STATE OF NEW JERSEY IN THE INTEREST OF B.S A. JUVENILE

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5225-06T45225-06T4

STATE OF NEW JERSEY

IN THE INTEREST OF B.S.,

A JUVENILE.

________________________________________________________________

 

Submitted June 23, 2009 Decided

Before Judges Cuff and Fuentes.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-1308-07A.

Yvonne Smith Segars, Public Defender, attorney for appellant, B.S. (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent State of New Jersey (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

B.S., a juvenile, appeals from an adjudication of delinquency entered on January 31, 2007, following a bench trial for acts that, if committed by an adult, would constitute second degree robbery in violation of N.J.S.A. 2C:15-1a. The judge imposed a two-year probationary term.

I.

On September 28, 2006, around 9:25 a.m., Camden Police Officer A. Hoskins was on patrol near Whitman Park when she was flagged down at the intersection of Pershing and Chase Streets by an older man. The officer noticed the man was out of breath and his face was swollen. The man related that he had a pacemaker and was in pain. He told Officer Hoskins he had been assaulted and robbed at the corner of Carl Miller Boulevard and Pershing Street. The man explained that he was riding his bicycle when he heard footsteps running up behind him. He was then struck from behind and fell from his bicycle. His assailants took two dollars. The man remembered two tall, young males watching him as he counted his money, and described one as wearing a gray sweater and tan pants and the other wearing a green sweatshirt and blue jeans.

Officer Hoskins placed the victim into her patrol car, alerted other officers of the robbery, and relayed a description of the suspects. Hoskins and other officers began circulating the area. After approximately three minutes, Hoskins returned the victim to the site of the robbery to retrieve his bicycle.

Another Camden police officer, Officer Komoncho, heard the alert and description of the suspects while on patrol in the area. He and another officer observed two young males fitting the description given on the 1300 block of Decatur Street, approximately two blocks from the corner of Carl Miller Boulevard and Pershing Street. Komoncho attempted to detain the suspects but they fled on foot. After a pursuit, only one of the suspects, D.J., a juvenile, was successfully detained. Komoncho brought D.J. to the victim, who identified D.J. as one of his assailants. D.J. later pled guilty and implicated B.S. as his partner.

At trial, Officers Hoskins and Komoncho and D.J. testified for the State. The State did not produce the victim. Hoskins was permitted to testify as to the statements conveyed to her by the victim. D.J. testified that he and B.S. "had hit this dude for no reason on a bike." D.J. reported that B.S. swung at the victim, and the victim fell to the ground.

B.S. testified on his own behalf and denied involvement in the robbery. He explained that he was on Decatur Street that day because he was denied admittance to school after arriving late. B.S. walked home and found the door locked and no one there. He turned around to go back to school. On the way, he encountered D.J.'s girlfriend, her mother, and later, D.J. B.S. talked to D.J. and his girlfriend for a short while, and then police officers pulled up and asked B.S. and D.J. why they were out of school. B.S. explained that he was denied admittance because he was late. When a police officer told B.S. he would take him to school, B.S. ran because he was afraid of getting into trouble at his after-school program. When asked by the court why D.J. would implicate B.S. in the robbery if he did not participate, B.S. replied that D.J. implicated him because "some people don't like going down by their self," and D.J. was likely afraid to implicate the real perpetrator for fear of reprisal.

On appeal, B.S. raises the following issues for our consideration:

POINT I

THE TESTIMONY OF OFFICER HOSKINS, WHEREIN [S]HE TESTIFIED TO WHAT THE VICTIM TOLD H[ER] REGARDING THE ENTIRE EVENT, WAS INADMISSIBLE AS THE VICTIM WAS PRESUMABLY AVAILABLE TO TESTIFY, HAD NOT BEEN PREVIOUSLY CROSS-EXAMINED, AND THE STATEMENTS WERE TESTIMONIAL IN NATURE. BASED ON CRAWFORD V. WASHINGTON, THIS ERROR DENIED DEFENDANT HIS RIGHT TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL. (U.S. Const., Amends. V, VI, XIV; N.J. Const. (1947), Art. I, paras. 1, 9 and 10.)

