STATE OF NEW JERSEY v. EDWIN LEBRON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 3864-04T13864-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN LEBRON,

Defendant-Appellant.

____________________________

 

Submitted September 11, 2006 - Decided

Before Judges Lintner, S.L. Reisner and

C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-06-00714.

Lord & Whalen, attorneys for appellant (Robin Kay Lord and Richard W. Berg, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In connection with the shooting death of Juan "Tito" Marin, defendant Edwin Lebron was tried on charges of first-degree murder, N.J.S.A. 2C:11-3a(2) and N.J.S.A. 2C:2-6, first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6, felony murder, N.J.S.A. 2C:11-3a(3) and N.J.S.A. 2C:2-6, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6, and unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6. The State's theory of the case was that Lebron, accompanied by an accomplice, had shot the victim while attempting to collect money owed for an earlier drug sale. In his testimony, defendant denied any involvement in the incident. A jury convicted him of second-degree robbery and felony murder, and acquitted him on the remaining charges. Thus, the jury necessarily concluded that Lebron had not possessed a weapon and was not the shooter, although he had been involved in the crime.

I

On this appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED DEFENSE OBJECTION TO HEARSAY TESTIMONY OF A CONVERSATION ABOUT A PURPORTED CONFRONTATION BETWEEN THE VICTIM AND APPELLANT DURING A PRIOR ILLICIT DRUG SALE ON THE DAY BEFORE THE HOMICIDE.

POINT II: THE TRIAL COURT ERRED IN OVERRULING THE DEFENSE OBJECTION TO THE STATE ELICITING TESTIMONY FROM A STATE EXPERT THAT A WITNESS WAS TELLING THE TRUTH, AND THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATION BY EXPLOITING THIS EXPERT'S OPINION TO ACCUSE APPELLANT OF LYING.

POINT III: THE TRIAL COURT ERRED IN REPEATEDLY FAILING TO EXCLUDE INADMISSIBLE HEARSAY IMPROPERLY INCLUDED IN THE PROSECUTOR'S CROSS-EXAMINATION QUESTIONING OF APPELLANT, AND DENYING A DEFENSE MOTION FOR MISTRIAL WHEN THE PROSECUTOR IMPLIED THAT THE DEFENSE SHOULD HAVE CALLED APPELLANT'S PARENTS TO TESTIFY.

POINT IV: THE TRIAL COURT ERRED IN FAILING TO GIVE A PROPER JURY INSTRUCTION ON "MERE PRESENCE."

POINT V: THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

We conclude that defendant's Point IV is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, having reviewed the entire trial transcript, we are in substantial agreement with defendant's remaining contentions. We conclude that the trial was infected with prejudicial error when the court permitted two police officers to give extensive testimony concerning the credibility of a critical prosecution witness. We also conclude that the prosecutor improperly questioned defendant about his mother's statements to the police when the mother was not called as a witness by either side, improperly implied that he failed to call his parents as witnesses, and then improperly referred to these and other matters in summation. Finally, we conclude that prejudicial hearsay information was erroneously admitted as an excited utterance, when the record before the trial court did not support application of the excited utterance exception to the hearsay rule. Accordingly, we reverse the conviction and remand this matter for a new trial.

II

In the context of the legal issues raised, these are the most pertinent facts.

Lisa Loncosky lived in an apartment at 660 Centre Street in Trenton, with her two young sons. She testified that Marin, the biological father of her younger son, was "a good friend." In the early morning hours of December 7, 2002, she and Marin were "hanging out" in the living room with "Oscar," a man she met earlier that evening at a bar, and Michael Malkin, a long-time acquaintance. Marin had been drinking and was a "little tipsy."

Suddenly, there was a loud knock at the apartment door. Loncosky walked toward the door asking who was there, but received no reply. Saying "I don't like this shit, get out of the way," Marin pushed past her and opened the door. From about five feet behind Marin, Loncosky looked into the hallway and saw two men wearing dark clothes, dark jackets and white T-shirts that were pulled up over their mouths. One of the men had a "small, thin, silver barrel gun" that was pointed at Marin.

Loncosky remembered hearing some conversation between one of the men and Marin, but could not make out exactly what was said. After standing in the foyer for three or four seconds, she ran down the hallway towards her children's bedroom. As she was doing so, she heard a gunshot. According to Loncosky, when she arrived at the bedroom Malkin was already inside with the door locked. He let her in, and once inside the bedroom, she heard a second shot. Loncosky called the police, who arrived at 4:12 a.m. and found Marin lying dead in the doorway of the apartment.

Loncosky was hysterical and disoriented when the police entered the apartment. She told the officers that the shooter might have been a drug dealer to whom Marin owed money and that the dealer had come to her apartment previously to collect the debt. She said that the dealer was a Hispanic male, but could not remember his name.

Later in the afternoon of December 7, Loncosky gave the police a formal statement in which she named the shooter as "Edwin" and the second person in the hallway as "Alex." At that time, she identified a photograph of defendant as the shooter. In a second statement given on March 27, 2003, Loncosky identified a photograph of Alexis Rodriguez as the other person in the hallway.

At trial, Loncosky testified that she was certain that defendant was the individual holding the gun. She explained that she recognized him because he was a local drug dealer from whom she bought crack cocaine. In the six weeks preceding the shooting, she saw defendant at least four times per week to buy drugs for herself or others.

She also knew Rodriguez and described him as one of the young men who frequented her apartment building. She said he would sometimes hang out in her apartment, play video games, and make cheese steaks. She noted that Rodriguez was a couple of inches taller than defendant and that she was "absolutely positive" that it was not Rodriguez holding the gun.

Loncosky also knew a third individual, Andre Joel Rubert, who had admitted involvement in the incident. Rubert often hung out on the building's porch and occasionally came to Loncosky's apartment to play video games. She described Rubert as a light-skinned Hispanic male, about five feet tall, with crooked teeth. She admitted that Rubert and defendant resemble each other around the eyes, but insisted that it was not Rubert who shot Marin. She said she was sure of this because Rubert was much shorter than defendant.

Loncosky testified that the last time she bought drugs from defendant was Thanksgiving night. Marin asked her if she could buy crack for him on credit. Loncosky called defendant and he agreed to sell her $30 worth of crack for a payback of $60. He gave her the crack, which she gave to Marin.

