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 interests of brevity, portions of any opinion may not have been summarized).
State in the Interest of J.A. (A-2-07)
[NOTE: This is a companion case to State v. Buda and State v. Sweet and State v. Dorman also decided today.]
Argued February 5, 2008 – Decided June 23, 2008
ALBIN, J., writing for a majority of the Court.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d. 177 (2004), the United States Supreme Court dramatically altered the landscape of its Confrontation Clause jurisprudence, rendering unconstitutional the admission of an out-of-court “testimonial” statement unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine that person. In this juvenile delinquency case, the Court applies Crawford to determine whether statements made by a non-testifying witness to a police officer, describing a robbery committed ten minutes earlier and his pursuit of the robbers, were admissible.
The following facts were presented to the Family Part judge. On the evening of February 10, 2005, Juana Chavez, a fifty-two-year-old cable worker and part-time student, had completed class and was walking home in Paterson. Fourteen-year-old H.A. grabbed Chavez’s shoulder from behind and attempted to wrest her purse from her. Chavez resisted, and was thrown to the ground. H.A. pulled the purse free and ran off. Chavez noticed that another individual was running alongside him. Chavez did not see the other individual’s face, and was only able to describe him as wearing black clothing.
After Chavez picked herself up, she walked a short distance and three girls came to her assistance. The girls waved down a police officer. Chavez gave the officer a description of the person who took her purse.
Meanwhile, Officer Frank Semmel, in a separate police vehicle, received a dispatch to respond to the scene. He began patrolling the area in search of the perpetrators. Another dispatch advised Officer Semmel that a witness to the crime was following two suspects. Officer Semmel found the witness about a block and a half from the robbery scene. The witness stepped out of his car and spoke to the officer.
At trial, over J.A.’s objection, the court permitted Officer Semmel to testify to the witness’s account as a present sense impression, an exception to the hearsay rule, N.J.R.E. 803(c)(1). The witness told Officer Semmel that he had observed two teenage Hispanic males “just” rob a woman. The witness further stated that he had followed the suspects. He described one of the suspects as “wearing a white and blue jacket” and the other a “red jacket and glasses.” A short time later, Officer Semmel and another officer stopped two fourteen-year-old males who met the witness’s description and brought them to the robbery scene. Chavez identified H.A. as the person who knocked her down and stole her purse. She could not identify J.A. H.A. then led police to the location of Chavez’s purse.
Relying in large part on the statements made by the non-testifying eyewitness, the family court judge found J.A. guilty of second-degree robbery as an accomplice to H.A. and therefore entered an adjudication of delinquency. J.A. was committed to a two-year term at the State Home for Boys.
The Appellate Division affirmed J.A.’s adjudication of delinquency, finding that the family court properly admitted the non-appearing eyewitness’s out-of-court statement. The panel determined that the statements were admissible under the present sense impression and excited utterance exceptions to the hearsay rule, N.J.R.E. 803 (c)(1). The panel reached that conclusion because the witness had observed a startling event, and because of the brief period between the observations and his recounting of the events to Officer Semmel. The panel also determined that the introduction of those hearsay statements did not violate J.A.’s Sixth Amendment right to confront witnesses against him. The panel found that the witness’s statements were not nontestimonial because an “objective witness” would not have reasonably believed they would be available for use in a later trial. In coming to that conclusion, the panel reasoned that the statements were brief and spontaneous, and were not given in response to structured police questioning.
The Supreme Court granted J.A.’s petition for certification. 191 N.J. 317 (2007).
HELD: The hearsay statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. The statements were testimonial and, because the declarant was not produced as a witness or subject to cross-examination, the admission of the statements violated J.A.’s Sixth Amendment right to confront the witnesses against him.
