For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
[44 NJ Page 196] The appellant, Clayton Anderson, and five codefendants, Carlton Blanchard, Percy Edmonds, Clyde Hightower, Billy Green, and Jesse Williams, were jointly tried in the Essex County Court for first degree murder. The jury acquitted three, Edmonds, Hightower, and Williams. The jury found two others, Blanchard and Green, guilty with a recommendation of life imprisonment. Anderson was found guilty without a recommendation of life imprisonment and was sentenced to death. Anderson, the sole appellant here, appealed to this court as of right pursuant to R.R. 1:2-1(c).
On the night of May 9, 1963, the body of James Dodd was found in the hallway at 405 Hunterdon Street, Newark. The blade of a knife protruded from his back. An autopsy revealed that he had died as the result of a stab wound in his chest. Four of the defendants were apprehended within three weeks of the crime. Anderson was arrested in Baltimore, Maryland, on November 30, 1963. Green was arrested in Newark on March 3, 1964. Shortly after each defendant was arrested he gave a detailed statement to the police admitting his presence in Anderson's automobile and describing the events leading up to and after the stabbing of Dodd.
The State's theory, at the trial of the six defendants, was that Dodd had been killed while the defendants were acting in concert to rob him. The State introduced into evidence the written statement of each defendant. Police officers also testified to oral admissions which several of the defendants had made at the time of their arrests and interrogations. When the State sought to introduce into evidence the statements of Anderson's codefendants, Anderson's counsel objected because the statements implicated Anderson. The trial court overruled the objection. It held that the statement of each declarant was admissible against him alone and that a proper instruction to the jury to that effect was all that was required. Each statement was subsequently read by the prosecutor to the jury and the trial court cautioned the jury that the statement was only evidentiary against the defendant who made the statement. In its charge the trial court again cautioned the jury as to the restricted use of each defendant's statement. The written statements were exhibits which were submitted to the jury for their consideration during deliberation.
On this appeal, Anderson argues that the introduction into evidence of the five written statements of his codefendants, all of which contained incriminating references to Anderson, was error since the jury could not have been expected to heed the trial court's limiting instructions. Further, he contends that the error was compounded by the repetitious emphasis upon the statements at the trial.
It is, of course, undisputed that the out-of-court confessions of the codefendants were inadmissible against Anderson. The inadmissibility of such evidence is not predicated merely upon the rule prohibiting hearsay but also upon the fundamental right of every defendant to confront the witnesses against him.
Courts have long recognized that the admission of one defendant's confession in a joint trial has the potentiality of prejudice to other defendants implicated by the confession.*fn1 Our courts have nevertheless upheld the admission of such statements. E.g., State v. Rios, 17 N.J. 572, 583-86 (1955); and State v. Murray, 33 N.J. 393 (1960). In allowing their admission we have recognized the potentiality for prejudice to a codefendant by requiring the trial court to make "a prompt
and emphatic caution to the jury as to the limited evidential effect to be given" to the confession of a codefendant. State v. Murray, supra, at p. 398.*fn2 More recently, in State v. Tassiello, 39 N.J. 282 (1963), this court recognized the likelihood of prejudice but stated:
"Nevertheless, it is generally recognized that considerations arising out of the due administration of criminal justice frequently require that several defendants be tried jointly and that the confession of one defendant be admitted into evidence at such a joint trial where the circumstances are such that the jury can reasonably be expected to follow the court's admonition to disregard the confession as to the other defendants." Id., at p. 296.
Implicit in the statement quoted above is the recognition that the jury in some cases may not reasonably be able to follow the trial court's instructions. See also State v. Manney, 26 N.J. 362, 370 (1958). In Delli Paoli v. United States, 352 U.S. 232, 243, 77 S. Ct. 294, 300, 1 L. Ed. 2 d 278, 286 (1957), the United States Supreme Court also recognized that there may be situations where limiting instructions would be ineffective.*fn3
The issue before us, therefore, is whether in the circumstances of this case the jury could reasonably be expected to follow the trial court's admonitions to disregard the out-of-court statements of Anderson's codefendants in their determination of Anderson's guilt and punishment.
The stories which the five codefendants told in their statements were similar as to Anderson's part in the crime. They all stated that they had joined Anderson at one time or another during the day and evening of May 9, 1963. They drove around the streets of Newark in Anderson's car and stopped at a number of bars. At about 10:00 P.M. they drove by a bar and saw the bartender drag a drunken man, later identified as the victim Dodd, across the street and put him on a park bench. Anderson, who was driving, stopped the car and he and Green got out and brought Dodd back to the car and put him in the rear seat.
All but Green stated that Anderson went through Dodd's pockets and took his wallet and wrist watch. All said that Anderson drove the car to Hunterdon Street; that Anderson stopped the car and dragged Dodd from the rear seat. All but Williams said they saw Anderson stab Dodd.
Each defendant in his statement minimized his own part in the crime and implied that he was a mere bystander when Anderson abducted, robbed, and stabbed Dodd. All the statements contained the common theme that Anderson was the leader, the instigator, the robber, and the killer.
All of the codefendants' statements were taken by the police in question and answer form. All contain a lengthy narrative
description of the sequence of events leading up to the stabbing of Dodd. Anderson is inculpated by name over 150 times. Not only do the answers of each defendant incriminate Anderson, but the police in their questioning assumed that Anderson had robbed and stabbed Dodd. The prejudicial references to Anderson are too numerous to set out in detail. It is enough to give some examples from the statements of each of the codefendants.
When Blanchard was asked why he thought Anderson was responsible for the stabbing of Dodd, he replied: "Because I seen him do it." He also said that when the defendants first spotted Dodd on the park bench Anderson said, "'Let see if he got any money.'"; that when the car was stopped Anderson "walked around the back ...