On appeal from Superior Court, Law Division, Atlantic County.
Antell, Long and D'Annunzio. The opinion of the court was delivered by, Antell, P.J.A.D.
After a jury trial defendant was convicted of armed robbery, N.J.S.A. 2C:15-1, and sentenced to a term of 15 years in the custody of the Commissioner of Corrections. That conviction was reversed on appeal and after a retrial he was again convicted of the same offense and the same sentence was again imposed. He now appeals from that conviction on the ground that the trial court erred in permitting the State to read into evidence the transcribed testimony of a witness who had testified at the earlier trial.
On January 13, 1982 around 7:00 p.m. Joseph Biggs was standing with his back to the counter near the cash register in his food market. He turned and was confronted by a man in front of the counter wearing a dark snow suit, a knit ski mask over his face and a pair of black army boots. The man held a gun and said "This is a stick up." Biggs grabbed for the gun, and after a brief struggle the intruder released the weapon and ran out of the store.
Although Biggs knew defendant as a regular customer in the store, he was unable to identify him as the assailant. Reginald Battles, a worker in the store who also knew defendant, testified that he had seen him earlier that evening outside the store wearing a dark snow suit and dark army boots of the same kind that were worn by the robber.
Shannon Bunn testified at the first trial that he saw defendant talking to Battles outside the store fifteen to twenty minutes before the attempted robbery. Bunn was also an
employee of the store and was 13 years old at the time of the first trial, which was held almost a year after the crime. He confirmed that on the evening in question defendant was wearing a dark blue snow suit, black army boots and a navy blue hat. He also testified that he saw defendant by the store entrance putting on a ski mask immediately before the robbery.
Bunn did not testify at the second trial. Instead, the testimony which he gave at the first trial was received under Evid.R. 63(3) which permits such a procedure where the declarant in the first trial is "unavailable as a witness." Under Evid.R. 62(6) "unavailable as a witness" means that
(b) the witness is beyond the jurisdiction of the court's process to compel appearance, . . . or (d) the proponent of the statement is unable, despite due diligence, to procure the attendance of the witness.
According to the State, at the time of the second trial, which began September 18, 1984, Bunn was "somewhere in Virginia." Its investigator apparently began his attempts to bring Bunn back to New Jersey by telephonically interviewing the witness' mother on July 20, 1984. Although she acknowledged that Bunn was living in Virginia with a foster family, Bunn's mother declined to furnish his address or telephone number. The investigator learned that Bunn was receiving welfare in Richmond, Virginia, but the Social Service Department there refused to disclose any further information. On this basis the State asserts that because the witness was beyond the jurisdiction of the court and because the State was "unable, despite due diligence," to procure his attendance, he was "unavailable" within the meaning of Evid.R. 62(6). We disagree that either of these conditions was satisfied.
Both the State of New Jersey and the Commonwealth of Virginia have adopted the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, N.J.S.A. 2A:81-18 to 81-23, known as the Interstate Compact. Although its provisions were available to the State to secure Bunn's attendance at the ...