Wednesday, July 29, 2009
Avoiding Confrontation: New Jersey Appellate Court Finds Admission Of Excited Utterance Did Not Violate Confrontation Clause
Like its federal counterpart, New Jersey Rule of Evidence 803(c)(2) provides an exception to the rule against hearsay for
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.
It seems clear to me that the Superior Court of New Jersey, Appellate Division, in its recent opinion in State ex re. B.S., 2009 2140031 (N.J.Super.A.D. 2009), correctly found that the trial court properly admitted the victim's "excited utterance" under this rule. And it only seems somewhat less clear to me whether the appellate court made the right call in finding that this "excited utterance" was admissible notwithstanding the Confrontation Clause.
Camden Police Officer A. Hoskins was on patrol near Whitman Park when she was flagged down at the intersection of Pershing and Chase Streets by an older man. The officer noticed the man was out of breath and his face was swollen. The man related that he had a pacemaker and was in pain. He told Officer Hoskins he had been assaulted and robbed at the corner of Carl Miller Boulevard and Pershing Street. The man explained that he was riding his bicycle when he heard footsteps running up behind him. He was then struck from behind and fell from his bicycle. His assailants took two dollars. The man remembered two tall, young males watching him as he counted his money, and described one as wearing a gray sweater and tan pants and the other wearing a green sweatshirt and blue jeans.
B.S., a juvenile, and another individual were later apprehended in connection with the incident, and B.S. was eventually tried for acts that, if committed by an adult, would constitute second degree robbery. The victim did not testify at trial, but the State did call Officer Hoskins to testify with regard to the victim's description of his assailants. The court eventually entered an adjudication of delinquency against B.S., prompting his appeal.
One ground for B.S.' appeal was that the victim's description of his assailants was hearsay, rendering Officer Hoskins' testimony improperly admitted. The Superior Court of New Jersey, Appellate Division, quickly disposed of this issue, finding that
Here, moments after being assaulted from behind and robbed, surely a "startling event," the breathless and visibly injured victim flagged down Officer Hoskins. The officer immediately put the victim in her patrol car, where the victim continued to describe the attack and his assailants. The victim's excited state surely continued during this period. Consequently, the trial judge properly admitted the hearsay statements of the non-testifying victim relating the event and describing the assailants as excited utterances under N.J.R.E. 803(c)(2).
B.S. also claimed that the admission of the victim's statements through the testimony of Officer Hoskins violated his rights under the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36 (20040, because the statements were "testimonial," i.e., "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The court, however, noted that in Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court found that "[n]ontestimonial statements are those made under circumstances 'objectively indicating that the[ir] primary purpose...is to enable police assistance to meet an ongoing emergency.'" Under this standard, the court was able to find that the victim's statements were nontestimonial, concluding:
Here, when the victim flagged down Officer Hoskins, he had just been attacked and robbed, surely a startling event. The victim was out of breath and in pain. His statements describing the attack and his assailants were intended to secure help for himself. Those statements were nontestimonial, and their admission did not impinge on B.S.'s right to confront the witness against him.