STATE OF NEW JERSEY v. DARNELL ESDAILE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL ESDAILE,

Defendant-Appellant.

February 12, 2014

________________________________________________________________

 

Before Judges Lihotz and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-04-0609.

 

Ruth E. Hunter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hunter, on the briefs).

 

Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).

 

PER CURIAM

A jury convicted defendant Darnell Esdaile of fourth-degree shoplifting, N.J.S.A.2C:20-11(b)(1). The court sentenced defendant to one-year probation.

Defendant appeals from his conviction raising the following issues:

I. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE COURT EXCLUDED DEFENDANT'S STATEMENT THAT FELL WITHIN THE "EXCITED UTTERANCE" EXCEPTION TO THE HEARSAY RULE AND THAT WAS CENTRAL TO HIS DEFENSE.

 

A. Defendant's Statement That the Alleged Shoplifting Was a Misunderstanding Was an "Excited Utterance" Pursuant to N.J.R.E. 803(c)(2).

 

B. Because the Excited Utterance Was Critical Evidence of Defendant's Primary Defense, the Exclusion of the Officer's Testimony was Reversible Error.

 

We have considered these arguments in light of the record and applicable legal standards, and conclude they lack merit.

The facts as adduced from the trial record are as follows. 3 On November 11, 2010, defendant went to the Home Depot in Freehold and loaded a cart with eight cases of laminate flooring valued at $533.37. Ashley Cruz, a store clerk, testified that as defendant approached the register he told her that he had already paid for the flooring. Because defendant was unable to produce a receipt, Cruz pointed him to the service desk for further assistance.

At this point, Cruz alerted the loss prevention officers, Maria Scalese and Noisa German, to "keep an eye out" for defendant. Scalese testified that she and German observed defendant push his cart around the store for some time, approach a separate store clerk, pay for the flooring, leave the store, and load the merchandise into his car. She and German then saw defendant re-enter the Home Depot. They watched as defendant loaded eight identical cases of laminate flooring, as well as several pieces of quarter round molding, into his cart and proceed to a different cash register.

Defendant told the cashier he had already paid for the flooring and gave her the receipt from the earlier purchase. The cashier determined the SKU numbers on the receipt matched the SKU numbers on the boxes of flooring in defendant's cart, and, therefore, only charged him for the molding. During the transaction, Scalese, who had been watching defendant's actions, directed the front-end supervisor to approach the cashier and confirm that she had only rung up the molding. After paying, defendant pushed the cart containing the eight cases of flooring and the molding out of the store, where Scalese and German were waiting to stop him.

Scalese and German identified themselves as asset protection officers and advised defendant that they needed to speak to him about the unpaid flooring. German and Guy McKelvery, another Home Depot employee, escorted defendant to the asset protection office, and Scalese followed them with the merchandise. According to Scalese, once they were in the office, defendant stated he was "sorry." Defendant also claimed he "didn't know why [he] did this," but indicated he "was getting a divorce." Finally, Scalese testified defendant offered to pay for the flooring if they could keep this "in-house."

Although German did not testify, defendant and the State stipulated to the admission of her statement to a detective. This statement indicated that Scalese asked defendant why he was in their office for this situation, to which he replied "I don't know, I'm going through a divorce." German stated that defendant requested that the matter be handled in-house with no law enforcement involvement. She told defendant if he cooperated, the police would not have to "become involved" and there would just be some paperwork to process.

When German asked defendant for identification, he said he was a Freehold Township police officer and showed his police badge and driver's license. Scalese left the office to call the police to report the shoplifting incident. She advised dispatch that the suspect was a police officer and gave defendant's name.

After ten to fifteen minutes, Scalese met responding Freehold Township Officers Piccolini and Brikowski outside the store and showed them defendant's car containing the purchased flooring. She then escorted the officers to the office. According to Scalese, when the officers entered the office, defendant was surprised and upset, and yelled to her "you ruined my life. You said I could pay for the flooring." The officers then asked Scalese and German to leave the office while they spoke to defendant. A short time later, the officers escorted defendant out of the store.

