Supreme Ct. Sixth Amendment, confront accuser, hearsay

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http://www.app.com/apps/pbcs.dll/articl ... /806240422

Supreme Court upholds child abuse convictions

By Kathleen Hopkins • STAFF WRITER • June 24, 2008

TOMS RIVER — In a 4-3 decision, the state Supreme Court on Monday reinstated the Ocean County child-abuse convictions of a Keyport man accused of assaulting a 3-year-old boy — a ruling that authorities said allows DYFS workers to continue unbridled in their mission to protect children.

Ocean County Prosecutor Marlene Lynch Ford said the ruling also spares some young victims the trauma of having to testify.

"This ruling means greater justice and more compassion for the young victim of abuse who due to age, immaturity or post-traumatic events can be spared the need to testify just to allow the jury to hear highly reliable state-ments," Ford said.

The decision involves the 2005 trial of Ryan Buda, and centers on the admissibility of a statement an injured 3-year-old boy made to a state Division of Youth and Family Services worker while at the emergency room of Community Medical Center in Toms River. When the DYFS worker asked the child if anyone had beaten him, the boy responded, "Dad says nobody beat me. I fell when I was sleeping in my room."

Buda at the time was engaged to the boy's mother and had instructed the child to call him "Dad," according to trial testimony. They were living together in Toms River at the time.

Superior Court Judge Vincent J. Grasso, now the assignment judge for Ocean County, allowed DYFS worker Miriam Nurudeen to testify about the statement the boy had made to her in the emergency room on Oct. 18, 2002. But a panel of appellate judges in 2006 reversed Buda's conviction on three counts of child endangerment and one count of aggravated assault, saying the statement was hearsay and the child did not testify.

As hearsay, the statement violated the clause of the United States Constitution that says defendants have a right to confront their accusers, the Appellate Division of Superior Court said in its 2006 decision.

But the state Supreme Court Monday said the statement fell within one of the exceptions of the so-called hearsay rule and could be used at trial because the DYFS worker, in soliciting the statement, was seeking to protect the child, not gather information to prosecute the defendant.

The result, said Senior Assistant Ocean County Prosecutor Samuel Marzarella, is that "DYFS workers are unconstrained by this ruling to do the job mandated under our statute, namely to first protect the child from abuse."

The state Public Defender's Office declined to comment on the ruling. Spokesman Tom Rosenthal said the office would discuss the possibility of an appeal to the U.S. Supreme Court with the defendant.

The state's chief justice, Stuart Rabner, and Justices Jaynee LaVecchia and Helen E. Hoens joined in the majority opinion written by Justice Roberto A. Rivera-Soto. Justice Barry T. Albin wrote a dissenting opinion in which Justices Virginia Long and John E. Wallace joined.

"Constitutional rights should not melt away when the accused is charged with a particularly vile crime, even when that crime is against a child," Albin wrote in his dissent. "The Sixth Amendment's right to confrontation applies whether the accuser is four years old or 40 years old."

The majority opinion upheld the Appellate Division's 2006 ruling that an earlier statement the victim made to his mother, in which he said, "Daddy beat me," was admissible as an "excited utterance."

But the Supreme Court majority said both statements, to the DYFS worker and to the boy's mother, could be considered excited utterances, which in some circumstances can be excluded from the rule against hearsay because they are made before the declarant has had an opportunity to fabricate them.

The rulings in the Buda case have been made in light of recent U.S. Supreme Court decision involving what hearsay statements can and cannot be used against defendants at trial.

The U.S. Supreme Court decisions have distinguished between hearsay statements made in emergencies and those used to aid police in criminal investigations. Those hearsay statements not admissible at trial are those elicited for the primary purpose to gather information for a criminal prosecution, according to the nation's highest court.

The statement the victim made to the DYFS worker in the Buda case fell into that category because he was no longer in danger when he made it, and it was used to further a criminal investigation, the appellate division judges had ruled.

But the majority of state Supreme Court justices disagreed, saying the DYFS worker who elicited the statement did so to protect the child.

"The DYFS worker was confronted with a battered child who then and there needed protection from the very adults charged with his basic care," Rivera-Soto wrote in the majority opinion. ". . . It was in the proper discharge of that obligation that the DYFS worker sought to identify the source of the threat against (the child); it was in response to that fundamental inquiry that the (child's) hearsay statement was elicited."

Attorney Leslie A. Stolbof Sinemus, who filed a brief in the case on behalf of the Association of Criminal Defense Lawyers of New Jersey, said she was disappointed that the majority's opinion turned a blind eye toward what she said is often a dual role played by DYFS workers.

"DYFS workers frequently go in there to interview witnesses at the request of law enforcement," Sinemus said.

Buda, now 27, was sentenced in 2005 to eight years in prison but was released on Jan. 10. There are still outstanding issues in his appeal that the appellate division must now address.

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