On certification to the Superior Court, Appellate Division, whose opinion is reported at 140 N.J. Super. 232 (1976).
For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan and Pashman. Concurring in part and dissenting in part -- Justices Clifford and Schreiber and Judge Conford. Clifford, J., concurring and dissenting. Justice Schreiber joins in this opinion. Conford, P.J.A.D., Temporarily Assigned, concurring and dissenting. Justice Clifford and Justice Schreiber join in this opinion.
The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division.
CLIFFORD, J., concurring and dissenting. The issue before the Court in this case is skewed slightly from the direction of State v. Powers, 72 N.J. 346 (1977), also decided this day. The question there as I saw it was whether the hearsay statements were inculpatory of the declarant in the sense of so far exposing him to criminal liability that but for their truth the declarations would not have been made. My view was that the trial judge's conclusion that they
were not so inculpatory represented an unexceptionable exercise of his discretion. Therefore, the occasion was not presented in Powers to take the next step, squarely presented here in view of the obvious inculpatory nature of declarant's admission that she sold cocaine to the undercover agent. That next step calls for inquiry into whether the exculpatory part of the statement (or separate exculpatory declaration) should be permitted to "tag along" with the inculpatory part under the doctrine of continuing trustworthiness. See, e.g., 5 Wigmore, Evidence (Chadbourn rev. 1974), § 1465 at 339-43; Model Code of Evidence rule 509(2) (1942).
Under the circumstances of this case I would leave that inquiry with the sound discretion of the trial judge. I therefore concur in Judge Conford's opinion, which would direct the trial judge to determine admissibility of the statement(s) in keeping with the language and purpose of Evid. R. 63(10).
CONFORD, P.J.A.D., Temporarily Assigned, concurring and dissenting. To the extent that the Appellate Division determination, affirmed by this court, reverses the conviction, I am in accord. I do not agree, however, with the holding that the entirety of the Smith statement is necessarily admissible as a matter of law on behalf of the defendant.
At the retrial there should first be a clarification of the exact tenor of the Smith statement. In addition to the version set forth in the Appellate Division opinion, there is other indication in the record that the statement was:
I, Chenille Smith, sold Ernest a bag of cocaine. But I never got nothing from Barry. Also, I never introduced Barry to Ernest.
Admissibility of a statement under the hearsay exception contained in Evid. R. 63 (10), commonly known as declarations against interest, depends, generally, upon whether the
statement is so far against the civil or criminal interests of the declarant when made that a "reasonable man in his position would not have made the statement unless he believed it to be true * * *". The vital issue in the present case is whether the subject matter of the foregoing written "statement", taken by the police from the suspect Smith, should, for purposes of the rule, be considered as constituting one statement or two or more statements. If the latter, the disparate portions of the document subsequent to the first sentence would not come within the rule, as they apparently were not against Smith's interests to the extent required by the rule. That is to say, they might have been made solely for the purpose of clearing Abrams, ...