RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1925-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.D.1

Defendant-Appellant.

________________________

Argued August 2, 2021 – Decided August 16, 2021

Before Judges Sabatino, Mawla and Rose.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Middlesex County, 

Indictment No. 19-05-0787. 

Lindsay B. Gargano, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Lindsay B. 

Gargano, of counsel and on the briefs). 

1 We use initials to protect, posthumously, the identity of the victim of the 

alleged sexual assault, which apparently arose out of a domestic violence 

situation. See R. 1:38-3(c)(12) (making confidential the names and addresses 

of victims or alleged victims of domestic violence or sexual offenses in criminal 

cases). 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-1925-20

Nancy A. Hulett, Assistant Prosecutor, argued the cause 

for respondent (Yolanda Ciccone, Middlesex County 

Prosecutor, attorney; Nancy A. Hulett, of counsel and 

on the briefs). 

PER CURIAM

This interlocutory appeal by a criminal defendant in a sexual assault case 

concerns the admissibility of a now-deceased victim's hearsay statements to a 

police officer. After conducting an evidentiary hearing under N.J.R.E. 104, the 

trial court ruled the statements admissible. The court found the statements met 

the hearsay exception for excited utterances under N.J.R.E. 803(c)(2). The court 

also ruled the statements were not "testimonial" and therefore were not 

excludable under the Confrontation Clauses of the United States and New Jersey 

Constitutions. Lastly, the court rejected defendant's argument under N.J.R.E. 

403 that the probative value of the statements was substantially outweighed by 

alleged unfair prejudice.

On leave granted, we affirm the trial court's rulings. We do so 

substantially for the sound reasons stated by the motion judge, as amplified in 

this opinion.

I.

On the morning of March 1, 2019, Police Officer Sherlyn Courtney of the 

South Plainfield Police Department responded to the alleged victim's residence
3

A-1925-20

after the dispatcher notified her of a 9-1-1 call placed at 9:29 a.m. by a "female 

screaming." The police records describe the call as a "female crying saying she 

doesn['

]

t want to fight anymore [and] doesn['

]

t want to talk about it." The records 

further reflect that Officer Courtney was dispatched to the scene one minute 

after the call at 9:30 a.m. According to the testimony of Officer Courtney, it 

took her "3 [to] 4 minutes at most" to arrive at the residence, although the 

dispatch report states it took her only one minute. Four other officers were 

dispatched and responded to the scene within four minutes of Officer Courtney's 

arrival. 

Officer Courtney testified at the Rule 104 hearing that, upon arrival at the 

scene, she was not aware of the "nature of the call" other than that she was 

responding to a woman apparently in distress. The address to which she 

responded and the caller, L.B., were both known to Officer Courtney from 

previous incidents.

When she arrived, Officer Courtney saw a man later identified as L.B.'s 

father standing outside the house. The officer testified that, as she got out of 

her vehicle and walked up the driveway, she heard screaming or crying from a 

truck parked nearby. She then observed L.B. in the truck. At that point, Officer 

Courtney approached the partially open driver's side window of the truck. She
4

A-1925-20

saw L.B. alone, wrapped in "a blanket or some kind of sweatshirt" and 

apparently without "any clothes on underneath." The officer described the 

victim's state at that moment as "sobbing, physically shaking. She couldn't 

really speak in full sentences, because she was crying so hard."

Officer Courtney's first attempt to communicate with L.B. was to calm 

her, because she was "crying so hard that she couldn't really get too much out 

those first you know forty-five seconds or minute or so." After the victim, who 

was still crying, calmed down enough to communicate, Officer Courtney asked 

her "what happened . . . [and] what could [the police] do to help her?"

At that point, L.B. made the inculpatory statements which are at issue in 

this appeal. Officer Courtney described the exchange, in pertinent part, as 

follows: 

I asked her [(L.B.)] you know what happened, you 

know what could we do to help her. And, the [sic] she 

explained that she had a fist fight with her fiancé or exfiancé. That they had been drinking during the night 

and they got into a fight. And, she showed me her 

finger, which looked like she had bite marks -- or you 

know they appeared to be like teeth marks on her finger. 

And, I could see that her hair was really thin in some 

spots, and it looked like maybe like almost bald spots 

or something. 

. . . . 
5

A-1925-20

[L.B.] told me she was -- her fiancé locked her in her 

room, pulled her hair out -- hair extensions out, which 

are attached to your hair, bit her, and digitally 

penetrated her -- her anus. 

[(Emphasis added).]

According to Officer Courtney, these descriptive statements were not a response 

to any specific questions.

