STATE OF NEW JERSEY v. JERMAINE SMITH-ECHEVARRIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6150-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE SMITH-ECHEVARRIA,

Defendant-Appellant.

_________________________________________

October 31, 2011

 

Submitted January 24, 2011 Decided

 

Before Judges A. A. Rodr guez, Grall and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1263.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Following a jury trial, defendant Jermaine Smith-Echevarria was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and third degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). Defendant moved for a judgment of acquittal, R. 3:18-2, or alternatively for a new trial, R. 3:20-1. The judge denied both motions, granted the State's motion for imposition of an extended term, and imposed a fifteen-year term with a NERA1 parole disqualifier on the robbery conviction and a concurrent ten-year term on the resisting arrest conviction. We affirm.

These are the relevant facts. At about 9:00 p.m. on May 26, 2007, Alberto Aldana bicycled to a local park in New Brunswick to meet a friend. He had been paid $400 in cash from work that day. Around 11:30 p.m., Aldana left the park to return home. As he walked alongside his bicycle, because its front tire was flat, two men approached him. One, later identified as defendant, came from behind and grabbed him by the throat. Aldana was thrown to the ground and $440 was taken from him. He could not identify which of the two assailants took his money. The assailants then fled.

Aldana was dazed, but managed to get up and chase his two assailants while carrying or pushing the bicycle. At some point, the two assailants separated. Aldana pursued defendant, but lost sight of him in the area of Townsend Street. However, a bystander, later identified as Chris Conte, gestured towards defendant's location. Aldana told Conte he had been robbed by defendant and asked him to call the police. As Aldana continued his chase, he heard a police car approaching. He pointed to defendant as the individual who robbed him.

Aldana testified that the chase lasted ten to fifteen minutes. Although he did not observe defendant's face during the initial attack, he did see it clearly at one point during the chase. He did not provide any testimony regarding defendant holding a brown bag during the robbery or the chase, as Conte later reported to the police in his 9-1-1 call. Aldana told the jury that he was "a hundred percent sure" that defendant was the individual who had grabbed him from behind.

Conte did not testify, but the following portion of his 9-1-1 call was played at the trial:

THE DISPATCHER: 9-1-1.

 

THE CALLER: Hi, yeah. These two guys just ran around my house and the one guy on a bike just said the guy in front of him stole $400 from him and they took off down the street and he said call the police. So I called the police.

 

I'm on Townsend Street, 218 Townsend, just off Livingston.

 

THE DISPATCHER: 218 Townsend?

THE CALLER: I don't know. I mean, they went down the street. They're not here anymore. But, anyways, they were just here. They went down towards -- towards French Street.

 

THE DISPATCHER: What did he look like?

 

THE CALLER: They were -- the guy on the bike is a -- is a short Mexican dude with a white hat. And the other guy was a black dude with a brown paper bag and a black shirt.

THE DISPATCHER: I'm sorry, is he black, white or Hispanic?

THE CALLER: The -- the other guy running, the -- the -- was a black guy. He was kinda --

THE DISPATCHER: A black male?

THE CALLER: -- (indiscernible) five. Black male with a shirt and jeans, I guess? And he was -- he had a brown paper bag.

THE DISPATCHER: And the guy chasing him is a, what, a Hispanic Mexican? You know, on the bike?

THE CALLER: The dude -- actually, I guess, (indiscernible) the black dude and he's actually right on the corner of Livingston and --

THE DISPATCHER: (Indiscernible) All right. Let me get a car out there. Thank you for calling.

THE CALLER: Yeah, no problem.

New Brunswick Police Officer Christopher Bornheimer testified that he was patrolling alone in a marked car when he received a dispatch of a robbery. When he arrived in the area, he saw Aldana yelling about "a black guy" stealing his money and pointing toward defendant, who was about 300 feet away. Bornheimer drove his car next to defendant and ordered him to stop and approach. Defendant ran. Bornheimer left his car and chased defendant on foot. Aldana dropped his bicycle and chased after defendant. Aldana eventually was able to restrain and slow down defendant sufficiently to allow Bornheimer to grab him. Defendant struggled, but Bornheimer was able to handcuff him.

Bornheimer processed defendant at the police station. At the time of his arrest, defendant was wearing a black t-shirt and very long shorts in a denim material. Bornheimer did not find the proceeds of the robbery on defendant or in the area of the arrest.

At a pretrial hearing, the prosecutor advised that he wanted to play the 9-1-1 call, arguing that it was admissible as a present sense impression because Conte was describing the chase as it was occurring. The prosecutor explained that Conte could not testify in person because he lived in San Francisco, but offered to make him available by telephone.

