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State v. Gross

Decided: July 30, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK L. GROSS, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division.

For affirmance -- 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.

Handler

[121 NJ Page 19] The focus of this appeal is identical to that of the companion case, State v. A. Gross, 121 N.J. 1, 577 A.2d 806 (1990). It involves the standards governing the admission, as substantive evidence inculpating the defendant, of an inconsistent statement made by a suspect-declarant while in police custody. Defendant, Frank L. Gross, was tried separately for two armed robberies. In each trial, the court conducted an Evidence Rule 8 hearing to determine the admissibility of the prior inconsistent statements of Stephen Johnson, a prosecution witness, who

in the course of his testimony had refused to incriminate defendant in the robberies. In each case, the trial court admitted into evidence the witness' prior statements, which implicated defendant in the two robberies. Defendant was convicted of armed robbery and related offenses in both cases.

The appeals from the ensuing convictions were argued together in the Appellate Division. That court remanded each case to the trial courts, which jointly conducted a hearing to determine the reliability of Johnson's prior inconsistent statements. Following the joint hearing, each trial court separately determined that the statements were reliable and properly admitted. The Appellate Division then sustained the respective convictions.

The matter comes to this Court on appeal as of right pursuant to R. 2:2-1(a)(2), there being a dissent in the Appellate Division with respect to the burden of proof that applies in a hearing to determine the admissibility of a witness' prior inconsistent statement.

I.

Defendant, as noted, was tried separately for the offenses arising out of two armed robberies. The statements that Stephen Johnson had given while in custody as a criminal suspect implicated defendant in the two robberies. In the separate trials, the courts conducted an Evidence Rule 8 hearing to determine the admissibility of the prior inconsistent statements of Johnson, and, in each case, admitted the statements. The significance of those respective rulings can be measured only against the factual record developed in each trial.

A.

With respect to the first robbery, the evidence disclosed that at approximately 4 a.m. on October 23, 1981, Khalil Salahud-din, manager of a Muslim pork-free sandwich shop, had closed his

store for the evening. Salahud-din reopened the store for Stephen Johnson, a regular customer. Shortly thereafter two men pushed their way into the store, knocking Johnson against Salahud-din. Salahud-din testified that the first intruder was over five-feet-ten-inches tall, carried a gun, and had been wearing a dark-brown ski-mask, grayish pants, and a sleeveless shirt. The second intruder was shorter than the first and had worn a dark, bulky coat and a dark ski-mask. While pointing a gun at the store manager, the taller man had watched the door. Meanwhile, the shorter man had attempted to empty the cash register. When the register jammed, the taller man had forced the manager to open it, and had told his companion to get the money from the back room. The intruders stole approximately $200. Salahud-din called the police, who questioned both Salahud-din and Johnson, but neither victim identified the perpetrators.

Johnson was arrested later, in December 1981, for the commission of an unrelated armed robbery. While in custody as a suspect for that crime, Johnson had given statements inculpating defendant in the Salahud-din robbery, as well as a second robbery, committed in November 1981.

The State anticipated that Johnson would be its primary witness at defendant's trial for the Salahud-din robbery. Johnson informed the prosecutor, however, that he repudiated his prior statements. The trial court then held a hearing under Evidence Rule 8 to determine whether Johnson could testify and whether his prior statements could be admitted into evidence under Evidence Rule 63(1)(a).

At the hearing, Detectives Reed and Dowling testified that on December 7, 1981, they had gone to the Monmouth County Correctional Institution to interview Johnson, who had been arrested for an unrelated armed robbery. Reed had long been a friend of Johnson's family. Johnson had a swollen face and injured ribs from a scuffle with the police at the time of his arrest. The detectives had spoken with Johnson for about

forty-five minutes. Reed admitted that he had tried to use his familiarity with Johnson's family to gain Johnson's confidence, that he had told Johnson that "cooperation is met with cooperation", that he had discussed the possible penalties Johnson faced in light of the charges pending against him, and that Johnson could be charged with the Salahud-din robbery. At the close of the discussion, Johnson had allegedly told Reed "that Frank Gross and Richard Busby were the individuals" who had committed the robbery. On the following day, December 8, Johnson gave a formal written statement recounting the events of October 23, 1981, and implicating Frank Gross in the Salahud-din robbery. Reed testified that he had informed Johnson of his rights. Reed recalled that Johnson had asked to call his family, but he could not remember whether Johnson had requested an attorney. Johnson did call his brother, who came to speak to him. Dowling's testimony essentially confirmed Reed's account.

Johnson claimed at the hearing that his statement had been coerced. He testified that during the December 7 visit, Reed had insinuated that the word on the street was that Gross and Busby "were the ones that did it." Johnson claimed that he had been taken to the Asbury Park Police Department several times to give a statement. He further alleged that he had been held overnight in a cold cell containing only a single wooden bench on which to sleep. According to Johnson, both Reed and Dowling had suggested that he should help himself as well as them. He claimed the detectives had threatened him with prosecution, telling him that they could "try and stick me with a robbery that was supposed to happen right next to Richie's," and if he identified the robbers, Reed would make sure that he was not implicated in the crime. Johnson further testified that Reed had insisted that he "was the setup man," that he had been ...


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