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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3577-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
URIAH HILL,
Defendant-Appellant.
_______________________________
Submitted May 9, 2017 – Decided September 19, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 14-05-0453.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Y. Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Jennifer
Paszkiewicz, Assistant Prosecutor, of
counsel; Boris Moczula, Legal Assistant, on
the brief).
The opinion of the court was delivered by
SUMNERS, J.A.D.
At the start of trial, the judge denied defendant's motion
to suppress his video-recorded statement to the police and the
audio recording of a 911 call. When the State did not produce the
911 caller to testify at trial, the trial judge denied defendant's
request that the jury be allowed to draw an adverse inference due
to her non-appearance. The jury subsequently found defendant
guilty of the lesser-included offense of third-degree aggravated
assault,
N.J.S.A. 2C:12-1(b)(1), against his then girlfriend (the
victim). The trial judge granted the State's motion for a
discretionary extended term as a persistent offender,
N.J.S.A.
2C:44-3(a), and imposed a sentence of seven years with three years
of parole ineligibility.
Defendant raises the following arguments on appeal:
POINT I
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS
VIOLATED BY THE TRIAL COURT'S RULING THAT
DEFENDANT'S STATEMENT WOULD BE ADMISSIBLE IN
SPITE OF THE FACT THAT HE WAS NOT GIVEN AN
OPPORTUNITY TO DECLINE TO WAIVE HIS FIFTH
AMENDMENT RIGHTS. U.S. CONST. Amend. V; N.J.
CONST. [(1947),] Art. I, PARA. 1 and 10.
POINT II
THE ADMISSION OF THE DECLARATIONS MADE IN THE
911 TAPE BY THE NON-TESTIFYING WITHNESS []
VIOLATED CRAWFORD V. WASHINGTON [1] BECAUSE THE
DECLARATION WAS TESTIMONIAL AND THE DEFENSE
1
Crawford v. Washington,
541 U.S. 36,
124 S. Ct. 1354,
158 L. Ed. 2d 177, 194 (2004).
2 A-3577-14T3
HAD NO PRIOR OPPORTUNITY TO CROSS-EXAMINE HER.
U.S. CONST. Amends. VI, XIV; N.J. CONST.
(1947), Art. I, PARAS. 1, 9 and 10
POINT III
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
REQUEST TO PROVIDE THE JURY WITH A CLAWANS[2]
CHARGE ABOUT THE STATE'S FAILURE TO PRODUCE
[THE 911 CALLER] DENIED THE DEFENDANT HIS
RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S.
CONST. AMENDS. V, VI, AND XIV; N.J. CONST.
(1947), ART. I, PARS. 1,
9 AND 10. (RAISED
BELOW).
POINT IV
THE EXTENDED TERM SENTENCE OF SEVEN YEARS,
THREE WITHOUT PAROLE, FOR THIS THIRD-DEGREE
AGGRAVATED ASSAULT IN THE MATTER IS EXCESSIVE.
Having considered defendant's arguments in light of the record and
the applicable law, we affirm his conviction, but reverse and
remand for resentencing.
I.
The trial record revealed the following. According to two
eyewitness, a man punched a woman in the face and kicked her, as
she lay unconscious on the ground next to a gas station pump. The
third witness, who reported the assault to the police by calling
911, did not testify because the State could not locate her. In
her recorded call played to the jury, she stated that she "just
2
State v. Clawans,
38 N.J. 162 (1962).
3 A-3577-14T3
witnessed a woman get the shit beat out of her [by a man]. . . .
She's knocked unconscious[,]" and "he kicked her like 3 times[,]"
then "walked off cussing." She also commented that the woman was
bleeding, crying, and upset. Based upon the description of the
assailant provided by the three witnesses, the police apprehended
defendant a few hundred yards away from the gas station. At the
police station, defendant gave a video-recorded statement that was
shown to the jury, in which he admitted hitting the victim, his
then girlfriend.3 Also shown to the jury were video surveillance
cameras' recordings depicting defendant's confrontation with the
victim, and defendant kicking her after she fell to the ground.
