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State v. Dudley

Decided: May 5, 1993.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ANTHONY DUDLEY, DEFENDANT



Olivieri, J.s.c.

Olivieri

[269 NJSuper Page 633] The issue at bar is the admissibility of the out-of-court statements of an unavailable declarant when the statements do not fall within any of New Jersey's recognized hearsay exceptions.

Defendant Anthony Dudley, charged with the April 26, 1992, shooting of Christopher Mathis, was indicted for attempted murder, armed robbery, aggravated assault and related weapons offenses. A co-defendant, Curtis Bellamy, pled guilty to a fourth degree weapons offense stemming from the same incident and, at a pre-trial interview, testified that Dudley had admitted to shooting the victim. The State also produced an eyewitness who identified Dudley as the shooter.

The victim, presented with a photo array on April 28, 1992, made a positive identification of Curtis Bellamy, the co-defendant, as his assailant. Mathis also gave a taped statement to the Jersey City police naming Bellamy. On viewing a second photo array on April 29, the victim picked out the defendant Dudley, but stated that "it looks a little like him, but it's not."*fn1 At time of trial the taped statement and police reports recounting the victim's photo array IDs were available, but the victim himself was not.*fn2

At the close of the State's case, defense counsel moved for the admission of Mathis's out-of-court statements. The State objected, claiming that the proffered statements do not fall within any recognized exception to the hearsay rule. A Rule 8 hearing was held. Two Jersey City police officers testified that at the time of the photo identifications and the taped statement the victim was alert and responsive, that no undue pressure was put upon him, and that Mathis's identification of Curtis Bellamy as his assailant was clear and positive. They further stated that proper police procedures were followed.

In New Jersey, hearsay is inadmissible at trial unless it

falls within a specific exception to the hearsay rule.*fn3 There is no residual hearsay exception in New Jersey comparable to the Federal Rules of Evidence "other" category.*fn4 The court and counsel agreed that the hearsay at issue is not covered by any New Jersey exception.*fn5

The underlying rationales for the hearsay rule are to exclude testimony that is unreliable and to preserve the right of the opposing party to test by cross-examination the veracity and accuracy of the person making the statement. 31A C.J.S. Evidence § 193 (1964).

The primary reasons for any exceptions to the hearsay rule are necessity and a circumstantial guarantee of the trustworthiness of the offered evidence.*fn6 Circumstances bearing on reliability when a declarant is unavailable include consideration of:

1) the circumstances under which the statement was given and extent to which it is the witness' own account;

2) the manner in which the statement was recorded . . .;

3) any pressures, physical or psychological which were exerted upon the witness which might affect his ...


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