(portions of case apparently overturned on further appeal)
New Jersey Superior Court Reports
STATE v. BUDA, A-4778-04T4 (N.J. Super. 12-20-2006) STATE
OF NEW JERSEY, Plaintiff-Respondent, v. RYAN BUDA,
Defendant-Appellant. No. A-4778-04T4. Superior Court of
New Jersey, Appellate Division. Submitted November 1,
2006. Decided December 20, 2006.
On Appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 03-06-0798.
BEFORE: Judges STERN, SABATINO and MESSANO.
Yvonne Smith Segars, Public Defender, attorney for
appellant (Jean M. Hartmann, Designated Counsel, of counsel
and on the brief).
Thomas F. Kelaher, Ocean County Prosecutor, attorney for
respondent (Samuel Marzarella, Senior Assistant Prosecutor,
of counsel; Roberta DiBiase, Assistant Prosecutor, on the
brief).
The opinion of the court was delivered by
STERN, P.J.A.D.
Defendant was convicted by a jury of three counts of second
degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a), and one count of third degree aggravated
assault, N.J.S.A. 2C:12-1(b)(7). Defendant was sentenced to
eight years in the custody of the Commissioner of
Corrections on count three, one of the second degree
endangering convictions, and to concurrent seven-year terms
for the other endangering convictions. He also received a
concurrent five-year term for the aggravated assault.
On this appeal defendant raises issues relating to the
sufficiency of the evidence, the introduction of testimony,
and the jury instructions. He also challenges the sentence.
Because we conclude that the admission of testimony by a
DYFS worker who interviewed the victim at a hospital after
the third incident of alleged child abuse was not harmless,
we reverse the conviction. Specifically, we hold that the
statement to the DYFS worker was inadmissible under the
Confrontation Clause of the Sixth Amendment to the Federal
Constitution (and the coextensive provisions of the New
Jersey Constitution, see N.J. Const., art. I, § 10;
State v. Daniels, 364 N.J. Super. 357, 371-72 (App.Div.
2003), rev’d on other grounds, 182 N.J. 80 (2004))[fn1],
and cannot constitute harmless error. In so doing, we
sustain the introduction of other statements which were
admissible under traditional hearsay exceptions and present
no concerns under the Confrontation Clause. Those
statements may be admitted on the retrial.
I.
For purposes of our analysis of the present record, we
adopt the State’s version of facts as detailed in its
brief.
The three-year old victim in this case, N.M., was
[allegedly] assaulted by defendant on three separate
occasions between July 2nd and October 18th, 2002. The
last assault was the most severe, resulting in injuries to
the child that required a two-week hospital stay.
Specifically, Dr. Steven Kairys, the Chairman of
Pediatrics and Director of the Child Protection Center at
Jersey Shore University Medical Center, found “extensive
injuries primarily to the head, the scalp, the eyes, the
ears, the back of the neck. . . . a combination of
extensive bruising that covered large parts of his neck
and scalp. Both eyes were bruised . . . were beginning to
show what’s called raccoon eyes, bleeding blood around
the eyes. Both ears were swollen red. There was bruising
both in the earlobes, themselves, as well as behind the
earlobes. There was bruising along the neck.”
The victim had been residing in defendant’s home for a
brief period before the first injury occurred. Prior
thereto, the child had never suffered a suspicious injury
and DYFS had never been involved in preserving his safety
and wellbeing. The child had been living with his
teenage mother and her parents since his birth in November
of 1998, but had been placed in defendant’s home and in
harm’s way[fn2] when his mother moved in with defendant
upon their engagement. As part of joining together as a
family, defendant wanted and encouraged little N.M. to
call him “Daddy.” The boy’s mother, defendant and N.M. did
things together that families typically enjoy, such as
having dinner, watching TV, playing cards, watching
fireworks, going out for ice cream and going to parks.
The first indication that N.M. was being physically
abused by defendant was on July 3rd, 2002. That morning,
as N.M.’s mother [Christine] was driving the boy to her
sister’s house for daycare, as she usually did on weekdays
when she worked, he blurted out from the backseat that,
“Daddy beat me.” The statement was voluntary and
unsolicited. Christine was understandably surprised by the
remark[] and asked N.M. when that had happened, to which
the boy responded, “[a]t night.”
Later that day, Christine received a phone call at work
from her mother . . . advising that N.M. had an injury to
his buttocks. Unbeknownst to Christine at that time,
[Christine’s mother and sister] took photos of the
bruising, which to them looked to be in the shape of a
handprint.
Christine asked defendant about the injury to N.M.’s
buttocks; defendant said the boy had fallen in the
bathtub. Christine accepted defendant’s explanation and,
at least for the time being, the episode was over.
The next incident was sometime in the month of August or
September 2002. Again out of the presence of Christine,
N.M. allegedly “fell” after getting out of the bathtub.
When Christine returned home, defendant and his brother .
. . who was also present in the house, told her about
the alleged fall. Some small bruises were noticeable, so
Christine called Community Medical Center to inquire as to
what she should do. She was told to just watch the child
carefully for certain neurological symptoms and to bring
him in only if his condition appeared to worsen.
The following day, while N.M. was at his grandparents’
house, his grandfather [Christine’s father] noticed the
bruises on the child’s head, and more photos were taken.
The grandparents then kept N.M. at their home for several
days after this incident, having argued with their
daughter Christine about defendant abusing the child but
Christine still not believing that he had inflicted those
injuries.