The judge ruled that telephone testimony was problematic because of the need to determine the credibility of a witness. Noting her familiarity with Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the judge stated that she did not believe it was a bar to admission of the 9-1-1 tape. Defense counsel indicated that she did not object to introduction of the 9-1-1 tape because "I could use it . . . for the benefit of my case because it does not identify my client at all."

There was a brief sidebar discussion regarding the 9-1-1 tape just before it was played for the jury. The prosecutor said that rather than calling the custodian of records to establish the foundational requirements for admission of the compact disc of the 9-1-1 call, the parties had stipulated that the CD was a recording of Conte's call to 9-1-1 at the time of the incident. Defense counsel appeared surprised that the prosecutor wished to play the CD and indicated that she had misrepresented to her client that they were stipulating only that the call was made. After conferring with defendant off the record, counsel stated: "All right. He didn't have a problem with it." Defense counsel confirmed that she was stipulating to avoid the need for the custodian of records to testify.

Defense counsel then expressed concern about other portions of the call being played. The prosecutor responded that she could listen to the thirty-second section of the CD he intended to play. The judge asked whether there were any objections. Defense counsel responded, "No." The above cited portion of the 9-1-1 call was then played for the jury.

Defendant did not testify. In summation, defense counsel argued that Aldana's story that he was attacked by two individuals and then chased defendant for fifteen minutes while pushing a bicycle and dazed from the attack was not credible. Defense counsel also argued that the State had not presented any evidence linking defendant to the proceeds of the robbery.

On appeal, defendant contends:

DESPITE COUNSELS' STIPULATION TO THE ADMISSION OF THE CONTENT OF 911 CALL INTO EVIDENCE, THE TRIAL JUDGE ERRED IN NOT SUA SPONTE RULING IT TO BE INADMISSIBLE HEARSAY NOT FALLING WITHIN ANY HEARSAY RULE EXCEPTION; ALTERNATIVELY, EVEN IF THE CONTENT OF THE CALL VIOLATED CRAWFORD V. WASHINGTON, BECAUSE THE WITNESS WAS NOT UNAVAILABLE TO TESTIFY AND THERE WAS NO PRIOR OPPORTUNITY FOR CROSS-EXAMINATION. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, 1, 9 AND 10. (Not Raised Below).

 

A. The Content Of The 911 Tape Was Inadmissible Because It Did Not Fall Under Any Recognized Hearsay Exception.

 

B. Even If The 911 Tape Content Is An Excited Utterance, It Was Still Inadmissible Testimonial Hearsay That Violated Crawford.

 

C. This Case Should Be Reviewed Under The Plain Error, As Opposed To The Invited Error, Doctrine.

 

We disagree.

Defendant raises these arguments for the first time on appeal. The State does not dispute that Conte's 9-1-1 call is hearsay, but argues that it was admissible pursuant to the excited utterance exception, N.J.R.E. 803(c)(2), and that the admission is not barred pursuant to Crawford because the 9-1-1 call was non-testimonial. In addition, the State argues that reversal is not warranted pursuant to the plain error rule because defendant has not established that admission of this evidence was clearly capable of producing an unjust result.

As the parties agree, Conte's call is hearsay, as defined in N.J.R.E. 801(c). Hearsay is inadmissible unless it meets at least one of the exceptions set forth in the rules of evidence. N.J.R.E. 802; State ex rel. J.A., 195 N.J. 324, 336 (2008).

We conclude that Conte's 9-1-1 call meets the criteria for admission pursuant to the present sense impression exception to the hearsay rule. A present sense impression is "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). A present sense impression is admissible regardless of the availability of the declarant to testify at trial. N.J.R.E. 803(c).

In J.A., the Court noted that, in contrast to the non-testifying witness's statements to the police officer, the witness's earlier statements to the dispatcher "fit within the classic definition of a present sense impression" because they were made as events were unfolding. 195 N.J. at 337. Similarly, Conte called 9-1-1 as the chase was unfolding. During his call, Conte stated that he had "just" observed the chase, was asked by Aldana to call the police, and that the two individuals involved in the chase "were just here." Further, defendant was still in Conte's line of sight because he provided defendant's current location. Thus, Conte's call was essentially contemporaneous with his observation of the chase and he did not have an opportunity to deliberate or fabricate.

To the extent defendant argues that the temporal requirement is not met because Conte's call was made fifteen minutes after the robbery, after Aldona had been chasing his assailants, that claim misses the mark. Conte was not describing the robbery, but rather the chase he had just observed and was still observing. Accordingly, the 9-1-1 call was admissible pursuant to the present sense impression exception to the hearsay rule.

We also reject defendant's alternative argument, i.e., that Crawford v. Washington precludes admission of the 9-1-1 call based on Confrontation Clause grounds.

