STATE OF NEW JERSEY v. JOEY RICHBURG

 

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

JOEY RICHBURG,

Defendant-Respondent.

January 5, 2016

_________________________________________
 

Before Judges St. John and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-08-1576.

Nidara Y. Rourk, Assistant Prosecutor, argued the cause for appellant (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Rourk, on the brief).

Dennis D.S. McAlevy argued the cause for respondent.

PER CURIAM

We granted the State leave to appeal the discrete issue of whether the trial court erred in determining the 9-1-1 "caller's identification of defendant as Joey Richburg is testimonial and must be redacted."

The motion judge did not conduct an evidentiary hearing. The facts are derived from a six-page transcript of a recorded 9-1-1 call (the 9-1-1 tape) made by a then-unknown caller to Jersey City Police operator 391.1 The 9-1-1 tape contained, in pertinent part, the following exchange.

Q. Jersey City Police Operator 391 how may I help you?

A. They shooting out here 114 Neptune Avenue right in front of 114 they shooting at each other.

Q. Or who is it you got a description of them?

A. Um one guy has uh like uh like a beige sweat suit on and he has a wool cap on and he went to (inaudible) and Old Bergen Road. And I can't even see the other guy, I don't know if he shot or not but it was just this second.

. . . .

Q. Anybody shot do you see anybody laying on the ground?

A. I don't know I don't see the other guy I saw them turn into Old Bergen Road he has on like a beige suit on he is a good um I'd say about 5'10 maybe 5'11.

Q. And wool cap and you said he turn [where]?

A. To Old Bergen Road he is medium built.

Q. Ok.

A. You see the other guy.

A2. Nah he laying in the hallway.

. . . .

Q. Where is the other guy, what is your name [ma'am]?

A. I am not even leaving my name these guys shooting each other oh my God.

Q. Ok where is the other person?

A. The other guy um um someone outside just told me that the other guy ran up into this hallway in 115 Neptune Avenue.

. . . .

Q. Ok the victim ran into 116 Neptune Avenue.

A. Both of them had guns both of them were shooting at each other.

Q. Ok.

A. I don't know if someone is shot but they were shooting at each other like if they were cowboys.

Q. Ok.

A. And all of this is happening between 114 and 116 right here in the front darn building.

. . . .

Q. Stay on the line for the EMS ok.

Q22. (inaudible) what's your emergency).

A. Um right outside between 114 and 116 Neptune Avenue there was gunshots these guys were shooting at each other oh oh.

Q2. Operator.

A. Oh I can see the other one hold on a second I see the other one going towards Old Bergen East he is about 5'9.

Q2. Yea we got him.

A. Hold on for a sec.

Q2. I mean she is in her house right now.

A. I am in the house yes, the other guy came out of 116 he had on like a gray sweat pants.

. . . .

Q. Where is he at now?

A. I see him he is at Old Bergen and um Neptune because I can see him from my window.

Q. Old Bergen and Neptune.

A. Ah ha and he has no hat on he has a bald head no hat the police car is right there.

Q. Ok hold on.

A. Now I see the guy walking now I see the guy walking down Old Bergen Road.

Q. Ok Old Bergen he is black male right?

A. Yes he is they both are listen um the one I am talking about now.

Q. Ah ha.

A. The one with the black jacket.

. . . .

Q. Ok and he had something to do with the shooting?

A. They both was shooting they both was shooting um the one that just came out of 116.

Q. Uh huh.

A. He is well known they call him Rock his name is Joey Richburg.

Q. Joey what?

A. Richburg.

Q. Richburg.

A. Ah ha.

Q. I can't hear you name.

A. Joey Richburg.

Q. Joey Richburg ah ha.

A. Richburg I think R-i-c-h-b-u-r-g.

. . . .

Q. Ok that's the guy standing on the corner.

A. He just went around the corner him and this other guy I don't know who the other guy was the other one that I told you with the white or beige sweat suit.

. . . .

Q. Anything else you see?

A. No I saw I saw the Richburg guy going towards where he lives at he lives on Old Bergen Road the police (inaudible).

Q. I can't hear you.

A. I saw the Richburg guy walking down Old Bergen Road towards where he lives between um Seaview and Old Bergen Road the police know him well am sure you have his address right there you know the police up here Joey Richburg and I don't know who the other guy was.

