State in the Interest of A.M., Jr., unpublished opinion, App. Div. Docket No. A-5833-07T4 (October 25, 2010) – Adjudication of delinquency reversed. “[The Juvenile] contends that the trial court erred in admitting the victim’s statements to the police under the excited utterance exception to the hearsay rule….
Here, we have two issues to resolve—-whether the victim’s statements were excited utterances, a mixed question of fact and law that is infused with judicial discretion, and whether admission of the statements contravened the Confrontation Clause, a pure question of law that is subject to our plenary review. N.J.R.E. 803(c)(2) requires demonstration of three elements: ‘A statement relating  to a startling event or condition  made while the declarant was under the stress of excitement caused by the event or condition and  without opportunity to deliberate or fabricate.’ [T]he victim’s statements related to a startling event and were made while he was under the stress of excitement caused by the event…. [T]he victim had no opportunity to deliberate or fabricate…. [T]he victim was injured and undoubtedly focused on his injuries while the police were apprehending the perpetrators. We next consider whether the victim’s statements were testimonial and whether the Confrontation Clause required their exclusion from evidence during A.M.’s trial. The statements were made in response to police questioning at the scene after the perpetrators had been apprehended. The statements were accusatory and were not spontaneous…. [S]tatements ‘are testimonial when the circumstances objectively indicate that there is no … ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’… [Citations omitted]. [T]he statement was not spontaneous and unprompted. [Citation omitted]. There was no longer any lifethreatening emergency…. Applying these precepts, the victim’s statements to police were indeed testimonial and were not admissible in the absence of the victim at trial…. The Confrontation Clause required that the statements be excluded as they deprived A.M. of the opportunity to test the statements in the crucible of cross-examination.”