POINT II

THE TESTIMONY OF OFFICER HOSKINS, WHEREIN [S]HE TESTIFIED TO WHAT THE VICTIM OF THE ROBBERY HAD TOLD H[ER] WAS INADMISSIBLE AS THESE STATEMENTS WERE NOT EXCITED UTTERANCES. THIS ERROR DENIED DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. Const., Amends. V, VI, XIV; N.J. Const. (1947), Art. I, paras. 1, 9 and 10.)

POINT III

WHEN THE TRIAL COURT COERCED B.S. INTO CALLING D.J. A LIAR AND HAD B.S. TRY TO EXPLAIN WHY D.J. WOULD LIE ABOUT THE INCIDENT, B.S.'S RIGHT TO A FAIR TRIAL AND DUE PROCESS WAS VIOLATED. (Not Raised Below.)

POINT IV

THE ADJUDICATION OF DELINQUENCY AS TO ROBBERY WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST THEREFORE BE REVERSED.

We affirm.

II.

B.S. contends that the judge erred in admitting the hearsay statements of the victim as "excited utterances" under N.J.R.E. 803(c)(2), and that the admission of such testimony violated B.S.'s Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

"'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(c). Generally, hearsay is inadmissible. N.J.R.E. 802. N.J.R.E. 803(c), however, permits the admission of certain extrajudicial statements of a declarant as substantive evidence, regardless of the availability of the declarant. One category of excepted statements is the "excited utterance," defined 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." N.J.R.E. 803(c)(2). The rule is based on the premise that the "'[e]xcitement 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.'" In re Registrant, C.A., 146 N.J. 71, 98 (1996) (quoting Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(2) (1994-95)). Statements made after the startling event must be so close to the event as to exclude the likelihood of fabrication or deliberation.

The factors to be considered in determining whether the declarant had an opportunity to deliberate or fabricate include "'the element of time, the circumstances of the [event], the mental and physical condition of the declarant, the shock produced, [and] the nature of the utterance . . .'" State v. Branch, 182 N.J. 338, 360 (2005) (quoting Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952)). The statement must have been made "in reasonable proximity to the event." State v. Rivera, 351 N.J. Super. 93, 100 n.2 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). "[T]he determinative element is not the precise amount of time which elapsed between the event and the statement, but rather whether the facts and circumstances reasonably warrant the inference that the declarant was still under the stress of excitement caused by the event." State v. Baluch, 341 N.J. Super. 141, 182 (App. Div.), certif. denied, 170 N.J. 89 (2001). See also State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1405, 25 L. Ed. 2d 675 (1970).

Prior cases have held that statements made up to an hour after the startling event may be admissible, so long as the declarant's excited state is continuing. Baluch, supra, 341 N.J. Super. at 182. For example, in State v. Lazarchick, 314 N.J. Super. 500, 524 (App. Div.), certif. denied, 157 N.J. 546 (1998), overruled on other grounds by Flagg v. Essex County Prosecutor, 171 N.J. 561, 570 (2002), the statement of an assault victim to his mother when he arrived home less than an hour after the attack was admissible. Similarly, in State v. Swint, 328 N.J. Super. 236, 245-47, 255 (App. Div.), certif. denied, 165 N.J. 492 (2000), this court held that statements made by the victim of kidnapping, assault, and torture about the identity of his assailants approximately one hour after he escaped from the site of the assault were admissible under N.J.R.E. 803(c)(2). In State v. Federico, 198 N.J. Super. 120, 123, 131-32 (App. Div. 1984), aff'd, 103 N.J. 169 (1986), the initial statement of a victim to police that she had been kidnapped made immediately after she escaped her captors and flagged down a patrol car was admissible.

Here, moments after being assaulted from behind and robbed, surely a "startling event," the breathless and visibly injured victim flagged down Officer Hoskins. The officer immediately put the victim in her patrol car, where the victim continued to describe the attack and his assailants. The victim's excited state surely continued during this period. Consequently, the trial judge properly admitted the hearsay statements of the non-testifying victim relating the event and describing the assailants as excited utterances under N.J.R.E. 803(c)(2).

