On appeal from the Superior Court, Law Division, Essex County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court on appeal from judgments of conviction for murder. We reverse the convictions and remand the case to the trial court for a new trial for each defendant. We do this even though the verdicts were amply supported by the evidence for the very serious trial errors in this matter were clearly capable of producing an unjust result and indeed made convictions particularly of one defendant a virtual certainty. See R. 2:10-2; State v. Macon, 57 N.J. 325 (1971).
On July 30, 1981 an indictment was returned in Essex County charging defendants Teddy Jordan ("Jordan") and George Murphy ("Murphy") with the murder of Calvin Reddick, contrary to N.J.S.A. 2C:11-3 (Count I), and with the unlawful possession of a rifle without a firearms purchaser identification card, contrary to N.J.S.A. 2C:39-5c(1) (Count II). At a single jury trial both defendants were convicted on each count, the jury finding Murphy guilty on the murder count as an accomplice. Murphy's post-trial motion for a judgment of acquittal was denied. Defendants were sentenced to lengthy prison terms and were assessed penalties for the use of the Violent Crimes Compensation Board. Defendants separately filed appeals from the judgments of conviction which we consolidate for purposes of disposition.
The facts in this case were sharply in dispute as each defendant accused the other of killing Reddick. In the circumstances we set them forth initially in a manner consistent with the verdict which indicates that the jury found Jordan had fired the weapon and Murphy was his accomplice. The homicide had its origin in problems defendants were having with their narcotics
business which they both testified was started in Newark in 1976. Jordan testified he was in charge of the operation. The business obviously was risky for Jordan was shot twice. Consequently in April or May 1981 he decided to obtain a weapon for protection. According to the testimony of Clarence Warren, an acquaintance of Jordan, Jordan discussed the purchase of the weapon with him in the presence of Murphy. Murphy indicated that this conversation took place in an apartment in a building on McCarter Highway in Newark where members of the Jordan family including Jordan, his brother, Barry Jordan, and his mother resided. It was in this building that Reddick was later shot. Following Warren's conversation with Jordan, Warren sold him a .357 Magnum. According to Murphy, Jordan told him he intended to kill Walter Adams with the gun. Murphy indicated that Barry Jordan assisted Jordan in his plans by making a ski mask for him. Jordan decided, however, that the revolver was so big he could not control it and accordingly he asked Warren to secure a different weapon for him.
Warren testified that he found a rifle for sale at a tavern near the apartment. At a meeting in Jordan's apartment Warren advised Jordan of the availability of the rifle. Murphy was in the apartment at that time though he may have been sleeping. Jordan and Warren then went to the tavern where Jordan gave Warren money for the purchase of the rifle and three cartridges. After they acquired the rifle and placed it in the trunk of Warren's car, Jordan and Warren went to Jordan's apartment. Murphy and Barry Jordan were there when they returned and, according to Warren, Barry Jordan brought the weapon from the car into the apartment.
Jordan then changed his plans. Murphy testified that Jordan decided to kill Calvin Reddick instead of Walter Adams. Jordan disliked Reddick because of the latter's efforts to expand his drug business. Reddick had, to the annoyance of Jordan, made an approach to Jordan's father concerning taking over a drug operation in north Newark. Jordan told Murphy that he was
not going to let Reddick dictate his business and he intended to kill him. The plan was not complicated. Jordan anticipated that Reddick would come to the McCarter Highway apartment building inasmuch as Ennise Moore, Reddick's girl friend, lived in the building on the same floor as Jordan. Murphy testified that Jordan intended to climb out of his apartment window and enter an abandoned apartment from which he would shoot Reddick. According to Murphy and Warren, Jordan test-fired the rifle out of the back window of his apartment in their presence and in the presence of Barry Jordan. Effectively that reduced Jordan's ammunition supply to one bullet inasmuch as one of his remaining bullets was the wrong size for the rifle. Murphy testified that Jordan asked Barry Jordan to help set up Reddick by stopping him in the hallway to talk.
The plan was brought to fruition. On May 5, 1981 at approximately 11:30 p.m. Moore, her brother, Alphonso Scott, and a friend were leaving the building as Reddick entered. Moore and Reddick talked to each other in the doorway of the building while Scott spoke to Barry Jordan. Moore then walked out of the building toward her car where her friend was standing. As Moore reached for her keys she heard a loud bang. She then turned around and saw Reddick lying on the floor in the building. He had been shot in the back and had suffered massive internal injuries from which he died. Moore went to Reddick's aid while Scott and Barry Jordan called an ambulance. Scott and Barry Jordan then each obtained a revolver and ran from the building in an unsuccessful attempt to locate the assailant. On the street Scott was stopped by police and arrested for possession of the weapon. The police, however, made no immediate arrest for the homicide.
The following day, May 6, 1981, Warren asked Jordan if he was aware of Reddick's death. Warren testified that Jordan, in the presence of Murphy and Barry Jordan, just smiled and said, "We got him," a comment Warren said he regarded as a joke. At that time the rifle was still in Jordan's apartment where Warren saw it after the shooting.
The investigation of the homicide was not initially successful. But on June 9, 1981 Murphy had a conversation with the police which resulted in his directing them to an area of north Newark near a railroad track where they found a rifle wrapped in a dark plastic garbage bag. Ballistics tests established that Reddick was killed with a shot fired from this rifle.
The critical issue on this appeal derives from the State calling Barry Jordan as a witness. The State quite naturally considered that he had information about the case and consequently it called him as a witness at the trial. Before he was sworn the judge inquired whether there was a need for an Evid.R. 8 hearing for evidently the judge questioned whether Barry Jordan intended to testify. The prosecutor represented that there was no need for such a hearing, a representation immediately challenged by Murphy's attorney who told the judge he had interviewed Barry Jordan within the last two days and Barry Jordan said he may assert his Fifth Amendment rights. The judge said the prosecutor's representation was as good as that of Murphy's attorney. Murphy's attorney said that if Barry Jordan took the Fifth Amendment in the presence of the jury there would be a mistrial. An attorney representing Barry Jordan was present in court and advised the judge that his client had been indicted for giving false information inasmuch as he had given three contradictory sworn statements to the police concerning the murder. Barry Jordan's attorney was concerned that any statements made by his client in court would be used against him. But he did not know whether Barry Jordan would assert Fifth Amendment rights. Notwithstanding this information the State adhered to its representation that Barry Jordan intended to testify. The court accepted this representation and consequently Barry Jordan was routinely sworn as a witness in the presence of the jury without any preliminary inquiries being made of him.
After Barry Jordan responded to a few preliminary questions, including one which he answered by indicating that at the time of the homicide he lived ...