On October 16, 2002, while [Christine’s sister] was
babysitting, defendant arrived to pick him up and bring
him home. N.M. became visibly upset at the realization
that he was going to leave his aunt’s house with
defendant, and he said he didn’t want to go home with
“Ryan.” Defendant became upset at the child’s failure to
call him “Daddy,” and an argument ensued between
defendant and [the aunt]. [The aunt] accused defendant of
being an abuser and refused to hand the child over to
him. The police were summoned to the house and, upon their
call to Christine to inquire whether defendant had her
permission to take the child, N.M. was sent home with
defendant. Neither [the aunt] nor his grandparents saw
N.M. again until the night of October 18, 2002.
On the morning of October 18, Christine left N.M. in the
care of defendant when she went to work, altering her
usual routine of bringing him to [her sister’s] house. She
testified that when she returned in the early evening,
N.M. was sitting in the darkened living room watching
television. After getting herself settled, she approached
N.M. and screamed out loud when she noticed a big red mark
on the back of his neck. There were also marks or
discolorations under his eyes.
N.M. was taken to the emergency room at Community Medical
Center, where a doctor who examined the child immediately
called DYFS and other authorities to report his suspicion
that N.M. had been abused.
Miriam Nurudeen, the “first response” DYFS worker who was
sent to the hospital to investigate, arrived at the
child’s room about the same time as [the grandparents].
The child was crying and begging his grandparents to take
him home with them. Ms. Nurudeen asked [Christine’s
parents] to leave the room so that she could talk to N.M.
alone, which is standard procedure when a DYFS
representative is attempting to ascertain if a child has
been abused.
Once the grandparents were gone, Ms. Nurudeen asked N.M.
what had happened to him. He said that he fell in his
room, and he wanted to go home to grandma. She then asked
him if anybody had beaten him. The child responded, “Dad
says nobody beat me. I fell when I was sleeping in my
room.”
Officer Kenneth Hess also responded to Community Medical
Center and asked N.M. how he was doing. The child replied,
“[m]y heart hurts.”
N.M. was transferred to Jersey Shore Medical Center later
that night, where he spent two weeks recovering from his
injuries in the pediatric intensive care unit.
Also later that night, defendant was interviewed by
Investigator Kenneth Hess of the Ocean County Prosecutor’s
Office and Detective Brian Lomer of the Dover Township
Police Department. Defendant was given his [Miranda]
rights, which he waived in writing. He denied inflicting
any physical abuse on N.M. but told the officers that the
child had fallen on two prior occasions, and maybe the
child had fallen again on that day. He did not tell the
officers that anyone had been home with him all day except
for the child.
Dr. Steven Kairys testified as an expert in pediatric
medicine and identification of child abuse injuries. He
told the jury that he examined N.M. on October 21st, at
which time he found extensive injuries to the child’s
head, scalp, eyes, ears and neck, with lesser injuries to
his left flank and scrotum. His eyes were dark and
swollen, as were his ears. There were also large areas of
blood collecting under his scalp. The manifestation of the
injuries had worsened significantly from the night they
were discovered, on October 18, and the child had lost a
lot of blood internally. The doctor testified that the
injuries to the child were purposely inflicted upon him
and were not the result of a fall, as evidenced by their
type and pattern.
Defendant and Christine were charged with endangering the
welfare of a child. Defendant was also charged with third
degree assault on N.M. for the October 18th incident.
Christine was not allowed to see N.M. for three and a half
months, and then only under supervision. Upon his release
from the hospital, N.M. went to live with his
grandparents. Christine eventually entered into a plea
bargain with the State to testify truthfully against
defendant, in exchange for which she pled to a lesser
charge and the State agreed not to seek incarceration.
At trial, defendant and his mother, Joyce Hart[e], both
testified that she was with him all day at his home on
October 18th and that neither one saw anything happen to
the child. When asked why they had not told anyone earlier
that Ms. Hart was allegedly at the house all day,
defendant testified it was because Ms. Hart had a warrant
outstanding for her arrest. However, the outstanding
warrant did not prevent Ms. Hart from bringing defendant
and her other son to the police station for questioning,
where she waited for over two hours on a bench in a common
area.
Defendant testified at trial that he did not assault or
harm N.M. at any time. He blamed Christine’s parents for
the accusations of abuse, supposedly because they did not
want N.M. to move out of their house in the first place.
After his conviction and at his sentencing, defendant
still claimed that he never hurt N.M.
II.
Defendant challenges the admission of N.M.’s statements
that “Daddy beat me” to his mother while they were riding
in the car together on July 3, 2002. Defendant also
contends that the statements, “I fell down in my room. I
want to go home to grandma” and “Dad says nobody beat me. I
fell when I was sleeping in my room,” made to the DYFS
worker at the Medical Center on October 18, 2002 were
inadmissible. Defendant claims the statements were
“inadmissible hearsay” and violated his constitutional
right to confrontation. Clearly, the admission of the
statements at the hospital must have prejudiced defendant,
particularly in light of the July statement and the fact
that the words “Dad says nobody beat me” were stated in
response to the DYFS worker’s “direct question” asking “if
anybody beat him.”
After an N.J.R.E. 104 hearing and deferring a ruling until
hearing part of the State’s case, the trial judge concluded
that both statements were admissible as “excited
utterances,” N.J.R.E. 803(C)(2). Such statements must be
made “while the declarant was under the stress of
excitement caused by the event or condition and without
opportunity to deliberate or fabricate.” Ibid. See
generally, State v. Branch, 182 N.J. 338, 357-67, 370
(2005) (excluding child’s statement because she “had the
opportunity to deliberate before making the statement.” Id.
at 370); State v. Cotto, 182 N.J. 316, 329-31 (2005)
(narrative responses to police questions “not sufficiently
spontaneous to assure reliability”).