On December 2, defendant and Rodriguez came to Loncosky's apartment to collect the debt. Defendant told Loncosky that "he wasn't trying to get hard on [her] about it, not to worry, he wasn't sweating it." He nevertheless insisted that it was Loncosky and not Marin who owed him for the drugs. Before they left the apartment, Rodriguez turned to Loncosky and commented that "if they didn't get the money, [her] sons were going to become his two nieces."

Loncosky testified that on December 5, she learned that her friend "Margie" had paid defendant $48 toward the debt. This testimony was corroborated by a letter that she wrote to defendant in June 2003, while she was incarcerated for a probation violation. In the letter she stated that only $12 was still owed on the drug debt.

Over defense counsel's objection, Loncosky testified about an alleged incident that occurred on the night of December 6, between Marin and defendant. At about 10:30 p.m., Loncosky and her friend Tammy were on their way to a bar on South Clinton Avenue when Marin approached them. She recalled that Marin was excited: "[H]e was talking fast, he had just told me that he had gotten into a confrontation with Mr. LeBron on South Broad Street." It was Loncosky's understanding that the confrontation took place immediately prior to her conversation with Marin. However, on cross-examination, she described Marin as only "somewhat" excited. Marin told her that he had gone to buy crack from defendant, but defendant shorted him in terms of the quality or quantity of the drugs. Marin then told defendant that "now he [defendant] owed him [Marin]." According to Loncosky, Marin told her "that Edwin made a comment about well, fine, we'll go see Lisa about it, and . . . Tito said to Edwin that he [defendant] will not do anything to me [Loncosky]."

The State also presented testimony from Michael Malkin, who was in Loncosky's apartment at the time of the shooting. Malkin testified that he dropped by Loncosky's apartment that night because he had missed his bus. He was talking to Marin and drinking beer when there was "a real harsh knock" on the apartment door. Marin went to answer it and Malkin followed him. At trial, Malkin testified that when he opened the door, he saw standing in the hallway "two guys . . . one short and one tall." He described the men as light-skinned, Hispanic males wearing dark-colored jackets and dark skull caps with something white wrapped around their faces, so that he could only see "the eyes and like the bridge of the nose." The shorter of the two raised a gun to Marin's face and said something to the effect of "motherfucker, run that," which Malkin understood to mean that it was a robbery and Marin should empty his pockets. Marin replied, "you're just going to have to shoot me." At that point, Malkin turned and headed for the children's bedroom. He heard the first shot as he ran into the room and dove under the bed. He heard the second shot as Loncosky came into the room. After Malkin heard footsteps running down the hallway stairs, he ventured into the living room and saw Marin slouched down in the doorway with an obvious head wound.

Malkin told Loncosky to call the police. When the officers arrived, he described the suspects as being nineteen to twenty-two years old, with the shorter one being 5'5" to 5'7" and the taller one being 5'7" to 5'9". Contrary to his testimony at trial, he told the officers that the taller individual had the gun, which he described as a Lugar. When asked for personal identification, Malkin gave the officers a false name. He explained at trial that he did this because he was concerned about outstanding warrants for his arrest.

In addition to Loncosky and Malkin, the State presented testimony from the police officers who responded to the crime scene. Officer Douglas W. Moreland stated that when he spoke to Loncosky at the apartment, she told him that the shooter was a drug dealer who lived somewhere near 3rd and Landing and drove a black Oldsmobile. He thought this was significant, because while on patrol at about 3:41 a.m. that morning he had seen a black Oldsmobile Cutlass parked at 3rd and Landing with a light-skinned, Hispanic male sitting in the driver's seat. There were two Hispanic males walking toward the vehicle, but when they saw the patrol car, they walked away. Using a map of South Trenton, Moreland showed that the vehicle's location at 3rd and Landing was in the general vicinity of Loncosky's apartment building.

The State also presented testimony from the two individuals who admitted involvement in the incident: Andre Joel Rubert and Alexis Rodriguez.

Rubert testified that he had known defendant for about a year prior to December 2002. In the early morning of December 7, he, defendant, Rodriguez and Douglas Soto were at the apartment of a mutual friend, Javier Baez. They were drinking, hanging out and playing video games; defendant and Rodriguez were smoking marijuana. At one point, Rubert saw the handle of a gun protruding from defendant's pocket.

According to Rubert, defendant and Rodriguez left Baez's apartment around 3:20 or 3:30 a.m.; he and Soto left about fifteen minutes later. Walking toward an "after party" on Centre Street, Rubert and Soto ran into defendant and Rodriguez in front of Loncosky's apartment building. At that point, Soto decided to head for home and walked away from the group. Rubert asked defendant what he was doing and defendant replied that he needed to collect some money. Rubert assumed that defendant meant that he was going to sell crack to Loncosky. He told defendant to go ahead; he would wait outside and look out for the police.

After about five minutes, Rubert heard two or three shots ring out. Rodriguez came running out of the apartment building and took off down the street. Defendant ran out after Rodriguez. When Rubert asked defendant what happened, defendant blurted out that he shot Marin. Defendant hopped into his car and drove off. Rubert also left the scene.

Rubert remembered that defendant was wearing a dark-colored "hoody" jacket with a "N.Y." logo on the front, a black hat, dark pants and black sneakers. Rodriguez was wearing a yellow jacket, a white and blue hat, and white and blue sneakers.

Rubert eventually gave a statement to the police and was charged as an accomplice in the murder. He entered into a plea agreement wherein he pled guilty to hindering apprehension and agreed to testify against defendant and Rodriguez. As a result of the agreement, Rubert served a year in prison.

Rodriguez testified that he is defendant's first cousin and that they have known each other their whole lives. He recalled that he and defendant arrived at Baez's house around 2:15 a.m. on December 7; Rubert, Soto and Baez were already there. Everyone left at about 3:30 a.m. because Baez wanted to go to sleep. Defendant drove Rodriguez home and said that he was going to check with Loncosky about some money that she owed him. After defendant drove off, Rodriguez walked down the block to a party that was playing loud music. Rodriguez had a drink at the party and then left. At that point, he noticed defendant and Rubert standing outside Loncosky's apartment building. As he walked over to them he saw Soto walking away from the building. Defendant told him that he was going upstairs to get the money from Loncosky. Rubert agreed to act as a lookout and Rodriguez accompanied defendant to Loncosky's apartment.

Rodriguez stated that both he and defendant were "masked up"; they covered their faces with T-shirts and wore dark hooded sweatshirts with the hoods up. Although he claimed that he did not know that defendant had a gun, Rodriguez admitted that they were planning to take the money from Loncosky by force. Rodriguez did not know that Marin was at the apartment.

