STATE OF NEW JERSEY VS. ELLICK D. WRIGHT, JR. (14-11-1005, GLOUCESTER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4988-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELLICK D. WRIGHT, JR.,
Defendant-Appellant.
________________________
Submitted September 9, 2019 – Decided November 4, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Indictment No. 14-
11-1005.
Joseph E. Krakora, Public Defender, attorney for
appellant (Seon Jeong Lee, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Ellick D. Wright, Jr. of a second-degree
weapons possession charge and the fourth-degree charges of obstruction and
resisting arrest. The trial court sentenced him to an aggregate term of eight
years, subject to a forty-two month period of parole ineligibility under the
Graves Act, N.J.S.A. 2C:43-6(c). Defendant now appeals from his conviction,
contending that the trial court improperly denied his motion to suppress, in
which he claimed his encounter with the arresting police officer was not a
lawful field inquiry and that there was no reasonable suspicion to justify an
investigatory stop. He also argues that the trial court erroneously barred him
from playing recordings of two 911 calls to the jury that were made on the
night he was arrested. For the reasons that follow, we reject defendant's
contentions and affirm.
I.
We summarize the facts as developed at the suppression hearing as
follows. Late at night, prior to the incident at hand, Monroe Township Canine
Officer William Yorio responded to another officer, who observed a black man
in dark clothing walking near a closed business in one part of the Township.
When Yorio attempted to locate the man to see what he was doing, he could
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not find the individual. Yorio stopped searching for the man and continued his
usual patrol that night.
Later, at 2:42 a.m. on August 25, 2014, while on patrol in another part of
town, about two or three miles away from the area he patrolled earlier, Yorio
encountered defendant walking alone on an empty street where the nearby
businesses were closed, except for a bar. Previously, the department had
designated the area as a "point of information," due to increased criminal
activity. When Yorio observed defendant, the weather "was clear and warm,"
but defendant was wearing dark clothing, including a black sweatshirt.
After Yorio made the stop, he radioed to dispatch. The other officer,
who saw the first individual earlier in the other part of town, heard the call and
asked if it was the same person. Yorio replied that he did not know and
proceeded with the stop.
Yorio approached defendant, without being accompanied by his dog or
removing his weapon. He asked defendant, "[h]ey, how you doing?" and
whether he was from the Township. Defendant explained that he was from
Philadelphia and was in the area visiting his child's mother. He voluntarily
provided the officer with his Pennsylvania-issued identification and told the
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officer that he did not have any outstanding warrants. The officer verified this
information and held onto defendant's identification.
During the encounter, defendant "kept reaching into his waistband." In
addition to his hand movements, defendant appeared nervous and was avoiding
eye contact, which prompted the officer to ask if he could conduct a pat-down
search for a weapon. Defendant consented and during his search, Yorio "felt a
bulge" in the front waistband, lifted defendant's sweatshirt, and "saw a
handgun."
When Yorio went to take the handgun, defendant pushed him away and
ran, despite being told to stop and that he was under arrest. Yorio radioed to
dispatch that defendant was "running" and "ha[d] a gun." There was then
discussion about defendant's location. During Yorio's ensuing pursuit of
defendant, the officer saw defendant reach into his waistband while running,
drop the gun, and pick it up to throw it. Eventually, Yorio subdued defendant
and arrested him. After defendant was arrested, a search incident to arrest was
conducted, which yielded narcotics. The gun was also recovered.
A grand jury later returned an indictment charging defendant with one
count of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b); one count of fourth-degree obstruction of the administration of law,
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N.J.S.A. 2C:29-1(a); and one count of fourth-degree resisting arrest, N.J.S.A.
2C:29-2(a). After the trial court denied defendant's suppression motion and
ruled on the admission of the tape recordings, the matter was tried before a
jury that convicted defendant on each count. Later, after the trial court denied
defendant's motion for a new trial, the court sentenced defendant. This appeal
followed.
