State v. Deshawn P. Wilson(076609) , 227 N.J. 534 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. DeShaun P. Wilson (A-42-15) (076609)
Argued October 11, 2016 -- Decided January 19, 2017
Solomon, J., writing for a unanimous Court.
In this appeal, the Court determines whether the admission into evidence of a map, prepared and adopted
by a governmental entity pursuant to N.J.S.A. 2C:35-7.1(e), violates the Confrontation Clause of the Sixth
Amendment to the United States Constitution and the analogous New Jersey constitutional provision, which
guarantee an accused “the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; N.J.
Const. art. I, ¶ 10.
Police detectives observed defendant DeShaun P. Wilson engage in the apparent sale of “crack cocaine” in
the area of a public park in Elizabeth. Wilson was charged with third-degree possession of a controlled dangerous
substance (CDS), third-degree possession of CDS with intent to distribute, and second-degree possession of CDS
with intent to distribute in or within 500 feet of a public park.
During trial, the State sought to admit into evidence three related documents: a map of the park with a
legend noting that the map was certified in 1998 by “Armand A. Fiorletti, P.E., Union County Engineer”; an
affidavit by an assistant Union County prosecutor, Richard Rodbart, stating that he had personally worked with the
Engineer in contracting a third party to produce maps depicting each 500-foot zone within the county; and
Resolution No. 1513-99, passed by the Union County Board of Chosen Freeholders, which states that the purpose of
depicting the 500-foot areas was to “introduce[e] said map[s] as evidence of the locations and boundaries of those
areas within Union County in criminal prosecutions under N.J.S.A. 2C:35-7.1.”
Wilson objected to the admission of the three documents, arguing that the map had not been properly
authenticated and that the affidavit was inadmissible hearsay. Wilson emphasized that he never had an opportunity
to cross-examine Rodbart. The trial court disagreed and admitted the documents into evidence. The jury was
unable to reach a unanimous verdict, and the court declared a mistrial.
During the second trial, the State called a detective from the prosecutor’s office as a witness. The detective
testified that the map was “a standard 500-foot map” but admitted that he did not create the map or take the
measurements that establish the area it depicts and that he relied on the engineer’s work for accuracy. When the
State moved to enter the map and other documents into evidence, defense counsel objected that the map was
inadmissible. The trial court admitted all three documents into evidence. Wilson was convicted of all charges.
The Appellate Division affirmed the conviction, holding that the map was nontestimonial and that its
admission did not violate Wilson’s confrontation rights. 442 N.J. Super. 224, 248 (App. Div. 2015). The panel
found the map admissible under New Jersey’s Rules of Evidence and N.J.S.A. 2C:35-7.1(e).
The Court granted Wilson’s petition for certification “limited to the issue of whether defendant’s
confrontation rights were violated by the admission into evidence of a map to establish the crime of distribution of
CDS within 500 feet of a public park.” 224 N.J. 119 (2016).
HELD: The map commissioned and adopted by the Board pursuant to N.J.S.A. 2C:35-7.1(e) is nontestimonial and its
admission therefore did not violate Wilson’s confrontation rights. Further, such maps are admissible, if properly
authenticated, under N.J.S.A. 2C:35-7.1(e) and as public records pursuant to N.J.R.E. 803(c)(8). Because the map was
not properly authenticated, however, the Court is constrained to reverse the Appellate Division’s judgment that the map
was properly admitted into evidence at trial and to remand the matter for a new trial on the count of defendant’s
conviction that depended on the map.
1. Wilson’s Confrontation Clause objection was timely and adequate. The Confrontation Clause affords a
procedural guarantee that the reliability of evidence will be tested “in a particular manner” through “the crucible of
cross-examination.” Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199
(2004). Under the standard set forth in Crawford, a testimonial statement against a defendant by a non-testifying
witness is inadmissible under the Confrontation Clause unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine him or her. (pp. 9-12)
2. The Court reviews United States Supreme Court jurisprudence and its development of the “primary purpose” test
to determine whether an out-of-court statement is testimonial and, accordingly, falls within the ambit of the
Confrontation Clause. In Davis v. Washington, the Court noted that statements with the primary purpose of
“establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution” would be testimonial.
547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). (pp. 13-15)
3. This Court has applied the primary purpose test in various Confrontation Clause cases involving the admission of
forensic reports and medical examiner testimony. In State v. Michaels, 219 N.J. 1, 44, cert. denied, ___ U.S. ___,
135 S. Ct. 761, 190 L. Ed. 2d 635 (2014), the Court held that a blood test report prepared after a fatal motor vehicle
accident was testimonial because its primary purpose was to serve as “a direct accusation against [the] defendant.”
