in nature, they would be inadmissible against defendant under Crawford. If, however, they are non-testimonial in nature, their admission at trial would not violate the right of confrontation. Davis, supra, 547 U.S. at 821, 126 S.Ct. at 2273, 165 L.Ed. 2d at 237.
"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." Id. at 822, 1126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237. On the other hand, hearsay statements 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." Ibid.
In Davis, the Court was presented with the question whether a 9-1-1 call should be considered testimonial or non-testimonial; it concluded the determination rested on whether the caller was describing a presently unfolding situation, as opposed to reporting a past event. Id. at 827, 126 S.Ct. at 2276, 165 L.Ed. 2d at 240. In Davis, an individual placed a call to 9-1-1, reporting an ongoing domestic disturbance and seeking emergency assistance. Id. at 817-18, 126 S.Ct. at 2271, 165 L.Ed. 2d at 234. The Court found this call to be non-testimonial because it was "plainly a call for help against a bona fide physical threat," was made while the emergency was ongoing and was made with the purpose to resolve that emergency. Id. at 827, 126 S.Ct. at 2276-77, 165 L.Ed. 2d at 240.
The distinctions drawn by the Court are elucidated by Hammon v. Indiana, the companion case to Davis. In that case, a victim of domestic violence made statements to the police after they had responded to a reported disturbance and the alleged batterer was restrained in the next room. 547 U.S. at 830, 126 S.Ct. at 2278, 165 L.Ed. 2d at 242. The Court held those statements to be testimonial because the declarant was not in immediate danger but, instead, was narrating past events. Ibid.
Applying these principles to the present matter, we are confident that these CAD entries were non-testimonial and that their admission did not violate defendant's right of confrontation. The calls took place during an ongoing emergency, sought assistance for the victim of the emergency and were placed with the purpose ...