1. The witness’s statements relating the details of the robbery do not qualify under the present sense exception to the hearsay rule, N.J.R.E. 803 (c)(1), because the statements were not made “immediately after” the events. The statements may be admissible as an excited utterance, but the family court did not analyze the statements under the standard set for such an exception. Nor did Officer Semmel testify as to whether the witness appeared anxious or excited. Perhaps one can assume that it would have been natural for the witness to be in an excited state after observing a robbery and pursuing the robbers. Nonetheless, facts should have been elicited on the record to support such a finding. (pp. 13-21)
2. Under Crawford, the Sixth Amendment requires that the admission of testimonial hearsay evidence be conditioned on the unavailability of the witness and a prior opportunity for cross-examination of that witness. The strictures of Crawford, however, do not apply to nontestimonial hearsay. In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the U.S. Supreme Court articulated a standard that distinguished between nontestimonial and testimonial statements. The Court described nontestimonial statements as those “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.” Testimonial statements are those made in “circumstances objectively indicat[ing] 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 prosecutions.” Davis involved statements of a domestic violence victim in a 911 call identifying her husband as her assailant. The Davis opinion also addressed another case with which it was consolidated, Hammon v. Indiana. Hammon concerned the admissibility of the oral report and affidavit of a domestic violence abuse victim given to police after they arrived on the scene. The U.S. Supreme Court concluded that the statements in Davis to the 911 operator regarding the identity of the perpetrator were nontestimonial and therefore admissible. The statements in Hammon, however, were deemed to be testimonial. The U.S. Supreme Court concluded that in that case, the primary purpose of the police interrogation was to investigate a crime -- to learn “what happened” rather than “what was happening.” The Court further explained that the victim had been separated from the abusive husband, and there was no immediate threat to the victim and no emergency in progress. (pp. 21-30)
3. Like in Hammon, the non-testifying witness here told the police officer “what had happened.” There was no ongoing emergency -- no immediate danger -- implicating either the witness or the victim. This Court’s reading of Davis leads it to conclude that a declarant’s narrative to a law enforcement officer about a crime, which once completed has ended any “imminent danger” to the declarant or some other identifiable person, is testimonial. Accordingly, the admission of Officer Semmel’s testimony relating the testimonial statements of the non-appearing eyewitness violated the juvenile’s Sixth Amendment right to confront the witnesses against him. Without the non-testifying witness’s account and description of J.A., it is unlikely that a successful prosecution could have been mounted against him. For that reason, the Court cannot say that the admission of the testimonial hearsay was harmless. (pp. 30-36)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Family Part for a new trial.
JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that the majority should not address the constitutional issue without first having determined that the statements are admissible hearsay, a determination that could make resolution of the constitutional issue unnecessary.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, and HOENS join in JUSTICE ALBIN’s opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.
SUPREME COURT OF NEW JERSEY
A- 2 September Term 2007
STATE OF NEW JERSEY
IN THE INTEREST OF
J.A.,
Juvenile-Appellant.
Argued February 5, 2008 – Decided June 23, 2008
On certification to the Superior Court, Appellate Division, whose opinion is reported at 385 N.J. Super. 544 (2006).
Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).
Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent State of New Jersey (James F. Avigliano, Passaic County Prosecutor, attorney).
Alison S. Perrone argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey.
Robert E. Bonpietro, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Anne Milgram, Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004), the United States Supreme Court dramatically altered the landscape of its Confrontation Clause jurisprudence, rendering unconstitutional the admission of an out-of-court “testimonial” statement permitted by state hearsay rules, unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine that person. In returning to the Framers’ original understanding of the Confrontation Clause, the Court barred the use of testimonial statements, taken in the course of police questioning and unchallenged by cross-examination, as a substitute for in-court testimony. Id. at 50-52, 124 S. Ct. at 1363-64, 158 L. Ed. 2d at 192-93.
In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed.2d 224 (2006), the Supreme Court made clear that not all statements elicited by law enforcement will be deemed testimonial. Thus, nontestimonial statements are those “objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” and testimonial statements are those “objectively indicat[ing] 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 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.
In this juvenile delinquency case, we must determine whether statements made by a non-testifying witness to a police officer, describing a robbery committed ten minutes earlier and his pursuit of the robbers, were admitted in violation of our state hearsay rules and the Sixth Amendment’s Confrontation Clause. The statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. In light of Crawford and Davis, we now hold that those hearsay statements were testimonial. Because the declarant was not produced as a witness or ever subject to cross-examination, the admission of those statements violated the juvenile’s Sixth Amendment right to confront the witnesses against him.