In State v. Bass, 224 N.J. 285, 316-17 (2016), the Court found an autopsy report to be testimonial because the
autopsy was conducted after a homicide investigation had begun; the defendant was a suspect in the homicide and
had already spoken with the police; the autopsy was conducted in the presence of the lead State investigator;
evidence collected during the autopsy was transmitted to the investigator; and the chain of custody was documented
in the report. Id. at 316-17. The primary purpose of the autopsy report was thus “to establish facts for later use in
the prosecution of [that] case.” Id. at 317. In State v. Chun, 194 N.J. 54, 147, cert. denied, 555 U.S. 825, 129 S. Ct.
158, 172 L. Ed. 2d 41 (2008), the Court considered “foundational documents,” or documents that establish the
operational status of a device, and concluded that they fell “outside of the definition of testimonial.” (pp. 16-19)
4. Applying the primary purpose test to determine whether the Confrontation Clause is implicated here, the Court
acknowledges that the map was created to be later used against those charged with violations of N.J.S.A. 2C:35-7.1
and that documents prepared for use in a prosecution are generally testimonial. Nonetheless, the Court considers the
map’s other characteristics as well and finds that the area it depicts is an objective measurement that requires no
“independent interpretation” of raw data. Although it is not a “foundational document,” the map shares the
objective and neutral qualities of such evidence. Because the map was not created for the primary purpose of
“establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution,” Bass, supra, 224 N.J. at
314, its admissibility “is the concern of state and federal rules of evidence, not the Confrontation Clause.” Michigan
v. Bryant, 562 U.S. 344, 358-59, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107-08 (2011). (pp. 19-22)
5. The map is hearsay but is a public record within the meaning of N.J.R.E. 803(c)(8). It would be admissible if it
satisfied “[t]he requirement of authentication or identification.” N.J.R.E. 901. N.J.S.A. 2C:35-7.1(e) affords a
separate basis for the map’s admission into evidence—“upon proper authentication.” Proper authentication of the
map required a witness who could testify to its authenticity and be cross-examined on the methodology of the map’s
creation and its margin of error. That was not done here. Because the map was thus inadmissible hearsay, the State
failed to offer competent evidence proving that the alleged drug transaction took place within 500 feet of a public
park, an essential element of N.J.S.A. 2C:35-7.1(a). The Court is thus constrained to reverse defendant’s conviction
for, and to remand for a new trial on the charge of, violating N.J.S.A. 2C:35-7.1. (pp. 22-25)
6. The Court authorizes use of a “notice and demand” procedure to bypass the production of a witness to
authenticate a map created pursuant to N.J.S.A. 2C:35-7.1(e) and refers to the Supreme Court Committee on
Criminal Practice the crafting of such a rule. (pp. 25-26)
The judgment of the Appellate Division affirming defendant’s conviction of violating N.J.S.A. 2C:35-
7.1(a), count three of the indictment, is REVERSED, and the matter is REMANDED for further proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-42 September Term 2015
076609
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DESHAUN P. WILSON,
Defendant-Appellant.
Argued October 11, 2016 – Decided January 19, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 442 N.J. Super. 224 (App. Div.
2015).
Brian P. Keenan, Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Kevin G.
Byrnes, Designated Counsel, and Solmaz F.
Firoz, Assistant Deputy Public Defender, on
the briefs).
Sara M. Quigley, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General of New Jersey,
attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
We are called upon to determine whether the admission into
evidence of a map, prepared and adopted by a governmental entity
pursuant to N.J.S.A. 2C:35-7.1(e), violates the Confrontation
Clause of the Sixth Amendment to the United States Constitution
and the analogous New Jersey constitutional provision, which
1
guarantee an accused “the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; N.J. Const. art.
I, ¶ 10. In defendant’s trial, the map was used as prima facie
evidence that defendant DeShaun P. Wilson was within 500 feet of
a public park when he possessed for distribution “crack
cocaine,” in violation of N.J.S.A. 2C:35-7.1(a).
We conclude that the map, commissioned and adopted by the
Union County Board of Chosen Freeholders (“Board”) pursuant to
N.J.S.A. 2C:35-7.1(e), is nontestimonial and that its admission
therefore did not violate defendant’s confrontation rights. We
also find that such maps are admissible, if properly
authenticated, under N.J.S.A. 2C:35-7.1(e) and as public records
pursuant to N.J.R.E. 803(c)(8). Because the map was not
properly authenticated, however, we are constrained to reverse
the Appellate Division’s judgment that the map was properly
admitted into evidence at trial and to remand the matter for a
new trial on the count of defendant’s conviction that depended
on the map.
I.
The facts germane to this appeal are as follows. City of
Elizabeth detectives observed defendant engage in the apparent
sale of “crack cocaine” in the area of Leggett Park, a public
park in Elizabeth. Defendant was charged with third-degree
possession of a controlled dangerous substance (CDS), N.J.S.A.
2
2C:35-10(a)(1) (count one); third-degree possession of CDS with
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count
two); and second-degree possession of CDS with intent to
distribute in or within 500 feet of a public park, N.J.S.A.