. . . .

Defendant moved to exclude the 9-1-1 tape and the State argued it should be admitted in its entirety.3 By order dated February 18, 2015, the court excluded that portion of the 9-1-1 tape in which the caller identified defendant Joey Richburg as one of the shooters. In its written opinion, the court concluded the statements made by the caller up to the identification by name of the defendant were non-testimonial and are to be admitted. However, the court determined

Once the police arrived, it is clear that the emergency was over. At this point, both shooters have "fled" the immediate area. While the shooters are still armed and dangerous, police have been provided with sufficient information regarding the shooting, a description of the shooters, and the direction of their subsequent flight from the area. As the court in Davis noted, once "the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended, and therefore it could readily be maintained that the victim's statements after the defendant's flight were testimonial." Supra, 547 U.S. at 828-29. An ongoing emergency does not exist so long as the suspects are at large. See J.A., supra, 195 N.J. at 348 (the court in Michigan v. Bryant also recognized the emergency did not last until the defendant was arrested a year later in California). Accordingly, the caller's subsequent identification of defendant as Joey Richburg is testimonial and must be redacted.

Our standard of review of a trial judge's evidentiary rulings is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (internal quotation marks omitted). Our review of related legal issues is plenary. State v. Handy, 206 N.J. 39, 45 (2011).

The 9-1-1 statement by the then-unknown woman must be reviewed in context. The caller was looking out her window observing the shooting as it occurred. She also stated, "they both was shooting they both was shooting um the one that just came out of 116." (emphasis added). Her next statement was,

"he is well known they call him Rock his name is Joey Richburg."

N.J.R.E. 803(c)(1) allows introduction of an out-of-court statement, without regard to the declarant's availability, if it constitutes "[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." In State ex rel. J.A., 195 N.J. 324, 336-37 (2008), our Supreme Court had the occasion to interpret the phrase "immediately after" in the context of a case in which there was an interval of approximately ten minutes between the event observed and the making of the statement at issue.

The Court reviewed the Federal Rules of Evidence, as well as reported cases, and observed that

it is not hairsplitting to recognize a distinction between a matter of seconds, however many they may be, and an interval of as much as ten minutes separating a recollection from the observation. For purposes of a present sense impression, a declarant's statement that "the blue sports car is going through the red light" or that "the blue sports car just went through the red light" (seconds ago) is different from a declarant's statement that "the blue sports car went through the red light ten minutes ago."

[Id. at 339.]

As a result, the Court "conclude[d] that the non-appearing witness's statements relating the details of a robbery that occurred ten minutes earlier is not the equivalent of describing the crime 'immediately after' it occurred." Id. at 340. Here, the 9-1-1 tape demonstrates that the caller's observations were made while she was perceiving the event or condition and without opportunity to deliberate or fabricate. Consequently, the 9-1-1 tape would be admissible under N.J.R.E. 803(c)(1).

We now turn to the related constitutional issue. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. See also Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923, 927-28 (1965) (applying the right to the states through the Fourteenth Amendment).

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court explained that the Confrontation Clause applied to "testimonial statements" by absent witnesses. The Court held that "[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." Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. Consequently, if the caller's statement was "testimonial," the admission of the 9-1-1 tape would violate Crawford because the caller was not and never had been available for cross-examination by the defendant.

However, Crawford did not bar the use of all hearsay at trial. Out-of-court non-testimonial statements, although subject to a state's hearsay rules, were "exempted . . . from Confrontation Clause scrutiny." Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. The Crawford Court left for another day a more "comprehensive definition of 'testimonial.'" Ibid.

Although Crawford did not specifically define what statements would be considered "testimonial," subsequent cases make clear that statements "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" are not testimonial. See Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).

Statements are testimonial where the circumstances indicate there is no ongoing emergency and "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Ibid. Thus, as the Supreme Court recently reiterated, "the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.'" Ohio v. Clark, ___ U.S. ___, ___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306, 315 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107 (2011)). "[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. 'Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.'" Ibid. (quoting Bryant, supra, 562 U.S. at 359, 131 S. Ct. at 1155, 179 L. Ed. 2d at 107-08).