I.
A.
B. The Appellate Division affirmed J.A.’s adjudication of delinquency, finding that the family court properly admitted the non-appearing eyewitness’s out-of-court statements through Officer Semmel’s testimony. State ex rel. J.A., 385 N.J. Super. 544, 550 (App. Div. 2006). The appellate panel first determined that the eyewitness’s statements were admissible under the present sense impression and excited utterance exceptions to the hearsay rule, N.J.R.E. 803(c)(1) and (2). J.A., supra, 385 N.J. Super. at 554. The panel reached that conclusion because the eyewitness had observed “a startling event” -- a robbery –- and reacted “spontaneous[ly] and coincident[ly] with the occurrence, leaving no pause for premeditation.” Id. at 553. The panel noted that the witness followed the assailants for several blocks over a period of minutes during which he called the police, and that when he encountered Officer Semmel, he related details of the robbery, including a description of the individuals he had been pursuing. Id. at 553-54. The brief period between the witness’s observations and his recounting of the events to Officer Semmel, during which the witness was in a continuing “excited state,” led the panel to believe that the out-of-court statements fell within the present sense and excited utterance exceptions to the hearsay rule. Id. at 554. The panel also held that the introduction of those hearsay statements did not violate J.A.’s Sixth Amendment right to confront the witnesses against him. Id. at 558. In deciding that issue, the panel looked to Crawford, which held that the Sixth Amendment’s Confrontation Clause prohibited the use of out-of-court testimonial statements against a criminal defendant unless the defendant had a prior opportunity to cross-examine the person who made the statement and that person is unavailable as a witness. Id. at 554. Applying a totality of the circumstances approach, the panel found that the witness’s statements in the case were nontestimonial because an “objective witness” would not have reasonably believed that those statements “would be available for use in a later trial.” Id. at 557-58. In coming to that conclusion, the panel reasoned that the eyewitness’s statements to the police were “brief, spontaneous, [and] volunteered,” and that his statements were not given “in response to ‘structured police questioning’” or with “the intent that [they] be ‘preserved’ for future use in a criminal prosecution against [J.A.].” Id. at 558. The panel characterized the eyewitness’s statements simply as a “report of a crime, rendered to assist law enforcement in the apprehension of a suspect and the protection of the public.” Ibid. In short, the panel saw nothing in “the manner or mode” in which the eyewitness made his statements that would qualify them as “the functional equivalent of testimony.” Ibid. Based on that analysis, the panel determined that the eyewitness’s statements were admissible at trial. Ibid.7 We granted J.A.’s petition for certification. 191 N.J. 317 (2007). We also granted the motions of the Attorney General and the Association of Criminal Defense Lawyers of New Jersey (ACDL) to participate as amici curiae.
II. J.A. submits that the non-testifying eyewitness’s statements to the police, purportedly describing J.A.’s involvement in the robbery of Juana Chavez, were inadmissible hearsay introduced in violation of our evidence rules and the principles enunciated in Crawford and Davis. First, J.A. asserts that the non-appearing eyewitness did not speak to Officer Semmel until fifteen to twenty minutes after observing the robbery. Because of the lack of contemporaneity between the witness’s observations and his recounting of the events, J.A. argues that the present sense impression exception to the hearsay rule does not apply. He also maintains that because the trial record contains no evidence that the witness, as he spoke to Officer Semmel, was “under the stress of excitement caused” by what he had seen earlier, the excited utterance exception to the hearsay rule is not applicable. Additionally, J.A. contends that the State did not satisfy a requirement under both hearsay rule exceptions -- a showing that the witness did not have the “opportunity to deliberate or fabricate.” Concerning his Confrontation Clause claim, J.A. submits that the absent eyewitness’s statements to Officer Semmel were “testimonial” in nature, intended for the purpose of allowing the police both to apprehend and prosecute Chavez’s assailants, and thus inadmissible under Crawford and Davis because the witness was never subject to cross-examination. According to J.A., the witness gave a narrative of past events to the police that included a description of the assailants -- an analog to trial testimony -- the very type of hearsay Crawford intended to interdict. J.A. acknowledges that under Crawford and Davis a witness’s statements cannot be characterized as testimonial if they were made contemporaneously with an ongoing emergency for the purpose of rendering immediate aid to the victim. He claims, however, that neither