2

 Instead, the officer characterized them as

unprompted responses to open-ended queries asking what she "could do to help" 

and "what [the victim] needed."

About a few minutes into the officer's conversation with the victim, 

defendant appeared, and "walked out of the house, into the garage." Defendant 

then turned around, slammed the door, and hid back inside the house, while

Officer Courtney asked her to wait for questioning. The officer then left the 

victim in the truck to pursue defendant into the home. According to Officer 

Courtney, before they first spotted defendant by the garage, none of the 

responding officers were sure where she was or if she had fled the scene, because 

it all occurred "pretty quick." 

2 The prosecutor represented during the Rule 104 hearing that the violent assault 

was partially captured on video through in-home security cameras, but the video 

did not show the sexual portion of the assault. The prosecutor asserted the 

State's purpose in moving to have the victim's hearsay statements admitted at 

trial is "to have supporting evidence for a single charge in the indictment, which 

is the sexual assault charge, because that happened . . . behind closed doors."
6

A-1925-20

The indictment charged defendant with five counts, consisting of seconddegree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); fourth-degree 

criminal sexual assault, N.J.S.A. 2C:14-3(b) (count two); third-degree criminal 

restraint, N.J.S.A. 2C:13-2(a) (count three); and third-degree terroristic threats, 

N.J.S.A. 2C:13-3(a) (counts four and five).

The State moved to admit evidence of the victim's out-of-court statements 

to the police pursuant to the excited utterance exception to the hearsay rule, 

N.J.R.E. 803(c)(2). Defendant opposed the motion, arguing the excited 

utterance exception was not satisfied under the circumstances because the 

declarant victim had a reasonable time to deliberate or fabricate before her 

accusatory statements to the officer. Defendant further argued the statements 

were "testimonial" under the Confrontation Clause and thereby could not be 

admitted because the declarant, who has since died, cannot be cross-examined. 

In addition, defendant argued the statements were unfairly prejudicial under 

Rule 403.

After considering the officer's testimony from the Rule 104 hearing and 

the briefs and oral arguments of counsel, Judge Diane Pincus granted the State's 

motion and found the victim's statements admissible at trial. The judge issued 

a corresponding order and a written opinion on December 18, 2020. As we will 
7

A-1925-20

explore, infra, the judge concluded the statements were admissible as excited 

utterances, were not "testimonial" under the Confrontation Clause, and should 

not be excluded under Rule 403 as unduly prejudicial. In the course of her 

analysis, the judge expressly found that Officer Courtney was a "credible 

witness," who testified about her interactions with the victim in a "forthright and 

candid manner" on both direct and cross-examination.

We subsequently granted defendant's motion for leave to appeal the 

motion judge's admissibility ruling. In her merits brief on appeal, defendant 

presents the following points:

POINT I

THE TRIAL COURT ERRED IN FINDING THE 

COMPLAINANT'S OUT-OF-COURT STATEMENT 

TO A POLICE OFFICER WAS PROVIDED 

WITHOUT A SUFFICIENT OPPORTUNITY TO 

DELIBERATE OR FABRICATE BECAUSE THERE 

IS NOTHING IN THE RECORD ESTABLISHING 

WHEN THE ALLEGED INCIDENT OCCURRED, 

HOW LONG THE COMPLAINANT WAS SITTING 

IN THE VEHICLE BEFORE CALLING 911, AND 

BECAUSE THE COMPLAINANT HAD AN 

OPPORTUNITY TO SPEAK WITH A 911 

OPERATOR BEFOREHAND.

POINT II

THE TRIAL COURT ERRED IN FINDING THE 

COMPLAINANT'S OUT-OF-COURT STATEMENT 

NONTESTIMONIAL BECAUSE PRIMARY 
8

A-1925-20

PURPOSE OF THE OFFICER'S QUESTIONING 

WAS NOT TO MEET AN ONGOING EMERGENCY 

BUT TO GET THE COMPLAINANT TO PROVIDE A 

NARRATIVE ABOUT WHAT HAD HAPPENED. 

Defendant also incorporates by reference her additional arguments from her 

moving appellate brief, contending the victim's statements must be excluded 

under Rule 403.

II.

We begin with a recognition of the well-settled principle that appellate 

review of evidentiary rulings generally entails considerable deference. Such 

rulings ordinarily "should be upheld 'absent a showing of an abuse of discretion, 

i.e., there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 

295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)); see also State v. 

Buda, 195 N.J. 278, 294 (2008). "An appellate court applying this standard 

'should not substitute its own judgment for that of the trial court, unless the trial 

court's ruling is so wide of the mark that a manifest denial of justice results.'" 

