For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor,, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Jacobs, J.
The Appellate Division granted leave to the State to appeal from several pretrial rulings by the trial court. Thereafter it reversed, vacating the rulings and remanding the matter for trial. State v. Graham, 114 N.J. Super. 518 (1971). We granted cross-applications by the parties for leave to appeal from the Appellate Division's action.
On August 28, 1970 the defendant allegedly shot his roommate Herman Young. The victim was taken to the
Middlesex General Hospital where he died on September 1, 1970. The defendant was indicted for murder and on January 15, 1971 an order was entered to summon a special panel of petit jurors to serve at the trial originally scheduled for February 16, 1971. Because a considerable number of the prospective jurors were excused from service, the trial judge decided that there were not enough jurors available to begin the trial and he postponed it without date. On February 22, 1971 a new order was entered for another special panel of petit jurors for the trial then scheduled to be held on March 8, 1971.
After the trial had been adjourned, the trial judge, with the consent of counsel, heard pretrial motions to determine (1) whether a tape-recorded statement given by the defendant to members of the County Prosecutor's staff would be admissible in evidence at trial as his voluntary statement and (2) whether certain statements made by the victim to the police at the Middlesex General Hospital would be admissible in evidence at trial as dying declarations within Evidence Rule 63(5) or as spontaneous and contemporaneous statements within Evidence Rule 63(4). After taking testimony, the trial judge ruled that neither the defendant's statement nor the statements by the victim would be admissible at trial. On appeal, the Appellate Division declined to pass on the soundness of the trial judge's rulings. It held that the trial judge should not have made the pretrial rulings since the Court Rules "do not authorize motions before trial to test the validity of confessions, or the admissibility into evidence of statements made by defendants or other witnesses." Its holding was clearly correct under the controlling precedents in this Court. See State v. Hawthorne, 49 N.J. 130, 142-143 (1967); State v. Green, 49 N.J. 244, 246-247 (1967); State v. Travis, 49 N.J. 428, 431 (1967); State v. Yough, 49 N.J. 587, 590-591 (1967).
State v. Hawthorne, supra, held that it was improper for the trial court to entertain a pretrial application to determine
whether a defendant's prior conviction of crime would be admissible to attack his credibility if he testified at trial. Justice Francis pointed out that such an application did not come within R.R. 3:5-5(b)(1) (see R. 3:10-1), R.R. 3:2A-6(a) (see R. 3:5-7)), or any other Court Rule. He stressed that "great caution should be exercised to avoid fractionalizing trials and risking interlocutory appeals" and that "most evidence problems are best and most expeditiously settled in the atmosphere and context of the trial." 49 N.J. at 143. His comments have special bearing on the trial court's rulings with respect to the alleged dying declarations and spontaneous utterances of the victim. Whether they are admissible should clearly be dealt with not before but at trial, in context and in the full light of all of the relevant surrounding circumstances established by the evidence introduced at trial.
In determining the admissibility at trial of evidence proffered as dying declarations or spontaneous utterances, the trial judge is of course governed by Evidence Rules 63(5) and 63(4) and the interpretative precedents. Thus, as provided in Rule 63(5), the deceased victim's dying declaration is admissible "if it was made voluntarily and in good faith and while the declarant was conscious of his impending death." See State v. Hegel, 113 N.J. Super. 193 (App. Div.), certif. denied, 58 N.J. 596 (1971). We find no warrant for adopting the State's suggestion that the traditional requirement with respect to the victim's consciousness of impending death now be abandoned. See State v. Stephan, 118 N.J.L. 592, 598-600 (E. & A. 1937); State v. Hegel, supra, 113 N.J. Super. at 198-199; cf. Report of the New Jersey Supreme Court Committee on Evidence p. 154 (1963); Report of the Committee on the Revision of the Law of Evidence p. 131-32 (1955).
So far as the proffered spontaneous statements of the victim are concerned, we agree with the State's position that Rule 63(4) does not support the trial court's notion that declarations in response to interrogation are inadmissible
though they otherwise satisfy the Rule. In State v. Simmons, 52 N.J. 538 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969), we noted that the "lapse of some period of time" or the fact that the declaration was "in response to inquiry" did not preclude a res gestae approach or render the spontaneous declaration doctrine inapplicable where the victim "was still in a state of excitement and the psychological guarantee of trustworthiness was still present." 52 N.J. at 542. See State v. Tapia, 113 N.J. Super. 322, 332 (App. Div. 1971). In Cestero, et al. v. Ferrara, 57 N.J. 497 (1971), the injured party, immediately upon regaining consciousness, made a statement in response to an inquiry. The statement was held admissible within broadened modern-day res gestae principles, codified in Rule 63(4) and grounded on familiar views as to trustworthiness expressed in the following excerpt from Wigmore:
[U]nder certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the ...