On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2041-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Cuff and C.L. Miniman.
Juvenile A.M., Jr., appeals from an adjudication of delinquency based on conduct that, if committed by an adult, would constitute robbery, contrary to N.J.S.A. 2C:15-1a(1), in that he inflicted bodily injury on Gerardo Ruiz in the course of committing a theft; and possession of fifty grams or less of marijuana, contrary to N.J.S.A. 2C:35-10a(4). He contends that the trial court erred in admitting the victim's statements to the police under the excited utterance exception to the hearsay rule. We agree and reverse his adjudication of delinquency for robbery and remand for further proceedings consistent with this opinion.
The only witness to testify during the delinquency proceedings was Elizabeth Patrolman Eric Martins. On March 22, 2008, Martins was on duty in his patrol car working the midnight shift. He and his partner were headed southbound on Third Street and were at its intersection with Broadway when they observed what appeared to be an assault in progress on the far side of the intersection in front of 137 Third Street. The time was 12:37 a.m. The area had street lights, and he could clearly see the assault as it occurred.
As Martins and his partner approached the corner, they saw three Hispanic males assaulting another Hispanic male, who was down on the ground in a fetal position. The three assaulting Hispanics were kicking the victim and throwing punches at him. Martins' partner activated the overhead lights and sirens, which stopped the assault. As they drove up to the scene, the perpetrators fled on foot southbound toward Livingston Street. The patrol car chased the perpetrators and cut them off adjacent to the sidewalk. They apprehended two of the perpetrators; one fled and they lost sight of him. One of the persons apprehended was A.M. The officer positively identified him in court.
Martins testified that they briefly questioned the two perpetrators with respect to what was taking place. A.M. and the other perpetrator both denied doing anything. They reported that they knew the victim and stated "that's, obviously, not what was happening there." The officers placed both perpetrators under arrest and placed them in the backseat of their police car. Once they were secured in the vehicle, the two officers "questioned the victim, who was bleeding profusely from the face area. He was nervous, he was excited, he was a combination of all different types of emotions. And he stated he just got jumped and they tried to take his money."
At that point, the juvenile's counsel objected. The prosecutor urged that the victim's statement met all of the criteria of N.J.R.E. 803(c)(2) for an excited utterance. The State relied on State v. Williams, 214 N.J. Super. 12 (App. Div. 1986), certif. denied, 107 N.J. 629 (1987), for its admission into evidence.
Defendant argued that the judge first must determine whether the declarant had an opportunity to deliberate, reflect, or misrepresent before he made the statement. Then, the judge must determine whether the statement was truly spontaneous and whether it was made solely under the stress of excitement. Defendant argued that the statement was inadmissible under State v. Branch, 182 N.J. 338 (2005), and State v. Cotto, 182 N.J. 316 (2005). He urged that the victim's statement was merely an account of a past occurrence and not made coincident with the alleged robbery. Counsel asserted that the Williams decision was made years before Branch and Cotto, and the judge should rely exclusively on the more recent Supreme Court decisions.
At that point, the judge ruled that the statement was admissible under N.J.R.E. 803(c)(2) as an excited utterance. He found that the statement was contemporaneous with the actual robbery; that the victim was under the stress of excitement; and there was no opportunity to coolly reflect, deliberate, and fabricate. Rather, the statement was so spontaneous, made perhaps minutes after the police allegedly saw the assault, that it constituted an excited utterance. Testimony then resumed.
Martins testified that the victim stated that "they were trying to take my money, they were asking me for my money over and over; and before I was able to pull out of my pocket," they were assaulting him. Then, the officers drove the suspects to police headquarters where the suspects were processed. A.M. was found to have marijuana in his front coat pocket, "so he was charged with that as well." After completing presentation of proofs with respect to the marijuana, the State rested.
On cross-examination, Martins admitted that he did not see how the incident began. Martins testified that the perpetrators were arrested on Livingston, which was about 150 feet from the location of the assault. He admitted that the police made no attempt to apprehend the third perpetrator and merely "put out a police announcement that a third suspect fled on Livingston." When they returned to speak to the victim, he was in front of the bar on the corner of Third and Broadway. The police never took a formal statement from the victim, and they did not document the statements he made at the scene on paper. The only thing that was documented was "that he stated, give me your money." The victim refused medical attention. The State had no redirect and rested, after which the attorneys presented their closing remarks to the Family Part judge.
In his decision on the record, the judge elaborated on his ruling respecting the victim's statements. The judge found that when the officers observed the assault taking place, they
[i]mmediately put on their lights, the beating stops, they immediately catch two of the three alleged perpetrators within 150 feet or so of the attack; . . . they immediately talked to the perpetrators; [then] they immediately talked to the victim. So there is not much time between the initial observation and the declaration.
He found that the circumstances of the event were a traumatic incident that would lead one to believe the victim's statements were "spontaneous in nature and excited utterances." He found that the victim's physical condition would "certainly ha[ve] some impact on whether or not the individual is, indeed, excited and his physical condition is poor at the time. His mental condition could also indicate an excited utterance because there are three individuals that the police officer testifies about beating on him." He found that "everyone would agree that if three individuals attacked them and beat them until they bled profusely from the face, demanding money, that they would be in some state of shock which again would result in [some] appropriate excited utterance."
The judge next found that the statement was restricted to exactly what happened, and because the time span was short, the statement was an excited utterance. He acknowledged that the statement was made in response to a question from the police and that the victim made a voluntary decision to respond to the question. The judge reaffirmed his ruling that the statement was admissible and found that it was credible. He further found that the State established, beyond a reasonable doubt, that A.M. and the other two perpetrators "actually set out to rob this ...