The victim did not testify, but photographs taken at the hospital
showing her injuries were admitted into evidence.
II.
We first address defendant's claim in Point I that his video-
recorded statement taken at the police station was obtained in
violation of his Miranda4 rights, and that, following a pre-trial
hearing, the trial judge erred in allowing its admission.
3
A transcript of the interview was provided to the jury to follow
during the playing of the video but was not admitted into evidence.
4
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
4 A-3577-14T3
Prior to giving a statement, defendant was read his Miranda
rights, which he said he understood. Although defendant was not
specifically asked if he was waiving his rights before he gave a
statement, he confirmed his understanding of his rights by
initialing, signing, and dating the Miranda card. Defendant then
proceeded to describe the events that led to his admission that
he struck his girlfriend. At the conclusion of his statement, he
again acknowledged that he understood his Miranda rights and that
he was not forced into making statements that he did not want to
make.
The judge denied defendant's motion to suppress the statement
based upon his review of the video recording and the transcript
of the recording. Looking at the totality of the circumstances
and acknowledging that it was the State's burden to prove the
statement's admissibility, the judge found "there is no reasonable
doubt that would yield to the conclusion that this was nothing
other than a knowing and voluntary waiver of Miranda rights."
We review a trial judge's factual findings in support of
granting or denying a motion to suppress to determine whether
"those findings are supported by sufficient credible evidence in
the record." State v. Gamble,
218 N.J. 412, 424 (2014). Where
the judge determines whether a defendant waived his right to remain
silent based solely on a video-recorded statement or documentary
5 A-3577-14T3
evidence, our Supreme Court recently held that we defer to a trial
court's factual findings. State v. S.S.,
229 N.J. 360, 374 (2017).
The Court in S.S. also addressed and reaffirmed this State's
historical commitment to an individual's right against self-
incrimination. "The right against self-incrimination is
guaranteed by the Fifth Amendment to the United States Constitution
and this state's common law, now embodied in statute,
N.J.S.A.
2A:84A-19, and evidence rule, N.J.R.E. 503." Id. at 28 (quoting
State v. Nyhammer,
197 N.J. 383, 399, cert. denied,
558 U.S. 831,
130 S. Ct. 65,
175 L. Ed. 2d 48 (2009)). Most importantly, the
Court reaffirmed the standard that a reviewing court uses to
determine if a defendant asserted his right against self-
incrimination.
Any words or conduct that reasonably appear
to be inconsistent with defendant's
willingness to discuss his case with the
police are tantamount to an invocation of the
privilege against self-incrimination. In
those circumstances in which the suspect's
statement is susceptible to two different
meanings, the interrogating officer must cease
questioning and "inquire of the suspect as to
the correct interpretation." Unless the
suspect makes clear that he is not invoking
his right to remain silent, questioning may
not resume. In other words, if the police are
uncertain whether a suspect has invoked his
right to remain silent, two alternatives are
presented: (1) terminate the interrogation or
(2) ask only those questions necessary to
clarify whether the defendant intended to
invoke his right to silence.
6 A-3577-14T3
To invoke the right to remain silent, a
suspect does not have to follow a prescribed
script or utter talismanic words. Suspects
are mostly lay people unschooled in the law.
They will often speak in plain language using
simple words, not in the parlance of a
constitutional scholar. So long as an
interrogating officer can reasonably
understand the meaning of a suspect's words,
the suspect's request must be honored.
[Id. at 29-30 (citations omitted).]
Here, the record supports the motion judge's finding that
defendant was fully informed of his right to remain silent, waived
that right, and was aware that he was being investigated for the
assault in a domestic violence situation before he decided to
cooperate with the investigation and provide self-incriminating
information. Thus, defendant's Miranda rights were not violated.