Pursuant to the Sixth Amendment of the United States Constitution, a criminal defendant has the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford, the United States Supreme Court interpreted the Confrontation Clause as prohibiting the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Thus, there is a two-step process for determining the admissibility of hearsay evidence: Does it meet the criteria for admission under any hearsay exception and, if so, is admission nonetheless barred under the Confrontation Clause. State v. Coder, 198 N.J. 451, 456 (2009). The State has the burden of proving an "exception to the constitutional right of confrontation." State v. Basil, 202 N.J. 570, 597 (2010).

Here, the State does not argue that Conte was unavailable and defendant had a prior opportunity to cross examine him. Rather, the State argues that the Confrontation Clause is not implicated because Conte's statements were not testimonial. We agree.

In Crawford, supra, the United States Supreme Court declined to provide a comprehensive definition of testimonial evidence, noting only that "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." 541 U.S. at 68; 124 S. Ct. at 1374; 158 L. Ed. 2d at 203. Several years later, the Court expanded that definition:

Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. 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 potentially relevant to later criminal prosecution.

 

[Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).]2

The Court cautioned that notwithstanding the specific reference to interrogations, it was not suggesting that all statements made in the absence of an interrogation are necessarily non-testimonial. Davis, supra, 547 U.S. at 822 n.1, 126 S. Ct. at 2274 n.1, 165 L. Ed. 2d at 237 n.1; see also Basil, supra, 202 N.J. at 591-92 (recognizing that testimonial out-of-court statements precluded by the Confrontation Clause include both statements elicited during police interrogations and voluntary statements to police).

In differentiating between statements of a witness that are and are not testimonial, our Supreme Court has focused on whether the witness was reporting "what had happened" or reporting an "ongoing emergency." See J.A., supra, 195 N.J. at 348 (discussing Davis, supra, 547 U.S. at 827-30, 126 S. Ct. at 2276-78, 165 L. Ed. 2d at 240-42). In this case, the pursuit Conte was reporting was ongoing, and he was not "narrating a past crime." Ibid. For that reason, we conclude that the judge did not err in admitting the 9-1-1 call.

Conte's statement repeating what Aldana said obviously is additional hearsay. With respect to that statement, the State argues that the Confrontation Clause is not implicated because "defendant objects to the portion of the statement attributable to [Aldana] who testified at trial and was cross examined by trial counsel." We agree that Crawford does not apply to statements made by a person who is a witness at trial. J.A., supra, 195 N.J. at 348.3 Although the State does not specifically identify that statement, the only statements in the 9-1-1 call attributable to Aldana are his statements to Conte that defendant had just robbed him and his request that Conte call the police. However, defendant's claim of plain error rests on Conte's description of defendant as holding a brown paper bag, not the statements allegedly made by Aldana. Because we find no error in the admission of Conte's narration of the pursuit, we reject that claim.

Defendant also contends,

DURING SUMMATION, THE PROSECUTOR KNOWINGLY STATED FACTS NOT IN EVIDENCE AND BOLSTERED THE CREDIBILITY OF ITS LEADING WITNESS. THESE INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. 1, 10. (Partially Raised Below).

 

A. The Prosecutor Made Misrepresentations Before The Jury Based On Facts Not In Evidence, Which Lessened The State's Burden Of Proof.

 

B. The Prosecutor's Statements In Summation Bolstered The Credibility Of The State's Witness.

 

C. The Noted Improprieties, Individually And Combined, Necessitate Reversal.

 

We disagree.

Defendant argues that the prosecutor improperly relied on facts not in evidence during his summation by suggesting that defendant put the proceeds of the robbery in the bag described by Conte, and then hid the bag prior to his arrest. He also argues that the prosecutor impermissibly bolstered Aldana's credibility by claiming that Conte had no motive to lie. We disagree.

In summation, the prosecutor said:

Again, the problem with [the] paper bag, the 911 caller says the Spanish man is chasing this black male, black shirt, jeans, paper bag. The defendant didn't hear the victim call the police . . . . [Aldana's] right behind him. As soon as he gets away there's his opportunity. Draw inferences from that. The 911 caller is telling you [Aldana's] chasing him. He's behind him. You think the defendant didn't hear him? You can draw inferences from that when you hear the 911 call. He has the bag then. Once he gets out of sight, gone. Crime of opportunity. (emphasis added).

Prosecutors have considerable leeway to make arguments during summation. State v. Echols, 199 N.J. 344, 359-60 (2009). However, that leeway is not without bounds; the prosecutor cannot make inaccurate factual claims or suggest to the jury that he or she has knowledge beyond that admitted into the evidence. Id. at 360. Nonetheless, it is entirely appropriate for the prosecutor to "'comment on the facts shown by or reasonably to be inferred from the evidence.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Carter, 91 N.J. 86, 125 (1982)). Moreover, "[a] prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, sub nom. State v. Pantoja, 169 N.J. 610 (2001). The jury ultimately must decide whether to make any inferences suggested by the prosecutor. R.B., supra, 183 N.J. at 330.

