The opinion of the court was delivered by: Zazzali, J.
On certification to the Superior Court, Appellate Division.
In this appeal, we must determine whether a decedent's statement that he "shot a kid" is admissible as a declaration against penal interest in a criminal prosecution of a defendant who was charged with shooting two children and, if so, whether the trial court's failure to admit the statement was harmless error. We conclude that the statement should have been admitted at defendant's trial and that failure to do so was not harmless error. We therefore reverse and remand for a new trial.
Although the testimony concerning this horrific crime is often conflicting and convoluted, we discern the essential facts to be as follows. In October of 1995, two children were shot through the window of their Atlantic City apartment. One child, Kareem Davis, age four, died. The other, Taqiyy Davis, age two, suffered a severed spinal cord and remains permanently paralyzed from the chest down. On the evening of the shooting, defendant, fifteen-year-old Maurice Williams, was at his mother's house with his fourteen-year-old girlfriend, G. G. testified that at some point during the evening defendant left the house for fifteen minutes. After defendant returned to the house, he changed his clothes, and told G. that he had just shot out a window in retaliation for a previous attack on his cousin by Faheem Davis. Davis had been baby-sitting at the apartment earlier that evening and the two children shot were his nephews.
The next morning defendant spoke to a friend named Andre Brickhouse, mentioned the shooting the prior evening, and told him that he "shot through the window and was shooting at Faheem Davis." That night defendant and G. were watching the six o'clock news, which reported that the two children had been shot. G. questioned defendant about his possible involvement, and defendant stated, "I didn't mean to do it, I didn't know anyone was in the room." G. later told her cousin what defendant had said to her, and the cousin in turn called G.'s mother. Concerned for her daughter's safety, G.'s mother called the police and relayed the information she heard from G.'s cousin about defendant's alleged involvement in the shooting.
The next day defendant and his father, Cyrus Nelson, were asked to report to the Prosecutor's Office, and they arrived shortly before noon. Defendant's father gave the officers permission to interview defendant. At approximately 4:30 p.m., Detective Henry White, Jr. entered the interview room while defendant was explaining to the detectives already there that he witnessed someone he referred to as Ali Abdullah stand in the middle of the street and shoot into the window of the apartment. Defendant told detectives that he witnessed the shooting from two blocks away. The detectives challenged defendant's story and defendant began to appear nervous. Detective White explained to defendant that, if he did shoot into the apartment, it would be in his best interest to tell the detectives that he was not aware that there were two children inside the apartment at the time of the shooting. Defendant was very concerned about the possibility of prison because he would not be able to take care of his younger brother and sister. Defendant also was concerned about retaliation against his brother and sister if he admitted guilt. The detectives began explaining the different sentencing implications of murder and manslaughter. Detective Sergeant William James McIntyre, supervisor of the Major Crimes Unit, entered the room. Defendant then stated, "All right, I did it, I shot through the window. I didn't know anyone was inside." Defendant then asked: "What kind of time am I going to get? I'll plead guilty right now if you promise I'll do less than five years." Another investigator then entered the interview room announcing that an attorney representing defendant had arrived. Sergeant McIntyre ordered all police personnel to cease questioning and exit the room immediately.
During the interrogation, defendant's father left defendant alone with the investigating officers in the interview room a number of times because the father was not feeling well. In fact, at the time of defendant's admission to the police, his father had stepped outside of the building for some fresh air. Nelson testified that he heard yelling and screaming noises coming from the interview room and sounds of something being thrown. He banged on the locked outside door of the building but no one let him in until he started banging on the outside portion of the air conditioning unit of the interview room where defendant was located. When Nelson went back into the building, the detectives told him that defendant had just admitted to the shooting.
Defendant contends that he asked for a lawyer ten to fifteen times but was denied access to counsel by the interviewing officers. Defendant claimed that he told the officers what they wanted to hear only so that he could go home to make sure that his mother was all right and to take care of his younger brother and sister.