the victim nor the witness was in danger when the witness spoke to Officer Semmel. The ACDL submits that the “core significance of Crawford” is that the Confrontation Clause forbids the prosecution from using a non-testifying witness’s statement to law enforcement officers about a completed crime -- untested by cross-examination -- to convict a defendant. The ACDL posits that once a crime is completed, an emergency can no longer be ongoing, and therefore a statement concerning a completed crime must be testimonial. Based on that premise, the ACDL would classify a statement made to a law enforcement officer responding to a crime scene as testimonial, “unless there is an ongoing emergency and the statement is limited to the resolution of that emergency.” On the other hand, the State contends that the Appellate Division properly characterized the witness’s statements as present sense impressions and excited utterances because the witness related to a police officer a “startling episode” -- a robbery and its perpetrators’ flight -- “immediately after” observing the events and without time to deliberate or fabricate. Moreover, because “[t]he exclusive purpose of the witness’s brief, spontaneous communications was to assist the police with the emergency, not to provide a narrative of the crime,” the State argues that the statements were nontestimonial and therefore in compliance with the United States Supreme Court’s recent Confrontation Clause jurisprudence. The State urges this Court to find, consistent with Crawford and Davis, that an ongoing emergency justifies the admission of hearsay whenever “potentially violent perpetrators remain geographically and temporally connected to the scene,” regardless of whether “the victim is no longer in danger.” Consonant with that viewpoint, the New Jersey Attorney General states that admissible, nontestimonial hearsay includes information provided to the police for the purpose of apprehending violent offenders who are in flight from the commission of a crime. Thus, in this case, without contravening the Confrontation Clause, the non-testifying witness imparted “crucial information” necessary to resolve an ongoing emergency -- the prompt capture of two fleeing suspects. The Attorney General would not limit an “‘ongoing emergency’ . . . to the rendering of immediate aid to a crime victim.” In deciding whether the family court correctly admitted the non-testifying witness’s statements to Officer Semmel, we first address whether those statements fall within either the present sense impression or excited utterance exceptions to the hearsay rule and, then, whether those statements were nontestimonial under Crawford and Davis and pass muster under the Confrontation Clause.
III.
A.
“Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’” State v. Branch, 182 N.J. 338, 357 (2005) (quoting N.J.R.E. 801(c)). Hearsay is inadmissible unless it falls within one or more of the exceptions enumerated in our evidence rules. Ibid. Both the trial court and Appellate Division found that the witness’s statements to Officer Semmel satisfied the present sense impression exception to the hearsay rule, N.J.R.E. 803(c)(1). That exception provides for the admissibility of “[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 opportunity to deliberate or fabricate,” N.J.R.E. 803(c)(1), notwithstanding that the declarant might have been available to testify at trial, N.J.R.E. 803(c).
Although the witness called police headquarters and, presumably, was relating to the dispatcher events as they were unfolding, the dispatcher was not called as a witness. Such statements made to the dispatcher would have fit within the classic definition of a present sense impression. The witness’s account to Officer Semmel, however, was given minutes after the witness cut short his chase of the juvenile suspects, and approximately ten minutes after the robbery. Thus, the statements to Officer Semmel were not “made while . . . the declarant was perceiving the event.” N.J.R.E. 803(c)(1).
The only true issue is whether the statements were made “immediately after” the witness perceived the events -- particularly the robbery. Ibid. It is the witness’s identification of J.A. as one of Chavez’s robbers that was key to the prosecution’s case -- without that critical fact, the witness would have been following two random individuals through the streets of Paterson.
No reported New Jersey case has interpreted the meaning of “immediately after” as contained in N.J.R.E. 803(c)(1). That language was added to the current rule in 1991 when our evidence rules were renumbered to conform to the formatting of the federal rules.8 Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(1). Not surprisingly, J.A. and the State construe the words “immediately after” in entirely different ways. J.A. contends that those words suggest a very brief temporal period, whereas the State gives the words more elasticity, so that the witness’s uninterrupted pursuit of the suspects would render the absent witness’s statements admissible even if made two or ten minutes later.