Next, we turn to defendant's contention in Point II that
admission of the 911 audio recording of the non-testifying caller
violated his confrontation rights under Crawford. Defendant
argues some of the 911 remarks were testimonial and were so
intertwined with non-testimonial comments that he was denied the
opportunity to challenge the testimonial comments because the
caller did not testify.
We review the trial court's evidentiary rulings to determine
whether there was a mistaken exercise of discretion. State v.
7 A-3577-14T3
J.D.,
211 N.J. 344, 354 (2012). Where a 911 call is admitted into
evidence, we must consider the principles embodied in the Sixth
Amendment's Confrontation Clause, which preclude the admission
against a defendant of "[t]estimonial statements of witnesses
absent from trial," unless "the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine."
Crawford, supra,
541 U.S. at 59,
124 S. Ct. at 1369,
158 L. Ed. 2d at 197. "Testimonial" statements often include those made
during structured police interrogation. Id. at 69,
124 S. Ct. at
1374,
158 L. Ed. 2d at 203. Nonetheless:
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 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).]
Generally, "at least the initial interrogation conducted in
connection with a 911 call, is ordinarily not designed primarily
to 'establis[h] or prov[e]' some past fact, but to describe current
circumstances requiring police assistance." Id. at 827, 126 S.
8 A-3577-14T
3 Ct. at 2276,
165 L. Ed. 2d at 240 (alterations in original). That
is particularly so when "any reasonable listener would recognize
[the 911 caller] was facing an ongoing emergency." Ibid. If,
when viewed objectively, the nature of the colloquy between the
911 caller and the person called is such "that the elicited
statements [are] necessary to be able to resolve the present
emergency, rather than simply to learn . . . what had happened in
the past," the content of the call is not testimonial. Ibid.
We agree with the trial judge that the 911 caller was facing
an ongoing emergency and that her statements were non-testimonial.
As in Davis, the caller's sole purpose was to describe present
facts requiring police assistance. Although the caller gave a
graphic and colorful description of what she saw, nothing in the
call suggests that it was her or the 911 operator's intent that
the she was declaring what had happened in the past to preserve
testimony for trial.
Similarly, we agree with the judge's finding that the 911
call was admissible under our evidence rules as a present sense
impression or an excited utterance. 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). An excited
9 A-3577-14T3
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 911
statements satisfied the elements of both hearsay exceptions. We
also note that these exceptions apply "[w]hether or not the
declarant is available as a witness[.]" N.J.R.E. 803(c).
Furthermore, even if we concluded the 911 call was
inadmissible, it would not cause us to reverse defendant's
conviction. Reversal of a conviction is required only if there
was error "sufficient to raise a reasonable doubt as to whether
[it] led the jury to a result it otherwise might not have reached."
State v. Daniels,
182 N.J. 80, 95 (2004) (alteration in original)
(internal quotation omitted) (quoting State v. Macon,
57 N.J. 325,
336 (1971)); R. 2:10-2. Our review of the record convinces us
that there was overwhelming evidence of defendant's guilt through
the two eyewitnesses' testimony that they saw defendant strike and
kick the victim, the surveillance videos depicting the
confrontation and defendant's kick of the victim, photos of the
victim's injury, and the defendant's admission that he argued with
and then struck the victim. Thus, admission of the 911 call did
not cause an unjust result.
10 A-3577-14T3
In Point III, defendant further challenges the admission of
the 911 call by contending that the judge erred in refusing to
give a Clawans charge to allow the jury to draw an adverse
inference from the State's failure to produce the testimony of the
911 caller. There is no merit to this contention.
In Clawans, our Supreme Court ruled that a party's failure
to produce a witness at trial may give rise to an inference that
the witness' testimony would have been unfavorable to that party.
Clawans, supra,
38 N.J. at 170 (1962). A trial judge may provide
an adverse inference charge after considering and making findings
based on the following circumstances:
(1) that the uncalled witness is peculiarly
within the control or power of only the one
party, or that there is a special relationship
between the party and the witness or the party
has superior knowledge of the identity of the
witness or of the testimony the witness might
be expected to give; (2) that the witness is
available to that party both practically and
physically; (3) that the testimony of the
uncalled witness will elucidate relevant and
critical facts in issue[;] and (4) that such
testimony appears to be superior to that
already utilized in respect to the fact to be
proven.