2C:35-7.1 (count three). Defendant was indicted on those
charges and, following pretrial motions, was tried before a jury
in the Union County Superior Court.
During trial, the State sought to admit into evidence three
related documents: a map of Leggett Park and the surrounding
area (“map”); an affidavit by an assistant Union County
prosecutor, Richard Rodbart; and Resolution No. 1513-99, passed
by the Board in 1999 to adopt a book of drug-free-zone maps.
The map, titled “UNION COUNTY DRUG FREE ZONES,” illustrates
with a circle a 500-foot radius around Leggett Park. The legend
notes that the map was certified in 1998 by “Armand A.
Fiorletti, P.E., Union County Engineer.”
The affidavit, offered by the State to authenticate the
map, states that Rodbart personally worked with the Union County
Engineer in contracting a third party, T&M Associates, to
produce maps depicting each public housing facility, public
park, and public building, as those terms are defined in
N.J.S.A. 2C:35-7.1(f). The affidavit notes that the maps were
contained in a master notebook.
3
The third document presented by the State, Resolution No.
1513-99, indicates that Union County contracted with T&M
Associates to create maps of all 500-foot drug-free zones within
the county in coordination with, and under the supervision of,
Fiorletti. The resolution states that the purpose of depicting
the 500-foot areas was to “introduc[e] said map[s] as evidence
of the location and boundaries of those areas within Union
County in criminal prosecutions under N.J.S.A. 2C:35-7.1.”
Through the resolution, the Board adopted the maps “as an
official finding and record of the location and boundaries of
the area or areas on or within 500 feet of public housing
facilities, public parks, and public buildings” within Union
County.
Defendant objected to the admission of the map, affidavit,
and resolution. He stressed that the police detective called by
the State to testify about the map did not work for one of the
city’s parks, zoning, or recreation departments and could not
identify Leggett Park as a public park or authenticate the map
as accurate. Defendant also asserted that Rodbart’s affidavit
was inadmissible as hearsay and did not qualify as a self-
authenticating document. Defendant emphasized that he never had
an opportunity to cross-examine Rodbart.
4
The court disagreed and admitted the documents into
evidence. The jury was unable to reach a unanimous verdict, and
the court declared a mistrial.
A second trial commenced, during which the State called as
a witness a detective from the prosecutor’s office. The
detective described the map as “a standard 500-foot map” and
explained that the circle it displays represents a 500-foot
radius from a public building or park. He testified that
Leggett Park is in the center of the circle and that the alleged
narcotics transaction occurred within 500 feet of the park.
Defense counsel did not object during the State’s direct
examination.
On cross-examination, the detective confirmed that the map
was drafted in 1998, that it was certified by an engineer, and
that the prosecutor’s office relies on the city or county
engineers for the production and provision of such maps. The
detective also testified that he did not create the map or take
the measurements that establish the circle on the map. With
respect to the map’s accuracy, he stated that he “can only go by
what the city engineer has made.”
Later, outside the presence of the jury, the State
attempted to move the map and other documents into evidence.
The State asserted that the map, affidavit, and resolution
qualified as self-authenticating documents under N.J.R.E. 902
5
and as public records under N.J.R.E. 803(c)(8). The State also
contended that the map was admissible under N.J.S.A. 2C:35-7.1.
Defense counsel objected, claiming that the affidavit refers to
a book of maps but does not specifically identify the map as
part of that book. The defense also asserted that the affidavit
was hearsay and that it was unclear whether the county engineer
referred to therein was the same engineer who certified the map.
Finally, defense counsel challenged the foundational basis for
the map’s admission, maintaining that the detective’s testimony
was insufficient. Over those objections, the court admitted the
documents into evidence.
Defendant was convicted of all charges, including count
three of the indictment, which charged distribution of CDS
within 500 feet of a public park in violation of N.J.S.A. 2C:35-
7.1. The Appellate Division affirmed the conviction, holding
that the map was nontestimonial and that its admission did not
violate defendant’s confrontation rights. State v. Wilson, 442
N.J. Super. 224, 248 (App. Div. 2015). Although the panel
recognized that the map was hearsay, it found the map admissible
under our Rules of Evidence and N.J.S.A. 2C:35-7.1(e). Ibid.
This Court granted defendant’s petition for certification
“limited to the issue of whether defendant’s confrontation
rights were violated by the admission into evidence of a map to
6
establish the crime of distribution of CDS within 500 feet of a
public park.” State v. Wilson, 224 N.J. 119 (2016).
II.