We interpret an evidence rule, as we would a statute, by first looking at its plain language. See United States v. Am. Tel. & Tel. Co., 498 F. Supp. 353, 356-58 (D.D.C. 1980) (using plain meaning of federal rule in making evidentiary ruling); see also State v. Brown, 170 N.J. 138, 177-80 (2001) (Stein, J., dissenting). The word “immediately” is defined as “without lapse of time; without delay; instantly; at once.” Webster’s Unabridged Dictionary of the English Language 957 (2001); see also Webster’s Ninth New Collegiate Dictionary 601 (1989) (defining “immediately” as “without interval of time”). The dictionary definition suggests a very brief time between the observation and the statement. That commonsense approach is supported by scholarly commentary and case law.
Clearly, “in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse [in time] is allowable.” Fed. R. Evid. 803(c) advisory committee’s note. That simple explanation undoubtedly was the rationale behind the 1991 amendment to N.J.R.E. 803(c)(1). In discussing the import of the words “immediately thereafter” as they appear in Fed. R. Evid. 803(1), the authors of a treatise on evidence explain:
The phrase “immediately thereafter” accommodates the human realities that the condition or event may happen so fast that the words do not quite keep pace, and proving a true match of words and events may be impossible for ordinary witnesses, so it would be foolish to require a statement to be truly simultaneous with the event or condition. The exception allows enough flexibility to reach statements made a moment after the fact, where a small delay or “slight lapse” . . . is not enough to allow reflection, which would raise doubts about trustworthiness.
More significant delays -- those measured in minutes or hours . . . bar resort to [Fed. R. Evid.] 803(1) because they do permit time for reflection and lessen or remove the assurance of trustworthiness.
[4 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 434, at 384-86 (2d ed. 1994), quoted in Moe v. State, 123 P.3d 148, 152 (Wyo. 2005), cert. denied, 547 U.S. 1046, 126 S. Ct. 1633, 164 L. Ed. 2d 345 (2006).]
Case law from other jurisdictions suggests that a delay measured in minutes will take a statement outside of the present sense impression hearsay exception. See, e.g., United States v. Manfre, 368 F.3d 832, 840 (8th Cir. 2004) (noting that declarant’s “intervening walk or drive” between observing event and making statement negated finding of present sense impression); United States v. Cain, 587 F.2d 678, 681 (5th Cir.) (finding that witness’s out-of-court statement, likely made minutes after observation, did not qualify as “immediately thereafter”), cert. denied, 440 U.S. 975, 99 S. Ct. 1543, 59 L. Ed.2d 793 (1979); Hilyer v. Howat Concrete Co., 578 F.2d 422, 425-26, 426 n.7 (D.C. Cir. 1978) (holding that witness’s statement to officer fifteen minutes after accident “hardly qualifies as ‘immediately’ after the accident”); Young v. Commonwealth, 50 S.W.3d 148, 165-66 (Ky. 2001) (concluding that statement to officer seven minutes after observing shooting was not “immediately thereafter”). But see United States v. Blakey, 607 F.2d 779, 785-86 (7th Cir. 1979) (determining that tape-recorded telephone statement made by witness “between several and 23 minutes” after event qualified as present sense impression); Miller v. Crown Amusements, Inc., 821 F. Supp. 703, 706-07 (S.D. Ga. 1993) (finding that declarant’s statements within ten minutes of accident were present sense impressions); State v. Odom, 341 S.E.2d 332, 335-36 (N.C. 1986) (holding that witness’s statement to officer ten minutes after observing abduction was present sense impression).
When considering whether a statement is a present sense impression, it is not hairsplitting to recognize a distinction between a matter of seconds, however many they may be, and an interval of as much as ten minutes separating a recollection from the observation. For purposes of a present sense impression, a declarant’s statement that “the blue sports car is going through the red light” or that “the blue sports car just went through the red light” (seconds ago) is different from a declarant’s statement that “the blue sports car went through the red light ten minutes ago.”
