On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For reversal -- None.
The narrow issue on this appeal is whether the trial court committed prejudicial error in admitting hearsay statements made by the deceased victim to various witnesses regarding her fear of defendant. In an unreported decision, the Appellate Division, which ruled that the trial court so erred, reversed defendant's murder conviction and remanded the matter to the Law Division for a new trial. We granted certification, 107 N.J. 630 (1987), and now affirm.
The Appellate Division summarized the relevant facts:
In relating the facts in this case we primarily describe the tumultuous relationship between defendant and the decedent Nicole DeCombe as defendant was convicted of her murder essentially on the basis of circumstantial evidence relating to this relationship. Nicole and defendant met in May 1982 on Nicole's
first day of work at the Sheraton Heights in Hasbrouck Heights where defendant was working as undercover security and Nicole was employed as a waitress. They quickly became friendly on more than a casual basis and as a consequence defendant seems to have believed that he had a right to control Nicole's actions. Thus in August, when Nicole wanted to attend a convention of a religious group called the Way in Ohio, defendant was adamantly opposed to her going and told her so. Though this dispute precipitated a rather violent argument between them, Nicole nevertheless went to the convention.
When Nicole returned from Ohio, she moved in with defendant. Subsequently they visited her mother and stepfather, Alain DeCombe, to discuss their new living arrangement and to tell them that they wanted to get married. Wedding plans, however, were postponed but Nicole and defendant continued to live together. At first Nicole and defendant were happy though they sometimes argued over her job and style of dress. The record shows that defendant did not like it when Nicole's friends called her or when she went to visit them. Indeed he admitted to people that he was jealous and possessive of Nicole. In fact, he admitted that on a night that they were to have dinner with a Mr. and Mrs. DeRocher, friends of Nicole, he was so displeased with her clothing that an argument ensued and he slapped her to calm her down. Subsequently, in late November or early December at defendant's apartment there was another violent incident between Nicole and defendant.
Toward the end of 1982 Nicole discovered she was pregnant. At first, Nicole and defendant were happy but Nicole soon decided it was not a good time to have a baby as they were not married and a baby would be too much responsibility. Thus Nicole wanted an abortion but defendant was opposed to her having one.
Shortly after Nicole discovered she was pregnant, she called defendant's friends, Krissy and Ramon Liriano, for help so she could leave defendant. Nicole told them that she wanted to leave him because they were not getting along and defendant had been hitting her. Krissy and Ramon made arrangements for Nicole to stay with Krissy in her dormitory at Rutgers University. Following that defendant, who was upset over Nicole's disappearance, looked for her. Eventually defendant and Nicole met and reconciled on Long Island. When they returned from Long Island, Nicole moved back in with defendant but they continued to argue over whether to have the baby. One night just before Christmas Nicole and defendant argued over the baby in the presence of the Lirianos so violently that the police were called. Nicole was then taken to her parents' home in Montclair where she told her stepfather that "he wants to kill me." Nevertheless the next day Nicole called defendant and inquired about what he was doing and told him she missed him. Nicole, however, did not move back with defendant but instead moved to a separate apartment in Jersey City. However, Nicole and defendant continued their relationship until the night of January 27, 1983 when she disappeared.
There is no question but that on the night of January 27 and the morning of January 28, 1983 Nicole and defendant were together. Nicole took defendant to work around 4:00 p.m. and later went to a Way meeting in Weehawken and to Heather's, a disco in the Meadowlands Hilton in Secaucus. Subsequently,
she picked up defendant. Defendant testified he last saw her when he dropped her off near her apartment. According to defendant, he returned to Nicole's apartment the next morning to take her to work. When she did not respond to his knocking on her door he began looking for her. He notified the police of her absence and a few days later filled out a missing person's report.
After Nicole disappeared the police investigated the matter. Jersey City Detective Crowley went to defendant's residence on February 2, 1983 as the result of a report from Nicole's father, Lee Gilbert, that defendant was holding her captive. While Crowley was there, defendant let him look around and they made arrangements for defendant to come to the police station to make a formal statement. A week later, a search warrant was issued authorizing a search of his house and his car. Specifically, the police were looking for blood-soaked clothing, Nicole's clothing and blood stains in the car. Defendant's corduroy pants, blue sweatshirt, work boots and coveralls were all seized and placed in paper bags. Defendant explained to the police officers that these were the clothes he was wearing the last night he had seen Nicole but he did not think the clothes would be useful as they had been washed.
Nicole's body was found on February 26, 1983 when John Taft, his wife and son were riding down Barzooski Street in Kearny, New Jersey, a street on the edge of the meadowlands. Taft stopped the car to see a ringnecked pheasant when he saw the body. At that time a police car came down the street and Taft told the officers what he had found. Subsequently investigating officers saw that Nicole's hands were tied behind her back with makeshift handcuffs. An autopsy showed she died from stab wounds.
After Nicole's body was discovered, several officers from the Jersey City and Kearny police departments visited defendant at his place of employment. He agreed to accompany them to the police station where he was advised of his Miranda rights and questioned for approximately two hours. When defendant was told Nicole's body was found in Kearny, he responded that he had no idea where Kearny was and reiterated the account he gave in his earlier statement. The interview ended when a detective allegedly made a comment that defendant would die by lethal injection. At that time defendant asserted his right to an attorney, thus ending the interview. Defendant was not arrested at that time and the investigation continued.
During the investigation defendant's car, coveralls, pants, sweatshirt and work boots were all tested for blood but with negative results. However, the police developed proof that a blue fiber recovered from the rope binding Nicole's hands was the same as fiber taken from a pocket in defendant's coveralls. Further, lint removed from under the handle and sheath ...