Defendant contends that the Confrontation Clause is
implicated here because the map is testimonial under New
Jersey’s primary purpose test. He maintains that the map serves
no purpose other than to prosecute individuals charged with
violating N.J.S.A. 2C:35-7.1 and was created to prove an element
of that criminal offense. He characterizes the map as
“functionally identical” to live, in-court testimony that drug
distribution at a specific location was measured to be within
500 feet of a public park. Defendant argues that his
confrontation rights were violated because the State failed to
produce a witness who either prepared the map or otherwise had
sufficient knowledge of the map’s accuracy.
Defendant also contends that the map is inadmissible
hearsay. He maintains that the public records exception to the
hearsay rule, N.J.R.E. 803(c)(8), does not apply. He argues
that T&M Associates, as a private company, does not constitute a
public official. Defendant adds that the record is unclear as
to whether the former county engineer who oversaw the map-making
process was a public official at that time, acting within his
official duties while supervising the map’s creation.
7
Defendant also asserts that the business records exception
to the rule against hearsay, N.J.R.E. 803(c)(6), is inapplicable
because the map is not relied upon by a business or government
for any regularly conducted business activity other than
investigations and prosecutions under N.J.S.A. 2C:35-7.1.
The State argues that defendant waived his Confrontation
Clause challenge because, at trial, defense counsel objected
only on evidentiary grounds. The State maintains that this
objection was untimely and improper because it did not refer
specifically to the Confrontation Clause, the Sixth Amendment,
or Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004).
The State also claims that, even if we find the
Confrontation Clause challenge properly raised, defendant’s
rights were not violated. The State contends that the map is
nontestimonial, claiming no difference between the map and a
certified map of New Jersey used for jurisdictional purposes.
In support, the State analogizes the map to an Alcohol
Influence Report (AIR) held to be nontestimonial in State v.
Chun, 194 N.J. 54, 142-43, cert. denied, 555 U.S. 825, 129 S.
Ct. 158, 172 L. Ed. 2d 41 (2008), because, like the AIR, the map
here does not report a past event. In addition, the State
argues that this case lacks the common characteristic of
documents held to be testimonial in State v. Michaels, 219 N.J.
8
1, cert. denied, ___ U.S. ___, 135 S. Ct. 761, 190 L. Ed. 2d 635
(2014), State v. Roach, 219 N.J. 58 (2014), cert. denied, ___
U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015), and State
v. Bass, 224 N.J. 285 (2016), where the documents were “prepared
after the commencement of a criminal investigation to be used
against a particular individual at his trial.”
Additionally, the State claims that the map is admissible
as a public record under N.J.R.E. 803(c)(8) or, alternatively,
as a business record under N.J.R.E. 803(c)(6).
III.
A.
Before addressing the law applicable to the parties’
arguments, we must first decide whether defendant waived his
Confrontation Clause objection.
In the context of Confrontation Clause jurisprudence, each
state has the authority “to adopt procedural rules governing
objections.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327,
129 S. Ct. 2527, 2541, 174 L. Ed. 2d 314, 331 (2009). In the
exercise of this authority, this Court has held that a defendant
does not waive a Confrontation Clause objection merely because
he waits until a witness’s testimony is underway to object,
“particularly where . . . the objection is premised on the form
and content of the witness’s testimony.” Bass, supra, 224 N.J.
at 311-12. Furthermore, we do not require a defendant to
9
specifically use the terms “Confrontation Clause” or “Sixth
Amendment” or to refer to Crawford, supra, to preserve a
Confrontation Clause challenge. Id. at 312. Nevertheless, “a
defendant [generally] must attempt to exercise his confrontation
right and object when necessary, if he wishes later to claim
that he was denied that right.” State v. Williams, 219 N.J. 89,
93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L.
Ed. 2d 565 (2015).
Here, unlike the defendant in Williams, supra, 219 N.J. at
100-01, who raised no objection to the testimony he later
claimed violated his confrontation rights, defendant asserted
his objection before the trial court. He cited an objection
made at his first trial and “alluded to an inability to cross-
examine the individual who had made the [map’s] measurements.”
Wilson, supra, 442 N.J. Super. at 235 n.4. Defendant also
highlighted the State’s failure to present an adequate witness
to testify about the map, asserting that the detective’s
testimony was insufficient.
Although defendant did not object to the map during the
detective’s testimony, the map was not admitted into evidence
until the trial judge requested that the parties review the
materials offered. When the State attempted to admit the map,
defense counsel immediately objected. Our Court Rules require
only that the objection be raised “at the time the ruling or
10
order is made or sought.” R. 1:7-2. Therefore, we find that
defendant’s objection was timely.
We also find the substance of defendant’s objection to be
sufficient. In addition to a hearsay objection, defense counsel
contended that the detective’s testimony was inadequate -- the
State “could have brought someone in to testify to [the map or
affidavit]” -- and the foundation for the map’s admission was
deficient. We find that this was an objection as to form and
content. See Bass, supra, 224 N.J. at 311-12.
