STATE OF NEW JERSEY IN THE INTEREST OF A.M., JR

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5833-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF A.M., JR.

________________________________

October 25, 2010

 

Submitted: March 24, 2010 Decided:

 

Before Judges Cuff and C.L. Miniman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2041-08.

 

Yvonne Smith Segars, Public Defender, attorney for appellant A.M., Jr. (Cynthia H. Hardaway, Designated Counsel, on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent State of New Jersey (Brent A. Bramnick, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Juvenile A.M., Jr., appeals from an adjudication of delin quency 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 commit ting a theft; and possession of fifty grams or less of mari juana, 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 proceed ings 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 perpe trators 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 per petrators 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 perpetra tors 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 combi nation 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 prose cutor 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 admis sible 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 fab ricate. 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 try ing 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 beat ing 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 inci dent 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 condi tion could also indicate an excited utterance because there are three individuals that the police officer testifies about beat ing on him." He found that "everyone would agree that if three individuals attacked them and beat them until they bled pro fusely 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 admissi ble 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 victim" and that the assault was "done for the purpose [of obtaining] money." The judge then found A.M. delinquent based on the two offenses charged.

With a pre-sentence report waived, the judge sentenced defen dant that day to twenty-four months of probation, forty hours of community service, completion of an anger-management counseling program, a $500 DEDR penalty, a $25 lab fee, two $30 VCCB fines, and a $15 LEOTF fine. This appeal followed.

A.M. raises the following issue for our consideration:

THE COURT ERRED IN ADMITTING THE VICTIM'S STATEMENTS UNDER THE EXCITED UTTERANCE EXCEPTION TO THE RULE AGAINST HEARSAY.

 

More specifically, he asserts that State v. Buda, 195 N.J. 278, 293 (2008) (Buda I), Branch, supra, 182 N.J. at 338, and Cotto, supra, 182 N.J. at 316, establish that the victim's state ments here did not constitute an excited utterance and should have been excluded from trial as inadmissible hearsay. As a result, he contends that he was deprived of his constitutional right to confront and cross-examine the victim, making the trial unfair.

Our Supreme Court has observed that Family Part judges pos sess special expertise and experience in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citation omitted). As a result, "appellate courts should accord defer ence to family court fact[-]finding." Id. at 413. However, fact-findings made by the trial judge are only binding on appeal if they supported by adequate, substantial, and credible evi dence. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). Even in this latter instance, we will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).

On the other hand, we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), even though we will not "second guess [a Family Part judge's fact-]findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citation omitted).

Evidentiary rulings are committed to the sound discretion of the trial judge, and the propriety of the ruling is reviewed under the abuse-of-discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) ("In reviewing a trial court's evidential rul ing, an appellate court is limited to examining the decision for abuse of discretion." (citation omitted)); Brenman v. Demello, 191 N.J. 18, 31 (2007) ("Because the determination made by the trial court con cerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard." (citation omitted)).

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

 

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952).]

 

The exercise of "[j]udicial discretion is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). More over, the exercise of judicial discretion must have a factual underpinning and legal basis. Id. at 110. Applying these principles, we have explained:

Judicial discretion, sound discretion guided by law so as to accomplish substantial jus tice and equity, is a magisterial, not a personal discretion. It is legal discre tion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of applicable law to avoid a manifest denial of justice.

 

[Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997) (quoting In re Presentment of Bergen Cnty. Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)), certif. denied, 156 N.J. 381 (1998).]

Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

The Branch Court examined the history of the excited utter ance exception to the hearsay rule in depth, Branch, supra, 182 N.J. at 357-62, carefully delineating its contours in light of the Sixth Amendment to the United States Constitution; Article I, Paragraph 10 of the New Jersey Constitution; Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); and State v. Bankston, 63 N.J. 263 (1973). Branch, supra, 182 N.J. at 348-50. There, the defendant challenged the trial judge's decision to allow Detective Calvin, who arrived at the scene ten minutes after the 9-1-1 call, to testify to alleged exited utterances made to him by two of the victims of a home invasion. Id. at 354-55. The Court noted that Calvin first spoke with one of the police officers, who was already at the home, before he interviewed the two victims. Id. at 355. Some of the information conveyed by Juliana, the child victim, was central to the State's case because it matched defendant's appearance at the time of his arrest. Id. at 356. Juliana did not testify at the trial. Ibid.

