On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[99 NJ Page 456] In this case two defendants are charged with the commission of murder by contract. They seek to be released on bail. We must decide whether, and under what evidentiary standards, the recorded, extrajudicial confession of a third codefendant, the alleged hired murderer, may be introduced at the bail hearing and given probative incriminatory weight against the other defendants. Because the limited record before us strongly suggests that the commission of the crime constituted capital murder, we must consider the constitutional standards that
govern bail in capital cases and permit bail to be denied in such cases if the "proof is evident or presumption great." N.J. Const. of 1947, art. I, para. 11. Consideration of the issue calls for the reexamination of our decisions that have dealt with the broad question of the standards of admissible evidence at bail hearings in capital cases, particularly State v. Konigsberg, 33 N.J. 367 (1960), and State v. Obstein, 52 N.J. 516 (1968).
On January 18, 1985 James McFadden and the brothers William and Herbert Engel were arrested and charged with the December 13, 1984 murder of William Engel's former wife, Xiomara Engel. On January 24, 1985 a bail motion was made on behalf of all three defendants. At this hearing the State submitted proofs in support of its contention that bail should be denied pursuant to Rule 3:26-1(a). This proof consisted of defendant McFadden's confession, a police officer's affidavit placing William Engel at the scene of the crime, and a photograph of William and Xiomara Engel for identification purposes.
McFadden's confession was made to members of the Bergen County Prosecutor's Office on the day of McFadden's arrest. The confession was extensive, consuming two full hours and requiring a transcript of 110 pages. The confession disclosed that McFadden had been hired by the Engel brothers to murder Xiomara and that he had strangled her in William Engel's presence. McFadden recounted his initial meetings with Herbert Engel, who became his employer, Herbert's successful attempts to recruit him to commit the murder, and the discussions during which the murder was planned. He detailed the activities immediately preceding the killing and described his strangulation of Xiomara, in William Engel's presence, in the Engels' warehouse in Englewood, New Jersey. McFadden also revealed the financial arrangements for this murder-for-hire scheme, stating specifically the amount of money that Herbert
Engel had agreed to pay him to murder the woman and the money that Herbert gave him when the murder was accomplished. Finally, McFadden described in a careful sequence each of the steps taken to dispose of the corpse. He disclosed that he had asked a friend, whom he named, to drive with him to his family home in South Carolina with the body and how this friend had doused the car and the victim's body with gasoline and set them afire.
This confession is highly inculpatory both as to McFadden and the Engel brothers. In addition, the State introduced a corroborating affidavit by Engelwood patrolman Timothy Torell that confirmed William Engel's presence in the warehouse at the time of the alleged crime. Further, it does not appear to be disputed, although not made part of the record at the bail hearing, that the South Carolina police found the burned automobile and Xiomara's charred remains on December 14, 1984.
At the bail hearing the voluntariness of McFadden's statement was not questioned. Defense counsel requested that the State produce McFadden as a witness so that he could be subjected to cross-examination. The court, however, found that McFadden's assertion of his fifth amendment privilege to remain silent prevented him from being called as a witness.
On the basis of these submissions, the court found that there was both a likelihood of conviction and reasonable grounds to believe that the death penalty might be imposed upon all three defendants. Accordingly, the court ruled that under Rule 3:26-1(a) the defendants were not entitled to bail.
On March 7, 1985 defendants William and Herbert Engel brought a motion for reconsideration of the bail decisions. Bail was again denied by order dated March 19, 1985. On March 21, 1985 the Engels moved before a single judge of the Appellate Division for emergent bail pending their motion for leave to appeal from the trial judge's denial of bail. This application was also denied.
On April 4, 1985 the Appellate Division granted the Engels' motion for leave to appeal. Relying on State v. Obstein, supra, 52 N.J. 516, the Appellate Division reversed the trial court's order denying defendants' admission to pretrial bail. It set bail in the amount of $1,500,000 for each defendant and remanded the matter to the trial court for the entry of an appropriate order and for the fixing of any conditions that the trial court might deem appropriate. On April 12, 1985 the Bergen County Prosecutor filed a notice of motion for leave to appeal to this Court. We granted the State's application to stay the Appellate Division's order admitting defendants to bail pending review by the Court. We now grant the State's motion for leave to appeal and reverse and remand.
The State Constitution prescribes that "All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great." N.J.Const. of 1947, art. I, para. 11. The constitutional provision has been further implemented through our Court Rule, which provides
"All persons, except those charged with crimes punishable by death when the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed, shall be bailable * * *." [ R. 3:26-1(a).]
Although the broad terms employed by the Constitution -- "proof is evident" and "presumption great" -- are not defined or self-explanatory, they denote that the evidence that is produced at the bail hearing pointing to the commission of the crime of capital murder must be cogent and persuasive. Our Court Rule particularizes this broad constitutional standard by requiring that such evidence demonstrate both "a likelihood of conviction" and "reasonable grounds to believe that the death penalty may be imposed." R. 3:26-1(a).
The quantum of evidence necessary to satisfy this standard has been described as a "fair likelihood" of conviction. This
standard of proof reflects the limited nature of the issues to be resolved at a bail hearing. These issues, the likelihood of conviction and the reasonable possibility of the imposition of the death penalty, do not approach the ultimate question of guilt or innocence that is the final objective of the criminal prosecution. Consequently
[i]n such a framework the just rule for utilization is that bail should be denied when the circumstances disclosed indicate a fair likelihood that the defendant is in danger of a jury verdict of first degree murder. For only in instances where such likelihood exists is his life in jeopardy and the well recognized urge to abscond present. [ Konigsberg, 33 N.J. at 376-77.]
It is also well settled that the burden is on the State to persuade the trial court that a case involves capital murder and that a defendant charged with the murder may consistent with the Constitution be denied bail. Id. at 374-75. In determining whether the State has met its burden of proof in this case, we must address the question whether, or to what extent, hearsay evidence in the form of a codefendant's confession may ...