On appeal from the Superior Court, Law Division, Hudson County.
Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.
[169 NJSuper Page 117] This appeal raises the problem of the so-called recanting witness. The precise question before us is indistinguishable from that addressed by the Supreme Court in State v. Ross , 80 N.J. 239 (1979) (decided June 4, 1979), namely, whether the trial judge, by calling such a witness as his own on the State's case can relieve the prosecution of the burden of Evid. R. 20 and Evid. R. 63(1)(a)*fn1
and thereby transform the witness' prior inconsistent and inculpatory statement from a neutralization device alone into substantive evidence of the defendant's guilt. Ross holds that he may not since such a technique constitutes an impermissible circumvention of the expressed intent of our evidence rules and the underlying policies upon which they are based, as well as an unwarranted assault on the integrity of the criminal trial process.
Our review of this record persuades us that the conviction here appealed from rested exclusively on the type of evidence now interdicted by Ross. Defendant James Reddick was tried by a jury and convicted, together with three codefendants, of multiple charges arising out of the armed robbery of a neighborhood grocery store in Jersey City on November 21, 1975. The State's case against the three codefendants was based on their actual armed entry into the store and commission of the robbery. The case against Reddick was predicated on the allegation that he was the driver of the getaway car parked near the store during the robbery. The sole occupant of the store when the three armed men entered was its owner, Alberta Wheeler. While the robbery was in progress, a customer entered, Glen Harris, a young man who lived across the street and was performing a shopping errand for his mother. After the intruders had taken the cash in the register and the money Harris had on his person, they fled from the store, entered a car parked at the curb and were driven away from the scene. Neither Wheeler nor
Harris was harmed. Two of the intruders were previously known to Wheeler and she was able to make positive out-of-court identifications of all three. The investigative problem of the police was to ascertain the identity of the fourth man, the driver of the getaway car. The only potential eye witness who might have been able to make such an identification proved to be Harris, who apparently had told the police that he had noticed the getaway car on his way to the store.
Four days after the robbery Wheeler and Harris were taken to the Jersey City police identification center where they were given photographs to view by an Officer Jackson, who was conducting the photographic identification procedure. Harris was encouraged to make an identification, if he could, of the driver of the getaway car. According to Jackson, Harris identified a photograph of defendant as the driver. According to Harris, he did not make that identification and, in any event, his glimpse of the car was too brief and the street lighting too poor to have enabled him to make any identification at all.
This testimonial dispute between Harris and Jackson was first developed during their respective voir dire examinations conducted at the prosecutor's request. The prosecutor was aware before trial that Harris would testify that he had not identified defendant and was unable to make an identification.*fn2 Harris' alleged out-of-court identification, however, was the only available evidence linking Reddick with the crime. It was essential, therefore, to the State's case that Jackson's testimony regarding the alleged Harris identification be admitted as substantive evidence. Thus the prosecutor's dilemma, the same as in Ross , was that while a witness' prior inconsistent statement is, by reason of Evid R. 63(1) (a), ordinarily excepted from the category of inadmissible hearsay, nevertheless, Evid. R. 20, expressly incorporated therein,
precludes a party from making any use of his own witness' prior inconsistent statement other than for neutralization purposes. The prosecutor, as in Ross , sought to resolve this dilemma by requesting the trial judge to call Harris as a court's witness. The rationale was that if Harris were not a State's witness, the State could avoid the Rule 20 stricture regarding his prior inconsistent statement and thus use Jackson's testimony regarding Harris' alleged prior inconsistent statement as substantive evidence. The trial judge acceded to this request, the two witnesses were called -- Harris by the court and Jackson by the prosecutor -- and each testified essentially in the same manner as he had on voir dire. Reddick's conviction thus rested exclusively on Jackson's testimony that Harris, the court's witness, had told him that he recognized Reddick's photograph as depicting the man sitting in the getaway car during the robbery. Clearly, the conviction must, under Ross , be reversed.
Although not raised below, the State argues on appeal that Jackson's testimony regarding the alleged Harris identification was admissible pursuant to Evid. R. 63(1)(c) even if not pursuant to Evid R. 63(1)(a). The former, not expressly subject to Evid R. 20, provides that a prior extrajudicial statement of a witness is admissible if it "is a prior identification of a party where identity is in issue, if made under circumstances precluding unfairness or unreliability." We are constrained, however, to reject the State's argument. First, there was no preliminary finding below that the alleged identification was made under circumstances precluding unfairness or unreliability and we are not satisfied that the facts here are either so undisputable or unequivocal as to warrant us in making that finding ourselves by an exercise of original jurisdiction. The State's reliance on subsection (c) of the rule does not, moreover, avoid the prejudice inherent in Harris having been called as a court's witness in the first instance.
Most significantly, however, paragraph (c) of Evid. R. 63(1) has never been held to apply to an ...