Rodriguez testified that "[w]e banged on the door, Tito comes to the door, we say run it; run it, motherfucker." Marin refused.

He wasn't, he wasn't going to give up the money. . . . He say, you going to have to shoot me for it. . . . Instantly, Edwin points a gun at Tito's chest and a shot goes off. . . . The first shot went to his chest. As he stuttered [sic] back, slumped down to the ground, Edwin shot him again in the head.

Rodriguez was "scared and stunned" by the shooting. He ran out of the building and went home. He did not see defendant again until about 10:00 a.m. that morning when defendant came by "bitching and moaning [about] how the police supposedly took his car." They did not talk about the shooting.

Rodriguez was taken to the police station late in the evening of December 7. At that time, he told the detectives that it was defendant and Rubert who went to Loncosky's door and that he was only a lookout. At trial, Rodriguez admitted that this statement was a lie and that he made it "[t]o cover my ass; blame him [Rubert] instead of me." In his December 7 statement, Rodriguez identified defendant as the shooter. Rodriguez was subsequently charged along with defendant for Marin's murder.

On April 15, 2004, Rodriguez gave the police a handwritten note retracting his December 7 statement and asserting that Rubert was the shooter, defendant was the second person at the door, and he was the lookout. He admitted at trial that this second statement was also not true. He explained that at the time he wrote the note he felt that he needed to protect defendant because they were cousins. He admitted that he was afraid of defendant because defendant had shot Marin and afraid of Rubert because [of] "the type of person he is. . . . He is classified as a thug."

After giving the handwritten note to the police, Rodriguez was again questioned by detectives. At that time, he said that he was at the door with defendant and that defendant was the shooter. At trial, he insisted that this was the true version of what occurred.

Rodriguez pled guilty to first-degree robbery as part of a plea agreement. He was sentenced to ten years in prison with an 85% parole disqualifier and the remaining charges against him were dropped. As part of the agreement, Rodriguez agreed to testify truthfully against defendant.

Soto testified concerning what transpired in the early morning hours of December 7. He explained that he and Rubert left Baez's apartment to go to an "after hour" party on Centre Street, but when he learned that the person throwing the party was someone with whom he did not get along he decided to go home. As he walked away, he looked back and saw Rubert, defendant and Rodriguez talking in front of Loncosky's apartment building. He looked back a little later and saw Rubert standing by himself in front of the building.

Timothy Thomas, a homicide detective in the Trenton Police Department, testified concerning Rodriguez's initial interrogation. He recalled that Rodriguez was extremely nervous, but cooperative. After initial questioning, Rodriguez "started to tremble, cry, and he said, 'I'm sorry, I'm sorry, my heart sank when the gun went off; my heart sank when the gun went off.'" Rodriguez identified defendant as the shooter. Over defense counsel's objections, Thomas testified concerning his opinion that Rodriquez was being truthful in this interview. He also testified concerning his training in determining whether a suspect was being truthful, and as to what one of his former police training instructors told him about determining credibility.

George Pukenas, a detective sergeant with the New Jersey State Police, testified about Rodriguez's interrogation on April 15, 2004. Concerned that Rodriguez had changed his story to accuse Rubert instead of defendant as the shooter, Pukenas asked him if there was anything he was worried about. Rodriguez replied that he was afraid of defendant and that defendant had instructed him to tell the police that Rubert was the shooter. Rodriguez then changed his story again, and said that defendant was really the shooter. He also revealed that he had been in the doorway with defendant. Over defense counsel's repeated objections, Pukenas was permitted to testify at considerable length about his opinion that Rodriquez was telling the truth.

John Zappley, a detective with the Trenton Police Department, testified concerning his investigation of the crime scene and his interrogation of defendant. Based on the information provided by Loncosky, defendant's automobile was located and towed to police headquarters on the morning of December 7. No gun or other physical evidence of the crime was found in the car or in defendant's apartment.

Zappley recalled that defendant arrived at the police station around 5:00 p.m. on December 7, accompanied by his mother. As defendant was only seventeen years old, the police obtained permission from his mother to question him. Zappley spoke to defendant one-on-one in the interrogation room, but nothing much came of the interview. Defendant was "very nonchalant, like why am I wasting his time," simply repeating that he was not at Loncosky's apartment and had no knowledge of the murder. After a few minutes, Zappley left and let another detective, Pedro Medina, talk to defendant.

Medina testified that he knew both defendant's mother and stepfather and that they were present in the room when he questioned defendant. Throughout the interview, defendant kept turning to his parents and saying "I'm innocent." Medina's police report stated that defendant appeared upset, but in his testimony he insisted that he meant defendant was "upset" only in the sense that he just wanted to leave. Defendant provided Medina with no information other than his claim that he was innocent.

The defense theory of the case was that defendant had no involvement in Marin's death and that it was Rubert and Rodriguez who actually perpetrated the robbery and shooting. In support of this theory, defendant presented testimony from David McGuinnes, a detective in the Mercer County Prosecutor's Office, who interviewed Rubert on November 6, 2003. According to McGuinnes, Rubert stated that he was familiar with the apartment building at 660 Centre Street because he had once lived there. Hence, Rubert could have known the access code necessary to enter the building's security door.

Defendant also presented testimony from Donte Housley, an inmate incarcerated in Southwoods State Prison for robbery and weapons possession. Housley stated that he met Rubert briefly while in a holding cell at the Mercer County Jail in December 2003. According to Housley, Rubert said that "he was locked up for murder, but he wasn't taking the rap for it though, somebody else was. . . . [H]e said he did it, but he wasn't worried about it because somebody else was going down for it." According to Housley, Rubert pointed out defendant, who was also in the jail at the time, as the person who would be blamed for the murder.

Defendant testified in his own defense. He admitted to selling about $600 worth of cocaine a week during the six months prior to December 2002. On the evening of December 6, he was at his usual location selling drugs until about midnight. He denied seeing Marin that evening or selling him drugs.

Defendant went to Baez's apartment around 12:30 a.m. Baez, Rubert and Soto were already there. Shortly after defendant arrived, Rubert asked defendant to drive him to a bar. While on the way, Rubert asked defendant to take him to rob some Guatemalans. Defendant refused, saying he did not want anything to do with that. They returned to Baez's apartment where they watched television and drank. After a while, defendant left to pick up Rodriguez.