"Our state confrontation jurisprudence has followed the federal approach, focusing on whether a statement is testimonial[,]" State v. Roach, 219 N.J. 58, 74 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015), through application of the "primary purpose test." State v. Michaels, 219 N.J. 1, 30-32, cert. denied, U.S. , 135 S. Ct. 761, 190 L. Ed. 2d 635 (2014). "In order to correctly apply the Crawford analysis," a court "must consider first whether the particular evidence is admissible under the ordinary rules of evidence." State v. Chun, 194 N.J. 54, 139, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). If so, the next inquiry is "whether the particular evidence is 'testimonial' within the meaning of the Confrontation Clause, for if it is, then the fact of admissibility for purposes of the exceptions to the hearsay rules is insufficient" to warrant admission absent cross-examination. Id. at 138-39. See also State v. Sweet, 195 N.J. 357, 368 (2008).

Davis is particularly comparable to the facts under review. In Davis, the victim made a telephone call to 9-1-1 and spoke to an emergency operator while her former boyfriend, the defendant, was beating her. Id. at 817-18, 126 S. Ct. at 2270-71, 165 L. Ed. 2d at 234. The victim identified her assailant to the operator as the domestic violence was ongoing. Id. at 818, 126 S. Ct. at 2271, 165 L. Ed. 2d at 234. During the 9-1-1 call the defendant fled from the victim's home. Ibid. Within four minutes of the 9-1-1 call, the police arrived, observing the victim's "shaken state" and physical injuries to her body. Id. at 818, 126 S. Ct. at 2271, 165 L. Ed. 2d at 235. At trial, the victim did not testify, but her statements to the 9-1-1 operator were admitted as the primary evidence against the defendant. Id. at 818-19, 126 S. Ct. at 2271, 165 L. Ed. 2d at 235.

The Court determined that the statements made by the victim to the 9-1-1 operator were non-testimonial for several key reasons, including: (1) the statements were elicited "to resolve the present emergency, rather than simply to learn . . . what had happened in the past"; (2) the victim "was speaking about events as they were actually happening, rather than 'describ[ing] past events'"; and (3) the victim's "call was plainly a call for help against a bona fide physical threat." Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240 (citations and emphasis omitted). Viewed objectively, the operator's questioning of the victim "indicate[d] its primary purpose was to enable police assistance to meet an ongoing emergency." Id. at 828, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240.

Importantly, in Davis, the Court noted that once "the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended," and therefore "[i]t could readily be maintained" that the victim's statements after the defendant's flight were testimonial. Id. at 828-29, 126 S. Ct. at 2277, 165 L. Ed. 2d at 241. The Court instructed that an in limine procedure be used to parse and redact those portions of a statement that are testimonial from those portions that are non-testimonial. Id. at 829, 126 S. Ct. at 2277, 165 L. Ed. 2d at 241.

We conclude that the caller's statements in the 9-1-1 tape identifying one of the gunmen as Joey Richburg were not testimonial because, at the time she spoke with the police operator, the police were actively pursuing the fleeing suspects. The 9-1-1 tape reveals that the statements by the caller were elicited to resolve the present emergency; she was speaking about events as they were actually happening; and the call was plainly a plea for help against a bona fide threat from two armed men who fired numerous rounds.4 The questions asked by the operator made it clear that the operator was more interested in the apprehension of the suspects than in gathering evidence for a prosecution.

Therefore, we conclude the 9-1-1 tape was non-testimonial and admissible in its entirety under N.J.R.E. 803(c)(1).

Reversed and remanded for further proceedings consistent with our opinion. We do not retain jurisdiction.

1 The State has since learned the identity of the caller.

2 Q2 is the Emergency Medical Services (EMS) operator.

3 The court determined it would conduct a Driver hearing prior to the admission of the 9-1-1 tape at trial. See State v. Driver, 38 N.J. 255 (1962).

4 A woman was shot in the abdomen while in the bedroom of her apartment by one of the stray bullets.