Ibid. (quoting Brown, 170 N.J. at 147). In addition, we will not second-guess 

the judge's factual assessment that the officer's testimony at the Rule 104 hearing 

was credible. State v. Locurto, 157 N.J. 463, 472-73 (1999).

That said, we are mindful that, insofar as defendant asserts, among other 

things, her right of confrontation would be violated at trial, we of course must 
9

A-1925-20

adhere to constitutional principles in evaluating the trial court's decision, 

including the "testimonial" classification issue. See State v. Williamson, 246 

N.J. 185, 199 (2021) (applying a de novo review standard in evaluating the legal 

issue of whether a trial court's admission of a victim's dying declaration violated 

the defendant's Sixth Amendment right to confrontation). 

Guided by these standards, we affirm the trial court's determination that 

the victim's statements to Officer Courtney are admissible at trial. We do so 

substantially for the cogent reasons set forth in Judge Pincus's written opinion, 

amplified by some additional observations of our own. We address the three 

specific legal issues in turn.

A.

First, we agree with Judge Pincus that the State has satisfied the elements 

of the hearsay exception for an excited utterance, N.J.R.E. 803(c)(2). The Rule 

provides as follows:

(c) Statements Not Dependent on Declarant's 

Availability. The following are not excluded by the 

rule against hearsay, regardless of whether the 

declarant is available as a witness:

. . . .

(2) Excited Utterance. A statement 

relating to a startling event or condition 

made while the declarant was under the 
10 A-1925-20

stress of excitement caused by the event or 

condition and without opportunity to 

deliberate or fabricate.

[Ibid.]

In essence, the exception has three components:(1) a "startling" event or 

condition; (2) the statement was made "while the declarant was under the stress 

of excitement caused by" that condition or event; and (3) without the opportunity 

for the declarant to "deliberate or fabricate." Ibid.

The judge found all three components were established by the State here. 

First, the judge noted that "the [alleged] sexual assault in this case was 

unquestionably a startling event." The judge further considered the victim's 

partially disrobed state covered only in blanket or sweatshirt, her act of locking 

herself in the car her "visibly upset" appearance, and her initial inability to 

"speak in full sentences." The judge remarked that the victim's partially 

disrobed condition suggested that "she was so fearful for her safety that she fled 

the home without dressing." The judge further noted Officer Courtney arrived 

at the residence within only a few minutes of the 9-1-1 call. Given these 

circumstances, the judge concluded, as to the Rule's second element, the victim 

was "still under the stress of the sexual assault at the time she made the 

[statements]."
11 A-1925-20

With respect to the hearsay exception's temporal aspect, the judge inferred 

from the circumstances that the victim's statements had been made "shortly after 

the assault." As the judge wrote, the situation indicated that the victim's "powers 

of reflection and fabrication were suspended by the shock of the assault." 

The judge recognized that the court did "not know the precise time that 

elapsed between the assault and the [9-1-1] call." Even so, the judge was 

satisfied that the temporal element of the excited utterance exception was met. 

Quoting a passage from Cestero v. Ferrara, 57 N.J. 497, 504 (1971), the judge 

found the circumstances in this case, as in Cestero, "reasonably warrant [the]

inference that the statement[s] [were] made as an uncontrolled response to the 

shock of the event before reasoned reflection could have stimulated a selfserving response." 

On appeal, defendant concedes the elements of a startling event and the 

declarant's apparent continued stress from that event. Defendant instead focuses 

on the temporal element, arguing that the State failed to prove L.B. lacked a 

reasonable opportunity to deliberate over or fabricate a narrative about what had 

occurred to her. In this regard, defendant contends the State was obligated to 

establish how much time had elapsed between the alleged sexual assault inside 

the home and her conversation with the police officer. We disagree.
12 A-1925-20

We recognize that, in some instances, case law applying the excited 

utterance exception involves a factual record disclosing a timeline between the 

startling event and the declarant's statements. See, e.g., State v. Cotto, 182 N.J. 

316, 330 (2005) (holding the exception inapplicable where witnesses to a 

robbery were interviewed by a police officer about fifteen to twenty minutes 

after the robbers had left their apartment); State v. Branch, 182 N.J. 338, 354-

57 (2005) (holding the exception inapplicable where about twenty minutes 

passed between a parent's 9-1-1 call reporting a burglary and when police 

interviewed her children). However, a precise timeline is not required under the 

Rule. It is conceivable under Rule 803(c)(2) that a gap much longer than twenty 

minutes can be insufficient to provide the declarant with a reasonable 

opportunity to deliberate or fabricate, depending upon the situation.