While the statements in this case were each made at least
several hours after the events occurred, we cannot conclude
that the trial judge abused his discretion in finding that
the prerequisites for admitting the statements under the
Rule were satisfied. The judge could have reasonably found
on the record presented that the then three-and-one-half
and four-year-old child addressed the beatings at the first
opportunity he had to do so, while still nervous and
excited. The October statement was not made to a family
member, was in response to an interrogation interview, and
could have been made earlier to N.M.’s mother either when
she observed the marks or en route to the hospital.
However, defendant was with them at the time. While
admission of the statement to DYFS worker Nurudeen, a
Supervising Family Service Specialist, therefore presents a
closer question under N.J.R.E. 803(c)(2), see State v.
Branch, supra, at 370, we nevertheless decline to hold that
the inferences preclude the finding that both statements
were made in response to a “startling event” while N.M. was
“under the stress of excitement caused by the event or
condition” and were made “without an opportunity to
deliberate or fabricate.” N.J.R.E. 803(c)(2). See State v.
Bass, 221 N.J. Super. 466, 480-81 (App. Div. 1987), certif.
denied, 110 N.J. 186 (1988); State in Interest of C.A., 201
N.J. Super. 28, 32-33 (App.Div. 1985). According to Ms.
Nurudeen, when she arrived at the hospital, N.M. “was
crying” and “very emotional,” and his grandparents helped
her “calm him down.” N.M. “was crying” and “scared” while
talking to Ms. Nurudeen. Moreover, unlike the statement to
a police officer in Branch, in this case there was no prior
discussion with the child declarant about the identification
of the perpetrator and the child’s statement did not relate
to the identification of a stranger.[fn3] See also State v.
Cotto, supra, (statements to police by adults).
III.
Recent case law requires reconsideration of the admission
of the excited utterances in light of the Confrontation
Clause.
In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct.
1354, 1365, 158 L. Ed. 2d 177, 194 (2004), the United
States Supreme Court held that the Sixth Amendment
prohibits “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination.” More recently, the Court considered the
meaning of “testimonial” evidence in Davis v. Washington,
___ U.S. ___ , 126 S. Ct. 2266, 165 L. Ed. 2d 224
(2006).[fn4] The Court made clear that:
[s]tatements are non-testimonial 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. [Id.
at ___ , 126 S. Ct. at 2273-74, 165 L. Ed. 2d at
237.][fn5]
In Davis, defendant was convicted of felony violation of a
domestic no-contact order, id. at ___ , 126 S. Ct. at 2271,
165 L. Ed. 2d at 235, based on the contents of a recorded
911 telephone call during which the police dispatcher
ascertained the perpetrator’s name and a description of
what was occurring. Id. at ___ , 126 S. Ct. at 2271, 165 L.
Ed. 2d at 234-35. The conviction was upheld by the
Washington Supreme Court because “the portion of the 911
conversation in which [defendant was identified] was not
testimonial, and [] if other portions of the conversation
were testimonial, admitting them was harmless beyond a
reasonable doubt” Id. at ___ , 126 S. Ct. 2271-72, 165 L.
Ed. 2d at 235. In Hammon v. Indiana, decided with Davis,
the police responded to the scene of a reported domestic
disturbance, asked some questions, and had the wife “fill
out and sign a battery affidavit.” Id. at ___ , 126 S. Ct.
at 2272, 165 L. Ed. 2d at 235. The wife did not testify at
trial; the officer who had questioned her recounted her
statements at the scene. Id. at ___ , 126 S. Ct. at 2272,
165 L. Ed. 2d at 236. Hammon’s conviction for domestic
battery was sustained by the Indiana Supreme Court, because
the wife’s oral statements were not “testimonial,” as they
constituted “excited utterances,” id. at ___ , 126 S. Ct. at
2273, 165 L. Ed. 2d at 236, and while the affidavit was
“testimonial,” its admission was harmless beyond a
reasonable doubt. Ibid.
The Davis Court made clear that “interrogations solely
directed at establishing the facts of a past crime, in
order to identify (or provide evidence to convict) the
perpetrator” constituted “testimonial hearsay.” Id. at ___
, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. However, “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.” Ibid.
As a result, the Court determined that the circumstances
surrounding the 911 call in Davis “objectively indicate its
primary purpose was to enable police assistance to meet an
ongoing emergency[,]” and therefore admissible. Simply
stated, the wife “was not acting as a witness; she was not
testifying.” Id. at ___ , 126 S. Ct. at 2277, 165 L. Ed. 2d
at 240.[fn6]
However, the Court reversed the Indiana conviction in
Hammon. In that case, “[t]here was no emergency in progress”
and when the officers responded to the scene, the victim
stated there was “no immediate threat to her person.” Id.
at ___ , 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. The
officer questioning the wife was “not seeking to determine
(as in Davis) ‘what is happening,’ but rather ‘what
happened.'” Ibid. “Objectively viewed, the primary, if not
indeed the sole, purpose of the interrogation was to
investigate a possible crime — which is, of course,
precisely what the officer should have done.” Ibid. Of
significance, the interrogation was conducted away from the
perpetrator, although not conducted in a police station or
similar environment, the statement recounted “how
potentially criminal past events began and progressed,” and
the interrogation “took place some time after the events
described were over.” Ibid.[fn7]
As Davis makes clear, “it is in the final analysis the
declarant’s statements, not the interrogator’s questions,
that the Confrontation Clause requires us to evaluate.” Id.
at ___ , 126 S. Ct. at 2274, 165 L. Ed. 2d at 237, n. 1.