On appeal, defendant argues the following points:
POINT I
THE COURT'S DENIAL OF THE SUPPRESSION
MOTION WAS ERROR BECAUSE THE
PATROLMAN'S ENCOUNTER WITH
DEFENDANT AT 2:42 A.M. NEITHER MEETS THE
FIELD INQUIRY TEST, THAT AN OBJECTIVELY
REASONABLE PERSON UNDER THE
CIRCUMSTANCES WOULD NOT HAVE FELT HIS
RIGHT TO MOVE HAD BEEN RESTRICTED, NOR
WAS THERE REASONABLE SUSPICION FOR AN
INVESTIGATORY STOP. (RAISED BELOW).
POINT II
THE COURT ERRED IN BARRING THE AUDIO
RECORDINGS OF THE ANONYMOUS 9-1-1
CALLS CONTEMPORANEOUS TO DEFENDANT'S
ENCOUNTER WITH THE POLICE, A CLASSIC
PRESENT SENSE IMPRESSION OR EXCITED
UTTERANCE, AS INADMISSIBLE HEARSAY
AND VIOLATIVE OF THE CONFRONTATION
CLAUSE, THEREBY DENYING DEFENDANT A
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MEANINGFUL OPPORTUNITY TO PRESENT A
COMPLETE DEFENSE. (RAISED BELOW).
A. THE CONFRONTATION CLAUSE
OF THE SIXTH AMENDMENT DOES
NOT APPLY TO THE STATE.
B. HEARSAY EVIDENCE WHERE
THE DECLARANT IS UNAVAILABLE
AS A WITNESS IS ADMISSIBLE IF IT
IS A PRESENT SENSE IMPRESSION
OR EXCITED UTTERANCE.
C. THE COURT'S ERRONEOUS
AND CONFUSED EVIDENTIARY
RULING DEPRIVED DEFENDANT OF
A MEANINGFUL OPPORTUNITY TO
PRESENT A DEFENSE.
We are not persuaded by defendant's contentions as we conclude the trial
court did not abuse its discretion in denying the suppression motion or in its
ruling regarding the admission of the recordings.
II.
A.
We turn first to defendant's challenge to the denial of his suppression
motion. After defendant filed a motion to suppress, the trial court conducted a
hearing at which Yorio was the only witness. The officer testified that his
responsibilities included community caretaking activities, which involved
investigating suspicious activity and assisting other units with his canine
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partner. As described above, Yorio also testified to the details of his encounter
with defendant, in addition to his experience and training as a police officer as
it related to, among other subjects, firearms, concealed weapons, and narcotics.
He testified that during the course of his training, he learned various places
where weapons or contraband could be hidden on a person, including in one’s
waistband and the front of jeans.
Describing his initial stop of defendant, the officer explained that
defendant was free to not answer his questions and noted that when he asked
defendant if he would consent to a pat-down search, defendant was not under
arrest. Yorio also explained that he became concerned about his safety based
on his observations of defendant's nervousness and hand movements, which
prompted his request to search defendant for weapons. Yorio also stated that
he checked for warrants because of defendant's insistence that he did not have
any.
After Yorio testified, and during oral argument, defendant maintained
that he did not consent to the search and there was "no warning of the right to
refuse consent in this case." Defendant also argued there was no articulable
suspicion of any criminal activity or that he was nervous during his encounter
as he was "just walking." The State argued that it was clear from the
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testimony that Yorio's field inquiry was not motivated by anything other than
defendant's presence, the time of night, and his sweatshirt despite the warm
weather. In addition, the State added that defendant's conduct of touching his
waistband and avoiding eye contact made Yorio fear for his safety, thus
justifying the pat-down.
On May 4, 2015, the trial court denied defendant's motion, setting forth
its reasons in a thorough nine page written decision. Initially, the court stated
it found Yorio to be credible as he testified consistently with his original report
of the events.
According to the trial court, "the threshold question [was] whether . . .
the initial stop . . . was a field inquiry, or whether it . . . [was] an unlawful
investigatory stop," and it concluded the initial interaction was a lawful field
inquiry. The court relied upon the fact that Yorio approached defendant while
he was walking, defendant was free to not answer questions, and was not under
arrest. The court also noted that Yorio was asking "foundational questions"
and defendant was willing to respond. The court added that there was no
inference in the record "that an objectively reasonable person would have fel t
his right to move ha[d] been restricted." Ibid.
