On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
This appeal requires us to decide whether an alleged accomplice's out-of-court statement inculpating defendant, which the Confrontation Clause of the Sixth Amendment would preclude the State from introducing as substantive evidence, may be used for the purpose of impeaching the alleged accomplice's subsequent out-of-court statement exculpating defendant.
A jury found defendant guilty of knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2), two counts of first degree robbery, in violation of N.J.S.A. 2C:15-1a(1), second degree burglary, in violation of N.J.S.A. 2C:18-2b(1), and fourth degree theft by unlawful taking, in violation of N.J.S.A. 2C:20-3a. The jury also acquitted defendant of purposeful murder, one count of first degree robbery and one count of second degree burglary. The court sentenced defendant to a 40 year term of imprisonment, with 30 years of parole ineligibility, for murder, and concurrent terms of four years imprisonment for burglary and nine months imprisonment for theft. The court merged defendant's robbery convictions into his conviction for murder.
The State's evidence showed that defendant, who was then 16 years old, committed the murder jointly with Donald Slover, an 18 year old, who was tried separately. The victim was Martin Vinson, who lived in an old school bus parked in a Woodland Township junkyard where he worked. After consuming a substantial amount of alcoholic beverages, defendant and Slover went to the junkyard during the early morning hours of August 2, 1988 to rob Vinson. The two young men entered Vinson's school bus and struck him with multiple blows on the head, with defendant wielding a metal pipe and Slover a flashlight in the attack. These blows crushed Vinson's skull and caused his death.
The most damaging testimony against defendant was given by his friend, Stephen DeFrank. According to DeFrank, defendant came to his house during the late morning of August 2, 1988, and said that he and Slover had just killed Vinson. Defendant told DeFrank that they had decided to rob Vinson because he owed Slover money. When they arrived at Vinson's school bus, Slover and Vinson got into an argument and Slover hit Vinson over the head several times with a flashlight. Defendant and Slover then had a Discussion outside Vinson's bus in which they agreed that "somebody had to take him out or kill him." After defendant and Slover got back into the bus, defendant used a metal pipe to hit Vinson over the head "[m]ore than a couple of times." As defendant was hitting Vinson, Slover asked for Vinson's wallet, which defendant took from Vinson's back pocket and gave to Slover.
In addition, defendant gave a statement to the police in which he admitted involvement in the murder, stating that, after waking up following a night of drinking, he and Slover talked about robbing Vinson. They then entered Vinson's bus, at which time Vinson "jumped up . . . and . . . was coming at" them. Slover grabbed a flashlight and defendant grabbed a pipe, and each of them struck Vinson in the back of his head two or three times.
Defendant testified on his own behalf that he and Slover consumed an extremely large amount of alcohol and marijuana before the murder. According to defendant, he went to the junkyard with Slover with the intent of finding motorcycles with which to go "joyriding." But sometime after they arrived at the junkyard, Slover walked over to Vinson's school bus and defendant followed him. Slover opened the door of the bus and when he got to the top of the stairs, Vinson "jumped out." Slover then picked up a flashlight and hit Vinson over the head. According to defendant, Vinson came towards him, so he picked up a pipe and also hit Vinson over the head several times. Vinson then fell to the floor. Slover said, "[g]rab the wallet," and defendant did so, throwing it to Slover. Defendant claimed that he did not intend to hurt, kill
or rob Vinson, but was simply defending himself because he thought Vinson was attacking him.
Defendant also presented testimony by a psychiatrist who expressed the opinion that defendant was suffering from extreme intoxication when Vinson was killed, resulting in a "prostration of faculties," and causing defendant to be "unable to act with knowledge ...