While the portions of the 911 call concerning events as
they were actually happening, were non-testimonial, the
Court stated that “[i]t could readily be maintained” that
aspects of the call occurring after the event occurred and
the perpetrator left the scene “were testimonial.” Id. at
___ , 126 S. Ct. at 2277, 165 L. Ed. 2d at 241. Hence,
courts considering 911 calls following the decision in
Davis have held that a report of an ongoing event or
transaction was “non-testimonial.” See, e.g., Commonwealth
v. Galicia, ___ N.E. 2d ___ , ___ (Ma. 2006) (statement to
911 operator “about an assault that was actually happening”
admissible, but statements of victim to officers responding
to scene inadmissible); United States v. Thomas, 453 F.3d
838 (7th Cir. 2006); State v. Jackson, 931 So.2d 1062
(Fla.Dist.Ct.App. 2006); Cook v. State, 199 S.W.3d 495
(Tex.App. 2006); Harkins v. State, 143 P.3d 706 (Nev.
2006); Cook v. State, 199 S.W.3d 495 (Tex.App. 2006).
The Davis Court assumed that 911 operators “may be at least
agents of law enforcement when they conduct interrogations
of 911 callers,” Davis, supra, ___ U.S. at ___ , 126 S. Ct.
at 2274, 165 L. Ed. 2d at 238, n. 2, although the Court
found it “unnecessary to consider whether and when
statements made to someone other than law enforcement
personnel are ‘testimonial[.]'” Ibid. Without definitively
addressing the issue of agency when DYFS workers
investigate a complaint of abuse, see generally State v.
P.Z., 152 N.J. 86 (1997), we note that a recent report of
the Joint Sub-Committee of the Criminal and Family Practice
Committees recommended procedures for handling issues in
child abuse cases involving simultaneous DYFS proceedings
and criminal charges,[fn8] and we can take note of the fact
that some interviews of victims of abuse are conducted by
DYFS workers in the presence of law enforcement officers.
In fact, DYFS is charged with taking action, using court
proceedings, to protect the best interests of a child and
“shall immediately report all instances of suspected child
abuse and neglect” to the County Prosecutor. N.J.S.A.
9:6-8.36a; see also N.J.A.C. 10:129-1.4. In this case, the
responding DYFS worker talked with Prosecutor’s
Investigator Kenneth Hess before interviewing N.M . .
Moreover, and significantly, she was called to the hospital
to conduct an investigation, because the examining
physician suspected wrongdoing. In these circumstances, we
hold that the statement of N.M., who did not testify at
trial, to the DYFS worker was “testimonial” and
inadmissible.
The trial judge considered the impact of Crawford in making
his ruling. He concluded that because Crawford did not
“overrule” White v. Illinois, 502 U.S. 346, 112 S. Ct. 736,
116 L. Ed. 2d 848 (1992), which held that “spontaneous
declarations” by child victims to an investigating police
officer were admissible, the Supreme Court did not believe
“spontaneous declarations by children violate[d] the
confrontation clause or [] necessarily [were to be]
considered testimonial.”
There was merit to the judge’s position at the time of the
ruling, because of Crawford’s discussion of White.
Crawford, supra, 541 U.S. at 58, 124 S. Ct. at 1368, 158 L.
Ed. 2d at 197, n. 8. However, Davis referred to White as
“one arguable exception” to the proposition that the Court
“never in practice dispensed with the Confrontation Clause
requirements of unavailability and prior cross-examination
in cases that involved testimonial hearsay.” Davis, supra,
___ U.S. at ___ , 126 S. Ct. at 2275, 165 L. Ed. 2d at 239.
See. also id. at ___ , 126 S. Ct. at 2280-84, 165 L. Ed. 2d
at 244-48 (Thomas, J., concurring and dissenting). However,
as Davis makes abundantly clear, Crawford overruled Ohio v.
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597
(1980), and precludes admission of testimonial statements
even when they previously were based on a “firmly rooted
hearsay exception” in the absence of unavailability and
prior cross-examination. Davis, supra, ___ U.S. at ___ ,
126 S. Ct. at 2275, 165 L. Ed. 2d at 239, n. 4. Davis
(Hammon) rejected a rule that statements taken at the crime
scene are admissible in all instances; the fact that Amy
Hammon’s initial statements were made at the “crime scene”
was “immaterial.” Id. at ___ , 126 S. Ct. at 2279, 165 L.
Ed. 2d at 243. It is also clear that Davis rejected the
notion that Crawford related only to “formal” statements.
Id. at ___ , 126 S. Ct. at 2278, 165 L. Ed. 2d at 242-43,
n. 5; id. at ___ , 126 S. Ct. at 2280-85, 165 L. Ed. 2d at
244-49 (Thomas, J., concurring and dissenting).[fn9]
In White, statements by a four-year old girl to her
babysitter, her mother, an investigating police officer, an
emergency room nurse, and a doctor were deemed admissible,
and the Court rejected a holding that the witness had to be
produced or found to be “unavailable.” White, supra, 502
U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d (1992). There,
“spontaneous declarations” and statements made in the course
of medical treatment were deemed to have “sufficient
guarantees of reliability to come within a firmly rooted
exception to the hearsay rule,” thereby satisfying the
Confrontation Clause. Id. at 356, 112 S. Ct. at 743, 116 L.