A-4988-16T1
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The trial court also stated that an investigatory stop "would have been
unlawful" because, based on Yorio's testimony, "there was no reasonable and
particularized suspicion to believe that [d]efendant" was going to or "had just
engaged in criminal activity." However, it concluded that the frisk was proper
based upon the officer's concern that developed from the time of night and
defendant's behavior, which created reasonable suspicion that defendant was
armed. The court also found that because the initial search was lawful, so too
was the search that followed defendant's arrest.
Later, during an in limine motion hearing, the trial court revisited its
ruling, considered new evidence in the form of a transcript of Yorio's
conversation with the officer who spotted the unidentified black male earlier
on the same night, and additional testimony from Yorio before it again denied
the motion. The issue arose when defendant contended had the trial court
heard the newly produced tape recording during the suppression hearing, it
would not have found that Yorio's stop of defendant was a lawful field inquiry
because the recording confirmed the officer was actually conducting an
investigation. In the call with Yorio, a county operator, and the other officer,
after being asked whether it is "possibl[y] him" by the other office, Yorio
responded that he was not sure.
A-4988-16T1
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After reviewing a transcript of the call, the trial court had Yorio recalled
to testify. Under questioning by defense counsel, Yorio stated that prior to
stopping defendant, he was not looking for anyone in particular in that area,
including the unidentified man from earlier that evening. He described how
earlier in the evening the other officer saw a black man dressed similarly to
defendant, who walked past a closed business two or three miles away from
where he stopped defendant.
Yorio confirmed the contents of his call. According to Yorio, he
stopped defendant because "[i]t was a point of information to make contact
with the public on . . . [the street] and also [defendant] was by businesses in
dark colored clothing . . . ." He emphasized that defendant was not wanted for
anything and he was not investigating anything about the man the other officer
saw earlier in the night. Yorio confirmed that he did not mention the other
individual in his report.
Yorio was also asked by defense counsel if he recalled that he made a U-
turn when the other officer initially spotted the first man earlier in the night.
He testified that after the other officer called in the presence of that man on the
street near a closed business, he turned his car around to see where the man
was. Yorio did not stop or get out of his car to pursue anyone and did not let
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his dog out. Yorio stated that when he could not find anyone, he resumed his
normal patrol duties and was no longer searching for that man or anyone
specific.
Yorio noted his stop of defendant was not related to the earlier
conversation or the search for the individual spotted in a different location by
the other officer. Yorio further explained that when he made the initial contact
with defendant and when defendant fled, no other officers were present.
Following Yorio's testimony, the trial court considered the parties'
arguments about whether the stop was an investigatory stop. After considering
their arguments, the trial court placed its oral decision on the record. The
court found Yorio to be "extremely credible" and again found that the initial
encounter was a field inquiry. It concluded that Yorio was not "searching for
this individual or any other individual" while on patrol following his
conversation with the other officer. The court reiterated that the frisk was also
lawful, for the reasons stated in its earlier decision.
B.
Defendant argues on appeal that the trial court's denial of his
"suppression motion must be reversed" because the facts did "not support [its]
findings and conclusion." He contends that Yorio's "assertive and persistent
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engagement" made him stop and become nervous. He argues that the
circumstances of the encounter were such that a reasonable person in his
situation would not feel free to walk away, namely after being approached in
the "dead of night" while walking alone and being asked probing questions by
an officer who had a large dog in his police car. Defendant maintains that
there is no support in the record that this encounter could be a field inquiry but
rather, was an investigatory stop. We disagree.
Our review of a trial court's denial of a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). In our review, we defer to a trial
court's factual findings "because the trial court has the 'opportunity to hear and
see the witnesses and to have the "feel" of the case, which a reviewing court
cannot enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v.
Elders, 192 N.J. 224, 244 (2007)). We will "uphold the factual findings
underlying the trial court's decision, provided that those findings are 'supported
by sufficient credible evidence in the record.'" State v. Sencion, 454 N.J.
