Ariel A. Rodriguez, J.s.c.
This matter is before the court on defendant's application for determination that a co-defendant's statement exculpating defendant be admitted at trial. The issue presented is whether a defendant's statement inculpating himself and exculpating another while providing a factual basis for a guilty plea is admissible pursuant to Evid. R. 63(10)(Declaration against interest).
The procedural history is not in dispute. Hudson County Indictment No. 779-3-90 charged defendant Gregory Bell and Willie R. Stewart, (hereinafter Stewart) with the robbery of
Chester Dzikowicz in violation of N.J.S.A. 2C:15-1. Among the items taken from the victim was a Sony Walkman. On August 13, 1990, Stewart entered a plea of guilty to the robbery charge and to an unrelated burglary charge. Pursuant to plea negotiations, the State agreed to recommend concurrent sentences of five years imprisonment on each offense, which would also run concurrent with any term imposed on a violation of probation. In reciting a factual basis for the entry of the guilty plea on the robbery charge, Stewart admitted that he started fighting with the victim and took his headphones, and then added that he gave the headphones to defendant who was half a block away from where the incident occurred. The court accepted Stewart's factual basis. Subsequently Stewart was sentenced in accordance with the plea agreement.
The case against defendant Bell was listed for trial on December 10, 1990. Stewart, by then an inmate at state prison, was listed as a potential witness for the defense. The trial, sever, was adjourned to January 2, 1991. Stewart then informed defense counsel that he would prefer not to testify since this meant that he would have to be temporarily lodged at the Hudson County Jail during the trial. Stewart feared that this might result in the loss of certain privileges at state prison. Thereupon, defendant moved for a determination that Stewart's factual statements at the entry of his guilty plea should be admitted pursuant to Evid. R. 63(10).
Defendant argues that Stewart's statements constitute a declaration against interest, and because a statement exculpating defendant was also given, that Stewart's entire factual basis should be admitted pursuant to Evid. R. 63(10). The State argues hat Stewart's statements were not against his interest, but rather, were favorable to him because he obtained the benefits of very lenient plea agreement.
In New Jersey, a guilty plea cannot be accepted until certain requirements have been met. The court must first satisfy itself that there is a factual basis for the plea and that
the plea is made voluntarily and intelligently with an understanding of the nature of the charge and the consequences of the plea. See R. 3:9-2; and State v. Sainz, 107 N.J. 283, 293 (1987). A guilty plea is a waiver of important constitutional rights, including the right to avoid self-incrimination. State v. Barboza, 115 N.J. 415, 420 1989); State v. Smullen, 118 N.J. 408 (1990). It necessarily follows that a defendant who elects to enter a guilty plea has also chosen to waive the privilege against self-incrimination.
At the plea hearing, Stewart admitted, in essence, that in the course of committing a theft he used force against the victim. This admission fully established all the statutory elements of robbery. See N.J.S.A. 2C: 15-1. Stewart also added that he gave the property to defendant, who was half a block away when the incident occurred. This later part of the factual statement tends to exculpate the defendant. Although R. 3:9-2 does not require that defendant pleading guilty explain the criminal involvement of other persons, the rule does not prevent a defendant from doing so. Moreover, our courts have held that a defendant's plea agreement cannot be conditioned on a promise that defendant not give exculpatory testimony in favor of a co-defendant. State v. Fort, 101 N.J. 123, 131 (1985); State v. Hunt, 184 N.J. Super. 304, 309 Law Div. 1981).
It is well settled that a statement, made other than by a witness while testifying, when offered to prove the truth of the matter asserted is hearsay evidence and is inadmissible only if it falls within one of the hearsay exceptions. State v. Phelps, 96 N.J. 500 (1984).
The hearsay exception being urged in the instant case is Evid. 63(10) which provides as follows:
A statement is admissible if at the time it was made it was so far contrary to the declarant's pecuniary or proprietary interest or so far subjected him to a civil or criminal liability or so far rendered invalid a claim by him against another or ...