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State v. Fertig

January 4, 1996

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANK FERTIG, A/K/A FRANK FERDIG, DEFENDANT-RESPONDENT.



On appeal from Superior court, Appellate Division.

The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Handler, O'hern, Garibaldi, Stein, and Coleman join in Justice POLLOCK's opinion.

The opinion of the court was delivered by: Pollock

SUPREME COURT SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Frank Fertig, a/k/a Frank Ferdig (A-19-95)

Argued September 26, 1995 -- Decided January 4, 1996

POLLOCK,J., writing for a unanimous Court.

The sole issue before the Court is whether the State may use the hypnotically-refreshed testimony of an independent witness at the pending trial of Frank Fertig for felony murder.

On December 12, 1969, Dominic Perri was shot and killed during a robbery of his restaurant, Caesar's, on Route 40 in Hamilton Township, Atlantic County. Frank Fertig was indicted for the crime twenty-one years later.

According to victims at the scene, the robber was a white male wearing dark clothes and a ski mask. Approximately 2 hours after the robbery, the Absecon police stopped a car traveling east on Route 30 about twelve miles from the restaurant. The driver was Ralph Heath. Frank Fertig was the sole passenger. Four days later, the police found a revolver, apparently the murder weapon, in the area where Heath's car was stopped.

In March 1991, Egg Harbor police arrested Heath on drug charges. In exchange for dismissal of those charges and the return of over $10,000 seized by the police, Heath gave a statement that implicated Fertig in Dominic Perri's death. Heath also stated that Dennis Spier had driven Fertig to the restaurant.

Prosecutor's investigators first interviewed Spier on March 20, 1991. In exchange for "conditional immunity," Spier related that he had driven a man to Caesar's. He did not recall the man's name but described him in a way that was consistent with Fertig's appearance in 1969. According to Spier, the man wore a ski mask and carried a gun of some kind. Spier admitted that he was aware that the man intended to rob Caesar's and that Spier was supposed to pick up the man after the robbery. The man did not show up and Spier never saw him again.

The police showed Spier a photographic array that included Frank Fertig's picture, but Spier could not identify anyone. In a March 25, 1991, interview, Spier told police that the man he had driven was named Fred or Frank. Spier acknowledged that he and Ralph Heath had "mutual interests" in criminal endeavors.

Spier was interviewed again on April 17, 1991, when he remembered additional details. He was now certain that the man he had driven to Caesar's was named either Fred or Frank. Further, Spier stated that Heath had arranged the robbery and that the man who committed the robbery was a friend of Heath's. Spier also recalled that Heath had called the day after the robbery to say that a man had been killed and that Spier should forget about the event. Finally, Spier also remembered that Heath may have picked up the man after the robbery.

Ralph Heath died before June 1, 1992, the date set for Fertig's trial. On May 29, 1992, a Prosecutor's investigator met with Spier for pre-trial preparation. At that meeting, Spier told the investigator that he had undergone hypnosis on April 11, 1991. The investigator later stated that Spier was not sure what he could remember or what was possibly brought out from his being hypnotized. Spier also told the investigator that his attorney, who had accompanied him to the session with the psychologist, had advised Spier not to tell the police about the session.

On learning that Spier had been hypnotized, the Prosecutor immediately informed the trial court. The court adjourned the trial for a hearing on the admissibility of Spier's evidence. The hearing was conducted pursuant to State v. Hurd, a 1981 case in which this Court decided that hypnotically-refreshed testimony could be used but only in the context of very specific procedural safeguards.

The trial court determined that Spier had been hypnotized and that the session did not comply with the requirements of Hurd. Spier's post-hypnotic testimony was therefore inadmissible.

The Appellate Division denied the State's motion for leave to appeal. The Supreme Court granted the State's motion and heard oral argument.

HELD: The proffered post-hypnotic testimony of the State's witness does not meet the requirements of State v. Hurd 86 N.J. 525, 432 A.2d 86 (1981) and is therefore inadmissible. The Hurd guidelines apply even when the State plays no role in the witness's hypnosis.

1. As the proponent of the post-hypnotic testimony, the State bears the burden of proving that the psychologist's attempts to hypnotize the witness were unsuccessful and that the testimony satisfies the Hurd guidelines. Neither burden was sustained here. (pp. 11-12)

2. The Court notes a number of changes in the status of hypnotically-refreshed testimony in other jurisdictions. In light of those changes, as well as the absence of a more complete record, the Court declines defendant's belated invitation to reconsider and reject State v. Hurd. (pp. 12-15)

3. When trial courts admit hypnotically-refreshed testimony, they should instruct the jury on the effect that hypnosis may have on that testimony. The Court asks the Committee on Model Criminal Jury Instructions to draft an appropriate jury charge on the issue. (p. 16)

The judgment of the Superior Court, Law Division, is AFFIRMED and the matter is REMANDED to the trial ...


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