The contextual nature of the time element is illustrated by the Supreme 

Court's opinion in Buda, 195 N.J. at 286. In Buda, the Court considered 

statements by a three-year-old child conveying that he had been physically

abused by the defendant, his mother's boyfriend. The child had been driven to 

the hospital emergency room after his mother found him with signs that he had 

been beaten. Id. at 286. Once at the hospital, the child was interviewed by child 

welfare workers, and he indicated to them that the defendant had beaten him. 
13 A-1925-20

Even though the interview was conducted "several hours" after the events, the 

Court did not regard the passage of time as dispositive under N.J.R.E. 803(c)(2). 

Id. at 286, 295. The Court noted the child was sobbing in a "strange and 

frightening place," and that it was his first chance to speak outside of the 

defendant's presence. The time interval was not significant, given the 

"intervening action-filled chaos and stress-filled events." Id. at 297. 

Here, the motion judge reasonably concluded that L.B. likewise did not 

appear to have had a reasonable opportunity to deliberate or fabricate before she 

was questioned by Officer Courtney about her ordeal that prompted her to call 

9-1-1 for help. The surrounding circumstances are consistent with the judge's 

findings that L.B. had only recently escaped from defendant, and that she had 

hastily fled to her car, frightened and nearly naked, and locked the doors. The 

setting is not one of peaceful reflection or contemplation. We therefore affirm 

the judge's ruling that the excited utterance exception applies.

B.

We next consider defendant's argument that the admission of the deceased 

declarant L.B.'s hearsay statements against her at trial, without the ability to 

cross-examine L.B., violates her rights of confrontation under the Sixth 
14 A-1925-20

Amendment of the United States Constitution. We agree with the trial court's 

rejection of this claim.

The applicable principles under the prevailing Confrontation Clause 

doctrine have been well established since the United States Supreme Court's 

seminal opinion in Crawford v. Washington, 541 U.S. 36, 53-54 (2004). 

Applying a new constitutional test of admissibility, the Court ruled in Crawford

that a "testimonial" hearsay statement by a non-testifying declarant may not be 

admitted at trial against a criminal defendant, unless the declarant is unavailable 

and the defendant had a prior opportunity to cross examine that declarant. 

Although the Court in Crawford did not define in depth what comprises a 

"testimonial" statement, it did so in subsequent cases.

Specifically, in Davis v. Washington, 547 U.S. 813 (2006), the Court set 

forth a "primary purpose" test for evaluating whether a statement is testimonial 

or, conversely, nontestimonial:

Statements are nontestimonial when 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 (emphasis added).]

By contrast, the Court added:
15 A-1925-20

[Statements] are testimonial when the circumstances 

objectively indicate 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.

[Ibid. (emphasis added).]

Applying this "primary purpose" test, the Court ruled in Davis that statements 

resulting from the interrogation of a 9-1-1 caller were non-testimonial by nature 

because such statements are "ordinarily not designed primarily to 'establis[h] or 

prov[e]' some past fact, but to describe current circumstances requiring police 

assistance." Id. at 827 (emphasis added) (alterations in original). 

By comparison, in Hammon v. Indiana, 547 U.S. 813 (2006), a case 

consolidated with Davis, the Supreme Court held that statements made by a 

declarant to police investigating a domestic disturbance after it had already 

subsided were testimonial in nature. Id. at 829-30. There, officers responded 

to a domestic dispute call. Upon their arrival at the residence, the declarant wife 

stated that "things were fine" and officers noticed no arguments or emergency 

in progress. Ibid. The officers further questioned the declarant a second time 

about "what happened," at which point the inculpatory hearsay statements were 

made. The declarant was interrogated in a different room from her spouse, and 

she also signed an affidavit. Ibid. Given these circumstances, the Court deemed 
16 A-1925-20

the statements to be testimonial, because their primary purpose was to collect 

information for a potential future criminal prosecution rather than to respond to 

an ongoing emergency. Ibid.

Several years later in Michigan v. Bryant, 562 U.S. 344 (2011), the Court 

further refined the so-called "ongoing emergency" doctrine for evaluating 

whether statements to law enforcement officers are testimonial. The five-justice 

majority in Bryant, joined by one concurrence, vacated the judgment of the 

Supreme Court of Michigan and held that the statements at issue were nontestimonial and their admission did not violate the defendant's Confrontation 

Clause rights. Id. at 348-49. 

The facts of Bryant arose when police officers responded to a call of a 

man wounded by gunfire at 3:25 a.m. At the scene, the victim was found lying 

on the ground next to his car, struggling to hold onto life. Officers repeatedly 

asked him "what had happened, who had shot him, and where the shooting 

occurred." In response, he stated that a man named "Rick" shot him around 3:00 

a.m. and that he recognized the defendant's voice from behind the door of the 

defendant's own home, where he was shot. Id. at 349. The conversation ended 

soon after, and the decedent was pronounced dead within hours. Ibid. The 

victim's statements led officers to the scene of the shooting. At trial, the police 
17 A-1925-20

officers told the jury, over defendant's objection, what the decedent had said to 

them in response to their queries.