We conclude that the non-appearing witness’s statements relating the details of a robbery that occurred ten minutes earlier is not the equivalent of describing the crime “immediately after” it occurred. We therefore hold that the family court abused its discretion by admitting the witness’s statements under the present sense impression exception to the hearsay rule. See Brown, supra, 170 N.J. at 147 (noting that trial court’s evidentiary rulings are reviewed under abuse of discretion standard).
We recognize, however, that a statement inadmissible as a present sense impression may qualify as an excited utterance.
B.
N.J.R.E. 803(c)(2) defines an excited utterance as 1) “[a] statement relating to a startling event or condition”; 2) “made while the declarant was under the stress of excitement caused by the event or condition”; and 3) “without opportunity to deliberate or fabricate.” See Branch, supra, 182 N.J. at 365. Contrary to the family court’s ruling, the Appellate Division determined that the excited utterance exception provided an independent basis for the admissibility of the witness’s statements to Officer Semmel. J.A., supra, 385 N.J. Super. at 550-54. Significantly, the family court did not analyze the witness’s statements against the standard set forth in N.J.R.E. 803(c)(2), perhaps because those statements were admitted under the present sense impression exception.
We agree with the Appellate Division that the robbery of a woman who is knocked to the ground and whose purse is wrested from her as she cries out is clearly a “startling event” under N.J.R.E. 803(c)(2), and that the witness’s statement related to that event. See J.A., supra, 385 N.J. Super. at 553-54. We also find support for the Appellate Division’s conclusion that the witness, who followed the attackers for a number of blocks until he cut short his pursuit, and who for a few minutes waited for the police in a school parking lot, made his statement to Officer Semmel, presumably, without having had the “opportunity to deliberate or fabricate.” See ibid. The present facts stand in contrast to those in Branch, supra, in which a seven-year-old’s statements to an investigating detective, describing a burglary suspect, were held inadmissible as excited utterances because the burglary had occurred twenty minutes earlier and because she had already discussed the incident with her mother and another officer. 182 N.J. at 365-66.
Because Officer Semmel did not testify to the witness’s appearance or condition, such as whether he was in an anxious or calm state when relating the events, the question of whether “the declarant was under the stress of excitement caused by” the robbery and pursuit, N.J.R.E. 803(c)(2), is more difficult to answer. The Appellate Division found that it was “clear[]” that “the declarant’s excited state was continuing.” J.A., supra, 385 N.J. Super. at 554. Perhaps, in the circumstances of this case, one can assume that it would have been natural for the witness, or any reasonable person, to be in an excited state after observing a robbery and pursuing the robbers. Nonetheless, facts should have been elicited on the record to support such a finding. Although the witness’s statements might be admissible as excited utterances, we have no doubt that the admission of those statements ran afoul of the Confrontation Clause.9
IV.
A.
The Sixth Amendment provides that in a criminal prosecution, the accused has the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. That 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. It has long been held that cross-examination is the “‘greatest legal engine ever invented for the discovery of truth.’” California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed.2d 489, 497 (1970) (quoting 5 Wigmore on Evidence § 1367).
In Crawford, the United States Supreme Court caused a seismic shift in modern Confrontation Clause jurisprudence by interpreting the Clause in light of its historical roots rather than the recent trend to allow the introduction of types of hearsay that would have been forbidden in the early days of the Republic. “[T]he principal evil at which the Confrontation Clause was directed,” the Court reminds us, “was the . . . use of ex parte examinations as evidence against the accused.” Crawford, supra, 541 U.S. at 50, 124 S. Ct. at 1363, 158 L. Ed. 2d at 192. The abusive use of depositions and other out-of-court statements to prosecute Stamp Act violations in English admiralty courts before the Revolution was within the living memory of those who framed the Clause. Id. at 47-48, 124 S. Ct. at 1362, 158 L. Ed. 2d at 190.