At one point after defendant returned to Baez's with Rodriguez, Rubert came out of the bathroom and pointed a gun at defendant's head. Defendant became frightened and everyone started making jokes and "cracking on [him]." Defendant explained that he only came to know Rubert, Soto and Baez through Rodriguez. They were all around twenty or twenty-one years old, while he was only seventeen.

Defendant stated that he, Rodriguez, Soto and Rubert all left Baez's around 3:40 a.m. He drove Rodriguez home and then returned to his own house and went to sleep. Defendant met Rodriguez on the afternoon of the next day, and they went to their cousin Desmond's house, where defendant learned that Marin had been shot. Desmond said that defendant and defendant's cocaine supplier, Julius Paul, had been mentioned as suspects. Defendant subsequently met Paul who told him that defendant was the number one suspect and that he better go to the police immediately. Defendant went home, told his stepfather what was going on, picked up his mother from work, and went to the police station.

Defendant testified that the police detectives kept asking him questions, but he could not answer them because he did not know anything about the murder. He recalled: "I'm like no, I'm innocent. I don't know what you talking about. I have no idea. I just sat there. I was upset. I was crying. I fell to the ground."

Defendant stated that he met Loncosky through Paul, that she was a crack addict, and that he sold her crack for about four or five weeks. Around Thanksgiving, Loncosky called him and asked if she could buy $30 worth of crack on credit. She said that she would pay him back $60. Defendant agreed because Loncosky was a good customer.

After Thanksgiving, defendant and Rodriguez went to Loncosky's apartment and asked for the money. Loncosky said she did not have it, but she would pay him later that day or the next. As they were walking out, Rodriguez told Loncosky that "if he [Rodriguez] don't get the money, that he was going to turn her two nephews into two nieces." Defendant testified that he had not threatened Loncosky about the debt, had not told Rodriguez to make the threat, and had "no idea" why he said it. This was consistent with Loncosky's testimony that she was not afraid of defendant on this occasion, and she had "no idea" why Rodriguez made the statement. Defendant received most of the money owed on the debt a few days later from Loncosky's friend "Maggie." She gave defendant $48, which left $12 still owing. Defendant was not concerned about the $12 because he had already made his profit on the deal.

Defendant recalled that on the morning of December 7, Rubert was wearing a white T-shirt, jeans, boots and a black jacket. Soto was wearing a white T-shirt, jeans, boots and a black jacket. Rodriguez was wearing a yellow Nautica jacket. Defendant was wearing a dark gray hooded sweatshirt with "N.Y." on the front, black T-shirt, jeans and boots.

Defendant insisted that he never owned a gun, he did not go to 660 Centre Street on December 7, and he did not kill Marin. He testified that when he saw Rodriguez in a holding cell in August 2003, he asked Rodriguez why he was doing this to him. Rodriguez replied: "I don't know. They got me -- got me scared, I don't know, I don't want to get this time."

The prosecutor cross-examined defendant vigorously. Those aspects of the cross-examination that relate to defendant's appeal will be addressed at greater length in our legal discussion. Briefly, defendant was asked why his testimony about the time he returned home conflicted with statements he allegedly made to his mother, why his mother could not vouch for his whereabouts during the time of the murder, and whether his parents would corroborate his testimony concerning his demeanor during the police interrogation.

The trial court charged the jury on both first-degree robbery and the lesser-included offense of second-degree robbery, and on accomplice liability for the murder and robbery counts. Defense counsel did not object to the jury charge.

During deliberations, the jury sent out a question: "[I]n lay terms, to be convicted of felony murder, does the defendant need to actually commit the murder or only be there during the commission of the crime?" The court responded:

If you find that he did not commit the murder by his own hand, then you must decide whether or not he was an accomplice to the crime. If he was an accomplice, then he need only be there at the scene of the crime or outside.

If you do not find that he was an accomplice, then you must find him not guilty.

The defense did not object to this response.

III

Defendant's legal arguments concerning trial errors must be considered in the context of the evidence as a whole.

Although the prosecution presented numerous witnesses, its case had significant weaknesses. No physical evidence connected defendant to the crime. The eyewitnesses in the apartment, Loncosky and Malkin, both had significant criminal records and gave contradictory testimony on critical issues.

Malkin testified that the assailants' faces were almost completely covered, showing only the bridges of their noses and their eyes, while Loncosky testified that their faces were more visible and that she could recognize them. Malkin told contradictory stories as to which one was the shooter.

According to their testimony, they were each approximately the same distance away from the assailants and the victim, but Malkin testified that he heard one of them order the victim to "run it," indicating that a robbery was taking place, and heard the victim say "you'll just have to shoot me," while Loncosky testified that she did not hear what was said. Yet she also testified that she was close enough to recognize the assailants who were standing in the hallway with their faces covered and that she saw defendant holding a "silver" gun in his hand. Malkin testified that the gun was black.

The State's theory of the killing, and Loncosky's explanation as well, was that defendant and an accomplice were seeking to collect money Loncosky and Marin owed defendant for drugs. But, according to both Loncosky and defendant, the drug debt had been largely paid off leaving only a $12 balance, and the only communication she had gotten from defendant himself about the debt was that he was not pressing her for the money.

Rodriguez and Rubert both had powerful incentives to blame defendant, because they were also charged with the murder. And defendant was able to present a witness to Rubert's jailhouse admission that he shot Marin but defendant was "taking the rap."

The only arguably independent witness who could place defendant near Loncosky's apartment building around the time of the crime was Doug Soto. But Soto, who did not contact police until shortly before the trial, was admittedly a long-time friend of Rubert. His testimony contradicted Rubert's testimony in significant respects.

Rubert testified that he and Soto were on their way to a party, encountered defendant and Rodriguez in front of 660 Centre Street, and stood there talking for a few minutes before defendant and Rodriguez went into the building. He testified that Soto "must have" seen the two men go into the building.

Soto gave contradictory testimony. According to Soto, he and Rubert were on their way to a party at a house located on Centre Street past the 660 building. After the two of them had passed the building, he decided not to go to the party. Therefore, Soto left Rubert and turned around to go back down Centre Street toward his own house. He testified that he did not interact again with Rubert, or with defendant or Rodriguez. Rather, he testified that after he had walked back past 660 Centre Street on his way to his house, he heard voices, turned briefly and saw Rubert, defendant and Rodriguez shaking hands in front of the building. He turned again and continued toward his house. But for unexplained reasons, he once again turned around and this time he saw only Rubert standing in front of the building. He did not testify that he saw defendant or Rodriguez go into the building.