The Court majority in Bryant noted that the facts, unlike Davis and 

Hammon, did not concern a domestic dispute but instead involved "a victim 

found in a public location, suffering from a fatal gunshot wound, and a 

perpetrator whose location was unknown" when police arrived at the scene. Id.

at 359. The majority explained that the "ongoing emergency" analysis is a 

"highly context-dependent inquiry." Id. at 363. Various factors may be 

considered, although not necessarily determinative on their own, including such 

things as: the "victim's medical state," the "magnitude of a continuing threat," 

and the formality or informality of the interrogations. Id. at 364-66. More 

succinctly: "the existence and duration of an emergency depend on the type and 

scope of danger posed to the victim, the police, and the public." Id. at 370-71. 

The Bryant majority instructed that a trial court should consider "[i]n 

addition to the circumstances in which an encounter occurs, [whether] the 

statements and actions of both the declarant and interrogators provide objective 

evidence of the primary purpose of the interrogation." Id. at 367 (emphasis 

added). Such a "combined approach . . . ameliorates problems that could arise 
18 A-1925-20

from looking solely to one participant" who may have mixed motives by virtue 

of being law enforcement or a declarant. Id. at 368. 

Applying these concepts, the majority concluded the victim's statements 

to the officers at the scene were primarily made in connection with the 

investigation of an ongoing emergency, and, hence, nontestimonial in nature.

Id. at 378. Justices Scalia and Ginsburg dissented, finding the statements were 

indeed testimonial and rejecting the majority's assessment of their primary 

purpose. Id. at 379-96.

Our State's own case law has duly applied the "primary purpose" test. See, 

e.g., State v. Wilson, 227 N.J. 534, 546-47 (2017) (evaluating whether "drug

free zone" maps are testimonial, and concluding the primary purpose of their 

creation was not to establish past events relevant to a later criminal prosecution); 

State v. Michaels, 219 N.J. 1, 9 (2014) (by contrast, holding that a forensic 

report establishing that drugs found in a defendant's bloodstream rendered her 

unfit to drive a motor vehicle was testimonial, because it was created for the 

primary purpose of supporting a prosecution for vehicular homicide). 

In the present case, the motion judge reasonably concluded that L.B.'s 

statements to Officer Courtney were nontestimonial, and that the primary 

purpose of the interview was to address an ongoing emergency. Among other 
19 A-1925-20

things, the judge duly considered the physical and emotional state of the victim, 

the short time between the 9-1-1 call and the officers' response, the open-ended 

and conditional nature of Officer Courtney's questions, the victim's inability to 

form complete sentences due to her sobbing, and the fact that Officer Courtney 

was unaware of the specific reason for the 9-1-1 call at the time of her arrival. 

The judge found the officer's questions were informal in nature and did not have 

the primary purpose of eliciting support for future criminal prosecution, but 

instead were an effort to respond to an ongoing emergency.

We agree with the motion judge's sound reasoning. The officer's 

questions were designed to elicit immediate facts and to help inform the police 

of what steps they might need to take to assure the well-being of the persons on 

site, for instance keeping the victim separated safely from her alleged attacker. 

As the Court observed in Hammon, the exigencies of apparent situations of 

domestic violence "may often mean that 'initial inquiries' [by responding police 

officers] produce nontestimonial statements." 547 U.S. at 832. The analysis 

might be quite different if, say, the officers had escorted L.B. safely into the 

house, secured the premises, allowed her to get dressed and warm, and calmly 

interviewed her at length.
20 A-1925-20

We therefore affirm the trial court's well-reasoned determination that the 

admission of the victim's at-the-scene statements would not violate the 

Confrontation Clause, despite the inability at trial to cross-examine her.

C.

Little needs to be said about the trial court's rejection of defendant's 

arguments for exclusion under Rule 403. That rule, couched in language using 

the permissive term "may," gives trial courts wide discretion to exclude relevant 

evidence only where countervailing factors such as unfair prejudice are shown 

to "substantially outweigh" the evidence's probative value. N.J.R.E. 403. The 

court did not abuse its broad discretion in declining to bar this highly probative 

evidence. Indeed, the evidence is essential to the State's ability to prove a sexual 

assault occurred since there were apparently no eyewitnesses and the sexual part 

was not recorded.

Affirmed.