For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Pashman and Clifford. For affirmance -- Justices Sullivan and Schreiber and Judge Conford. Conford, P.J.A.D., Temporarily Assigned, dissenting. Justice Sullivan and Justice Schreiber join in this opinion.
Two months after this Court decided State v. Deatore, 70 N.J. 100 (1976), the United States Supreme Court handed down its decision in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), which was pending when Deatore was argued. See State v. Deatore supra, 70 N.J. at 109, n. 5. Those decisions so control the instant case as to compel us to reverse the judgment of the Appellate Division which, in an unpublished opinion, upheld defendant's first degree murder conviction. A dissent in the court below brings the cause here as a matter of right. R. 2:2-1(a)(2).
Defendant, Andrew Henry Lyle, known as "Henry," admits the killing of one Egbert Francis but interposes the defense of self-defense. The weapon was a handgun, said to have been routinely kept in a desk drawer at defendant's variety store, the "House of Shango," on Bergen Street, Newark. The evidence tended to show that the tragic events of December 10, 1971 were the culmination of a long-standing feud, smoldering because of the victim's dalliance with defendant's wife and sparked by an altercation which originated when vehicles were being parked adjacent to the store premises (Francis, with the aid of others, was moving lumber and other materials into a store next to defendant's on the day in question). This altercation escalated from an exchange of vulgarisms on the sidewalk to the point where Francis and defendant ended up in defendant's store. Lyle's position is that Francis lunged at him with a screwdriver, that he avoided this attack and ran to the desk, grabbed a gun from one of the drawers, and fired. Francis made his way out of the store and collapsed in the entrance of the adjoining premises.
The Appellate Division perceived the critical nature of the factual issue thus presented, pointing out that
Because of the significance of the manner in which the precise issue before us arises, it is necessary to relate the factual context in some further detail.
Before dying the victim was able to gasp the name "Henry" to his brother, who asked what had happened. When the police arrived at the scene, they spoke to Francis's brother, immediately after which they proceeded to defendant's store where the shooting had occurred. When admitted to the premises the police asked if "Henry" was there. Detective Herbert Friday testified at trial that in response to this question defendant replied, "Yes, I'm Henry. I shot him."
Thereupon, according to the detective, he gave the defendant the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)), to which defendant made no response nor did he say anything else while Detective Friday was still inside the store.*fn1 A search of the premises revealed only the "contents" of the [73 NJ Page 407] building. There was no sign of any struggle.*fn2 The officers did not find any screwdriver, were not looking specifically for one,*fn3 and defendant never mentioned such an instrument.*fn4 [73 NJ Page 408] Defendant testified on his own behalf in accordance with his version of the events as set forth at the beginning of this opinion. On cross-examination he affirmed that he had not said "anything else" to the detective at the scene. The prosecutor then undertook to direct the testimony towards when it was, for the first time, that Lyle had mentioned to the police the episode with the screwdriver. The initial question suggested that it was only after defendant had arrived at police headquarters and was being interrogated by Detective Wehrle that the self-defense theory emerged, a suggestion which defendant rejected, insisting that he told a detective of the victim's attack while in the car on the way down to headquarters.*fn5
Finally, in his summation the prosecutor resorted to the cited testimony in extenso:
The next person who testified for the State was Detective Friday, and I think Detective Friday's testimony is most significant when he got to the scene after talking and questioning around among spectators, and there was quite a crowd. In fact, the crowd started to gather within moments of the shooting, he goes to the House of Shango and the defendant says, "My name is Henry. I shot him," and then he shows him the gun. He at no time tells Detective Friday about the screwdriver.
Now here is a man who has told you that he killed in self defense, that Egbert Francis came at him with a screwdriver, and yet the policeman who was there within moments, fifteen minutes at the most, of the killing, when the leads or clues would be hot, he doesn't mention anything at all about the screwdriver to him. Nobody else sees a screwdriver except for Henry Lyle. * * * [Nobody] had any idea that the defendant would claim later that he was defending himself from an attack by a screwdriver, but he doesn't mention it to Friday at all.
And I submit he doesn't mention it until he had time to think and to realize that he was in a pretty big pickle, in that he had the upper hand in the sense that the other witnesses could not speak.
On this appeal defendant makes the argument, inter alia, that the State's broadside attack on his self-defense theory, on the basis of his silence, amounted to prejudicial error requiring reversal. No objection having been made, either to any of the lines of inquiry adverted to or to the prosecutor's summation, the question comes up as one of plain error.
In Doyle v. Ohio, supra, the Supreme Court resolved an issue left open in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), that is, whether the State's use of a defendant's post-arrest silence for purposes of impeaching his exculpatory defense violates due process.
The Doyle Court answered in the affirmative, thus barring the prosecutor, on constitutional grounds, from arguing that such silence is indicative of guilt. Doyle v. Ohio, supra, 426 U.S. at 618, 96 S. Ct. at 2245, 49 L. Ed. 2d at 98.*fn6 The holding was limited to those situations in which the defendant's silence (in the form of failure to utter an exculpatory statement in circumstances where, the prosecution would argue, such explanation might reasonably be expected) occurs following receipt of the warnings required by Miranda v. Arizona, supra. The Court's reasoning on this point is relevant to the fact situation before us:
Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every postarrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.
[426 U.S. at 617, 96 S. Ct. at 2244, 49 L. Ed. 2d at 97.]
There is some conflict in the voluminous record before us as to whether, at the time of his arrest, Lyle knew or understood these Miranda rights. However, as was pointed out in State v. Deatore, supra, as a matter of State law the use of a defendant's silence is improper irrespective of whether such warnings are given. 70 N.J. at 117, n. 10. Hence, in the case before us it was manifestly improper to use defendant's silence to attack his self-defense theory as a fabrication. Because this defense was at the very heart of the case, the prosecutor's action was "of such a nature as to have been clearly capable of producing an unjust result * * *" and hence in the magnitude of plain error. R. 2:10-2; see State v. Macon, 57 N.J. 325, 335-36 (1971); State v. Melvin, 65 N.J. 1, 18-19 (1974).
One further facet of this issue is deserving of comment. The State argues that the prosecutor's remarks in summation were permissible because of the defense assertion that the reason no screwdriver was found was that the police were derelict in investigating the incident after learning of Lyle's self-defense claim. The contention is that the prosecutor's statements were simply in the nature of rebuttal to defendant's position.
But the prosecutor's summation went well beyond this. While it may have been permissible for the State to argue that the police never found the screwdriver because no one suggested they should search for it, the comments in question constituted an attack on defendant's version of the events by the impermissible use of his silence.
In view of the fact that the case is being remanded for retrial, we address an issue which very likely will arise again, dealing with the admissibility of a hearsay statement of the victim. As we have indicated, for the State it was advanced in evidence, as relevant to motive and the state of mind of defendant, that he and his wife Henrietta Lyle were separated on the date of the killing; that some six months previous thereto, on July 3, 1971, Mrs. Lyle was living at the home of defendant's parents on Lehigh Avenue in Newark, where the couple had lived together briefly during a reunion after a previous separation; that on that day there was a physical altercation between them of sufficient violence that facial bruises on the wife were observed; that police were called and arrested defendant; that the wife later declined to sign a complaint and the charge was therefore ...