The jury evidently did not credit the testimony of Loncosky, Rubert, or Rodriguez concerning defendant's having been the shooter. But the jury evidently credited some of the testimony concerning defendant's presence at the scene and his participation as an accomplice, and did not credit defendant's testimony that he was not there and had nothing to do with the crime. While it is not our role to second-guess the trial proceedings, it is abundantly clear that this was a close case in which witness credibility was crucial and in which errors affecting the jury's assessment of credibility were particularly likely to prejudice the defense. We assess defendant's appellate arguments in that context.

Addressing defendant's strongest argument first, we agree with defendant that the prosecutor improperly elicited extensive testimony from two police witnesses, Detective Thomas and Officer Pukenas, concerning their opinions of Rodriguez's credibility. This error alone would mandate reversal of defendant's conviction.

Thomas testified concerning the December 8, 2002 interrogation in which Rodriguez admitted his own participation in the crime and accused defendant as the shooter. On cross-examination, Thomas admitted that he later learned that the statement was not entirely true. The defense then questioned Thomas as follows:

Q. So, you couldn't tell whether he was lying to you when he made the statement, the prestatement saying, I was, I was so upset, Edwin, I didn't know Edwin was going to shoot him; you couldn't tell he was lying, could you?

A. At that point he was absolutely truthful with me.

Q. How do you know, Detective?

A. Because of my training, ma'am -- sir.

Q. Because of your training?

. . . .

A. I could tell. There was so much emotion in that initial statement.

Q. Detective, there is nothing --

[Prosecutor]: Judge, he is explaining. He asked if he could tell, and he is explaining how he can tell. Now, counsel might not want to hear the answer, but he has asked the question.

THE COURT: And the question has been answered. Continue.

On redirect examination, the prosecutor asked Thomas about his interrogation training. Thomas replied that he took courses from a former State Police lieutenant who taught that "when a person is lying, they don't show much emotion." Defense counsel objected, arguing that "[h]e can tell us he took the course; he can't tell what this theory or that theory may be." The prosecutor responded that the defense had opened the door to this line of questioning by asking Thomas how he could know whether Rodriguez was lying. The court overruled the objection, concluding that the defense had opened the door.

Thomas continued:

So, one of the -- an interrogation -- when a person tells the truth, let's say, for example, you have a baby, the father of the baby feels joy at the time of the birth, feels excitement, so when he tells his friends that, he is going to talk about the joy and excitement he felt. Now, let's say a person makes up that he had a baby; he is not going to talk about the inner self-joy, that excitement because it never happened.

In this case, when he [Rodriguez] started talking about how Edwin shot Juan Marin, everything just came out, all the emotions, the crying, the shaking, the trembling. He was talking about how his heart sank. That is an emotion you would feel if a gun went off and you're standing next to someone that killed someone. Your heart would sink. That is a true emotion you would feel.

And that is why I felt, and I'm absolutely positive because of that true emotion he felt, that he was right there when Edwin LeBron pulled the trigger, because you can't make that up.

On recross-examination, defense counsel questioned Thomas vigorously about this testimony, repeatedly asking about the scientific basis for the opinion that emotion implies truth.

Pukenas was likewise permitted to testify at great length concerning Rodriguez's credibility. Pukenas, who is an officer with the New Jersey State Police, assisted the Trenton police in interviewing Rodriguez on April 15, 2004. On direct examination, he was questioned as follows:

Q. Now, as he [Rodriguez] is telling you, obviously, he wrote the written statement out, and you indicated that you had, you had some concerns about it. Now, he is telling you this version of it. Is there any change in his demeanor from the beginning when he was speaking to you, to when at the point that he actually told you that he was at the door?

A. He seemed relieved that he was -- to me that he was finally telling the entire truth at this point in time, that is the impression I got.

[Defense counsel]: Objection, your Honor, how could he tell that?

THE WITNESS: As I said, it was my impression.

[Prosecutor]: Based on his perception --

THE COURT: I'm going to allow it.

A. And his demeanor changed to that, in my interpretation, of one of belief; this is the truth. I'm finally telling the truth. This is what happened.

[Defense counsel]: I am going to object to the whole, the whole response, your Honor.

THE COURT: So noted.

On cross-examination, defense counsel questioned Pukenas about the inconsistencies in Rodriguez's statements. On redirect, the prosecutor asked Pukenas why the inconsistencies lead him to believe that Rodriguez's written statement was false. The defense objected to this line of questioning, claiming that it was "voodoo" and "vouching for Alexis Rodriguez through this detective." The court cautioned the prosecutor to stick to specifics, but allowed her to proceed.

Pukenas explained that he believed Rodriguez's final statement because by placing himself in the doorway with defendant, Rodriguez further implicated himself in the crime. Pukenas also noted that Rodriguez's demeanor had changed:

I observed relief in his demeanor and in his language. That as he was telling this, verbalizing this, the fact that he was at the doorway, and I sensed some fear, that he was afraid of Mr. LeBron. If he told the story, the truth about Mr. LeBron being the shooter, he was afraid to do that, but yet he did tell me that.

On recross, Pukenas reiterated that relief and fear were his impressions of Rodriguez's demeanor. On redirect, the prosecutor asked about Pukenas's training in interviewing and interrogation. The defense objected, but the court allowed the questioning to proceed. After stating that he had been conducting interviews for sixteen years, Pukenas said: "And I will say that is the normal interview that I conduct every day, and I will say that his change in demeanor led me to believe that his final verbalized statement to myself was a truthful statement based upon my experience."

This entire line of testimony -- including the attorneys' questions as well as gratuitous statements from the police witnesses - was error. "[C]redibility is an issue which is peculiarly within the jury's ken and with respect to which ordinarily jurors require no expert assistance." State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993). "[I]t is an incursion on one of the jury's most important functions to allow an expert witness to evaluate the statements of another witness." Id. at 40. "There is no basis in our law for the expression of an expert opinion as to the truthfulness of a statement by another witness." Id. at 39; see also State v. Pasterick, 285 N.J. Super. 607, 620 (App. Div. 1995) ("There is no provision in our legal system for a 'truth-teller' who is authorized to advise the jury on the basis of ex parte investigations what the facts are and that the defendant's story is a lie.").