Although the Sixth Amendment does not interdict all hearsay, it does prohibit the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony. “[W]itnesses against the accused,” for Confrontation Clause purposes, are “those who bear testimony.” Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192 (quotations omitted). In the constitutional sense, testimony is when “[a]n accuser . . . makes a formal statement to government officers.” Ibid. Out-of-court testimonial statements include affidavits, depositions, grand jury testimony, and “[s]tatements taken by police officers in the course of interrogations” -- statements which, given the manner of their use in court, are the functional equivalent of testimony, but which have not been subjected to cross-examination. Id. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193. The Confrontation Clause’s ultimate goal, the Crawford Court explained, is to establish the reliability of evidence “by testing [it] in the crucible of cross-examination.” Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199.
Thus, the Sixth Amendment requires that the admission of testimonial hearsay evidence be conditioned on the “unavailability [of the witness] and a prior opportunity for cross-examination” of that witness. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. The strictures of Crawford, however, do not apply to nontestimonial hearsay, which continues to be governed by each state’s hearsay law. The logic of Crawford compelled the Supreme Court to overturn Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed.2d 597 (1980), insofar as it held that in a criminal prosecution an unavailable witness’s testimonial hearsay statement was admissible if it fell “within a ‘firmly rooted hearsay exception’ or b[ore] ‘particularized guarantees of trustworthiness,’” Crawford, supra, 541 U.S. at 42, 124 S. Ct. at 1359, 158 L. Ed. 2d at 187 (quoting Roberts, supra, 448 U.S. at 66, 100 S. Ct. at 2539, 65 L. Ed. 2d at 608). See id. at 60-68, 124 S. Ct. at 1369-74, 158 L. Ed. 2d at 198-203 (criticizing Roberts).
In Crawford, the prosecution admitted at trial a statement incriminating the defendant elicited from his wife during a police interrogation concerning his alleged assault of another man. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-85. The defendant never had the opportunity to cross-examine her. Ibid. The wife’s statement to the police was testimonial because it was “a solemn declaration” to a law enforcement officer “for the purpose of establishing or proving some fact.” Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192 (quotation omitted). The admission of that hearsay statement therefore violated the Confrontation Clause. Although, as noted earlier, the Supreme Court declared that testimonial evidence includes statements derived from police interrogation, it left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’” Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
Two years later that day came when, in the companion cases of Davis v. Washington and Hammon v. Indiana,10 the U.S. Supreme Court more clearly defined the circumstances that give to rise testimonial and nontestimonial statements. Both cases involved police responses to domestic violence calls.
In Davis, supra, during the course of a 911 call, a woman told the dispatcher that she was being beaten by her husband and then, a short while later, that he was fleeing from her house. 547 U.S. at 817-18, 126 S. Ct. at 2270-71, 165 L. Ed. 2d at 234-35. The woman gave the dispatcher sufficient information to identify her husband. See ibid. Within four minutes, police responded to the woman’s house and found her with injuries to her forearm and face and in a shaken state. Ibid. At her husband’s criminal trial, the prosecution played a portion of the 911 conversation without calling the victim as a witness. Id. at 818-19, 126 S. Ct. at 2271, 165 L. Ed. 2d at 234-35. The husband was convicted of violating a domestic no-contact order. Ibid.
In Hammon, police officers responded to a report of a domestic disturbance at a home. Id. at 819, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235. They found a woman on the porch in a “somewhat frightened” state and a broken heating furnace emitting flames inside the home. Ibid. The police ensured that the woman remained separated from her husband, who was in the kitchen. Id. at 819-20, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235. At the scene, both orally and in a handwritten affidavit, the woman described how her husband had assaulted her and her daughter and vandalized her house and van. Id. at 819-21, 126 S. Ct. at 2272-73, 165 L. Ed. 2d at 236. At her husband’s trial, the oral statements to the police were admitted as excited utterances and the affidavit as a present sense impression. Id. at 820, 126 S. Ct. at 2272, 165 L. Ed. 2d at 236. The woman was subpoenaed but did not appear at trial. Ibid. Her husband was convicted of domestic battery and a probation violation. Id. at 820-21, 126 S. Ct. at 2272-73, 165 L. Ed. 2d at 236.
For the purpose of deciding whether the hearsay statements to the police in Davis and Hammon were admitted in violation of the Confrontation Clause, the Supreme Court articulated a standard that distinguished between nontestimonial and testimonial statements. Nontestimonial statements are those “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.” Id. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d at 237. Testimonial statements are those made in “circumstances objectively indicat[ing] 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 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.