[State v. Hill,
199 N.J. 545, 561 (2009)
(alteration in original) (quoting State v.
Hickman,
204 N.J. Super. 409, 414 (App. Div.
1985), certif. denied,
103 N.J. 495 (1986)).]
11 A-3577-14T3
Here, none of these circumstances applies. There is no
evidence that the caller was in the sole control of the State, or
had a special relationship with the State. She was available to
defendant if he wanted her to testify. Yet, given her
observations, we find no basis to conclude that her testimony
would have aided his defense. Considering the other strong
evidence presented by the State, the caller's testimony was not
essential to establish defendant's guilt.
Finally, we turn to defendant's contention in Point IV that
we should remand for resentencing because the judge's application
of aggravating factor number one,
N.J.S.A. 2C:44-1(a)(1) (the
nature and circumstances of the offense, including whether it was
committed in an especially heinous, cruel, or depraved manner),
was not supported by the facts. We agree.
We note that "[a]ppellate review of the length of a sentence
is limited." State v. Miller,
205 N.J. 109, 127 (2011).
Nevertheless, we do not affirm a sentence where "the aggravating
factors . . . found by the sentencing court were not based upon
competent and credible evidence in the record." State v. Fuentes,
217 N.J. 57, 70 (2014) (alteration in original) (quoting State v.
Roth,
95 N.J. 334, 364-65 (1984)). "When applying [factor one],
'the sentencing court reviews the severity of the defendant's
crime, the single most important factor in the sentencing process,
12 A-3577-14T3
assessing the degree to which defendant's conduct has threatened
the safety of its direct victims and the public.'" Id. at 74.
(quoting State v. Lawless,
214 N.J. 594, 609 (2013)). "[A]
sentencing court may justify the application of aggravating factor
one . . . by reference to the extraordinary brutality involved in
an offense. . . . A sentencing court may consider 'aggravating
facts showing that [a] defendant's behavior extended to the extreme
reaches of the prohibited behavior.'" Id. at 75 (alteration in
original) (citations omitted) (quoting State v. Henry,
418 N.J.
Super. 481, 493 (Law. Div. 2010)).
In applying aggravating factor one, the trial judge cited
State v. Mara,
253 N.J. Super. 204 (1992), to find that defendant's
kicking of the victim while she lay on the ground and left her
there was in excess of the injury needed to sustain second-degree
aggravated assault. However, we conclude that in this situation
reliance on Mara was misplaced.
In Mara, defendant was convicted of second-degree aggravated
assault,
N.J.S.A. 2C:12-1(b)(1), and in a separate trial, of
driving under the influence of alcohol,
N.J.S.A. 39:4-50. Id. at
208. He struck the victim, who was on the side of the road with
a disabled vehicle, causing serious bodily injury. Ibid. He did
not stop or attempt to obtain assistance for the victim. Id. at
213-14. We affirmed the court's finding that aggravating factor
13 A-3577-14T3
one applied where, in an aggravated assault case, "the serious
injuries were far in excess of that required to satisfy" statutory
elements. Id. at 214.5
Here, the facts do not warrant application of aggravating
factor one. The defendant's act of kicking the victim was not far
in excess of what was necessary to satisfy second-degree aggravated
assault. There is no evidence that the kicking caused any injury
to the victim. Hence, we remand the matter to the trial judge to
re-sentence defendant without consideration of this factor. We
do not express any opinion as to the appropriate sentence.
Affirmed in part; reversed in part and remanded. We do not
retain jurisdiction.
5
We did, however, remand for resentencing because the trial court
double counted elements of aggravated assault by considering
aggravating factors recklessness and conduct manifesting
indifference to human life. Mara, supra,
253 N.J. Super. at 215.
14 A-3577-14T3
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