Our courts will not find waiver of an objection unless
counsel’s declarations are in some way lacking. See, e.g.,
State v. T.J.M., 220 N.J. 220, 231 (2015) (finding objection not
clearly raised when counsel made only “tepid complaint” before
dropping argument and proceeding to argue another issue); State
v. Nunez, 436 N.J. Super. 70, 76 (App. Div. 2014) (applying
plain error rule because counsel objected on incorrect grounds).
Here, the defense clearly asserted the correct grounds for its
objection at the time the trial court ruled on admission of the
map. We therefore hold that defendant’s Confrontation Clause
challenge was timely and adequate.
B.
Having found that defendant did not waive his Confrontation
Clause challenge, we now address the substantive law applicable
to this appeal. We begin by noting that the satisfaction of
11
defendant’s confrontation rights is a question of law, which we
review de novo. See State v. Jones, 224 N.J. 70, 85 (2016).
The Sixth Amendment to the United States Constitution and
Article 1, Paragraph 10 of the New Jersey Constitution, in
nearly identical language, provide that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI; N.J. Const. art. 1, ¶ 10. The Confrontation Clause affords
a procedural guarantee that the reliability of evidence will be
tested “in a particular manner” through “the crucible of cross-
examination.” Crawford, supra, 541 U.S. at 61, 124 S. Ct. at
1370, 158 L. Ed. 2d at 199; State ex rel. J.A., 195 N.J. 324,
342 (2008) (“[The] right embodied in the Confrontation
Clause expresses a preference for the in-court testimony of a
witness, whose veracity can be tested by the rigors of cross-
examination.”).
Under the standard set forth in Crawford, a testimonial
statement against a defendant by a non-testifying witness is
inadmissible under the Confrontation Clause unless the witness
is unavailable and the defendant had a prior opportunity to
cross-examine him or her. Crawford, supra, 541 U.S. at 59,
124 S. Ct. at 1369, 158 L. Ed. 2d at 197. The threshold issue
is, thus, whether the proffered statement is “testimonial” in
nature. Although the Crawford Court refrained from offering a
12
“comprehensive definition” of the term, it provided some initial
guideposts. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at
203.
First, quoting an 1828 English dictionary, the Court noted
that “testimony” typically refers to “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some
fact.” Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192
(alteration in original). From this definition, the Court
concluded that a formal out-of-court statement to government
officers “bears testimony” against the accused whereas “a casual
remark to an acquaintance does not.” Ibid.
Second, the Court provided the following as a non-
exhaustive list of testimonial statements:
ex parte in-court testimony or its functional
equivalent -- that is, material such as
affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial statements
that declarants would reasonably expect to be
used prosecutorially[;] . . . extrajudicial
statements . . . contained in formalized
testimonial materials, such as affidavits,
depositions, prior testimony, or
confessions[;] . . . statements that were made
under circumstances which would lead an
objective witness reasonably to believe that
the statement would be available for use at a
later trial.
[Id. at 51-52, 124 S. Ct. at 1364, 158 L. Ed.
2d at 193 (emphases added) (citations and
internal quotation marks omitted).]
13
After Crawford, the United States Supreme Court “labored to
flesh out what it means for a statement to be ‘testimonial.’”
Ohio v. Clark, 576 U.S. ___, ___, 135 S. Ct. 2173, 2179, 192 L.
Ed. 2d 306, 314 (2015). It developed the “primary purpose” test
to determine whether an out-of-court statement is testimonial
and, accordingly, falls within the ambit of the Confrontation
Clause. Id. at ___, 135 S. Ct. at 2179-80, 192 L. Ed. 2d at
314. In Davis v. Washington, the Court concluded that
statements made outside the stationhouse setting with the
primary purpose of enabling police assistance in an ongoing
emergency were nontestimonial. 547 U.S. 813, 822, 126 S.
Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). The Davis
Court noted, however, that statements with the primary purpose
of “establish[ing] or prov[ing] past events potentially relevant
to later criminal prosecution” would be testimonial. Id. at
822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.
Later, in Michigan v. Bryant, the Court explained that
“[w]hen, as in Davis, the primary purpose of an interrogation is
to respond to an ‘ongoing emergency,’ its purpose is not to
create a record for trial and thus is not within the scope of
the [Confrontation] Clause.” 562 U.S. 344, 358, 131 S.
Ct. 1143, 1155, 179 L. Ed. 2d 93, 107 (2011). The Court
recognized that, aside from ongoing emergencies, circumstances
may arise “when a statement is not procured with a primary
14
purpose of creating an out-of-court substitute for trial
testimony.” Ibid. “Where no such primary purpose exists, the
admissibility of a statement is the concern of state and federal
rules of evidence, not the Confrontation Clause.” Id. at 359,
131 S. Ct. at 1155, 179 L. Ed. 2d at 107-08. Accordingly,
“standard rules of hearsay, designed to identify some statements
as reliable, will be relevant” to the application of the primary
purpose test. Id. at 358-59, 131 S. Ct. at 1155, 179 L. Ed. 2d
at 107.