Ed. 2d at 859. The Court found no basis “for excluding from
trial, under the aegis of the Confrontation Clause,
evidence embraced within such exceptions to the hearsay
rule as those for spontaneous declarations and statements
made for medical treatment.” Id. at 357, 112 S. Ct. at 743,
116 L. Ed. 2d at 860.
But White involved an interpretation of Ohio v. Roberts and
the Court’s subsequent opinion in United States v. Inadi,
475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986), and
Roberts was overruled in Crawford, where the Court
concluded that the “firmly rooted hearsay exception” and
“particularized guarantees of trustworthiness” approach
“departs from the historical principles” underlying the
Confrontation Clause. Crawford, supra, 541 U.S. at 60, 124
S. Ct. at 1369, 158 L. Ed. 2d at 198. Crawford specifically
noted that it “casts doubt on” White, although it “need not
definitively resolve whether [White] survives [the Court’s]
decision [in Crawford].” Id. at 61, 124 S. Ct. at 1370, 158
L. Ed. 2d at 199. In any event, Crawford holds that
“[w]here testimonial evidence is at issue, . . . the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for
confrontation[,]” id. at 68, 124 S. Ct. at 1374, 158 L. Ed.
2d at 203, and that “the only indicia of reliability
sufficient to satisfy constitutional demands is one the
Constitution actually prescribes: confrontation.” Id. at
68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. As a
result, and given the references to White in the Davis
opinions, we cannot consider it any more viable than
Roberts.[fn10]
For these reasons, courts across the country following
Crawford have held that statements to a governmental agent
investigating an allegation of abuse or a witness assessing
the circumstances relating to the claim of possible child
abuse are “testimonial,” because of the potential of a
criminal prosecution. See United States v. Bordeaux, 400
F.3d 548 (8th Cir. 2005) (reversal where statement was made
to “forensic interviewer” and child testified by closed
circuit television); State v. Snowden, 867 A.2d 314 (Md.
2005) (statement to social worker inadmissible); People v.
Sisavath, 13 Cal. Rptr. 3d 753 (Cal.App. 2004) (child
victim statement to forensic specialist inadmissible). The
holdings remain the same after Davis. See State v. Justus,
___ S.W.3d ___ (Mo. 2006) (while social worker’s job was to
protect child, “primary purpose” of statements was to
establish past events); State v. Blue, 717 N.W.2d 558 (N.D.
2006) (videotaped statement to forensic interviewer at
child advocacy center inadmissible); State v. Pitt, ___
P.3d ___ (Ore.Ct.App. 2006) (videotaped interviews of child
victims at a child abuse assessment center were critical to
the State’s case and inadmissible). Compare pre-Davis
cases, People v. Vigil, 127 P.3d 916 (Colo. 2006) (evidence
statement taken for medical treatment admissible); State v.
Bobadilla, 709 N.W.2d 243 (Minn. 2006) (statement to child
protection worker taken to protect child admissible).
The October statement involved in this case was taken when
N.M. was no longer in danger and there was no “ongoing
emergency.” Davis, supra, 165 L. Ed. 2d at 237. As a result
the statement must be deemed testimonial, and admissible
only if the declarant was unavailable and defendant had a
prior opportunity to cross-examine the declarant. There is
no claim in this case that the witness was unavailable or
that there was a “prior opportunity for cross-examination.”
Nor is there a claim that the defendant somehow prevented
the witness from testifying, which can be deemed a
forfeiture or waiver of the Sixth Amendment right to
confrontation. See Davis, supra, ___ U.S. at ___ , 126 S.
Ct. at 2279-80, 165 L. Ed. 2d at 244; Crawford, supra, 541
U.S. at 62, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199.
As the statement in question was both offered and received
for the substance of what was said, and because there is no
contention or basis for a finding of harmless error in
terms of its impact on any count, we reverse the conviction
on all counts. In doing so, we make clear that the
statement or “blurt out” to N.M.’s mother after the first
incident in July would pose no problem under Crawford or
Davis in terms of admissibility at any retrial.[fn11] We
also believe that our opinion may be read to be consistent
with that part of State in the Interest of J.A., 385 N.J.
Super. 544 (App.Div. 2006), in which we noted that
“spontaneous or volunteered statements to law enforcement
officers, or statements that are in response to open-ended
or minimal question by law enforcement, particularly those
at the scene of the crime” are admissible, as are responses
to “on-the-spot police questioning” if not aimed at
producing or preserving evidence. Id. at 555, 556. However,
a statement to a DYFS worker who reports to a hospital in
response to a call concerning possible child abuse, even if
taken outside the presence of a police officer or
prosecutor’s investigator, is taken to gather evidence for
use in court proceedings if it is decided that action for
protection of the child is required. Here, the interview by
the DYFS worker was not at the scene or while the abuse was
occurring; it was at the hospital where the victim was
being treated.
Accordingly, we must reverse the conviction based upon the
statement admitted through the DYFS worker.
