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 v. Terry W. Coder (A-28-08)
Argued February 17, 2009 -- Decided May 4, 2009
RIVERA-SOTO, J., writing for a unanimous Court.
In this criminal action involving claims of sexual assault on a three-year-old child, the Court determines whether the child's out-of-court statements, as testified to by her mother, were admissible at trial.
Defendant Terry Coder was the superintendent of the apartment building in which the victim, Joyce, lived. On August 28, 2001, when Joyce was three years old, Coder invited her and her friend, eleven-year-old Susan, into the basement of the apartment building. There, Coder pulled his pants and Joyce's pants down and sexually touched her. Witnessing this, Susan ran out of the basement and straight to Joyce's apartment, where she told Joyce's mother, Denise, what had happened and that Joyce was still in the basement. Denise went to get Joyce and found her climbing the stairs. After examining Joyce, Denise found no obvious injuries. Denise asked Joyce if anything hurt, and Joyce pointed to her vagina and buttocks. Denise called police and, while waiting for their arrival, Joyce again pointed to her vagina and said, "Mommy, he touched me."
An indictment charged Coder with crimes that included assault, lewdness, and endangering the welfare of a child. The court conducted a hearing to address the admissibility at trial of Denise's testimony concerning what Joyce told her on the day of the assault. After Denise testified about Joyce's statements, Joyce was called to the stand. In response to the court's questions, Joyce denied remembering the incident, and shook her head "no" when asked questions such as whether there were places on her body that no one was supposed to touch or whether she had ever been in the basement with Susan. Defense counsel waived cross-examination and did not object to the admission of Joyce's hearsay statements at trial. Applying the tender years exception to the hearsay rule, the court found that Joyce was available to testify and that her failure to recall was a factor that went to the "totality of the circumstances." In sum, the court ruled that it would permit Denise to testify at trial about Joyce's statements.
After Denise testified at trial concerning the statements Joyce had made on the day of the assault, the trial court explained to the jury that a hearing had taken place at which Joyce was unable to recall the incident and therefore she would not be testifying. The jury found Coder guilty of second-degree assault with a minor, second-degree attempt to commit sexual assault, fourth-degree lewdness, and third-degree endangering the welfare of a child. Coder was sentenced to eleven years imprisonment with a minimum of seventy-one months to be served without parole.
On appeal, Coder argued, in part, that because Joyce did not testify at trial, the admission of her out-of-court statements violated the Confrontation Clause. In an unpublished decision, the Appellate Division affirmed Coder's convictions and sentence. The panel disagreed with the trial court's finding that Joyce was available to testify, explaining that even though she was physically present, her responses had indicated that any cross-examination would be fruitless. After finding that Joyce was "unavailable" for Confrontation Clause purposes, the panel concluded that Joyce's statements to her mother were not testimonial because the statements were made before police involvement, shortly after the incident when the child was frightened, and there was no indication that Denise was asking the child questions in the hopes of obtaining evidence for a future prosecution against Coder. The panel found, therefore, that Coder's Confrontation Clause rights were not violated.
HELD: In defendant's criminal trial on charges of sexual assault on a minor, the out-of-court statements by the victim—a three-year-old child—as testified to by her mother, were properly admitted because the statements were relevant and admissible under the tender years exception to the hearsay rule. Additionally, because the child's statements were not testimonial, they did not implicate the defendant's Confrontation Clause rights.
1. Under New Jersey's Rules of Evidence, relevant evidence is admissible at trial with certain exceptions. Joyce's out-of-court statements to her mother constituted relevant evidence that was not otherwise subject to a relevance bar. The Court turns, therefore, to the question whether Joyce's out-of-court statements were not admissible because they were hearsay. N.J.R.E. 801(c) defines hearsay as 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. Joyce's out-of-court statements spoke to the core matter asserted; that is, whether Coder had assaulted and endangered her. As a result, the statements were hearsay and the admissibility of those statements through her mother's testimony at trial hinges on whether an exception to the hearsay rule applies. (Pp. 13-15).
2. Joyce's statements were offered at trial through her mother under the "tender years" exception to the hearsay rule. The tender years exception, N.J.R.E. 803(c)(27), consists of three component parts. The first requires that the proponent of a hearsay statement of a child sexual abuse victim provide advance notice of the statement "at such time as to provide the adverse party with a fair opportunity to meet it." There was no question that the State provided Coder ample notice that Joyce's hearsay statements would be offered at trial. Second, the exception requires that the trial court conduct a hearing and determine the trustworthiness of the statements. Here, the trial court conducted the hearing and, on the basis of the time, content and circumstances of the statement, found that the statements were trustworthy. Coder has not made a serious challenge against the trial court's determinations on either of these points. At issue is the final component, which requires either that the child testify or that the child is unavailable as a witness and admissible evidence corroborates the act of sexual abuse. (Pp. 15-18).
3. The hearing transcript demonstrates that Joyce did not recall the events that occurred when she was three. The trial court's conclusion that Joyce was "available to testify" was not correct. In part, N.J.R.E. 804(a) defines unavailability as including a lack of memory of the subject matter of the statement. Joyce's inability to testify at the hearing concerning the events of August 28, 2001, rendered her "unavailable." The tender years exception provides, however, that if the child-witness is unavailable, hearsay statements may be admissible if there is offered admissible evidence corroborating the sexual abuse. In this case, Susan testified to having witnessed Coder pulling down his pants and Joyce's pants and sexually touching Joyce. Because Joyce's hearsay statements satisfied all three prongs of the tender years exception, the trial court did not abuse its discretion in admitting those statements through Joyce's mother. (Pp. 18-21).
4. Because Joyce was unavailable to testify at trial, the Court determines also whether the admission of her hearsay statements violated Coder's Confrontation Clause rights. The Confrontation Clause commands that the reliability of evidence be tested through cross-examination. However, only testimonial statements trigger Confrontation Clause rights. In a previous case, the Court ruled that a child's statement was not testimonial because it did not bear the indicia of a formal statement to government officers, but instead was akin to a casual remark to an acquaintance. The Court finds that the same result applies here. Because Joyce's hearsay statements lack any indicia that they resulted from law enforcement efforts to establish or prove past events potentially relevant to later criminal prosecution, Joyce's statements to her mother were nontestimonial and, therefore, Coder's Confrontation Clause rights were not compromised by the admission of the statements into evidence. (Pp. 21-23).
5. Joyce's out-of-court statements, testified to by her mother, were relevant, their probative value was not outweighed by their prejudicial effect, they were not subject to a relevance or privilege bar, they were hearsay but were admissible under the tender years exception, and they were not testimonial and, thus, did not implicate Coder's Confrontation Clause rights. (P. 23-24).
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.