State v. V.D., A-1925-20

STATE OF NEW JERSEY, Plaintiff-Respondent, v. V.D. ^[1] Defendant-Appellant.

No. A-1925-20

Superior Court of New Jersey, Appellate Division

August 16, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 2, 2021

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No 19-05-0787.

Lindsay B. Gargano, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Lindsay B. Gargano, of counsel and on the briefs).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor attorney; Nancy A. Hulett, of counsel and on the briefs).

Before Judges Sabatino, Mawla and Rose.

PER CURIAM.

This interlocutory appeal by a criminal defendant in a sexual assault case concerns the admissibility of a now-deceased victim's hearsay statements to a police officer. After conducting an evidentiary hearing under N.J.R.E. 104, the trial court ruled the statements admissible. The court found the statements met the hearsay exception for excited utterances under N.J.R.E. 803(c)(2). The court also ruled the statements were not "testimonial" and therefore were not excludable under the Confrontation Clauses of the United States and New Jersey Constitutions. Lastly, the court rejected defendant's argument under N.J.R.E. 403 that the probative value of the statements was substantially outweighed by alleged unfair prejudice.

On leave granted, we affirm the trial court's rulings. We do so substantially for the sound reasons stated by the motion judge, as amplified in this opinion.

I.

On the morning of March 1, 2019, Police Officer Sherlyn Courtney of the South Plainfield Police Department responded to the alleged victim's residence after the dispatcher notified her of a 9-1-1 call placed at 9:29 a.m. by a "female screaming." The police records describe the call as a "female crying saying she doesn^['^]t want to fight anymore [and] doesn^['^]t want to talk about it." The records further reflect that Officer Courtney was dispatched to the scene one minute after the call at 9:30 a.m. According to the testimony of Officer Courtney, it took her "3 [to] 4 minutes at most" to arrive at the residence, although the dispatch report states it took her only one minute. Four other officers were dispatched and responded to the scene within four minutes of Officer Courtney's arrival.

Officer Courtney testified at the Rule 104 hearing that, upon arrival at the scene, she was not aware of the "nature of the call" other than that she was responding to a woman apparently in distress. The address to which she responded and the caller, L.B., were both known to Officer Courtney from previous incidents.

When she arrived, Officer Courtney saw a man later identified as L.B.'s father standing outside the house. The officer testified that, as she got out of her vehicle and walked up the driveway, she heard screaming or crying from a truck parked nearby. She then observed L.B. in the truck. At that point, Officer Courtney approached the partially open driver's side window of the truck. She saw L.B. alone, wrapped in "a blanket or some kind of sweatshirt" and apparently without "any clothes on underneath." The officer described the victim's state at that moment as "sobbing, physically shaking. She couldn't really speak in full sentences, because she was crying so hard."

Officer Courtney's first attempt to communicate with L.B. was to calm her, because she was "crying so hard that she couldn't really get too much out those first you know forty-five seconds or minute or so." After the victim, who was still crying, calmed down enough to communicate, Officer Courtney asked her "what happened . . . [and] what could [the police] do to help her?"

At that point, L.B. made the inculpatory statements which are at issue in this appeal. Officer Courtney described the exchange, in pertinent part, as follows:

I asked her [(L.B.)] you know what happened, you know what could we do to help her. And, the [sic] she explained that she had a fist fight with her fiance or exfiance. That they had been drinking during the night and they got into a fight. And, she showed me her finger, which looked like she had bite marks -- or you know they appeared to be like teeth marks on her finger. And, I could see that her hair was really thin in some spots, and it looked like maybe like almost bald spots or something. ....

[L.B.] told me she was -- her fiance locked her in her room, pulled her hair out -- hair extensions out, which are attached to your hair, bit her, and digitally penetrated her -- her anus.

[(Emphasis added).]

According to Officer Courtney, these descriptive statements were not a response to any specific questions.^[2] Instead, the officer characterized them as unprompted responses to open-ended queries asking what she "could do to help" and "what [the victim] needed."

