Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
After a trial of defendant-appellant King and co-defendants Allen and Clark, the latter were acquitted and King convicted of the murder of Adam Mueller and Joseph Beismann in Trenton on the late evening of March 13, 1969. The jury recommended life imprisonment on each conviction, and King was sentenced to terms of life imprisonment on each, to be served consecutively.
[Here the court discusses the testimony of various witnesses to the case]
The most important State witness was Beverly Peters, a/k/a Vevlyn Jackson. Between 11 P.M. and midnight on the night of the murders, Miss Peters was standing on the corner outside Sid's Bar. After about 20 minutes, she saw two white men emerge from Skopa's Bar across the street. As the men were crossing the street to the corner diagonally opposite the corner on which Miss Peters stood, she saw Glover [a companion of the defendants] and defendants King, Clark and Allen emerge from Skopa's Bar. The four ran up to the two white men, and King stuck his gun up at the older man's (Beismann's) head. The younger man (Mueller), upon seeing this, fled down Brunswick Avenue towards Sanford Street. King thereupon took his gun from Beismann's head, and ran after Mueller; he shot at the fleeing Mueller, apparently twice, and Miss Peters saw Mueller fall down in the street. At this, Clark, Allen, and Glover ran into Sid's Bar, while King took Beismann down Old Rose Street. Miss Peters did not see what King did with Beismann, because she also went into Sid's Bar at that point. Miss Peters' boyfriend, Curtis Jackson, the father of her son, was in Sid's Bar at the time.
Miss Peters told Jackson about what she had seen, and Jackson suggested that they leave because Jackson had been in trouble with the law, as had Miss Peters, and he was afraid that she would be called as a witness in this matter. Jackson and Miss Peters left Sid's Bar and went home together.
[Here the court discusses additional testimony of witnesses in the case.]
The principal ground of appeal is the contention that the court erred in allowing the State at the conclusion of its case, over strenuous defense objection, to adduce in evidence Miss Peters' testimony given before the Grand Jury on April 29, 1969 and a statement she gave the police March 14, 1969 which in substance were to the same effect as her testimony to the trial. (The case was tried from November 5 through November 13, 1969). In so doing, the trial judge accepted the State's contention that it was entitled to bolster Miss Peters' credibility because her cross-examination was designed to suggest to the jury that her testimony was a recent fabrication. See Evidence Rule 20 which states: "* * * No evidence to support the credibility of a witness shall be admitted except to meet a charge of recent fabrication of testimony."
Prior to the promulgation of the evidence rules in 1967 this State allowed somewhat broader latitude in supporting by prior consistent statements the credibility of a witness assailed on cross-examination.
"It is well established that previous statements of a witness are ordinarily not admissible to strengthen and corroborate his testimony, but the general rule is that when a witness has been impeached by an attack upon his credibility, tending to show that his testimony is a fabrication of recent date or is colored, distorted, and falsified through the influence of some strong personal motive, his statements made on occasions so near to the event involved, and so long anterior to the litigation that the effect of his speech could not have been foreseen, are admissible."
The version of Rule 20 first adopted by the Supreme Court (September 14, 1964) but which never became effective, read, in pertinent part:
"* * * No evidence to support the credibility of a witness shall be admitted except to meet a charge of willful falsification of testimony."
The change to the now-existing version was accomplished at a conference of the Legislative Commission serving pursuant to SCR 28 (1966) and SCR 1 (1967) with the Supreme Court. See Report of the Rules of Evidence Study Commission (1967) p. 7.
The express limitation in Evidence Rule 20 to charges of "recent fabrication" should, in the light of the prior history of the rule and the evolution of Rule 20 as it now stands, ordinarily call for adherence to that formulation as the only criterion for admissibility of prior consistent statements of the witness assailed to support credibility. However, we find that the cross-examination of the witness Peters by the several defense counsel here was such as to permit the trial court properly to determine that it met the criterion of charge of recent fabrication.
In ruling in favor of admission of the evidence the trial court relied largely upon the following portions of the cross-examinations of Miss Peters:
"Q. Isn't it true you made up this story to help protect [your boyfriend] Curtis?
A. Protect him from what?
Q. Wasn't he one of the ...