The Court observed that courts had given an "expansive read ing" to State v. Simmons, 52 N.J. 538, 540-41 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969), "with little emphasis placed on the declarant's opportunity to deliberate as a key factor in determining admissibility." Branch, supra, 182 N.J. at 363. As a result, "out-of-court statements with detailed past narratives are introduced into evidence under cover of the excited utterance doctrine." Ibid. The Court eschewed "[t]he current trend to minimize the declarant's 'opportunity to delib erate' when deciding the admissibility of a proffered excited utterance," finding it "a significant break from the common law, which frowned on the introduction of past narra tives through hearsay." Id. at 364 (citations omitted). The Court found that this tendency "has created tension with our common law and Confrontation Clause jurisprudence." Id. at 365.

The Court turned to N.J.R.E. 803(c)(2), which sets out "[t]he essential elements of an excited utterance." Ibid. That 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." N.J.R.E. 803(c)(2). The Court found that Juliana's statement related to a startling event and that she was still under the stress of excitement caused by the event even fifteen to twenty minutes after the home invasion. Branch, supra, 182 N.J. at 365. How ever, the Court expressed doubt that Juliana had not had opportunity to deliberate, at least within a common understanding of that term. Ibid. (citing 4 Oxford English Dictionary 413 (2d ed. 1989) (defining deliberate to mean "[t]o use consideration with a view to decision; to think carefully; to pause or take time for consideration")).

The Court continued:

The requirement of N.J.R.E. 803(c)(2) that the declarant make the statement "without opportunity to deliberate" is not obsolete. In Cestero [v. Ferrara, 57 N.J. 497 (1971)], we stated that the stress or shock caused by the event must "still[] the reflective fac ulties . . . so that the utterance which then occurs is a spontaneous and sincere response to the . . . external shock." 57 N.J. at 502 (quotations omitted). We noted there that "[i]t must appear that the state ments were unpremeditated emanations of the event and so connected with it as to pre clude the idea that they were products of" contrivance or calculation. Ibid.

 

[Id. at 365-66.]

 

In deciding whether Juliana had an opportunity to deliber ate, the Court focused on "a number of factors, including the shock effect of the burglary on Juliana, the time elapsed between that event and her statement, the continuing influence of the excitement caused by the burglary, the circumstances sur rounding the taking of the statement, and whether the statement was in response to questions." Id. at 366 (citations omitted). The Court then examined the evidence before it and concluded that Juliana had an opportunity to deliberate as follows:

Detective Calvin's testimony concerning Juliana's out-of-court statement was brief. We do not intimate in any way that Calvin acted improperly. Nevertheless, we do not know exactly how he framed the questions to Juliana so that he was able to ferret out information that was not spontaneously given to her mother and Officer Kollmar earlier. We do not know whether the questioning was unintentionally suggestive, in part because the detective destroyed the contemporaneous notes he took of the interview, and because the State did not call Juliana to testify, although she was apparently available. The record suggests that words were not gushing from Juliana in an excited, unreflective manner, but rather that she was thinking about her responses, i.e., deliberating. We do not imply that there is anything wrong with a witness, particularly a child, giving careful consideration to a question; in fact, it is to be encouraged. But 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. In circum stances such as in this case, we should not dilute our evidentiary requirements and admit at trial an out-of-court description that does not satisfy each element of the excited utterance doctrine, particularly when the declarant is not called as a witness and is available to testify.

 

[Id. at 366-67 (footnotes omitted).]

 

The Court then considered "the potential impact that the recent watershed decision in Crawford, supra, will have on the introduction of 'testimonial' hearsay through the excited utter ance exception and other hearing exceptions." Id. at 368. Crawford "held that 'testimonial' hearsay cannot be introduced into evidence unless there is a showing that the declarant is unavailable and that the defendant had a previous opportunity to cross-examine the declarant." Id. at 368 (citing Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203). The Crawford Court held that its prohibition on hearsay applied specifically to police interroga tions. Ibid. (citing Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203). The Branch Court observed that Crawford "is a reminder that even firmly established exceptions to the hearsay rule must bow to the right of confrontation." Id. at 369-70. Thus, it

caution[ed] courts not to give too broad a reading to the excited utterance exception when a declarant is available and does not testify. By taking such an approach we pay proper respect to the principles animating our Confrontation Clause jurisprudence and the limitations the common law placed on the excited utterance exception.

