On appeal from the Superior Court, Appellate Division.
For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.
This appeal presents a variation of the issue considered and resolved in State v. A. Gross, 121 N.J. 1, 577 A.2d 806 (1990), and State v. F. Gross, 121 N.J. 18, 577 A.2d 814 (1990), also decided today. In this case, defendant, Quincy Spruell, was tried and convicted for murder and related offenses. Derrick Notis and Onnie Simmons were witnesses who had given prior statements that were inconsistent with their trial testimony. Those prior inconsistent statements were admitted for purposes of both impeaching these witnesses and as substantive evidence. On appeal, the Appellate Division, consistent with its reported opinion in the case of State v. A. Gross, 216 N.J. Super. 98, 523 A.2d 215 (1987), ruled that it was error to admit those statements in evidence without a preliminary hearing to establish their reliability. It remanded the case for such a hearing to be conducted in accordance with its opinion in State v. A. Gross. The court ruled further that if the statements be found to have been reliable and admissible, the convictions were to stand; if not, the convictions were to be vacated and a new trial granted. A member of the court dissented, however, on the ground that the admission of these statements without such a hearing was harmless error because the failure to hold such a hearing engendered "no likelihood of a miscarriage of justice."
Based on the dissent, the State filed a notice of appeal as of right. R. 2:2-1(a)(2). The defendant filed an appeal as of right that was dismissed by this Court on the State's motion; we denied defendant's separate petition for certification. 114 N.J. 493, 555 A.2d 615 (1989). The grounds of the dissent thus constitute the sole issue on this appeal.
The issue on appeal is whether the asserted error in failing to have conducted a hearing under Evidence Rule 8 to determine the reliability of prior inconsistent statements of declarants as a
condition to their admission in evidence for substantive purposes is harmless. The issue is fact-sensitive, its resolution calling for a thorough review of the record.
The record discloses that on February 22, 1985, Leonard Thompson was found dead in the kitchen of his third-floor apartment at 299 South Harrison Avenue, East Orange, a ten-to twelve-story apartment building with an awning over its front door and a parking lot across the street. A suspected narcotics dealer, Thompson had been shot several times at close range in the head, neck, chest, and arms. Death occurred on either February 20 or 21, 1985. A search of Thompson's apartment revealed that there had been no forced entry. The body was found lying in the kitchen area with a pillow over its head and "a considerable amount of blood" on the floor and throughout the apartment. Two .25-caliber automatic shell casings were found in the apartment.
The East Orange Police Department developed a lead in the investigation when it received information from Aaron Diggs and his mother, Mrs. Alberta Diggs. On April 23, 1985, Alberta Diggs made a sworn statement in which she said that on a Saturday morning in February 1985 she had overheard defendant, who at the time had been standing on her front steps with Shawn Cummings and two others she knew by sight, say, "I know that motherfucker is dead the way I shot him in his ass." The information received from Aaron and Alberta Diggs led the police to Derrick Notis and Onnie Simmons.
Notis gave a statement to Detective McGarry on April 27, 1985. Notis related that on a Thursday evening in late February 1985, defendant and Cummings had come to Simmons's house, where Notis was staying. He said defendant and Cummings had awakened him and Simmons and had told them they had "pulled a job in East Orange," and that "they ripped a dude off and got about nine thousand dollars." According to the statement, defendant had told Notis "the man took too long so he popped his ass." Using "a .25 caliber," he had "shot the
man." Defendant had "put the gun in front of him and he showed me how it happened. He said the man tried to run but . . . he caught his ass. Then he dragged him in the kitchen and Freak [Cummings] found the money and [defendant] said he put two bullets in his head." Defendant had told him that "there was blood all over the apartment." About a month after the incident, Notis's statement said, he had accompanied defendant when defendant sold "the gun he shot the man with" to someone known as Little Red. When asked why the job had been done, Notis said, "[f]rom what I hear the dude who got shot by Tariq [defendant] beat up Fat Betty Barber and she had him set up."
Simmons gave a similar version of the facts in a statement made to Detective McGarry on April 29, 1985. Simmons, a juvenile, was accompanied by his father when he gave his statement. Simmons's statement indicated that one night in late February 1985 defendant and Shawn Cummings had awakened Notis and Simmons at his home, showing money and saying it had come from a robbery in East Orange. Defendant had given Simmons $200 and Notis $20 because "[w]hen anybody scores on a job we share the money." Simmons's statement also said defendant had had "a .25 caliber auto" and that defendant had "said the man tried to run and [defendant] shot him at the door. After that they chased him through the apartment and caught him." Defendant had told Simmons he had shot Thompson "more than twice," and that "the man was holding his head after he shot him." The statement further said that one time while he was in Maryland, defendant had told "a friend of his that he came off with $8000.00 from a job in East Orange and he said he got over . . . he didn't get caught by the police."
Based on the statements of Notis and Simmons, Detective McGarry obtained a warrant for the arrest of Quincy Spruell. On May 2, 1985, defendant was arrested in Baltimore, where he was working and living with his father. Detective McGarry and Investigator John Farley of the Essex County Prosecutor's
Office went to Baltimore and questioned defendant that evening. After informing defendant of his Miranda rights, Detective McGarry typed a statement that contained defendant's answers to ...