Although Thomas and Pukenas were not offered as expert witnesses, they were both police officers who claimed to have training and experience in criminal interrogations. Their status is analogous to that of the police witnesses in State v. Frisby, 174 N.J. 583 (2002). In Frisby, police officers recounted out-of-court statements of non-testifying witnesses in contravention of the hearsay rules. Id. at 595. Further, one officer testified that a prosecution witness was "more credible" than the defendant on a pivotal issue. Ibid. Finding that the admission of this testimony constituted plain error, the Court stated that "[t]he effect of the police testimony essentially vouching for [the prosecution witness] cannot be overstated." Ibid. Quoting Neno v. Clinton, 167 N.J. 573, 586-87 (2001), the Court noted:

"A jury may be inclined to accord special respect to such a witness. Deference to a police officer in turn may have enhanced the credibility of the statements of Burnett and Meyer. It is safe to say that Officer Kelly's testimony created improper bolstering. . . . The jury heard from a law enforcement officer trained in accident investigation that he believed plaintiffs caused the accident. The jury could have ascribed almost determinative significance to that opinion, which went to the heart of the case."

[Frisby, supra, 174 N.J. at 595-96.]

Pukenas's testimony on direct examination, that Rodriguez's demeanor was that of someone telling the truth, clearly bolstered Rodriguez's credibility. His testimony on redirect went even further. After setting forth his years of training and experience, Pukenas stated that, based on his experience, Rodriguez's final statement was truthful. The prosecution thus presented Pukenas as a "truth-teller" advising the jury on Rodriguez's credibility. See Pasterick, supra, 285 N.J. Super. at 620. His testimony improperly usurped the jury's function to evaluate witness credibility.

The State's argument that the redirect examination was a reasonable response to the cross-examination is not supported by the record. Contrary to the State's assertion, defense counsel did not ask Pukenas for his opinion regarding Rodriguez's credibility. Nothing in Pukenas's brief cross-examination justified the State's line of questioning on redirect. Defense counsel lodged several objections to Pukenas's testimony, and the court erred in failing to sustain those objections.

Thomas's testimony concerning Rodriguez's credibility is equally problematic. His statement that he believed Rodriguez was telling the truth improperly bolstered Rodriguez's testimony. Even more egregious, however, was Thomas's reliance on the opinion of his training instructor that people who are lying do not show much emotion. As the instructor did not testify at trial, his opinion was inadmissible hearsay. The presentation of such a veracity theory, particularly without the opportunity for cross-examination of its proponent, also implicates the concern raised in J.Q. that a jury may be swayed by an expert's opinion as to credibility, when the opinion has no scientific validity. J.Q., supra, 252 N.J. Super. at 40. Thomas' testimony in this regard, which was the subject of a timely objection by defense counsel, was inadmissible and highly prejudicial.

The State contends that defense counsel opened the door to this highly prejudicial line of questions to both Thomas and Pukenas, by asking Thomas how he knew that Rodriguez was not lying in his December 8 statement. We disagree.

"The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996). "The doctrine . . . allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." Ibid. (citation omitted). It "operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context." Ibid. (citing United States v. Lum, 466 F. Supp. 328, 334-35 (D. Del. 1979), aff'd, 605 F.2d 1198 (3rd Cir. 1979)).

Under the related doctrine of "curative admissibility," a party may introduce otherwise inadmissible evidence to counter prejudicial inadmissible evidence introduced by the other side:

[W]hen one party introduces inadmissible evidence, thereafter the opposing party may introduce otherwise inadmissible evidence to rebut or explain the prior evidence.

[James, supra, 144 N.J. at 555.]

However, "evidence is still subject to exclusion where a court finds that the probative value of the otherwise inadmissible responsive evidence 'is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury. . . .'" Id. at 554 (quoting N.J.R.E. 403). The "doctrines can be used only to prevent prejudice and may not be subverted into a rule for [the] injection of prejudice." State v. Vandeweaghe, 177 N.J. 229, 238 (2003) (internal quotations omitted). "Introduction of otherwise inadmissible evidence under the shield of [opening the door] is permitted only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." Ibid. (internal quotations omitted).

In this case, defense counsel asked Thomas how he knew that Rodriguez was being truthful. Thomas replied that it was because of his training and began to address the emotion in Rodriguez's statement when defense counsel cut him off. Based on this asserted "door opening," the prosecutor elicited extensive testimony from Thomas about his training, and how the theory espoused by his trainer related to the truthfulness of Rodriguez's statement. Defense counsel's brief questions to Thomas also later served as the basis for the prosecutor's lengthy questioning of Pukenas concerning his evaluation of Rodriguez's credibility.

After engaging in the analysis required by James and Vandeweaghe, we conclude that the testimony of both Thomas and Pukenas on the issue of credibility was far more prejudicial than it was probative, and it should not have been permitted. Nothing in this record suggests that either counsel had a legitimate basis to ask Thomas or Pukenas about their evaluation of witness credibility. Moreover, defense counsel's question to Thomas about how he knew Rodriguez was being truthful, created no prejudice to the State's case and did not require rebuttal. See Vandeweaghe, supra, 177 N.J. at 238. The trial judge should have cut off questioning on this impermissible subject at the first objection by either counsel. Instead, she permitted a lengthy and prejudicial detour into the forbidden topic of the officers' assessment of Rodriguez's credibility an evaluation reserved exclusively for the jury.

This entire line of improper questioning was harmful error capable of producing an unjust result. See State v. Macon, 57 N.J. 325, 335 (1971). Rodriguez was a critical witness on the issue of defendant's participation in the crime as well as defendant's identity as the shooter. The thrust of the detectives' testimony was to bolster Rodriguez's credibility and adversely affect defendant's credibility. Although the jury evidently did not credit Rodriguez's testimony that defendant was the shooter, the jury must have believed his testimony that defendant was present at the scene of the crime and participated in it. In large part, this case turned on the credibility of Rubert, Rodriguez and defendant. "Any improper influence on the jury that could have tipped the credibility scale was necessarily harmful and warrants reversal." Frisby, supra, 174 N.J. at 596.

Because the testimony of Thomas and Pukenas bolstered Rodriguez's credibility and usurped the jury's role as ultimate finder of fact, the court's errors in admitting the testimony denied defendant a fair trial.

Those errors alone warrant a reversal of defendant's conviction. However, as we discuss below, there is more.