Super. 25, 31 (App. Div. 2018) (quoting State v. Boone, 232 N.J. 417, 425-26
(2017)). We also defer to the court's credibility findings. State v. Locurto,
157 N.J. 463, 472 (1999). "We owe no deference, however, to conclusions of
law made by trial courts in suppression decisions, which we instead review de
A-4988-16T1
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novo." Sencion, 454 N.J. Super. at 31-32; see also State v. Hubbard, 222 N.J.
249, 263 (2015).
Applying that standard of review, we conclude that the trial court
properly determined that the officer's initial stop of defendant was a lawful
field inquiry, during which the officer developed a reasonable suspicion that
his safety might be threatened. This justified the ensuing lawful frisk, to
which defendant consented.
"A field inquiry is essentially a voluntary encounter between the police
and a member of the public in which . . . police ask questions and do not
compel an individual to answer." State v. Rosario, 229 N.J. 263, 271 (2017).
Generally, in order to conduct a field inquiry, an officer does not need to have
a well-grounded suspicion of criminal activity. Elders, 192 N.J. at 246 (citing
State v. Rodriguez, 172 N.J. 117, 126 (2002)). It is permissible as long as the
individual's freedom is not restricted, he is free to not respond and leave, see
Rodriguez, 172 N.J. at 126; State v. Maryland, 167 N.J. 471, 483 (2001), and
the questions are "not harassing, overbearing, or accusatory in nature." State
v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510
(2003)); see also Rodriguez, 172 N.J. at 126.
A-4988-16T1
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The conduct of the police officer has significant weight in determining
whether a field inquiry has become an investigative stop. "[T]he tenor of the
police questions" can contribute to a finding that an encounter had progressed
"beyond a mere field inquiry." Rodriguez, 172 N.J. at 129. The "critical
inquiry" is "whether the policeman" has "conducted himself in a manner
consistent with what would be viewed as a non-offensive contact if it occurred
between two ordinary citizens." State v. Davis, 104 N.J. 490, 497 n.6 (1986)
(quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment, § 9.2 at 53 (1978)).
"[A]uthoritative questions that presuppose criminal activity or are
otherwise indicative of criminal suspicion, thus making the suspect aware he is
the focus of a particularized investigation, may be considered as part of the
totality of circumstances in determining whether a field inquiry has escalated
into an investigatory stop." State v. Sirianni, 347 N.J. Super. 382, 389 (2002).
On the other hand, if an officer puts his questions "in a conversational manner,
if he did not make demands or issue orders, and if his questions were not
overbearing or harassing in nature," his manner would not result in a seizure of
the person. Davis, 104 N.J. at 497 n.6. "While most citizens will respond to a
police request, the fact that people do so, and do so even without being told
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that they are free not to respond, hardly eliminates the consensual nature of the
response." Sirianni, 347 N.J. Super. at 389 (quoting State v. Hickman, 335
N.J. Super. 623, 635 (App. Div. 2000)).
On the other hand, an investigatory or Terry stop1 is characterized by a
detention in which the person approached by a police officer would not
reasonably "feel free to leave," even though the encounter falls short of a
formal arrest. See State v. Stovall, 170 N.J. 346, 355-56 (2002). A police
officer has a right "to conduct a brief, investigatory stop," State v. Morrison,
322 N.J. Super. 147, 151-52 (App. Div. 1999); see also Terry, 392 U.S. at 20-
21, if that stop is "based on 'specific and articulable facts which, taken together
with rational inferences from those facts,' give rise to a reasonable suspicion of
criminal activity." Rodriguez, 172 N.J. at 126 (quoting Terry, 392 U.S. at 21);
see also Davis, 104 N.J. at 504. Reasonable suspicion "involves a significantly
lower degree of objective evidentiary justification than does the probable cause
test," Davis, 104 N.J. at 501, and "innocent circumstances in the aggregate can
support a finding of reasonable suspicion." Stovall, 170 N.J. at 368; see also
Nishina, 175 N.J. at 510-11.