A year after Bryant, the Supreme Court’s fractured decision
in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L.
Ed. 2d 89 (2012), created confusion as to the viability and
formulation of the primary purpose test. See Michaels, supra,
219 N.J. at 25-28 (discussing Williams plurality opinion). In
light of this uncertainty, we upheld the primary purpose test
originally announced in Davis and developed in pre-Williams case
law. Id. at 31 (“We find Williams’s force, as precedent, at
best unclear.”). The soundness of our decision to do so was
later affirmed by the Supreme Court’s decision in Ohio v. Clark,
where the Court confirmed that “the question is whether, in
light of all the circumstances . . . the ‘primary purpose’ of
the [evidence] was to ‘creat[e] an out-of-court substitute for
trial testimony.’” Clark, supra, 576 U.S. at ___, 135 S. Ct. at
2180, 192 L. Ed. 2d at 315 (second alteration in original)
15
(quoting Bryant, supra, 562 U.S. at 358, 131 S. Ct. at 1155, 179
L. Ed. 2d at 107).
This Court has since applied the pre-Williams primary
purpose test in various Confrontation Clause cases involving the
admission of forensic reports and medical examiner testimony.
See Michaels, supra, 219 N.J. at 31-32; Roach, supra,
219 N.J. at 74-75; Bass, supra, 224 N.J. at 317. In Michaels,
after a fatal motor vehicle accident, the police sent the
defendant’s blood sample to a private laboratory where
approximately fourteen analysts performed tests that revealed
that the sample contained traces of cocaine and other drugs.
Michaels, supra, 219 N.J. at 8-9. The results of the blood test
were provided to a supervisor at the lab, who then wrote,
certified, and signed a report that concluded that the presence
of these toxins in the defendant’s blood “would have caused [the
defendant] to be impaired and unfit to operate a motor vehicle.”
Id. at 9. We recognized that the report was testimonial because
its primary purpose was to serve as “a direct accusation against
[the] defendant.” Id. at 44.
Similarly, in Roach, we found that a DNA profile created by
a State forensic scientist from machine-generated data was
testimonial. Roach, supra, 219 N.J. at 81. We reasoned that it
was the scientist’s “subjective analysis” and “independent
interpretation” of the raw data that converted the DNA profile
16
into “unmistakably testimonial material subject to the
Confrontation Clause.” Ibid.
Our opinion in Bass is particularly relevant to our
analysis here. There, in a murder trial, the State’s expert was
permitted to read to the jury portions of an autopsy report that
had been prepared by a medical examiner who was deceased at the
time of trial. Bass, supra, 224 N.J. at 292. In deciding
whether that testimony violated the defendant’s confrontation
rights, we found the autopsy report to be testimonial. Id. at
316. The autopsy was conducted after a homicide investigation
had begun; the defendant was a suspect in the homicide and had
already spoken with the police; the autopsy was conducted in the
presence of the lead State investigator; evidence collected
during the autopsy was transmitted to the investigator; and the
chain of custody was documented in the report. Id. at 316-17.
Therefore, we found that the primary purpose of the autopsy
report was “to establish facts for later use in the prosecution
of [that] case.” Id. at 317.
We conclude our review of Confrontation Clause
jurisprudence by noting that this Court has twice decided
whether a defendant’s confrontation rights are implicated by
“foundational documents,” or documents that establish the
operational status of a device, such as one that measures a
person’s blood alcohol content. See, e.g., Chun, supra, 194
17
N.J. at 64-65; State v. Sweet, 195 N.J. 357, 360 (2008), cert.
denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).
Chun primarily involved the reliability of the Alcotest, a
device to measure a person’s blood alcohol level, and the
admissibility of the AIR, the printout on which the Alcotest
reports its readings. Chun, supra, 194 N.J. at 64-65, 67, 77.
Applying the Davis primary purpose test and the principles set
forth in Crawford, we concluded that the AIR was admissible as a
business record pursuant to N.J.R.E. 803(c)(6). Id. at 141-42,
147. We found that “the AIR falls outside of the definition of
testimonial” for the following reasons:
First, the AIR reports a present, and not a
past, piece of information or data. Second,
although given in the presence of a police
officer who operates the device, nothing that
the operator does can influence the machine’s
evaluation of the information or its report of
the data. Third, although the officer may
have a purpose of establishing evidence of a
BAC in excess of the permissible limit, the
machine has no such intent and may as likely
generate a result that exonerates the test
subject as convicts him or her.
[Id. at 147.]
In Sweet we addressed whether the Confrontation Clause
“bar[s] the introduction into evidence of foundational documents
concerning the operational status of a Breathalyzer[], a device
used to measure a subject’s blood alcohol content.” Sweet,
supra, 195 N.J. at 360. Relying on Chun, we held that the
18
foundational documents at issue qualified as business records.
