State Of N.J. v. Basil

Citation202 N.J. 570,998 A.2d 472
PartiesSTATE of New Jersey, Plaintiff-Appellant,v.Eugene BASIL, a/k/a Jean Basil, Defendant-Respondent.
Decision Date20 July 2010
CourtUnited States State Supreme Court (New Jersey)

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Frank Muroski, Deputy Attorney General, argued the cause for appellant (Paula T. Dow, Attorney General of New Jersey, attorney).

Sylvia M. Orenstein, Assistant Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

Justice ALBIN delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, joined by Justices LaVECCHIA and WALLACE.

In this appeal, the State claims that the Appellate Division erred in overturning defendant Eugene Basil's conviction of unlawful possession of a shotgun. This case involves two distinct constitutional issues, both arising from statements made by a young woman who refused to identify herself to police officers who were dispatched to the scene on the report of a man with a gun. The young woman identified defendant as the person who earlier had pointed a shotgun at her and directed the officers to the location of the discarded shotgun.

The first issue is whether the police had probable cause to arrest defendant. The Appellate Division concluded that defendant's arrest violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution and, accordingly, suppressed an incriminating statement made by defendant to police after his arrest. We conclude that the on-scene identification by a citizen informant and corroborative discovery of the shotgun gave the officers probable cause to arrest defendant, and therefore defendant's volunteered statement should not have been suppressed as the product of an unlawful arrest. We therefore reverse the Appellate Division's suppression of defendant's incriminating statement to the police.

The second issue is whether the admission of the young woman's statement at trial violated defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. Because the police did not secure the woman's name and address, she could not be called as a witness at trial. Her identification of defendant as the person wielding the shotgun-the critical piece of the State's case-was introduced through the testimony of two police officers. The Appellate Division determined that the woman's hearsay statement was testimonial and defendant had never been given the opportunity to cross-examine her, and thus the admission of the statement violated the commands of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The appellate panel essentially found that the out-of-court statement was testimonial because at the time the unidentified woman made the statement to the police she was not witnessing or experiencing the type of ongoing emergency, as illustrated in Davis, that would provide an exception to the constitutional right of confrontation. Davis, supra, 547 U.S. at 827-28, 126 S.Ct. at 2276-77, 165 L.Ed.2d at 240-41. Three members of the Court agree that the woman's hearsay statement was testimonial and inadmissible, and three members do not.1 Because the admission of the statement could not be harmless beyond a reasonable doubt see State v. Macon, 57 N.J. 325, 340, 273 A.2d 1 (1971), the judgment of the Appellate Division reversing defendant's conviction is affirmed by an evenly divided Court.

I.
A.

Defendant was charged by a Hudson County grand jury in a two-count indictment with second-degree possession of a shotgun with the purpose to use it unlawfully against the person or property of another N.J.S.A. 2C:39-4(a), and third-degree knowingly possessing the shotgun without having first obtained a firearms purchaser identification card N.J.S.A. 2C:39-5(c)(1). In a pretrial motion, defendant claimed that the police did not have probable cause to arrest him and therefore subjected him to an unreasonable seizure in violation of his constitutional rights. He sought to suppress a statement that he allegedly made after he was taken into custody.

Suppression Hearing

At the suppression hearing, Officer Anthony Ruocco of the Jersey City Police Department testified that on February 12, 2005, at approximately 1:00 a.m., he and Officer William Sullivan, as well as other police units, responded to a report of a man with a shotgun at 199 Bidwell Avenue in Jersey City. On his arrival, Officer Ruocco observed approximately three black males, including defendant, in the area of 199 Bidwell Avenue and was approached by a young black woman. She looked to be eighteen- or nineteen-years old, and “came from around the corner.” The woman told Officer Ruocco that defendant had pointed a shotgun in her direction (she apparently was with a group of people), and that defendant uttered words to the effect of, “Get off the corner.” She also stated that she saw defendant throw the shotgun underneath a black Cadillac. As the woman spoke to Ruocco, she was shaking a little bit” and her “voice was elevated.” Officers Sullivan and Chet Mecca then recovered the shotgun from underneath the Cadillac.