We next address the prosecutor's improper and prejudicial questions to defendant concerning his mother's alleged out-of- court statements, her improper use of defendant's alibi statement as a vehicle to imply that defendant should have called his mother as a witness, and her summation.

Defendant filed an alibi statement indicating that he was home at the time of the crime, and that his parents were also home at the time of the crime. However, he did not call his parents as witnesses. The prosecutor essentially used the existence of the alibi statement to argue to the jury that defendant had presented an alibi defense, which she then claimed to have destroyed.

The crime occurred at approximately 4:00 a.m. In response to the prosecutor's question about what time he arrived home on the night of the murder, defendant responded "3:55 maybe." She then asked him: "But you remember telling your mom you got home sometime after an hour, you don't remember which one it is, but it was 28 minutes after the hour?" Defendant replied: "Yes. Something, yes." He explained: "I'm not lying. That's the only thing I know, that's the only thing I put together, the times estimated all up."

The prosecutor then confronted defendant with his alibi statement, and asked him to confirm that on December 7, 2002, he was living with his mother and his stepfather. The prosecutor then questioned him as follows:

Q. Okay. Now, you're aware of the fact, are you not, that your mother talked to the Prosecutor's office?

A. Yes.

Q. You're aware of the fact that she gave a statement?

A. Yes.

Q. You're aware of the fact that although you say that she was present, and I guess Herberto Soto, stepfather was present, that she was unable to vouch for your whereabouts during the time of the murder; you're aware of that; are you not?

A. Yes.

Q. In fact, she could only say, and you're aware of this fact, that she went to bed between 10 and 11, you weren't there; and she got up between 5:30 and 6 and you were there, but other than that, she cannot say where you were at the time of the murder?

A. She sleeps in the living room, so she would have saw me when I come in, came in.

Q. You're aware of the fact that's what she told the Prosecutor's Office?

A. Yes.

Q. That she could not say where you were at the time of the murder?

A. Yes.

The confrontation clause of the Sixth Amendment limits the extent to which hearsay may be used against a defendant in a criminal trial. As the Supreme Court held in Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004), "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." The term "testimonial statements" includes statements made during a police interrogation:

Whatever else the term covers, it 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.

[Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.]

In cross-examining defendant about statements his mother allegedly made when she was questioned by the police, the prosecutor fell afoul of Crawford's prohibition on the use of such hearsay statements. Defendant's mother was not called to testify. There was no evidence that she was unavailable to the prosecution, and defendant's counsel had no opportunity to cross-examine defendant's mother under oath when she made the alleged statements to the police. Consequently, the prosecutor should not have been permitted to place before the jury this hearsay concerning what defendant's mother did or did not know about defendant's whereabouts at the time of the crime.

The prosecutor compounded this prejudicial error when she improperly referred again to the mother's hearsay statements in her closing argument. In summation, the prosecutor referred to the discrepancy in times between defendant's testimony at trial and what he told his mother. Pointing out that defendant's mother and stepfather were at home on the night of the murder, she commented:

I specifically cross-examined him [defendant] with regard to whether or not he was aware of the fact that his mother couldn't vouch for him in a statement to the Prosecutor's office. He says [y]es, I'm aware of that. I'm aware of that fact. I'm aware of the fact that my mother cannot tell you where I was at 4 o'clock during the time of the homicide completely undercutting his alibi. His mother can't vouch for his whereabouts. In fact, he told his own mother he got back at 28 minutes after the hour, basically telling her he was out at the time of the homicide. Crucial piece of evidence, ladies and gentlemen. Crucial. Undercuts the entire defense case.

In addition to re-emphasizing to the jury the inadmissible hearsay statements by defendant's mother, the prosecutor's statement mischaracterized defendant's testimony as to what he told his mother.

On cross-examination, defendant admitted that he told his mother he got back "at 28 minutes after the hour" and that this was inconsistent with his trial testimony that he got home at 3:55 a.m. But in her summation, the prosecutor clearly implied that he had admitted telling his mother that he got home at twenty-eight minutes after four o'clock, thus "basically telling her he was out at the time of the homicide." This was highly improper.

Prosecutors should not make inaccurate legal or factual assertions during a trial. See State v. Engel, 249 N.J. Super. 336, 381 (App. Div.), certif. denied, 130 N.J. 393 (1991) (recognizing that prosecutor erred when he made inaccurate factual assertion). They are duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence.

[State v. Frost, 158 N.J. 76, 85 (1999).]

The use of the alibi statement and the prosecutor's implication that defendant should have, but did not, call his mother and step-father as witnesses, were likewise improper. While an alibi notice is a "requirement . . . for discovery purposes only" to avoid surprise to the prosecutor at trial, State v. Gross, 216 N.J. Super. 92, 95 (App. Div.), certif. denied, 108 N.J. 194 (1987), it can be used for impeachment purposes if defendant's trial testimony is inconsistent with information contained in the notice. State v. Irving, 114 N.J. 427, 440-41 (1989). However, in this case defendant's testimony was not inconsistent with the portion of the notice that the prosecutor had him read aloud to the jury. That portion indicated only that both defendant and his parents were at home at the time of the crime. Nothing in the record remotely suggests that defendant's parents were not at home at the time, although they may have been asleep and therefore unable to state when defendant arrived home. And, contrary to Irving, the trial court did not make the required preliminary finding "that the prejudicial effect of the information does not outweigh its probative value." Id. at 441.

The prosecutor likewise improperly implied that defendant should have called his parents as witnesses to his interrogation by police. After defendant stated that Detective Medina questioned him in the presence of his mother and stepfather, the prosecutor questioned him as follows:

Q. Your reaction [to the police questioning] was what?

A. I was just sitting like this at the chair and I started crying, upset. I fell down on the ground. My parents were present. They know.

Q. They weren't present?

A. They were present.

Q. They were present, they can tell us that?

A. Yes, they were present.

Q. You are saying it happened, they would tell us?

A. What?

. . . .

Q. What you just said.

A. Yes.

Q. They were present and could tell us all that?

A. They were.

Defense counsel moved for a mistrial, arguing that the questioning was "very much like comment on failure to call a witness." Calling the motion "ridiculous," the prosecutor responded: "His client said my parents can tell us, that they were there and so I just asked him so your parents could tell us that, is that what you're saying. Nothing wrong with that. He brought it up. He has opened the door." The court denied the defense motion without comment or analysis.

