On appeal from the Superior Court, Appellate Division, whose opinion is reported at 162 N.J. Super. 47 (1978).
For affirmance in part and reversal in part -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. Opposed -- None. The opinion of the court was delivered by Schreiber, J.
[80 NJ Page 242] The primary issue in this case is whether a trial court at the request of the prosecution may call certain individuals as court witnesses to enable the prosecution to introduce into evidence as substantive proof of the crime oral and written statements previously made by those witnesses, thereby avoiding the limitation of Evid. R. 63(1)(a). We hold that it may not. Furthermore, we find that the trial
error was compounded by the trial court's directions and instructions to the jury concerning the veracity of these witnesses and its misuse, as well as misapplication of Evid. R. 63(1).
This case is before us by virtue of a dissent in the Appellate Division, R. 2:2-1(a). Defendant had been charged with and found guilty of first degree murder while armed on August 24, 1973; possession on January 1, 1974 of a revolver without a permit in violation of N.J.S.A. 2A:151-41; and having acquired the revolver without a permit in contravention of N.J.S.A. 2A:151-32. He was sentenced to life imprisonment for the murder and a concurrent term of three to five years for the armed feature of the crime. He also received a two to three-year sentence for violation of N.J.S.A. 2A:151-41 and a concurrent one to two-year term for violation of N.J.S.A. 2A:151-32. These latter sentences were to be served consecutive to the life term. The Appellate Division affirmed, one judge dissenting. 162 N.J. Super. 47 (App. Div. 1978).
Before opening to the jury the prosecutor moved that the trial court call as its witnesses four individuals who he asserted had given statements to the police which were inconsistent with what they were now likely to testify to at trial. He then proposed to introduce the hearsay statements under Evid. R. 63(1) as affirmative proof of the facts stated therein. Under that rule a witness's prior statement is admissible for both credibility and substantive purposes when offered by a party who is not the witness's proponent. The prosecutor viewed the statements as essential to the State's case.
The State's proofs, other than the statements and testimony of these four witnesses, may be summarized as follows. At about 9:30 P.M. on August 24, 1973, police found Charles Authur Parsons lying on the first floor of an apartment building at 340 Duncan Avenue, Jersey City. He had been shot in the neck, was bleeding profusely and was unable to talk. Taken by ambulance to the hospital, he was dead on arrival. The police traced a trail of blood into the elevator,
picked up the trail on the eleventh floor, and followed it to the apartment of Cecil Hill, Parsons' girlfriend. Hearing loud noises emanating from the apartment across the hall which belonged to Margaret Ross, defendant's sister, the police sought and gained her permission to enter. She had previously telephoned the police to advise them of Parsons' condition and the need for an ambulance. In addition to Margaret Ross, the police found her two children, Felicia, 8 years old, and Charles, aged 11, and her 14-year-old brother, Charles Ross. Also present were Cecil Hill and her 5-year-old son, Welton Palmer.
The police, having been given Cecil Hill's consent, searched her apartment. There they found blood on the floor and walls of the living room, bedroom, kitchen and bathroom. The police returned to the Ross apartment to search it further and interrogate the occupants. At that time Felicia and Welton made some comments concerning the shooting. The prosecutor wanted to place those oral statements, among others, in the record.
Later that night the police interrogated Cecil Hill at police headquarters and obtained a signed statement from her. Three days later they interrogated her again at police headquarters. While this interrogation was going on, her son Welton made some further remarks concerning the incident. The prosecutor sought to introduce Welton's oral statement as well as the written statements of Hill. Subsequently Margaret Ross gave the police a written statement.
These, then, are the six hearsay statements which the prosecutor sought to use as part of his proofs: the two written Cecil Hill documents, Margaret Ross's written statement and the oral remarks of the children Felicia and Welton.
The State also showed that on the following New Year's day, January 1, 1974, a police officer observed defendant standing on a street corner near the Duncan Avenue apartment house holding a paper bag. When the officer saw defendant drop the bag and begin to walk away, he stopped defendant, requested identification and retrieved the bag. Inside
was a .22 caliber revolver. The ballistics indicated that the bullet which killed Parsons had been fired from that gun.
The prosecutor claimed that the murder charge could not be sustained without the substantive effect of the six hearsay statements. Despite the objection of defense counsel that the "jury may get a wrong impression from the fact they are called as court witnesses," the trial court held that it would conduct a hearing pursuant to Evid. R. 8 to determine whether the prosecutor was justified in not "vouching" for the credibility of Cecil Hill, her son Welton, Margaret Ross and her daughter Felicia. If so justified, the court would then call these four as court witnesses. Thereupon, each testified outside the presence of the jury.
Cecil Hill explained that she had known defendant when they both resided in Virginia, and that when she came to Jersey City, she had lived with defendant's sister Margaret Ross. Subsequently she and defendant lived together. About two years before August 1973, defendant and she had separated. During the past several months Parsons had been her boyfriend.
Hill also testified that on the evening of the shooting Parsons had joined her in the apartment for supper. After supper Welton had gone across the hall to Margaret Ross's apartment to watch television with Felicia. At about 7:00 P.M., while Parsons was watching television, Cecil went to Margaret's and visited for about a half hour. She then walked to a neighborhood delicatessen to buy a soda. Upon returning to the apartment building, she walked up the stairs to the eleventh floor and discovered Parsons lying near the elevator and bleeding extensively. She ran to Margaret's apartment to call an ambulance. Hill was extremely distraught and Margaret did the telephoning. When the police arrived, Hill accompanied them to her apartment, and later to police headquarters where she gave them a statement which was reduced to writing and signed by her. She claimed she had not seen defendant that day and that she did not know who shot Parsons.
Her testimony was consistent with the written statement. However, it contradicted in many respects a signed statement given to the police three days later on August 27 at police headquarters. In the second statement she acknowledged that on the night in question when she was in Margaret's apartment, the defendant arrived and asked her where Parsons was because he wanted to talk with him about Cecil. She responded that Parsons was in her apartment. The statement also recited that Hill saw the defendant knock on her door and she then closed Margaret's door. She heard a shot. ...