 

[Id. at 370.]

 

In a companion case decided the same day, Justice Zazzali quoted Cestero, supra, 57 N.J. at 504, for the proposition "that a statement constitutes an excited utterance when 'the circum stances reasonably warrant the inference that the statement was made as an uncontrolled response to the shock of the event before reasoned reflection could have stimulated a self-serving response.'" Cotto, supra, 182 N.J. at 328. He continued:

Consistent with the rationale for the excited utterance exception, in [State v.] Long, [ 173 N.J. 138 (2002)], we further explained that when "deciding whether there was an opportunity to fabricate or deliber ate, a court should consider the element of time, the circumstances of the incident, the mental and physical condition of the decla rant, and the nature of the utterance." [Id.] at 159 (internal quotation marks and citation omitted). Although each of these factors is important, "[t]he crucial element is the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness." State v. Lyle, 73 N.J. 403, 413 (1977). Thus, in this fact-sensitive analysis, a court must determine "whether the facts and circumstances rea sonably warrant the inference that declarant was still under the stress of excitement caused by the event." State v. Baluch, 341 N.J. Super. 141, 182 (App. Div. 2001).

 

[Ibid.]

 

The Supreme Court squarely addressed the impact of Crawford several years later in Buda I, supra, 195 N.J. at 278. There, a three-year-old child told his mother in early July 2002, "Daddy beat me," and when asked when that happened, he replied "the nighttime." Id. at 284-85. When questioned by the mother, the defendant, with whom the mother and child lived, said that the child fell in the bathtub. Id. at 285.

Two months later, the child bruised his head, and the defendant related that it again happened in the bathtub. Ibid. On Octo ber 16, 2002, the defendant went to pick up the child from his aunt's house, and the child began to cry, refusing to go with him. Ibid. He was forced to do so. Id. at 286.

Two days later, the mother noticed that the child had a big red mark on the back of his neck. Ibid. The mother pan icked and demanded to go to the hospital. Ibid. The defendant accompanied her, and while the child was being examined, the mother demanded to know what happened. Ibid. The defendant replied that he did not know. Ibid. The treating physicians reported the injuries to the Division of Youth and Family Services (Divi sion), and a member of its Special Response Unit responded to the hospital. Ibid. As the team member entered the room where the child was being treated, she heard him entreat his grandparents to take care of him and tell them that he wanted to go home with them. Ibid. The child was very upset and crying at the time. Ibid. In speaking with him alone, the child told the Division's team member that "Dad says nobody beat me. I fell when I was sleeping in my room." Ibid. (internal quotations omitted).

The defendant was charged with three counts of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a, and one count of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7). Id. at 287-88. Although the mother, the grandparents, the aunt, the Division worker, the prosecutor's investigator, and the emergency room doctor testified, the child did not. Id. at 288. The child's statements to his mother and the Division worker were admitted into evidence as excited utterances. Id. at 289-90. We affirmed that determination under the abuse-of-discretion standard. Id. at 294-95 (quoting State v. Buda, 389 N.J. Super. 241, 247-48 (App. Div. 2006) (Buda II)).

Applying that same standard, the Court agreed that the trial judge did not abuse his discretion in finding that both statements qualified as excited utterances. Id. at 295-96. The Court then considered whether the statements should nonetheless have been excluded as violative of the Confrontation Clause. Id. at 298. The Court examined the "fundamental shift in the constitutionality of evidence jurisprudence" effected by the Crawford decision. Ibid.

Crawford "reasoned that the Confrontation Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.'" Id. at 299 (quoting Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199).