After Officer Ruocco arrived at the scene, officers approached and questioned defendant about the report of the shotgun. Following the young woman's statement and the discovery of the shotgun, defendant was placed in the back of a police car.

The young woman told Officer Ruocco that she lived in the area but nothing else about herself. She said she did not want to speak with any detectives or become involved in the case “because she was scared for her safety.” Officer Ruocco did not get her name, address, or telephone number. The young woman just “left [and] walked away.”

Officer Ruocco transported defendant in the backseat of a patrol car to the district police station. Officer Ruocco did not consider defendant to be under arrest at that point; however, if defendant had refused to go, he would have placed him under arrest for obstruction. At the police station Officer Ruocco escorted defendant from the car. Once inside the station, according to Ruocco, defendant commented to him, “What the problem, you guys don't do your job. So I went inside and got my shotgun.” At that point, Ruocco placed defendant under arrest, handcuffed him, and gave him the Miranda warnings.2

Defendant testified, presenting a different account from the one described by the nameless witness and Officer Ruocco. Defendant explained that on the night in question he was involved in activities related to his grandmother's recent death. That evening, he had gone to church and brought food to his home at 204 Bidwell Avenue, where family and friends were gathering. At the time the police arrived, he was standing outside his home. A police officer approached him and asked him if “anything [was] going on.” Later, an officer told him he was “under arrest for having a gun.” He then was handcuffed and taken to the police precinct. Defendant denied possessing the shotgun found under the Cadillac, pointing that weapon at anyone, or making the incriminating statement attributed to him by Officer Ruocco.

The court found Officer Ruocco's credibility “to be excellent.” The court concluded that the police engaged in a lawful investigative detention based on the statement of the citizen informant and the discovery of the shotgun. It further determined that based on defendant's “spontaneous” admission to possessing the shotgun, the police had probable cause to arrest him. Accordingly, the court denied the motion to suppress defendant's incriminating statement.

The Trial

After jury selection, defendant challenged the admissibility of the non-appearing woman's statement to Officer Ruocco-identifying defendant as the person wielding the shotgun-on hearsay and confrontation grounds.3 The court determined that the statement was admissible under the excited-utterance exception to the hearsay rule N.J.R.E. 803(c)(2). 4

At trial, the State presented three witnesses. Officer Ruocco testified that he and Officer Sullivan were dispatched to the area of 199 Bidwell Avenue in Jersey City on the report of a man with a shotgun. On their arrival, defendant was standing in front of 199 Bidwell Avenue. While Officer Sullivan “was holding [defendant],” Officer Ruocco was approached by an eighteen- or nineteen-year-old black woman who “came from around the corner.” She told the officer that she was standing on the corner (apparently with others) when defendant “pointed a shotgun at their direction and stated get off the corner.” She also “stated that the shotgun was thrown under a black Cadillac.” 5

Officer Sullivan gave a somewhat different account. Officer Sullivan testified that after he and Officer Ruocco arrived at the scene, a black female walked across the street and approached him. She said, [T]hat's him,” pointing to defendant, he's the one with the gun.” The two officers then told defendant to halt, and he replied, “What do you want me for?” Simultaneously, the woman advised the officers that the gun was underneath a black Cadillac. With Officer Ruocco in control of defendant-ten feet from the Cadillac-and the arrival of another police car, Officer Sullivan retrieved the unloaded shotgun from underneath the car.

According to Officer Sullivan, the woman stated that she did not want to be a witness, and therefore he did not get her name. Fearing that people on the street might become disruptive, Officers Sullivan and Ruocco immediately transported defendant to the district police station. Officer Sullivan explained that the shotgun was not dusted for fingerprints because of defendant's reported admission to Officer Ruocco. However, Officer Sullivan testified that in his presence defendant denied owning or having anything to do...

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