We generally agree with the additional comments of our
concurring colleague, particularly about the fact-sensitive
nature of the analysis and the need for a case-by-case
development of the law. We add only that we find no case
failing to apply the Crawford-Davis rule to a direct
appeal, given the impact of its principle to the
truth-telling function. See, e.g., Griffith v. Kentucky,
479 U.S. 314, 322-28, 107 S. Ct. 708, 712-16, 93 L. Ed. 2d
649, 658-61 (1987); State v. Natale, 184 N.J. 458, 481,
492-96 (2005); State v. Fortin, 178 N.J. 540, 647-48
(2004); State v. Purnell, 161 N.J. 44, 58-64 (1999). See
also Commonwealth v. Galicia, supra, ___ N.E. 2d at ___ .
In light of our reversal, we do not have to discuss the
other issues raised or sentence imposed. But see State v.
Natale, 184 N.J. 458 (2005); see also State v. Pierce, 188
N.J. 155 (2006) (remanding when aggravating factors three,
six and nine utilized).
We remand the matter for a new trial.
[fn1] See also State v. Branch, 182 N.J. 338, 371 (2005),
declining to decide if, under the state constitution, a
witness must be unavailable as a condition to the admission
of an excited utterance against a criminal defendant.
[fn2] The victim’s mother, Christine [M], pled guilty to
abuse, cruelty and neglect of a child, N.M., on the theory
that she allowed the second and third physical assaults to
occur by not believing that defendant had committed the
first one, despite evidence and warnings from her family
that N.M. was being abused by defendant.
[fn3] The State, while contending that the statement clearly
included what N.M. was told to say, does not claim that it
was merely offered for the fact it was stated and was used
only for that purpose. Accordingly, we do not permit its
admission on that basis, particularly in the absence of a
limiting instruction. Further, the prejudice in terms of
its substantive use to support defendant’s guilt is clear.
In fact, the prosecutor concluded her summation by stating:
Now, a lot of people came before you and testified. But
you didn’t see one person in the courtroom, but you heard
from him, you heard one small voice, one little 3-year old
voice, and you heard it twice. You heard it the first time
with regard to the July 30th incident. You heard that
little boy say, “Daddy beat me.” And then you heard it
again when Ms. Nurudeen testified. What did you hear? “I
fell down.”
Did anybody beat you?
“Daddy says nobody beat me. I fell down while I was
sleeping.”
It’s not, Mommy says nobody beat me, not, [n]obody beat
me, but “Daddy says nobody beat me.”
[fn4] We invited supplementary briefs after the Davis
opinion was filed.
[fn5] While the confrontation clause does not apply to
“non-testimonial” evidence, the Court noted “that
statements made in the absence of any interrogation” may be
“testimonial” in some circumstances not developed in the
opinion. Ibid. n. 1. Moreover, the due process clause
requires hearsay evidence to be reliable. See California v.
Green, 399 U.S. 149, 163, 90 S. Ct. 1930, 1938, 26 L. Ed.
2d 489, 500, n. 15 (1970). See also Ohio v. Roberts, 448
U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 608
(1980), overruled in Crawford (requiring “particularized
guarantees of trustworthiness”).
[fn6] The Davis jury “did not hear the complete 911 call,”
and the Court noted that defendant did not challenge the
state court’s conclusion that “even if later parts of the
call were testimonial, their admission was harmless beyond
a reasonable doubt.” Ibid.
[fn7] The Court also reminded us that the right of
confrontation may be “forfeited” when the State proves at a
hearing that defendant “obtain[ed] the absence of a witness
by wrongdoing.” Id. at ___ , 126 S. Ct. at 2280, 165 L. Ed.
2d at 244. Here, the State does not claim the victim was
“unavailable” due to fear of defendant or otherwise.
Therefore, we need not address that issue or how a child
abuse victim may testify because he or she is traumatized.
See, e.g., State v. Smith, 158 N.J. 376, 383-87 (1999).
[fn8] The report will be noted in the upcoming Criminal
Practice Report. We also note that in a supplementary brief
we invited, the prosecutor, although referring to the need
for urgency, stated “[a]n analysis of the DYFS worker’s
actions and goals reveals that they were much like that of
the 911 operator . . .” in Davis, who was treated as an
agent of law enforcement. In any event, DYFS workers are
not required to give Miranda warnings to the parties they
interview. See J.S. v. R.T.H., 155 N.J. 330, 346 (1998);
State v. P.Z., supra, 152 N.J. at 112 (“refusing to extend
a parent’s right to counsel or right to Miranda warnings to
Title Nine investigations by DYFS workers because that
‘would shift the primary focus of Title Nine from the right
of children to be protected from abuse and neglect to the
rights of parents to the custody of their children. Those
rights are not in equipoise.” J.S., supra, 152 N.J. at
346).
[fn9] Both the majority and dissenting opinions in Davis
would apparently find no problem with the admission of
defendant’s own statement because that would pose no issue
under the confrontation clause. Id. at 246-47, n. 2
(Thomas, J., concurring and dissenting).
[fn10] In his discussion of Crawford in Branch, both of
which were decided before Davis, Justice Albin noted:
The Crawford Court noted that “the only question
presented in White was whether the Confrontation Clause
imposed an unavailability requirement on the types of
hearsay at issue” and that White’s “holding did not
address the question whether certain of the statements,
because they were testimonial, had to be excluded even if
the witness was unavailable.” Ibid. In limiting White,
supra, to the narrow question that it addressed, the
Crawford Court expounded that “to the extent the hearsay
exception for spontaneous declarations existed at all [at
the time of the adoption of the Bill of Rights], it
required that the statements be made ‘immediat[ely] upon
the hurt received, and before [the declarant] had time
to devise or contrive any thing for her own advantage.'”
Ibid. (quoting Thompson, supra, 90 Eng. Rep. at 179).