Defendant's argument that the prosecutor's reference to the brown bag was improper because it went beyond the stipulation regarding the use of the call is not persuasive. Although defendant's stipulation was limited to the foundational requirements for admission, i.e., that the CD played for the jury was what the State purported it to be, at no time did defendant object to the content of the call as inadmissible hearsay or as violating his right to confrontation. We have rejected those arguments for the reasons set forth above.

Defendant argues that the prosecutor improperly vouched for Conte's credibility by stating that Conte had no motive to lie and, in turn, improperly bolstered Aldana's credibility by using Conte's "credible" statements to corroborate Aldana's testimony. We disagree.

It is improper for a prosecutor to "express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). Nonetheless, "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). Further, a prosecutor may respond to defense counsel's attacks on the credibility of the State's witness. State v. Wilson, 57 N.J. 39, 50 (1970).

Here, defendant cites to the following portion of the summation to support his claim that the prosecutor impermissibly vouched for Conte's testimony:

What is this case about? Where is the motive for [Aldana] to make this up? Where? Just come in here, that guy robbed me, just make it up? Where's the motive to chase the guy? You know [Aldana] chased him on the bike because you heard the 911 call here telling you that. However outrageous or crazy it might seem the 911 caller tells you that. The guy is running around my house. Doesn't let the bike go chasing that individual. There's no motive.

It is apparent that the prosecutor was stating that Aldana had no motive to lie, not that Conte had no motive to lie and that the reference to the 9-1-1 call was only to corroborate Aldana's testimony that he chased defendant. Thus, the prosecutor was not stating a personal opinion regarding Conte's credibility.

Moreover, the prosecutor was not rendering an impermissible personal opinion regarding Aldana's credibility, but rather was urging the jury to find Aldana credible based on evidence in the record. When read within the context of the entire summation, it is apparent that in the challenged portion the prosecutor was arguing about the credibility of Aldana's statement that his money was taken during incident. In that regard, the prosecutor asked the jury to draw the inference that the only plausible explanation for Aldana's decision to chase defendant was that he wanted to recover his hard-earned money.

Thus, unlike Walden, the prosecutor's statements regarding Aldana's credibility cannot reasonably be construed as his personal opinion. 370 N.J. Super. at 560. Accordingly, they were not improper.

Defendant also contends,

THE COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN EXTENDED TERM. ALTERNATIVELY, GIVEN THE FACTS OF THIS CASE, 15 YEARS WITH AN 85% PAROLE BAR IS EXCESSIVE.

 

Because we discern no abuse of the judge's discretion or deviation from the code's sentencing guidelines or State v. Pierce, 188 N.J. 155 (2006), we reject these claims as lacking sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In a supplemental brief, defendant contends:

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHEN SHE FAILED TO REQUEST A GROSS HEARING REGARDING THE VICTIM'S INCONSISTENT STATEMENT, WHICH DEPRIVED HIM FROM HAVING A FAIR TRIAL, CONTRARY TO U.S. CONST. AMENDS. XIV, VI, AS WELL AS N.J. CONST. ART. 1, PAR. 10.

 

COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADJOURNMENT TO INVESTIGATE THE EXISTENCE AND POSSIBLE TESTIMONY OF AN ALLEGED UNINDICTED INDIVIDUAL WHOM THE DEFENDANT WAS CHARGED WITH AS AN ACCOMPLICE (Partially Raised Below).

 

COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL ANY WITNESSES TO TESTIFY IN HIS BEHALF, WHEN SUCH WITNESS WAS AVAILABLE TO PROVIDE FAVORABLE TESTIMONY IN DEFENDANT'S BEHALF, CONTRARY TO U.S. CONST. AMENDS. XIV, VI, AS WELL AS N.J. CONST. ART. 1, PAR. 10 (Preserved For Post-Conviction).

 

Theses issues relate to claims of ineffective assistance of trial counsel. We do not address them because they involve facts outside of the record. See State v. Preciose, 129 N.J. 451, 462 (1992). Defendant's right to raise these issues by means of a petition for post-conviction relief, R. 3:22-1 to -12, is preserved.

Affirmed.

1 No Early Release Act N.J.S.A. 2C:43-7.2.

2 The United States Supreme Court consolidated a companion case Hammon v. Indiana, with Davis.

3 There is no reason to consider whether the judge should have excluded Conte's description of Aldana's prior consistent statement identifying defendant as a robber. See N.J.R.E. 607. Considered in context, this reference was not offered to and did not improperly bolster Aldano's credibility and did not have the capacity to affect the verdict.