Crawford instead concluded that "[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of 'reliability.'" [541 U.S.] at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. It adopted a two-pronged test: "Testimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportu nity to cross-examine." Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. While the factual determinations of whether a declarant is unavailable at trial or whether the defendant has had the prior opportunity to subject that declarant to cross-examina tion are determinable readily, the question of whether a hearsay statement is testimo nial or nontestimonial defies facile definition.

 

[Id. at 299-300.]

 

The Crawford Court "eschewed providing a comprehensive defi nition of the term 'testimonial.'" Id. at 300. It did, however, find that "'ex parte testimony at a preliminary hear ing' and '[s]tatements taken by police officers in the course of interrogations are also testimonial[.]'" Ibid. (alteration in original) (quoting Craw ford, supra, 541 U.S. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193). "This unsettled, piecemeal approach to whether a hear say statement is or is not testimonial led, in part, to" Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Buda I, supra, 195 N.J. at 301. At issue there were statements made to law enforcement personnel during a 9-1-1 call or at a crime scene. Ibid.

The Davis Court defined, in part, what constitutes a testi monial statement in the context of an interrogation:

Statements are nontestimonial 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 ongo ing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events poten tially relevant to later criminal prosecution.

 

[Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237 (footnote omitted).]

 

The Davis Court concluded "that the answers elicited by the 911 operator from the domestic violence victim were nontestimonial, yet the answers received by the on-scene police officer from the domestic violence victim at a now-quiet call for assistance were testimonial." Buda I, supra, 195 N.J. at 302.

The Buda I Court observed that Davis did not answer the ques tions before it whether the statements made to the victim's mother and to the Division worker were testimonial because those statements were not a result of a police interrogation. Ibid. The Court concluded that the statement to the victim's mother was nontestimonial because it was spontaneous and unprompted. Id. at 304. It also concluded that the victim's statement to the Division worker was nontestimonial even though it was made in response to a question because in the circumstances the Divi sion worker was responding to a life-threatening emergency, much like the 9-1-1 operator in Davis, and she was seeking informa tion "to determine how best to remove the very real threat of continued bodily harm and even death," not to gather information for a criminal prosecution. Id. at 305-06.

Here, we have two issues to resolve whether the victim's statements were excited utterances, a mixed question of fact and law that is infused with judicial discretion, and whether admis sion of the statements contravened the Confrontation Clause, a pure question of law that is subject to our plenary review.

N.J.R.E. 803(c)(2) requires demonstration of three ele ments: "A statement relating [1] to a startling event or condition [2] made while the declarant was under the stress of excitement caused by the event or condition and [3] without opportunity to deliberate or fabricate." As in Branch, supra, 182 N.J. at 365, the victim's statements related to a startling event and were made while he was under the stress of excitement caused by the event. The question is whether the victim had an opportunity to deliberate or fabricate. Unlike Branch, however, we are satisfied the judge's fact-finding that the victim had no opportunity to deliberate or fabricate cannot be said to have gone "so wide of the mark that a mistake must have been made." MacKinnon, supra, 191 N.J. at 254 (citation and internal quotations omit ted). Significantly less time elapsed between the assault and the statement than that which elapsed in Branch; the victim was injured and undoubtedly focused on his injuries while the police were apprehending the perpetrators.

We next consider whether the victim's statements were tes timonial and whether the Confrontation Clause required their exclusion from evidence during A.M.'s trial. The statements were made in response to police questioning at the scene after the perpetrators had been apprehended. The statements were accusatory and were not spontaneous. Crawford held that "[s]tatements taken by police officers in the course of interro gations are . . . testimonial." Crawford, supra, 541 U.S. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193. Davis explained that statements "are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237 (footnote omitted). Unlike in Buda I, the statement was not spontaneous and unprompted. Buda I, supra, 195 N.J. at 304. There was no longer any life-threatening emergency. Ibid.

Applying these precepts, the victim's statements to police were indeed testimonial and were not admissible in the absence of the victim at trial. See, e.g., State ex rel J.A., 195 N.J. 324, 348-49 (2008) (finding that a witness statement made to police a few minutes after he observed the juvenile commit a robbery was testimonial). The Confrontation Clause required that the statements be excluded as they deprived A.M. of the opportu nity to test the statements in the crucible of cross-examination.

Reversed and remanded for further proceedings consistent with this opinion.