About a few minutes into the officer's conversation with the victim, defendant appeared, and "walked out of the house, into the garage." Defendant then turned around, slammed the door, and hid back inside the house, while Officer Courtney asked her to wait for questioning. The officer then left the victim in the truck to pursue defendant into the home. According to Officer Courtney, before they first spotted defendant by the garage, none of the responding officers were sure where she was or if she had fled the scene, because it all occurred "pretty quick."

The indictment charged defendant with five counts, consisting of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); fourth-degree criminal sexual assault, N.J.S.A. 2C:14-3(b) (count two); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count three); and third-degree terroristic threats, N.J.S.A. 2C:13-3(a) (counts four and five).

The State moved to admit evidence of the victim's out-of-court statements to the police pursuant to the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). Defendant opposed the motion, arguing the excited utterance exception was not satisfied under the circumstances because the declarant victim had a reasonable time to deliberate or fabricate before her accusatory statements to the officer. Defendant further argued the statements were "testimonial" under the Confrontation Clause and thereby could not be admitted because the declarant, who has since died, cannot be cross-examined. In addition, defendant argued the statements were unfairly prejudicial under Rule 403.

After considering the officer's testimony from the Rule 104 hearing and the briefs and oral arguments of counsel, Judge Diane Pincus granted the State's motion and found the victim's statements admissible at trial. The judge issued a corresponding order and a written opinion on December 18, 2020. As we will explore, infra, the judge concluded the statements were admissible as excited utterances, were not "testimonial" under the Confrontation Clause, and should not be excluded under Rule 403 as unduly prejudicial. In the course of her analysis, the judge expressly found that Officer Courtney was a "credible witness," who testified about her interactions with the victim in a "forthright and candid manner" on both direct and cross-examination.

We subsequently granted defendant's motion for leave to appeal the motion judge's admissibility ruling. In her merits brief on appeal, defendant presents the following points:

POINT I

THE TRIAL COURT ERRED IN FINDING THE COMPLAINANT'S OUT-OF-COURT STATEMENT TO A POLICE OFFICER WAS PROVIDED WITHOUT A SUFFICIENT OPPORTUNITY TO DELIBERATE OR FABRICATE BECAUSE THERE IS NOTHING IN THE RECORD ESTABLISHING WHEN THE ALLEGED INCIDENT OCCURRED, HOW LONG THE COMPLAINANT WAS SITTING IN THE VEHICLE BEFORE CALLING 911, AND BECAUSE THE COMPLAINANT HAD AN OPPORTUNITY TO SPEAK WITH A 911 OPERATOR BEFOREHAND.

POINT II

THE TRIAL COURT ERRED IN FINDING THE COMPLAINANT'S OUT-OF-COURT STATEMENT NONTESTIMONIAL BECAUSE PRIMARY PURPOSE OF THE OFFICER'S QUESTIONING WAS NOT TO MEET AN ONGOING EMERGENCY BUT TO GET THE COMPLAINANT TO PROVIDE A NARRATIVE ABOUT WHAT HAD HAPPENED.

Defendant also incorporates by reference her additional arguments from her moving appellate brief, contending the victim's statements must be excluded under Rule 403.

II.

We begin with a recognition of the well-settled principle that appellate review of evidentiary rulings generally entails considerable deference. Such rulings ordinarily "should be upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)); see also State v. Buda, 195 N.J. 278, 294 (2008). "An appellate court applying this standard 'should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice results.'" Ibid. (quoting Brown, 170 N.J. at 147). In addition, we will not second-guess the judge's factual assessment that the officer's testimony at the Rule 104 hearing was credible. State v. Locurto, 157 N.J. 463, 472-73 (1999).

That said, we are mindful that, insofar as defendant asserts, among other things, her right of confrontation would be violated at trial, we of course must adhere to constitutional principles in evaluating the trial court's decision, including the "testimonial" classification issue. See State v. Williamson, 246 N.J. 185, 199 (2021) (applying a de novo review standard in evaluating the legal issue of whether a trial court's admission of a victim's dying declaration violated the defendant's Sixth Amendment right to confrontation).

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