On certification to the Superior Court, Appellate Division, whose opinion is reported at 241 N.J. Super. 166 (1990).
The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Clifford, Pollock,and O'Hern join in this opinion. Justices Handler and Stein have filed concurring opinions.
Defendant, Robert J. Mancine, was indicted for murder, tampering with a witness, and other related weapons charges arising from the killing of Raymond Mullin, Jr. A jury convicted him of aggravated manslaughter and tampering with a witness, and acquitted him of all other charges. The substantive evidence primarily supporting defendant's convictions was the recanted prior inconsistent statements of Bernadette Hohney.
The principal issue is the effect that the "presence or absence of corroborating evidence" has on the use of Hohney's recanted prior inconsistent statements as substantive evidence to support Mancine's criminal convictions. There are two subsidiary issues. One, may defendant's conviction for aggravated manslaughter, predicated on a hired-gun theory, stand even though his indictment for murder was predicated on the theory that he personally shot Mullin? And, two, can a defendant convicted of aggravated manslaughter properly be sentenced under the Graves Act since the hired gun actually shot the victim?
Until several months before his death on June 24, 1986, Raymond Mullin shared a home with Bernadette Hohney. In
the same neighborhood in which this couple lived, Robert Mancine operated a liquor store and bar that had been run by his family for fifty years. Although the area could be described as "tough" or "high-crime;" the neighborhood also was somewhat close-knit -- most people recognized one another. Mullin and Hohney frequented Mancine's liquor store. Mullin's sister, Theresa Lopez, called Hohney her "best friend" from the time she was six years old and described Mancine as someone she saw every day while growing up. Mancine knew many of his customers and neighbors by sight, if not by name.
In late 1985, Bernadette Hohney obtained employment as a barmaid in Mancine's establishment. She believed that the income from the job would help with the care of her three children. Mr. Mullin rarely, if ever, contributed financial support for their children. He did, however, do some odd jobs around Mancine's bar and often came there to pick up or drop off Ms. Hohney. Mullin's and Hohney's encounters at the bar often brought their private disagreements into public view.
In the spring of 1986, as the relationship between Mullin and Hohney deteriorated, a relationship between Hohney and Mancine grew. Mancine became a confidant of Hohney. When she finally threw Mullin out of the house, Hohney confided in Mancine. When her mother became terminally ill and Bernadette herself neared a nervous breakdown, she turned to Robert Mancine for support. She found talking with him easy. Despite the fact that he had a wife and children, they began to date, and soon became sexually intimate.
On May 2, 1986, the hostile relationship between Mullin and Hohney erupted into violence at the bar. After another argument with Mullin, Hohney arrived at work that day quite upset. Soon after her arrival, Mullin came into the tavern and threatened her with a hooked carpet knife. Mancine, to protect her and his establishment, interceded, first verbally and then physically. The ensuing scuffle led to Mullin stabbing Mancine in the left arm. Mancine, however, quickly disarmed Mullin. He
wrestled Mullin to the ground and held a knife to Mullin's throat until the police arrived. That encounter led to charges being filed against Mullin, mutual restraining orders being issued against Mullin and Hohney, and an escalating exchange of threats between Mullin and Mancine ranging from the graphically direct and profane to the obscure and proverbial.
Shortly before 10:00 p.m. on June 24, 1986, Raymond Mullin began to walk home after spending some time drinking beer on the street corner. Theresa Lopez saw her brother in the distance. She recognized his gait. Suddenly, a man trotted up behind Mullin and shot him in the back at close range. The force of the shot threw Mullin to the ground. He rose and staggered some fifty feet. He fell again, bleeding heavily. He died within three hours. Both Theresa Lopez and Ronnie Simmons, a young man hanging out in the area, witnessed the killing. At the police station that night, Theresa Lopez told police that she believed that defendant, whom she knew, was the killer. She then picked his picture out of a photographic array. Ronnie Simmons gave police a description of the killer that somewhat matched defendant, but he was unable to identify defendant in a photographic array.
At approximately 1:00 a.m. on June 25, defendant and Hohney arrived at the police station. Each of them gave a statement to Lieutenant Alesandrini of the Camden County Prosecutor's Office, but Bernadette's would prove the more important. Hohney was quite upset. Although she wanted to make a statement, she could get little further along than her bare biography before she had to take a break to compose herself. After resuming, she detailed her activities on the night of the murder. At about 9:30 p.m., she had been sitting at defendant's bar, talking with her sister. Defendant was also there, although for a time he "went up front" to make a phone call and to speak with someone. He was out of Hohney's sight for
five to ten minutes. She left the bar with defendant at about 10:00 pm. and they went to the Bo-Bet Motel where they had sexual intercourse. While at the motel, defendant, as was his custom, called his bartender for a report on the evening's activities and was told that Mullin had been shot and that the police wished to question him. Mancine hung up, told Bernadette that Raymond Mullin had been shot, and went with her to the police station.
Eventually, Hohney's statement began to focus on Mullin and Mancine. She acknowledged the ill feeling between them. The police did not ask her whether she or Mancine had been involved in any way in Mullin's death. They did, however, ask her if she knew of any threats against Mullin's life. She said that Mancine had informed her a few days before Mullin's death "that some guy had come in and said that he was gonna shoot Raymond." Although explicitly asked, she did not, or would not, provide any additional information. When asked if her statement was "truthful and accurate," her ambiguous reply was "yeah, I guess." Before she left, the police made tentative arrangements to speak with her again and to interview her children.
On Friday, June 27, 1986, two officers transported Hohney, her children, and their babysitter to police headquarters where Hohney was placed in a room separate from the others. Before any interview could commence the interrogator received a call from defendant who told him that Hohney was "not supposed to say anything because she's represented by the same attorney that represents me."