Id. at 369-71. We also noted that these documents were admitted
by the State “as proof that the Breathalyzer[] device in use was
in good working order.” Id. at 370. We reviewed the dictates
of Crawford and concluded that none of the offered documents
“relate[d] to or report[ed] a past fact [or were] generated or
prepared in order to establish any fact that [was] an element of
the offense.” Id. at 373-74 (quoting Chun, supra, 194 N.J. at
144).
IV.
Having reviewed the applicable Confrontation Clause
precedent, we must determine whether the admission into evidence
of the map, prepared and adopted by a governmental entity
pursuant to N.J.S.A. 2C:35-7.1(e) and used as prima facie
evidence that defendant was within 500 feet of a public park
when he possessed for distribution “crack cocaine,” violates the
Confrontation Clause. We acknowledge that there is no direct
precedent dealing with the kind of evidence under consideration
here and its Confrontation Clause implications.
Our analysis requires a clear understanding of the language
of N.J.S.A. 2C:35-7.1(a) and (e). N.J.S.A. 2C:35-7.1(a) makes
it a second-degree crime to “possess[] with intent to distribute
a controlled dangerous substance . . . while in, on or within
500 feet of the real property comprising . . . a public park.”
19
The Legislature provided that “prima facie evidence of the
location and boundaries of” the places set forth in N.J.S.A.
2C:35-7.1(a) can be established by creating a map pursuant to
N.J.S.A. 2C:35-7.1(e):
In a prosecution under this section, a map
produced or reproduced by any municipal or
county engineer for the purpose of depicting
the location and boundaries of . . . the area
in or within 500 feet of a public park, . . .
or a true copy of such a map, shall, upon
proper authentication, be admissible and shall
constitute prima facie evidence of the
location and boundaries of those areas,
provided that the governing body of the
municipality or county has adopted a
resolution or ordinance approving the map as
official finding and record of the location
and boundaries of the area or areas on or
within 500 feet of . . . a public park . . . .
The original of every map approved or revised
pursuant to this section, or a true copy
thereof . . . shall be maintained as an
official record of the municipality or county.
Nothing in this section shall be construed to
preclude the prosecution from introducing or
relying upon any other evidence or testimony
to establish any element of this offense
. . . .
[N.J.S.A. 2C:35-7.1(e) (emphases added).]
We must apply the primary purpose test reaffirmed in
Michaels to a map created pursuant to N.J.S.A. 2C:35-7.1(e) to
determine whether the Confrontation Clause is implicated here.
In doing so, we first acknowledge that the map was created to be
later used against those charged with violations of N.J.S.A.
2C:35-7.1 and that documents prepared for use in a prosecution
20
are generally testimonial. Nonetheless, we consider as well the
map’s other characteristics.
The map constitutes prima facie evidence of an element of
“possessi[on] with intent to distribute a controlled dangerous
substance . . . while in, on or within 500 feet of the real
property comprising . . . a public park,” a violation of
N.J.S.A. 2C:35-7.1(a). Thus, the map creates a rebuttable
presumption of the proximity of the alleged drug transaction to
the park. It does not conclusively establish defendant’s guilt.
The map is unlike the forensic report in Michaels, which
opined that drugs found in the defendant’s blood rendered her
“impaired and unfit to operate a motor vehicle.” Michaels,
supra, 219 N.J. at 9. Nor is the map the product of “subjective
analysis” as was the DNA profile in Roach. Instead, the 500-
foot area it depicts is an objective measurement that requires
no “independent interpretation” of raw data. Roach, supra, 219
N.J. at 81. The map is the raw data.
Drawing from Chun and Sweet, we observe that the map is not
a nontestimonial foundational document -- it is not concerned
with the “operational status” of anything. Nonetheless, it
shares the objective and neutral qualities of the evidence in
those cases. Although the map is used in criminal prosecutions
and was created, in part, for that purpose, it does not target a
particular person. It may establish a rebuttable presumption of
21
proximity to the public park just as it may exonerate a person
charged with violating N.J.S.A. 2C:35-7.1(a). Furthermore, the
map reports a present fact: it reveals those locations within
500 feet of Leggett Park.
Importantly, the map was not created in response to a
criminal event. The map was created years before the commission
of any of the offenses alleged here. When the map was produced,
there was no alleged crime committed by defendant. Nor was the
map created to establish a fact relevant to an ongoing police
investigation.
Therefore, the map was not created for the primary purpose
of “establish[ing] or prov[ing] past events potentially relevant
to later criminal prosecution.” Bass, supra, 224 N.J. at 314
(alterations in original) (quoting Bullcoming v. New Mexico, 564
U.S. 647, 659 n.6, 131 S. Ct. 2705, 2714 n.6, 180 L. Ed. 2d 610,
620 n.6 (2011)). “Where no such primary purpose exists, the
admissibility of a statement is the concern of state and federal
rules of evidence, not the Confrontation Clause.” Bryant,
supra, 562 U.S. at 359, 131 S. Ct. at 1155, 179 L. Ed. 2d at
107-08. Consequently, we must apply our evidence rules to
determine whether the map is admissible.