At trial, defendant testified on his own behalf. He denied being a member of any gang or knowing Faheem Davis. Defendant claimed that his friend, Andre Brickhouse, came to his house the day before the shooting and asked him to hold a bag containing a gun. On the night of the shooting, Brickhouse returned to pick up the bag at around 10:00 or 10:30 p.m. Defendant claimed that he went out of the house for only a few minutes with his younger brother to buy Tylenol for his mother. On the way to the store, he saw Derrick Martin, who was allegedly carrying the same bag that Brickhouse had picked up from defendant's house. Defendant saw Martin reach into the bag and, although he did not see the gun, defendant heard two or three shots. Defendant testified that he grabbed his brother and went home.
Defendant further testified that after arriving home he told his girlfriend, G., that he had heard gun shots fired. . When she asked who did it, defendant replied: "Why do you want to be so curious? If it wasn't me, don't worry about it." G. answered that it was probably defendant who did it. Defendant retorted: "You never know who could have did it." Defendant testified that he did not tell G. about Martin because he was afraid she would "r[u]n her mouth." Defendant feared that if Martin knew he saw him commit the crime he would "shoot up [his] house just like he did the other one." Defendant testified that when he attempted to tell the police that Martin was responsible, they informed him that Martin had an alibi.
Defendant also testified that Brickhouse told him the day after the shooting that Martin had killed someone the night before. Defendant testified that Brickhouse confided in defendant because of the possibility that defendant's fingerprints might be on the bag with the gun. According to defendant, he spoke to Martin later that evening. Defendant stated that Martin warned him not to say anything about what he saw. Defendant asked Martin whether he realized that a "little kid was involved." Martin responded by saying that he did not know anyone was in the house. Defendant's testimony continued:
And I asked him did he really care about what was going on. He said yeah, but ain't nobody seen nothing but me, so, and I know you ain't going to start talking, and I was like, no, and he was like, well, nobody won't [know] nothing then.
Defendant testified that Martin told him that something would "happen" to defendant or his younger siblings if defendant said anything to anyone about Martin.
Defense counsel attempted to introduce the testimony of Hakim Callender. Callender had been charged with the subsequent murder of Derrick Martin who, as indicated above, defendant asserted was responsible for the shooting of the children. When Callender was asked about a conversation that he had with Martin, Callender's attorney objected and advised his client to assert his Fifth Amendment right. After a number of other objections, defense counsel asked:
Q: Did you at any time hear Derrick Martin bragging about the killing of Kareem Davis or Taqiyy Davis?
CALLENDER'S ATTORNEY: Hearsay objection.
A: No, I heard him mention it when we was outside in the front arguing. He was saying some stuff.
A: The place where I shot him at.
From that point on, Callender invoked the Fifth Amendment on the advice of counsel and did not answer any further substantive questions other than to state that he did not remember when his conversation with Martin took place.
Other testimony throughout the trial also alluded to Martin as a possible perpetrator. One investigating officer familiar with Martin testified that he observed Martin and two other men approach the crime scene within a half hour of the shooting. The officer also testified that when the three men entered the crime scene area, he stopped them and patted them down for weapons. The trio told police that they went to the scene of the shooting because they had heard that a friend of theirs had been assaulted by Faheem Davis.
The State introduced evidence to establish that the distance between defendant's house and the site of the shooting took only three minutes and twenty-two seconds to walk, indicating that it was possible for defendant to leave his house, walk to the scene of the shooting, shoot into the apartment and return to his residence within a fifteen-minute period. A firearms expert testified that defendant's height would permit him to fire the gun at the calculated trajectories. That expert also testified that the trajectory evidence was "consistent with two aimed shots aimed at the two victims."
Because defendant asserted that it was Derrick Martin who fired the shots into the apartment, the State noted at trial that police questioned Martin, and that Martin established his whereabouts at the time of the shooting. Martin's alibi was corroborated by ...