Concluding that the victim's statements to responding police officers are admissible as excited utterances, however, does not end the inquiry. B.S. argues that admission of these statements violated his Sixth Amendment right to confrontation as interpreted by Crawford v. Washington, supra. Crawford holds that hearsay evidence that is "testimonial" may not be admitted against a defendant unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. The Crawford rule reaffirms the principle that any hearsay permitted under the evidence rules is also subject to the defendant's Sixth Amendment "'right . . . to be confronted with the witness against him.'" Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184 (quoting U.S. Const. amend. VI). Thus, Crawford holds that the Sixth Amendment prohibits the use of "testimonial" statements without the opportunity to cross-examine.

Although the Crawford Court did not define "testimonial," it provided examples of the type of statements encompassed within the definition, including "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [statements in response] to police interrogations." Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Court more clearly defined the distinction between testimonial and nontestimonial statements. The Court articulated a standard to distinguish the two types of statements. Nontestimonial statements are those made under circumstances "objectively indicating that the[ir] primary purpose . . . is to enable police assistance to meet an ongoing emergency." Id. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d at 237. Testimonial statements are those made in circumstances "objectively indicat[ing] that there is no such ongoing emergency, and that the[ir] primary purpose . . . 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. See also State in the Interest of J.A., 195 N.J. 324, 329 (2008).

In J.A., supra, our Supreme Court found statements made to police by an eyewitness to a purse-snatching, who followed the purported assailants but did not testify, to be testimonial. 195 N.J. at 347-48. Therefore, these statements were improperly admitted in violation of the Sixth Amendment. Id. at 351. The Court held "a declarant's narrative to a law enforcement officer about a crime, which once completed has ended any 'imminent danger' to the declarant or some other identifiable person, is testimonial." Id. at 348 (quoting Davis, supra, 547 U.S. at 827-28, 830, 126 S. Ct. at 2276-78, 165 L. Ed. 2d at 340-42).

Here, when the victim flagged down Officer Hoskins, he had just been attacked and robbed, surely a startling event. The victim was out of breath and in pain. His statements describing the attack and his assailants were intended to secure help for himself. Those statements were nontestimonial, and their admission did not impinge on B.S.'s right to confront the witness against him. Moreover, D.J. testified at trial. Thus, unlike in J.A., the testimony of a participant of the robbery provided the primary evidential basis to find that B.S. participated in the robbery.

III.

B.S. claims his due process rights were violated by the trial judge's questioning of B.S. because the questioning was designed to elicit inadmissible testimony about another witness's truthfulness and argues this error warrants reversal of his adjudication. B.S. did not raise this issue at the hearing, and so it is reviewed for plain error. R. 2:10-2.

Trial judges, "in accordance with law and subject to the right of a party to make timely objection . . . [,] may interrogate any witness." N.J.R.E. 614. Trial judges may exercise this power "to clarify [the witness's] testimony," "expedite a trial[,] prevent delay or waste of time," or "help elicit facts." State v. Taffaro, 195 N.J. 442, 450-51 (2008). The trial judge "should use great restraint in questioning witnesses" so as to avoid influencing the jury. Id. at 451. However, "[t]hese concerns are less acute in the context of bench trials, where judges serve as fact finders and have more latitude in questioning witnesses." Ibid. (citing State v. Medina, 349 N.J. Super. 108 (App. Div.), certif. denied, 174 N.J. 193 (2002)).

Here, B.S. was adjudicated by a judge sitting as the fact finder. The judge's questions had no capacity to influence a jury because there was no jury. There is no due process violation here, and no error "clearly capable of producing an unjust result." R. 2:10-2.

IV.

B.S. urges the verdict was against the weight of the evidence. The applicable standard in a bench trial is whether there is sufficient credible evidence in the record to support the judge's determination. State in the Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995).

 
Here, the judge explained his findings. In doing so, he found that the testimony of the two police officers put B.S. at the scene of the crime. D.J.'s testimony confirmed B.S.'s role in the robbery. The judge recognized that it was his responsibility as fact finder to determine the credibility of the witnesses and he found D.J. to be "forthcoming, direct, [and] honest." The judge was satisfied beyond a reasonable doubt that D.J.'s credibility "far outweigh[ed]" B.S.'s credibility, and he accepted D.J.'s testimony. Our review of the record provides no basis to disturb the findings, credibility assessment, and ultimate adjudication.

Affirmed.

(continued)

(continued)

12

A-5225-06T4

RECORD IMPOUNDED

July 20, 2009