On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave granted by the Supreme Court, the State appeals from a pretrial determination of the Law Division which held that the out-of-court statement of a prosecution witness, Kevin Madison, would not be admissible in evidence as a prior inconsistent statement under Evid.R. 63(1)(a) at the trial of defendant Gary Williams.
Defendant was indicted by the Hudson County grand jury and charged with seven counts of felony murder (N.J.S.A. 2A:89-1, N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2), one count of arson (N.J.S.A. 2A:89-1) and one count of possession of an incendiary substance for an unlawful purpose (N.J.S.A. 2A:151-59). The State's witness, Madison, had been charged in another indictment with the identical offenses with which defendant was charged. The indictments against both defendant and Madison were returned as a result of a police investigation into an incendiary fire that occurred in an apartment building located in Jersey City, New Jersey. The investigation pointed to Madison as someone who might have been involved or might provide relevant information concerning the crimes. Madison subsequently gave a signed statement to the Jersey City police detailing his own involvement in the crimes as well as that of defendant.
Madison was tried first and convicted by a jury of seven counts of felony murder and one count of arson and sentenced to State Prison for 30 years with a parole ineligibility term of ten years. Madison is presently appealing those convictions.
Prior to the trial of the indictment against defendant, a pretrial conference was held at which time the State indicated its intention to call Madison as a prosecution witness and, if necessary, to grant him immunity from the use of his testimony pursuant to N.J.S.A. 2A:81-17.3. The State had been informed by Madison's attorney that Madison would invoke the Fifth Amendment privilege against self-incrimination if he were
called to testify, and that even if granted immunity it was doubtful that he would testify. The trial judge held a pretrial hearing pursuant to R. 3:13-1(b) to determine the admissibility of Madison's statement as substantive evidence at defendant's trial. At that hearing Madison was called by the State and, after being sworn, was questioned concerning the events surrounding the apartment building fire. Madison declined to answer any questions, asserting his Fifth Amendment privilege against self-incrimination. The trial judge found that the privilege was properly asserted and the State thereupon petitioned and obtained an order granting Madison immunity. Madison was then recalled to the stand and questioned concerning the fire. Madison again invoked his Fifth Amendment privilege. The trial judge informed Madison that he had no such privilege and ordered him to answer the questions put to him. Madison refused, continuing to assert his purported Fifth Amendment right to remain silent. The State thereupon offered Madison's statement as a prior inconsistent statement under Evid.R. 63(1)(a).
Following argument, Judge Hamill held that Madison's out-of-court statement was inadmissible. He reasoned, in part, that (1) although Madison's present refusal to answer any questions might be deemed inconsistent with his prior statement, it did not constitute "testimony" within the purview of Evid.R. 63(1)(a), and (2) the use of Madison's statement, coupled with his refusal to answer any questions for whatever reason, would deny defendant his constitutional right to confront witnesses against him. We agree and affirm.
It is elementary that Madison's out-of-court statement is hearsay and therefore is inadmissible in evidence to prove the truth of the matters contained therein unless it falls within one of the exceptions to the hearsay rule set forth in Evid.R. 63(1) through 63(32). Here, the State's theory is that Madison's statement is admissible as a prior inconsistent statement under recently amended Evid.R. 63(1)(a), which now, in part, provides:
A statement is admissible if previously made by a person who is a witness at a hearing, provided it would have been admissible if made by him while testifying and the statement:
(a) Is inconsistent with his testimony at the hearing, is offered in compliance with the requirements of Rule 22(a) and (b); either is in writing signed by the witness under circumstances establishing its reliability or was given under oath subject to the penalty of perjury at a trial, judicial hearing, ...