Before Judges Baime, Brochin and Eichen.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Defendant appeals from convictions for two counts of murder (N.J.S.A. 2C:11-3a), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), and possession of a handgun without a permit (N.J.S.A. 2C:39-5b). We reverse because: (1) two key prosecution witnesses were required to testify although they refused to take an oath or make an affirmation to tell the truth, (2) prejudicial hearsay testimony was improperly admitted, and (3) defendant was denied the effective assistance of counsel.
This case concerns the senseless killing of two young adults in the course of a street confrontation. Defendant, Pedro Burgos, Luis Marin, Osvaldo Gonzalez and Raymond Feliciano were on their way to a dance club when they encountered Antonio Monteiro, Jorge Silva and two other individuals. Defendant made a derogatory comment because Monteiro was wearing a Halloween mask. According to Feliciano, as he and Burgos attempted to intercede, defendant pushed them aside and fired two or three shots from a small chrome handgun. Monteiro was killed instantly. Silva was transported to a nearby hospital where efforts to resuscitate him were unsuccessful.
Richard Marrero encountered defendant approximately twelve hours after the shootings. Defendant confided that he had "caught two bodies," meaning that he had killed two people. Marrero and defendant were longtime friends, and Marrero had seen defendant in his home with a firearm sometime before or after the incident. Marrero described the weapon as a .25 caliber automatic handgun. Although the murder weapon was never recovered, ballistics evidence indicated that both victims died from gunshots from a .25 caliber pistol.
In his statement to the police and again at trial, Feliciano gave a graphic and detailed account of the killings, naming defendant as the shooter. Burgos, Gonzalez and Marin had given statements to the police essentially corroborating Feliciano's description of the incident and identifying defendant as the sole perpetrator. All three individuals were called as prosecution witnesses. We describe what transpired in some detail.
Burgos took the stand as the State's first witness. In the presence of the jury, Burgos refused to either swear on the Bible or affirm his intention to tell the truth. While noting that she had the power to hold Burgos in contempt, the trial judge decided not to take that course. She instead directed Burgos to "answer [the questions] truthfully." Burgos then attempted to invoke his Fifth Amendment privilege. The trial judge refused to accept Burgos's assertion of his right to remain silent and again ordered him to testify. Before any questions were propounded, the judge told the jury that it was to be "mindful of the fact that [Burgos] ha[d] [neither] taken an oath [n]or made an affirmation," but he nonetheless was required to testify.
In direct examination, Burgos responded to questions concerning his name, age, incarceration for robbery, and friendship with defendant. The examination deteriorated when he was asked about his statement to the police, which he disavowed. Following a hearing out of the jury's presence, the judge found that Burgos's statement to the police was made in "circumstances establishing its reliability" and was admissible as substantive evidence under N.J.R.E. 803(a)(1). See State v. Gross, 121 N.J. 1 (1990).
Gonzalez was the next witness. He took the same tack as Burgos with respect to the administration of the oath. Like Burgos, he refused to swear, affirm or otherwise promise to tell the truth. When asked directly whether he "promise[d] to tell the truth," Gonzalez replied that he would "not." The judge nevertheless directed Gonzalez to testify.
Gonzalez was no more forthcoming than Burgos. Gonzalez repeatedly responded to the prosecutor's questions by noting that he did not want to "cooperate" and that he was in "fear for his life." The witness admitted that he had given a statement to the police. But he never expressly supported or repudiated the part of the statement in which he named defendant as the shooter.
Unlike the case with Burgos, the judge never conducted a hearing to determine whether Gonzalez's statement to the police was admissible under N.J.R.E. 803(a)(1). No inquiry was conducted to determine whether the statement was inconsistent with Gonzalez's trial testimony and whether it was made under reliable circumstances. The statement itself was never introduced into evidence. However, the prosecutor repeatedly paraphrased the statement, inquiring of Gonzalez whether "that [was] what [his] statement said." Gonzalez either refused to respond at all to these questions or merely indicated that the prosecutor had accurately read or paraphrased ...