As the Court held in Irving, a party may not comment on an opponent's failure to call a witness without following the procedure set forth in State v. Clawans, 38 N.J. 162 (1962). Irving, supra, 114 N.J. at 441; State v. Wilson, 128 N.J. 233, 244 (1992). When defendant testified, the prosecutor knew that defendant's parents would not be called to testify, because defense counsel had given the court and counsel the names of his witnesses. Although the prosecutor was familiar with Clawans, and in fact later invoked that case in objecting to defense counsel's summation, she did not comply with Clawans herself. Her repeated questions about whether defendant's parents could testify was nothing more than an effort to get before the jury by indirection what she could not put before them directly without following Clawans.

In the context of this case, we conclude that the prosecutor's improper questioning of defendant was prejudicial error, because it unfairly undermined his credibility.

We turn next to defendant's argument that the court erred in permitting Lisa Loncosky to testify concerning statements Marin made to her a few hours prior to the shooting. Loncosky testified that at about 10:30 p.m. on Friday night, Marin recounted to her in a "somewhat" excited manner that he had a confrontation with defendant over defendant's having sold him $20 worth of cocaine that was either of poor quality or short weight. She testified that Marin said that he told defendant that defendant owed him and, according to Marin, defendant "made a comment about well, fine, we'll go see Lisa about it." Marin then told defendant that defendant "will not do anything" to Loncosky. Loncosky testified that "from what [she] was understanding" the confrontation occurred just before she encountered Marin. Defense counsel objected to Loncosky's testimony as hearsay. The prosecutor contended that it was admissible as an excited utterance under N.J.R.E. 803(c)(2), because of Marin's excited demeanor. The judge overruled the objection with no analysis of the factors set forth in N.J.R.E. 803(c)(2).

"Generally, appellate courts review a trial court's determination of the admissibility of evidence for an abuse of discretion." State v. Harvey, 151 N.J. 117, 166 (1997). "However, in order to permit appellate review a trial judge must set forth . . . findings of fact and conclusions of law." Truchan v. Sayreville Bar & Rest., Inc., 323 N.J. Super. 40, 50 (App. Div. 1999) (citing R. 1:7-4(a)). Our review here is hampered by the absence of findings of fact and legal conclusions.

We begin by considering the provisions and purpose of N.J.R.E. 803(c)(2). The rule defines an excited utterance as

"[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." The Rule is "based upon the premise that the excitement caused by the observation of a startling event insures the reliability of a spontaneous statement about it made at or near the time of the event's occurrence." The Rule requires that (1) there was a startling event, (2) the statement was made while the declarant was under the stress of excitement from that event, and (3) the statement related to that event. The rationale for the excited utterance exception lies in the notion that "excitement suspends the declarant's powers of reflection and fabrication," consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable.

[State v. Long, 173 N.J. 138, 158 (2002) (citations omitted.)]

We conclude that the State presented an inadequate factual foundation on which to support the admission of Marin's statements as an excited utterance. Nothing in this record explains to us why an illegal drug user would consider being shorted by his supplier to be a shocking event. Moreover, nothing in the conversation as recited by Loncosky suggests that anything shocking occurred. If, for example, Marin had recounted that defendant pointed a gun at him or attacked him during the incident, we might conclude otherwise. And Loncosky only described Marin as being "somewhat" excited, hardly a strong foundation for a finding that the statement was an excited utterance.

In addition to the absence of a shocking event, there are other relevant factors that the trial court did not consider:

Factors to be considered in determining whether the declarant's statement was truly spontaneous and made solely under the stress of excitement, rather than the product of an opportunity for deliberation and fabrication, include the circumstances of the event, the amount of time that transpired between the declarant's perception of the event and the utterance, the declarant's mental or physical condition, including the degree of shock produced, and the nature of the statement itself, including whether it was against the declarant's interest and whether it was volunteered or given in response to a question.

[State v. Baluch, 341 N.J. Super. 141, 181-82 (App. Div.), certif. denied, 170 N.J. 89 (2001).]

In that regard, given that Loncosky sometimes paid for Marin's drugs, we note Marin's possible financial motive to misrepresent his transactions with defendant. Given Loncosky's prior testimony concerning her purchase of crack from defendant, allegedly for Marin's benefit, and the subsequent issue over whether she or Marin owed defendant for the drugs, Marin's later statement to her about an alleged confrontation with defendant over who owed whom for an alleged "shorting" of product, is hardly the kind of reliable statement that deserves to be admitted under the rationale of N.J.R.E. 803(c)(2).

We further bear in mind that "the excited utterance exception is just that--an exception to the hearsay rule, and it should not be construed so broadly that it renders the hearsay rule ineffectual." State v. Branch, 182 N.J. 338, 367 (2005). The mere fact that a declarant is excited, or "somewhat" excited, does not satisfy the rule. A close analysis of all factors set forth in the rule is required. Particular care in applying this and other hearsay exceptions is warranted in light of the Supreme Court's recent admonition in Crawford, supra, concerning the importance of a defendant's right to confront the witnesses against him.

Based on the record before her, the trial judge should have sustained defense counsel's objection to Loncosky's testimony about Marin's alleged conversation with defendant. We also conclude that this error was highly prejudicial to defendant, because it established his intent to "see Lisa" about a financial dispute, and created an inference that Marin perceived defendant as having threatened Lisa. This evidence served to bolster one of the weakest parts of the State's case. Why would defendant pursue Lisa, and shoot Marin, over what Lisa and defendant both testified was a mere $12 debt, which he had previously expressed no great urgency about collecting? We conclude that the admission of Marin's statement was harmful error capable of producing an unjust result, and therefore, together with the other trial errors discussed above, it warrants reversal. See Macon, supra, 57 N.J. at 335.

Accordingly, we reverse defendant's conviction and remand this matter for a new trial on the charges of felony murder and second-degree robbery.

 

Defendant testified that he bought the drugs for $15 and normally sold them for $30.

Loncosky admitted to convictions for robbery, theft, and unlawful possession of a weapon.

We also note that the judge did not find Rubert credible in a Rule 104 hearing held pre-trial to determine whether Rubert would be permitted to testify that he saw defendant with a gun on an occasion prior to the day of the shooting.

According to the testifying medical examiner, at the time of his death approximately five and a half hours after this conversation, Marin was "drunk," with a .24 blood alcohol content, and he had cocaine in his system. This also casts some doubt on the reliability of his statements to Loncosky.

(continued)

(continued)

49

A-3864-04T1

 

October 6, 2006