On that date, Hohney gave her second statement, which was taped. In it she set forth the hired-gun theory that Mancine had paid someone "to take care" of Raymond Mullin.
Q. All right. tell us in your own words, now exactly what you know about this shooting.
A. Okay. About two weeks ago, Bob Mancini [sic] got a message from Raymond that he was going to burn his bar up. Bobby Mancini [sic] said, that he didn't have to take that shit, that he would get it him taken care of. He said
he was going to make a phone call, he said he had got a kid that he was going to get to do it. But he got him through another guy, and the guy had told him, that sometime the kid don't do what he's supposed to do. He always goes a little bit further and he kills the victim. A couple of days after that, a couple of guys came in the bar. I couldn't see their faces because they were in the back room with Bobby. When I went through with the ice bucket to go get ice, they turned their backs to me. Okay, Bobby was back there talking with them and when I came back through to go back into the bar they turned their backs again. I never got a chance to look at their face. But he did say, on the way to the Motel, he saw a ambulance he says Raymond just got shot. I didn't pay it any attention because I wasn't thinking about anything like that. When we got to the Motel, he called to the bar. Junior had told him that Raymond was shot asked him if he had anything to do with it, he says maybe the kid did it. Okay, he didn't directly say that he done it himself, he said the kid did it.
Q. Okay, now you say approximately two weeks ago from when Raymond was shot when this conversation about making a phone call came up?
Q. You have to answer yes or no.
Q. All right, and he supposedly made a phone call to somebody to hire somebody to kill Raymond.
A. And he had mentioned something about paying five hundred that day and five hundred when the job was done.
Q. Did he say, was he supposed to kill him at first or how was he supposed to shoot him?
A. No he said first he told me the Kid was supposed to walk up to Raymond and cut him across the chest, then he said the kid said that he couldn't get close enough to Raymond to cut him across the chest that he was going to shoot him in the leg. Then he told me he says, the guy told me that the Kid said he don't know if he was going to go further than that or not.
Q. Did Bobby say he was worried about that?
A. He said that he didn't want him killed, he said but he didn't he if it happened there was nothing that he could do. He said that if it happened that they did shoot and kill Raymond, there was nothing he Bobby could do.
[Q]. Now he kept mentioning that this was the Kid, is that how he said it the Kid?
A. The Kid, he never mentioned the name, he always said the Kid. This Kid, that Kid, the Kid. And I always asked him, who, who, because I never, I didn't tell Bobby that I was going to tell the Kid's father about it. Okay, if I actually found out who was going to do this to him that way he could be on his P's and Q's to stay away. Okay, but he would never mention a name, he would never say anything else to me.
Hohney's statement also explained why she had withheld the foregoing information initially:
Okay, he says that Raymond was dying and I said, what and I sat on the side of the bed and I started to cry, got up and he says we got to go to the Police Station but when we get there, I want you to tell them that you don't know anything. Anything at all, and I said well I don't really know anything. Everything that you've ever heard don't speak on it. Okay, so then when we got back to when we got to the Police Station, when I left the next morning, he says I'm counting on you. You're the only person that I have. Don't say anything, anything that you know. I said, well I don't know too much, he says well what you do know he says about the kid and about me making a phone call don't tell nobody.
When the detectives heard that Mancine had influenced her to withhold information, they pressed the interrogation.
Q. Now, after you left the Motel and you were on your way to the Police Department, is this when he started to tell you don't tell the Police anything?
A. Don't say anything, just keep your mouth shut and tell them you don't know nothing about it.
A. He told me he says just tell them you don't know nothing about it he says because if you tell them that you know anything about it then we'll both go to jail. He says especially me for hiring somebody to do it and you because you knew about it.
Q. Fine, is there anything else you wish.
A. And I told him that because I knew about it I didn't know much about it. I said if I had known everything he knows that I would have told. He knows if I had known all of it, I would have told, my kids father.
She also explained why she was then coming forward. Despite being "scared" of being implicated herself (her fear was based in part on Mancine's predictions), she came forward to preserve her relationship with her children.
Okay and I told Bobby I said, Bobby I can't live my life like this. I have three babies and I'm not going to lose my babies. If push came to shove then I would tell whatever I knew.
In contrast to the ambivalent "Yeah, I guess" conclusion to her previous statement, she supported the truth of this statement with the words "with all my heart." She never signed the transcript of the statement.
The statements of Theresa Lopez and Bernadette Hohney led to the arrest of Robert Mancine for murder. Based on Ms. Lopez's eyewitness testimony, Mancine was indicted for murder on the theory that he shot Raymond Mullin. Based on Ms. Hohney's statement regarding the influence he had attempted to assert over her as well as his attempts to interrupt the detective's interview of her, he was indicted on two counts of witness tampering. There was no aggravated-manslaughter indictment and only an oblique reference at the grand jury to the idea that Mancine had hired someone to kill Raymond Mullin rather than fire the gun himself. He was also indicted on various weapons charges.
On the first day of trial the court conducted a Rule 8 hearing to determine whether Hohney's prior inconsistent statement of June 27 was admissible as substantive evidence of Mancine's crime. At both the Rule 8 hearing and at the trial itself, Bernadette Hohney recanted her June 27 statement. At the Rule 8 hearing she testified that she had lied in implicating Mancine in Mullin's death. She claimed two reasons for lying.
First, Hohney asserted that the detectives who interviewed her had threatened her, intimidated her, and had given her a story to parrot back to them. She claimed that on June 26, 1986 (one day prior to giving the recanted statement), a representative from the Division of Youth and Family Services came to her home and informed her she was under investigation, thereby threatening her. She was frightened that her children would be taken from her. ...