V.
“Hearsay is not admissible except as provided by [the Rules
of Evidence] or by other law.” N.J.R.E. 802. Under our
22
evidence rules, the map is hearsay and is, therefore, admissible
if an exception to the prohibition against hearsay applies.
One such exception allows for the admissibility of a
document that is a public record. A document is admissible as a
public record if it is
a statement contained in a writing made by a
public official of an act done by the official
or an act, condition, or event observed by the
official if it was within the scope of the
official’s duty either to perform the act
reported or to observe the act, condition, or
event reported and to make the written
statement.
[N.J.R.E. 803(c)(8).]
We find that the map is a public record within the meaning
of N.J.R.E. 803(c)(8). The map was certified by the Union
County Engineer, a “public official,” who supervised the mapping
process for which the county had contracted. Observation of the
map’s creation thus fell “within the scope of [his] duty.”
Ibid. Accordingly, the map would be admissible under N.J.R.E.
803(c)(8) if it satisfied “[t]he requirement of authentication
or identification,” which is “a condition precedent to
admissibility.” N.J.R.E. 901.1
1 The State argues that the map is also admissible as a business
record. Because the map was created pursuant to N.J.S.A. 2C:35-
7.1, and not in Union County’s “regular course of business,”
N.J.R.E. 803(c)(6), we find the business record exception
inapplicable.
23
N.J.S.A. 2C:35-7.1(e) affords a separate basis for the
map’s admission into evidence. See N.J.R.E. 802. The statute
provides that a map “depicting the location and boundaries of .
. . the area in or within 500 feet of a public park” is
admissible as “prima facie evidence of the location and
boundaries of [the 500-foot] areas.” N.J.S.A. 2C:35-7.1(e).
However, the statute explicitly conditions the map’s use as such
evidence “upon proper authentication” and requires that the
municipality have approved the map by “resolution or ordinance”
as an official finding and record of the 500-foot areas. Ibid.
Here, the Board adopted Resolution No. 1513-99 approving
the notebook of which the map was a part. Therefore, the map
would be admissible in defendant’s prosecution for violating
N.J.S.A. 2C:35-7.1(a) if it were properly authenticated.
N.J.S.A. 2C:35-7.1(e).
The State argues that, because the map’s legend contains a
certification by a county engineer, it is self-authenticating
under N.J.R.E. 902. The State maintains that the assistant
prosecutor’s affidavit and the Board resolution therefore
provided a sufficient foundation for the map’s admission. We
disagree.
Proper authentication of the map required a witness who
could testify to its authenticity and be cross-examined on the
methodology of the map’s creation and its margin of error. See
24
State v. Simbara, 175 N.J. 37, 47-48 (2002) (noting that State
must prove reliability of public record). That was not done
here.
Because the map was admitted into evidence without proper
authentication, it did not satisfy the requirements of N.J.S.A.
2C:35-7.1(e) and constituted inadmissible hearsay. The map was
the State’s sole evidence that the offense occurred within 500
feet of Leggett Park. Therefore, because the map is
inadmissible, the State failed to offer competent evidence
proving that the alleged drug transaction took place within 500
feet of a public park, an essential element of N.J.S.A. 2C:35-
7.1(a). We are thus constrained to reverse defendant’s
conviction for, and to remand for a new trial on the charge of,
violating N.J.S.A. 2C:35-7.1.
We hereby authorize use of a “notice and demand” procedure
to bypass the production of a witness to authenticate a map
created pursuant to N.J.S.A. 2C:35-7.1(e). See Williams, supra,
219 N.J. at 102. At defendant’s retrial, and in any prosecution
under N.J.S.A. 2C:35-7.1, the State may give notice to a
defendant, at least thirty days before trial, that a map
prepared pursuant to N.J.S.A. 2C:35-7.1(e) will be offered at
trial for a violation of N.J.S.A. 2C:35-7.1 and may demand an
objection to its use within ten days. An objection will require
the State to produce an authenticating witness who can testify
25
to the map’s authenticity and be cross-examined on the
methodology of the map’s creation and its margin of error. If
there is no such objection, the map may be admitted without
production of an authenticating witness. We refer to the
Supreme Court Committee on Criminal Practice the crafting of a
rule, with any necessary improvements, on pretrial notice and
demand in prosecutions under N.J.S.A. 2C:35-7.1.
VI.
The judgment of the Appellate Division affirming
defendant’s conviction of violating N.J.S.A. 2C:35-7.1(a), count
three of the indictment, is reversed, and the matter is remanded
for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.
26