The opinion of the court was delivered by: O'hern, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 299 N.J. Super. 467 (1997).
The opinion of the Court was delivered by
This appeal concerns the right of a prisoner serving a sentence for murder to offer the newly discovered, exculpatory, hearsay statement of a deceased witness to the killing as grounds for a new trial. Because the witness had threatened to recant her statement before her death and because her statement is cumulative of other evidence of innocence, we find that the trial court correctly denied defendant's motion for a new trial.
This case concerns two related barroom incidents. On February 7, 1982, a patron of the C&B Tavern in Newark shot and killed one of the tavern's owners, Melvin Mann, and then escaped. Several people, including the victim's brother, two customers, and two employees of the tavern, witnessed the murder. During the police investigation, witnesses viewed photo arrays, a line-up, and three witnesses contributed to the preparation of a composite sketch. Despite these efforts, the police were not able to apprehend the shooter.
Jo Ann Brown had accompanied the shooter into the C&B Tavern on the night of the killing. Police interviewed Brown two days after the murder. Brown said that she had not known the shooter prior to Mann's murder. Brown stated that the shooter, whose name she thought was Michael, approached her on the street just minutes before the murder. According to Brown's statement, the shooter forced her to accompany him inside the tavern. Brown said the shooter looked "like he was about seven feet tall." Defendant is approximately six feet tall.
A year and a half later, on September 12, 1983, defendant Jeffrey Bunyan, was in the C&B Tavern. During an argument with Sylvia Mann, defendant assaulted her with a razor blade. Police apprehended defendant, and five witnesses identified him both as the man who assaulted Sylvia Mann in September 1983 and as the shooter who murdered Melvin Mann over eighteen months earlier.
Defendant was tried for both crimes. In January 1984, a jury convicted him of possession of a weapon for an unlawful purpose and aggravated assault in connection with the 1983 attack on Sylvia Mann. The jury was unable to reach a unanimous verdict on the 1982 murder charge, and the court declared a mistrial. The State retried defendant.
During the second murder trial, the State relied on the testimony of the victim's brother, three customers, and two tavern employees who witnessed the murder. The testimony of these witnesses was different in several respects from the testimony the same witnesses gave in the first trial. Their descriptions of the shooter were more elaborate and their identifications of defendant more confident. Conflicting descriptions given in the first trial were not repeated. Neither the State nor the defense called Jo Ann Brown during either trial because she could not be located.
Defendant did call three witnesses to challenge aspects of the testimony of the State's identification witnesses. All of the defense testimony rebutted specific facts testified to by the State's witnesses in an effort to show that defendant was not the individual who killed Melvin Mann. Defendant testified that he was not in the C&B Tavern on the night of the murder.
The jury convicted defendant of the murder of Melvin Mann. The court sentenced him to a life term with a twenty-five-year period of parole ineligibility.
Following an unsuccessful appeal, defendant hired a private investigator, Herbert Bell, to find Jo Ann Brown. Bell located Brown in January 1990. After verifying Brown's identity, Bell showed Brown a photograph of defendant that had been taken in March 1984. According to Bell, Brown could not identify the man in the photograph and stated that the man in the photograph was not the individual who committed the 1982 murder. Brown also said that she did not know anyone named Jeffrey Bunyan. Bell was unsuccessful in persuading Jo Ann Brown to give him a written statement memorializing what she had disclosed to him. According to Bell, Brown contacted him on the evening following their meeting. Brown informed Bell that she did not want to get involved and threatened to implicate defendant as the killer, despite her statement to the contrary, should Bell persist in attempting to contact her. Bell's further efforts to contact Brown were unsuccessful.
Bunyan waited more than two years before filing a motion for a new trial based on Bell's affidavit. By this time, Brown had died. The trial court denied Bunyan's motion, in December 1993, because the portion of Bell's affidavit relating to Brown's statement did not fall within any exception to the hearsay rule. The Appellate Division reversed the trial court's denial of defendant's motion and remanded the matter for an evidentiary hearing to determine the reliability of Brown's statement contained in Bell's affidavit. The Appellate Division reasoned that a reliable statement might be admissible through an analogy to N.J.R.E. 804(b)(6), which permits civil litigants to introduce statements of a deceased declarant. State v. Bunyan, 299 N.J. Super. 467, 475 (1997). In addition, the Appellate Division reasoned that the statement might be admissible under the Sixth Amendment of the United States Constitution, which guarantees a criminal defendant the right to present evidence of innocence. Id. at 475-76 (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 312-13 (1973)). The panel concluded that, in this case, principles of fairness required that the statement be admitted if found reliable. We are . . . ...