Consequently, White’s holding that the Confrontation
Clause does not impose a requirement of a declarant’s
unavailability for the introduction of an excited
utterance is very much in doubt with regard to
out-of-court statements that are the product of police
interrogation. Crawford, supra, is a reminder that even
firmly established exceptions to the hearsay rule must bow
to the right of confrontation. [Branch, supra, 182 N.J.
at 369-70.]
[fn11] The statement to the child’s mother was not
testimonial, and it appears that most courts treat
statements to family members, particularly in close
proximity to the event and not in response to any
interrogation at the request of the police or otherwise as
non-testimonial. See, e.g., State v. Shafer, 128 P.3d 85
(Wash.App. 2006); State v. Walker, 118 P.3d 935 (Wash.App.
2006).
SABATINO, J.S.C., temporarily assigned, concurring.
I concur in the judgment vacating defendant’s conviction
and remanding for a new trial. I write separately to make
explicit certain assumptions in our Confrontation Clause
analysis, and also to underscore what I perceive to be the
exceedingly close and fact-sensitive nature of the issues
before us.
The United States Supreme Court’s opinion in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004) redefining the constitutional standards for the
admissibility of hearsay against a criminal defendant, and
its recent amplification of Crawford’s “testimonial”
analysis in Davis v. Washington, U.S., 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006), has enormously changed the course of
jurisprudence under the Confrontation Clause. More
significantly, in displacing the former two-part test of
Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65
L. Ed. 2d 597, 608 (1980) (allowing statements which
categorically satisfied certain “firmly rooted” hearsay
exceptions or which otherwise had “particularized
guarantees of trustworthiness”), Crawford has dramatically
affected the day-to-day prosecution of criminal trials and
appeals across the nation. See, e.g., Michael D. Cicchini &
Vincent Rust, Confrontation After Crawford v. Washington:
Defining “Testimonial”, 10 Lewis & Clark L. Rev. 531
(2006); Jerome C. Latimer, Confrontation After Crawford:
The Decision’s Impact on How Hearsay Is Analyzed Under the
Confrontation Clause, 36 Seton Hall L. Rev. 327 (2006); The
Supreme Court, 2006 Term-Leading Cases, 120 Harv. L. Rev.
125, 213 (2006).
Following Crawford, out-of-court statements that formerly
were routinely admitted against defendants under recognized
hearsay exceptions — such as excited utterances,
statements to physicians, and business or public records
— are now inadmissible for their truth if they are
judicially deemed “testimonial” in nature and the
declarants cannot be cross-examined. This sea change in
criminal practice cannot be underestimated.[fn1] In making
that observation, I do not question the historical or
doctrinal merits of Crawford in fulfilling the intended
aims of the Confrontation Clause. I simply note that the
practical implications of Crawford and its progeny are very
substantial, and that we as an appellate court[fn2] have an
obligation to be mindful of those practicalities in
applying the tenets of these new rules of constitutional
law.
Recognizing the avulsive changes in law and in practice
brought about by Crawford, it is worth noting that the
Supreme Court declined in that case to supply the bench and
bar with a “comprehensive definition” of what is
testimonial under the Court’s new standards. Crawford,
supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at
203. Instead, the Court left that task to a later day. That
day arrived, at least in part, on June 19, 2006, when the
Court decided Davis and a companion case, Hammon v.
Indiana, in a consolidated opinion that put some meat on
Crawford’s bare doctrinal bones. It is also worth noting
that the trial in the present appeal was conducted in
January 2005, ten months after Crawford was decided but
more than a year before the Supreme Court clarified its
teachings in Davis.
The majority’s scholarly opinion faithfully applies the
post-Crawford standards expressed in Davis to this case
retroactively, even though the trial judge, the prosecutor
and defense counsel could not have reasonably predicted in
January 2005 the specific doctrinal rules announced in
Davis in June 2006. On that score, the United States
Supreme Court recently heard oral argument in Bockting v.
Bayer, 399 F.3d 1010 (9th Cir. 2005), cert. granted, ___ _
U.S. ___ _, 126 S. Ct. 2017, 164 L. Ed. 2d 778 (2006), in
which the Court will decide the extent of Crawford’s
retroactivity, and presumably will offer analogous guidance
on the retroactivity of Davis. I share my colleagues’
premise that, at a minimum, Crawford and Davis will be
afforded pipeline retroactivity and thus be declared
applicable at least to all matters that were pending trial
or were on direct appeal when those cases were
decided.[fn3] See Powell v. Nevada, 511 U.S. 79, 80, 114 S.
Ct. 1280, 1281, 128 L. Ed. 2d 1, 5 (1994). In the unlikely
event that prediction is mistaken, then obviously the
judgment we render here is ill-founded, and we shall need
to reconsider the matter further.
The doctrinal test expressed by the Supreme Court in Davis
is presently incomplete. As my colleagues note, Davis held
that:
[s]tatements 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. [ ___
U.S. at ___ , 126 S. Ct. at 2273-74, 165 L. Ed. 2d at
237.]
This multi-factor construct resolves only two of several
possible scenarios. One scenario is where there is an
“ongoing emergency” when the declarant speaks or writes and
the “primary purpose” of the interrogation is “to enable
police assistance to meet [that] emergency.” Ibid. In that
scenario, the statement is admissible. A completely
opposite scenario is where 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.” In that particular scenario, Davis instructs
that the statement is inadmissible. Ibid.