1
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
A-4988-16T1
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"[I]t is clear that a proper field inquiry . . . may escalate into a situation
justifying a Terry protective search if the suspect is reasonably suspected of
being armed and dangerous." Maryland, 167 N.J. at 489; see Rosario, 229 N.J.
at 279-80 (Solomon, J., dissenting). "[W]here there is an insufficient basis for
a protective search at the threshold of an encounter between an officer and a
suspect, events occurring subsequent . . . may give rise to an objectively
justified suspicion that the suspect is armed." State v. Thomas, 110 N.J. 673,
681 (1988).
Here, there was no evidence that Yorio conducted an investigatory stop
instead of a lawful field inquiry. Stopping defendant was neither the result of
any ongoing investigation nor any demonstrable suspicion that a crime had
been or was about to be committed. Rather, as the trial court found, Yorio
conducted a field inquiry before becoming concerned for his own safety based
on his observations of defendant in the context of the officer's training and
experience. The trial court's finding in this regard was well supported by the
evidence and the court's conclusions were legally correct.
Moreover, Yorio did not ask any accusatory or authoritative questions
and he did not take out his weapon or his canine dog during his initial
encounter with defendant. There was no evidence that defendant was not free
A-4988-16T1
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to decline Yorio's questions and there was nothing confrontational about the
encounter.
The nature of the encounter only began to change when Yorio observed
defendant adjusting his waistband, appearing nervous and kept avoiding eye
contact. This behavior during the lawful field inquiry, resulted in a
permissible frisk. See State v. Privott, 203 N.J. 16, 29 (2010) (concluding a
frisk was lawful based upon, among other factors, "[d]efendant appear[ing]
nervous, walk[ing] away from the officer, and mov[ing] one hand towards his
waistband"). Yorio's concern about his safety was justified based upon "his
extensive experience in the field, [that made him] aware that the waistband is
an area commonly used by armed persons to conceal a weapon." Ibid. As
such, Yorio developed a fear for his safety and a reasonable suspicion that
defendant may have a weapon based on his behavior during the encounter and
his presence alone around closed businesses at 2:42 a.m. The officer's search
of defendant was lawful.
III.
A.
Next, we consider defendant's contentions about the trial court's ruling
regarding the two 911 calls. The admissibility of the tapes was raised by
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defendant as part of an in limine motion. In his motion, defendant sought
permission to use the contents of the recordings as substantive evidence that
the police were harassing defendant and it was the officer and not defendant
who had a weapon at the scene.
Initially, the trial court ruled that the recordings could be used, but not
as substantive evidence because the recordings contained hearsay that was not
admissible as present sense impressions under Rule 803(c)(1), or as excited
utterances under Rule 803(c)(2), and admitting them as substantive evidence
would be a violation of the Confrontation Clause. The trial court indicated
that it would deliver a corresponding limiting instruction to the jury. Despite
that ruling, during trial, the trial court barred defendant from pla ying the tapes,
but indicated it would allow defendant to ask Yorio questions about the 911
calls.
The two 911 calls were evidently made by either one or two unidentified
citizens after the police subdued defendant and they related to the caller's or
callers' observations of the events that transpired between Yorio and
defendant. In one call, the caller stated he saw a "kid had just walked right
past here, a cop had just pulled him over. Something had went down. And
now there's lots -- a bunch of cops jumping on one guy down here on Main
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Street." According to the caller, the police were "harassing the guy real
badly." The dispatcher confirmed the caller's location and the call terminated
when the caller indicated he did not want to identify himself.
During the second 911 call, the caller described his location as being the
same as the first caller. He then confirmed that he saw police at the scene.
The caller described what he believed was a "young guy" who "had just
walked past" the caller. The caller stated that he saw a police officer "with a
dog circling around the block" before the officer "all of a sudden got the boy,"
who then "start[ed] running." He then described how the police "pulled up
with" and then "pulled a gun out on the boy." In response to questions from
the dispatcher, the caller confirmed it was the police who pulled out a gun and
not the boy. He stated he did not know the young boy. The second caller also
wanted to remain anonymous and the call terminated.
According to defendant, the 911 recordings were admissible under either
Rule 803(c)(1) or (2) as excited utterances or present sense impressions.