Before opening arguments at trial, defendant sought an evidentiary ruling declaring statements defendant made to the officers in the asset protection office admissible as excited utterances. Defense counsel proffered that Piccolini would testify that he "and Officer Brikowski walked into the office and explained to Mr. Esdaile that the store was signing complaints. He became upset, insisted 'it was a misunderstanding' and asked the [loss prevention officer] to reconsider." The State argued that the statements were self-serving, self-exculpatory, and made after reasoned reflection surrounding the shoplifting event. The court deferred its ruling until after the State rested its case. When that time came, the court disallowed the proffered testimony.

In light of the factors enunciated in State v. Branch, 182 N.J.338 (2005), the court made the following findings:

One, the amount of time that transpired from the startling event to the utterance. At least 20 minutes had passed, allowing the defendant to reflect on his predicament.

 

This [c]ourt is satisfied that the startling event here was the detaining of the defendant as he exited the store, not when the police arrived and advised him that the complaints were going to be signed.

 

Two, the circumstances of the event. Here, the defendant had already begun to compile excuses for his conduct, which he did not apparently deny. He stated, prior to the police arriving, that, quote, I'm sorry, I don't know why I did this, close quote. He further noted, I'm going through a divorce, close quote.

 

Thus, prior to the police arrival, defendant was reflecting on his conduct and attempting to justify or excuse what had occurred.

 

This [c]ourt is satisfied that the remark, quote, It was a misunderstanding, close quote, was just another attempt to explain his actions and not a, quote, uncontrolled response, close quote, as noted referred to in [State v. Cotto, 182 N.J. 316 (2005)], but, yet, another attempt to explain his actions.

 

Three, the mental and physical condition of the declarant. Naturally, the defendant was upset, as would anyone in this situation. However, the fact that he was a police officer is not lost on this [c]ourt. Defendant was likely more familiar than most with the procedures that are followed when a shoplifting is investigated and the likelihood of charges being brought.

 

Four, the shock produced. I referred to that.

 

Five, the nature of the statement. It is clear that this defendant's statement is nothing more than a self-exculpatory and self-serving statement, and prohibited by our rules against hearsay. See N.J.R.E. 801, et seq.

This [c]ourt is satisfied that the statement proffered does not satisfy the exception to the hearsay rule for admittance under excited utterance, and, therefore, I will not permit the question to be asked to Officer Piccolini as proffered.

 

Defendant did not present a defense. After its deliberations, the jury returned a guilty verdict of fourth-degree shoplifting for items valued between $200 and $500.

We review a trial court's evidentiary determinations under the abuse of discretion standard. State v. Buda, 195 N.J.278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J.6, 12 (2008)). An abuse of discretion occurs when the trial judge's "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).

An excited utterance is "[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 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) (internal quotation marks omitted). "An essential inquiry as to the admissibility of a statement as an excited utterance is whether the declarant had the opportunity to deliberate, reflect or misrepresent before making the statement or whether it was made spontaneously and in a state of excitement so as to negate fabrication." State v. Clark, 347 N.J. Super.497, 506 (App. Div. 2002).

Here, defendant challenges the court's determination that the startling event was the initial detainment rather than the arrival of the police. We are not persuaded. The court reasonably rejected defendant's argument, and determined defendant should not have been surprised by the arrival of his colleagues in light of his knowledge and experience as a police officer.

Assuming the arrival of the officers satisfies the startling event requirement, the relationship of defendant's statement in response to the event is dubious. N.J.R.E.803 (c)(2) requires that the statement be "related to" the startling event. Here, the proffered statement, "it was a misunderstanding," does not relate to seeing the officers, but rather relates back to the shoplifting incident and the litany of excuses defendant had already made to the store employees.

Moreover, the statement is fueled by self-interest and is therefore unreliable. SeeLong, supra, 173 N.J.at 158. Defendant had ample opportunity to deliberate or fabricate before he spoke to Piccolini, as demonstrated by the similarity of the statements he made to the store employees and to the police officers. The court reasonably concluded that this was a "self-exculpatory and self-serving statement."

We conclude the essential elements of an excited utterance were not present in this case; therefore, the statement was properly excluded. The judge grounded his exclusion of the proffered evidence on a reasoned interpretation of facts in the record. We find no abuse of discretion.

Defendant also contends the exclusion of his statement deprived him of a fair trial. Defendant argues that his statement to Piccolini was critical to his defense. He contends that since he exercised his right not to testify, Piccolini's testimony presented the only opportunity for defendant to offer his version of the incident. This claim is without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).

Affirmed.

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