What the Supreme Court does not tell us in Davis is how we
should handle scenarios where either (l) there is an
ongoing emergency but the interrogation’s primary purpose
is retrospective, or (2) there is no ongoing emergency but
the interrogation’s primary purpose is only prospective.
Since the fact patterns in Davis and Hammon involved
neither of these possibilities, the Supreme Court did not
need to address them.
Nor does Davis contemplate the sticky circumstance in which
the “primary purpose” of a declarant’s interview is
unclear, or where the interview is being conducted for dual
or multiple purposes. Again, we are left without clear
guidance, since the appellate records in Davis and Hammon
apparently did not reflect such ambiguous or mixed
purposes, at least for eight members of the Court.[fn4]
The circumstances before us appear to raise such
interstitial uncertainties implicated by the Davis holding.
From my own reading of the record, I am persuaded, as is
the majority, that there was no “ongoing emergency” when
N.M. was safely ensconced in a hospital room and was being
interviewed by DYFS worker Nurudeen. It is less obvious,
however, that the “primary purpose” of Nurudeen’s interview
was forward-looking, i.e., to protect the welfare of the
child, or backward-looking, i.e., to memorialize statements
from the child that could establish past events and be
potentially used in a future prosecution.
On balance, I tend to agree with the majority that, on the
particular record before us, the primary object of the DYFS
interview, particularly after Nurudeen spoke with the
prosecutor’s representative at the hospital, was to
establish past events and to assist in the
already-initiated criminal investigation. However, I do
recognize that there are countervailing proofs in the
record, including Nurudeen’s testimony perceiving that her
role at the hospital was “just to make sure that the child
is safe.”
By channeling the constitutional analysis into a “primary
purpose” rubrick, Davis also causes a perhaps-unintended
oversimplification of the task of understanding why people
talk with one another. Here, our task is to determine the
primary purpose of a DYFS case worker’s interview. The
general statutory mission of DYFS in the “protection of
children” through civil legal measures is well-established.
See N.J.S.A. 9:6-8.8. See also State v. P.Z., 152 N.J. 86,
96 (1997). To be sure, DYFS frequently must interact with
law enforcement personnel. See, e.g., N.J.S.A. 9:6-8.36a
(requiring DYFS to “immediately report all instances of
suspected child abuse and neglect . . . to the county
prosecutor”); see also State v. P.Z., supra, 152 N.J. at
98-99 (cataloguing various obligations and functions of
DYFS in assisting in the prosecution of crimes against
children).
Nonetheless, if one is compelled to identify a single
dominant purpose of Nurudeen’s hospital interview of N.M.
here, I am inclined to agree with my colleagues that the
interview was mainly to assist law enforcement in having
the child report what had or had not happened to him while
he was in the defendant’s care and custody. Yet the
interview also clearly had an additional benefit in
revealing information that would be relevant in deciding
with whom the child could safely go home after his medical
treatment had been completed. Forced to choose, I concur
with the majority’s assessment that the child’s statement
to Nurudeen was “testimonial,” as that term has come to be
defined in Crawford and Davis.[fn5]
I also wish to stress that our disposition of this case
should not be viewed as a per se holding that all DYFS
interviews of children conducted after law enforcement have
become involved in a matter are necessarily “testimonial”
under the Sixth Amendment. Nor are we deciding that all
DYFS workers are agents of law enforcement for purposes of
the Confrontation Clause, although I recognize that the
marked trend of post-Crawford/post-Davis case law around
the country appears pointed in the direction of such a rule
for child welfare workers employed by governmental bodies.
See the cases cited ante at (slip. op. at 22-23).
Lastly, I must observe that reaching a fair and just
disposition of this appeal is procedurally complicated by
the fact that the record before us was not developed with
any regard for the dispositive factors ultimately announced
by the Supreme Court in Davis. Although one might consider
remanding this matter for the development of a supplemental
record, the numerous practical difficulties attendant to
such an exercise, and the consequent delay of this case
involving events which transpired long ago in 2002, weigh
against it.
With these caveats in mind, I join in the judgment
directing a new trial, mindful that this case will surely
not represent the last signpost on the evolving path of
Confrontation Clause jurisprudence.
[fn1] Among other things, Crawford has been aptly described
as creating “a Copernican shift in federal constitutional
law.” See Latimer, supra, 36 Seton Hall Law Rev. at 329.
[fn2] To date our State Supreme Court has declined to pass
upon the meaning or scope of Crawford, or upon Crawford’s
impact, if any, on the cognate provision of confrontation
expressed in our State Constitution at Article 1, Paragraph
10. See State v. Branch, 182 N.J. 338, 370-72 (2005).
[fn3] I hazard no prediction on whether the Court will go
further and declare Crawford retroactively applicable to
cases on collateral review. See Beard v. Banks, 542 U.S.
406, 411, 124 S. Ct. 2504, 2510, 159 L. Ed. 2d 494, 502
(delineating the standards for when a new rule of criminal
procedure applies on collateral review).
[fn4] Justice Thomas observed in dissent in Davis that in
“many similar cases, pronouncement of the ‘primary’ motive
behind [a declarant’s] interrogation calls for nothing more
than a guess by courts.” Davis, supra, ___ ___ U.S. at ___
___ , 126 S. Ct. at 2285, 165 L. Ed. 2d at 249 (Thomas, J.,
concurring and dissenting).
[fn5] I have no similar difficulty with the admission of N.
M.’s “blurt-out” statement to his mother, which seems
plainly nontestimonial under Crawford and Davis.