For reversal and remandment -- Chief Justice Wilentz, and Justices Sullivan, Pashman and Handler. For affirmance -- Justices Clifford, Schreiber and Pollock. The opinion of the Court was delivered by Sullivan, J. Clifford, J., dissenting. Schreiber and Pollock, JJ., join in this dissent.
[82 NJ Page 418] Defendant Henry Manning was tried by jury and convicted of breaking and entering, robbery while armed, conspiracy and contributing to the delinquency of a minor. The theory of the State at trial was that defendant, working with a juvenile,
waited outside the robbery victims' home in the getaway car while the juvenile entered the home and carried out the robbery.
The Appellate Division affirmed the convictions. 165 N.J. Super. 19 (1978), 166 N.J. Super. 56 (1979). One judge dissented on the ground that a detective's testimony on how he elicited an admission from defendant of his involvement with the juvenile contained highly prejudicial inadmissible hearsay and required reversal of the conviction. This appeal as of right followed, R. 2:2-1(a)(2), limited to the issue raised by the dissent.*fn1
The basic facts are undisputed. The juvenile broke into the home of an elderly couple and robbed them at gunpoint. While the robbery was taking place, the police were notified of a breaking and entering in progress. Police cars responded to a radio call and arrived at the home just as the couple ran out the front door. A search of the house disclosed the juvenile hiding in a closet.*fn2
The first police to arrive at the scene found defendant seated in a parked car a few doors away from the victims' home. The motor of the car was running but the lights were out. Defendant was slumped down in the driver's seat. Upon being questioned by an officer defendant said "I ain't done nothing" and added that he was on his way home and had stopped to rest. The officer noticed that defendant was wearing a hat and that there was another hat on the rear seat of the car. Defendant said the second hat was his but when it was placed on his head it did not fit.
After the juvenile had been apprehended, the two were taken to police headquarters and interrogated separately. Defendant,
who was questioned by Detective Dilkes, was advised of his constitutional rights and then told he was being charged with armed robbery and that he had been implicated in the incident by the juvenile. In response, defendant shook his head and said "I should ought to let the kid steal that lady's pocket." He then cut himself short and said nothing further.
In fact, the juvenile had implicated defendant in the robbery. However, he later recanted and, in a Williams hearing,*fn3 denied that defendant was involved in any way. For that reason the State did not call the juvenile as a witness at trial. The defense likewise elected not to have the juvenile testify apparently for the reason that his written signed statement implicating defendant could then have been offered in evidence by the State. See Evid.R. 63(1)(a).
At trial, when the State attempted to put defendant's cryptic remark "I should ought to let the kid steal that lady's pocket" into evidence, defense counsel objected to any testimony by the officer that he had told defendant that the juvenile had implicated him in the robbery. The court ruled that the reference would be allowed as background for defendant's response but would be subject to cautionary instructions to the jury.
The trial then proceeded with Detective Dilkes on the stand as a State's witness:
Q All right. At the time you interviewed him, what if anything did you say to Mr. Manning?
A At the time I advised him that he was being charged with armed robbery at the home of the Braun residence and that he had been ...