Specifically, he asserted that the calls were made as someone was viewing a
startling condition. With regard to the right to confrontation under Crawford
v. Washington, 541 U.S. 36 (2004) and Rules 803(c)(1) and (2), there was no
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requirement that the declarant be available as the callers never identified
themselves.
The State disagreed, and argued for a statement to be a present sense
impression it must be contemporaneous with no time to fabricate, which could
render the calls inadmissible in this case. In addition, the State also argued
that the callers were anonymous, which implicated the veracity of the calls. It
also argued the calls did not reflect observations of a startling event or
emergency as the police were already at the scene.
In its oral decision, the trial court stated it found the 911 tapes not
admissible as the calls were not present sense impressions or an excited
utterances. It also explained that the concept behind the Confrontation Clause
applied "to everybody across the board. . . . Everybody has a right to
confront[] . . . witnesses . . . ."
The court concluded that the 911 calls were not admissible under Rule
803(c)(1), as a present sense impression, because they were made after the
police were already on the scene, they were not 911 "in nature in that they're
reporting an emergency," and it was unclear how long the callers waited before
making the calls. Likewise, the court did not find the calls to be excited
A-4988-16T1
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utterances under Rule 803(c)(2) because "[t]his was not a startling event." The
callers "called [in just] to report something."
Despite finding the 911 calls inadmissible, the court stated that it would
not prevent defendant from using the tapes in his case-in-chief, but stated that
it would instruct the jury that "it's not substantive evidence." It explained that
because the tapes were "not subject to cross-examination, [although defendant
could] use them on . . . cross-examination," the jury could not "take it as
gospel to establish that anything happened in regard to" them.
However, during the trial, when defense counsel attempted to play the
tapes during Yorio's cross-examination, the trial court refused to allow it
because they contained "hearsay," the callers were never identified, and could
not be subjected to cross-examination. The court made clear that counsel
could ask Yorio questions about the calls, but stated that the recordings could
not be played to the jury. The court also stated that defendant could, if he
chose, call Yorio as a witness during his case-in-chief and question him about
his recordings. Rather than extensively questioning Yorio about the calls
during cross-examination, defense counsel only elicited from Yorio that he had
heard the recordings and that they related to the callers' concern that defendant
A-4988-16T1
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was being harassed. Defendant never called Yorio as a witness. Instead,
defendant rested without calling any witnesses.
B.
On appeal, defendant argues that the trial court's conclusion that the 911
recordings contained inadmissible hearsay was incorrect and denied
defendant's "right to a fair trial." He raises three issues: that the
Confrontation Clause was wrongfully applied in favor of the State; that the
calls were present sense impressions or excited utterances; and that the trial
court's ruling deprived him of a meaningful "opportunity to present a complete
defense." While we agree with defendant about the inapplicability of the
Confrontation Clause to a court's consideration of evidence being offered by a
defendant, we discern no abuse of discretion by the trial court barring the
tape's admission.
Ordinarily, "[a] trial court's evidentiary rulings are entitled to deference
absent a showing of an abuse of discretion" as a "clear error of judgment."
State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J.
431, 439 (2012)). Accordingly, "absent a showing that the [trial] court abused
its discretion," this court will not reverse a decision concerning the admission
or exclusion of evidence unless it concludes that it "was so wide of the mark as
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to bring about a manifest injustice." E&H Steel Corp. v. PSEG Fossil, LLC,
455 N.J. Super. 12, 24-25 (App. Div. 2018) (citing Griffin v. City of E.
Orange, 225 N.J. 400, 413 (2016)). When a trial court fails to apply the proper
legal standard to determine the admissibility of evidence, the court's decision
is not entitled to deference and appellate review is de novo. State v. Darby,
174 N.J. 509, 518 (2002).
At the outset, we agree with defendant that the Confrontation Clause
does not apply to the State's inability to cross-examine statements made by
declarants who do not testify at trial. Both the Federal and State constitutions
protect an accused's rights to due process and to confront the "witnesses
against him." U.S. Const. amends. V, VI, XIV, § 1; N.J. Const. art. I, ¶¶ 1, 10;
State v. Garron, 177 N.J. 147, 168-69 (2003). "In Crawford . . . the United
States Supreme Court declared that the Sixth Amendment's Confrontation
Clause prohibited the use of an out-of-court testimonial statement against a
criminal defendant unless the witness was unavailable and the defendant was
given a prior opportunity to cross-examine her." State v. Basil, 202 N.J. 570,
591 (2010) (emphasis added).