Although the Court set forth that standard to deal with police interrogations, it emphatically noted that it did not intend to imply that “statements made in the absence of any interrogation are necessarily nontestimonial.” Id. at 822 n.1, 126 S. Ct. at 2274 n.1, 165 L. Ed. 2d at 237 n.1. The Court added that the “Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Ibid.
In Davis, the Supreme Court concluded that the statements made by the domestic violence victim to the 911 operator, identifying her husband as her assailant, were nontestimonial. Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240-41. The Court stressed that the defendant was in the process of beating his wife, the declarant, while she spoke with the 911 operator. Ibid. Thus, the declarant-victim was “speaking about events as they were actually happening, rather than describ[ing] past events.” Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240 (quotation omitted) (alteration in original). Although the Court recognized that “one might call 911 to provide a narrative report of a crime absent any imminent danger,” the woman in Davis was “plainly [calling] for help against a bona fide physical threat.” Ibid.11 Viewed objectively, the “primary purpose” of the victim’s statements was to resolve an ongoing emergency, not “to learn . . . what had happened in the past.” Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240.
Because the victim’s 911 statements were not “testimony” in the Sixth Amendment sense -- an account of a past event -- but rather a cry for help “to enable police assistance to meet an ongoing emergency,” id. at 828, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240, the admission of those statements did not violate the Confrontation Clause. Id. at 828-29, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240-41.
In Hammon, on the other hand, the Court held that the oral report and affidavit provided by the domestic abuse victim to the police who responded to her home were testimonial and barred by the Sixth Amendment. Id. at 829-32, 126 S. Ct. at 2278-80, 165 L. Ed. 2d at 242-43. Unlike in Davis, in Hammon the police questioned the victim about “possibly criminal past conduct.” Id. at 829, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. “[T]here was no immediate threat” to the victim in Hammon -- “no emergency in progress” -- because the police had separated the abusive husband from his wife. Id. at 829-30, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. Viewed objectively, “the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime,” to learn “‘what happened’” rather than “‘what [was] happening.’” Id. at 830, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242.
The Court in Hammon concluded that the interrogation satisfied the formality requirements for a testimonial statement, noting that the woman was questioned “in a separate room, away from her husband.” Ibid. On that same point, the Court maintained that the Confrontation Clause cannot be evaded simply “by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition.” Id. at 826, 126 S. Ct. at 2276, 165 L. Ed. 2d at 239. Indeed, a statement elicited during an “interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial.” Id. at 826, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240.12 Thus, in Hammon, the Court was satisfied that the declarant's statements were “inherently testimonial” because they were “an obvious substitute for live testimony.” Id. at 830, 126 S. Ct. at 2278 165 L. Ed. 2d at 242.
B.
We now apply the principles developed in Crawford and Davis to the facts before us. Nothing in the record suggests that the witness, who refused to come to court, was ever subpoenaed to appear at trial. Therefore, it is questionable whether the witness was truly unavailable for Confrontation Clause purposes. See N.J.R.E. 804(a)(2) (stating that witness is unavailable if he “persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so”). We need not decide that issue, however, because we find that defendant did not have a prior opportunity to cross-examine the non-appearing witness whose statements were clearly testimonial.
The witness to the robbery of Juana Chavez provided information to Officer Semmel approximately ten minutes after the completion of that crime. The declarant followed Chavez’s assailants immediately after witnessing the robbery and cut short his pursuit at Public School 30. When he met with Officer Semmel several minutes later, he related information about a past event -- the robbery and flight of the robbers. That the witness may have volunteered the information or responded to open-ended questions does not change the calculus of whether his statements were testimonial. See Davis, supra, 547 U.S. at 822 n.1, 126 S. Ct. at 2274 n.1, 165 L. Ed. 2d at 237 n.1.
Like in Hammon, the non-testifying witness here told the police officer “what [had] happened.” Id. at 830, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. There was no ongoing emergency -- no immediate danger -- implicating either the witness or the victim, both of whom were in the company of police officers at the time