The Confrontation Clause protects criminal defendants by insuring they
have "the right to physically face those who testify against them," and the
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ability to cross-examine their accusers before the trier of fact. Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (1987). The Confrontation Clause's central purpose
"is to ensure the reliability of evidence brought against a defendant by" testing
it under the rubric of four elements: physical presence, oath, cross-
examination, and observation of demeanor. Maryland v. Craig, 497 U.S. 836,
845-46 (1990) (emphasis added). For this reason, even "hearsay evidence that
falls within an exception to the hearsay rule, may still not be admissible"
against a defendant if any of the elements are not present. Biunno, Weissbard
& Zegas, Current N.J. Court Rules of Evidence, cmt. on N.J.R.E. 802 (Gann).2
The same does not hold true for the State. A defendant is entitled to the
admission of relevant evidence that is not otherwise barred by our rules
without regard to the Confrontation Clause's protections. Here then, the only
determination is whether the hearsay evidence contained in the two calls were
admissible under our rules.
"Hearsay is generally inadmissible, [Rule] 802, except if it falls within
one of the hearsay exceptions." State v. Outland, 458 N.J. Super. 357, 364
2
However, the Clause "does not condemn all hearsay." State v. Branch, 182
N.J. 338, 349 (2005). "A defendant's confrontation right must accommodate
'legitimate interests in the criminal trial process,' such as established rules of
evidence and procedure designed to ensure the efficiency, fairness, and
reliability of criminal trials." Ibid. (quoting Garron, 177 N.J. at 169).
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(App. Div. 2019) (quoting State v. Williams, 169 N.J. 349, 358 (2001)).
Regardless of a declarant's unavailability, "[s]tatements that qualify as a
present sense impression, [Rule] 803(c)(1), or an excited utterance, [Rule]
803(c)(2), are two such exceptions." Ibid. 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 [an] opportunity to deliberate or fabricate." N.J.R.E.
803(c)(1); Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 458 (App. Div.
2015). An excited 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 [an] opportunity to deliberate or
fabricate." N.J.R.E. 803(c)(2); see Gonzales, 441 N.J. Super at 458 (quoting
N.J.R.E. 803(c)(2)) (concluding that a statement did not constitute an excited
utterance as "no foundation [was] laid that the declarant spoke 'under the stress
of excitement' without 'the opportunity to deliberate or fabricate'").
911 calls made during an emergency are typically considered hearsay
statements and are only admissible in a criminal trial "subject to traditional
limitations upon hearsay evidence." Davis v. Washington, 547 U.S. 813, 821
(2006). Generally, where the "911 call[] is . . . not designed primarily to
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'establis[h] or prov[e]' some past fact, but to describe current circumstances
requiring police assistance," it may be admissible. Id. at 827 (alterations in
original). That is particularly so when "any reasonable listener would
recognize [the 911 caller] was facing an ongoing emergency." Ibid.Here, both 911 calls were made while police were already present at the
scene. There was no emergency that required police attention because the
police were already there. Whether it was the same caller or two different
individuals, there was no indication that the declarant was stressed or excited
by witnessing the interaction between the police and defendant or that he did
not have an opportunity to fabricate. Under these circumstances, the trial court
correctly determined that the 911 calls were inadmissible.
Moreover, even though the trial court would not admit the calls, it
permitted defendant to question Yorio about them on cross-examination. Yet,
defense counsel who had already cross-examined Yorio for about four hours,
only asked limited questions about the calls once the judge prevented the
recordings from being played. Without defendant making further inquiry
about the tapes as permitted by the trial court, we cannot discern how the trial
court's ruling, if erroneous, impacted defendant other than barring the calls
from being admitted as substantive evidence, a ruling with which we concur.
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Finally, even if we disagreed with the trial court, we conclude barring the
tapes' admission did not create a manifest injustice under these circumstances.
Affirmed.
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