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State v. Benthall

February 1, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CURTIS BENTHALL, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

This appeal involves application of New Jersey Evidence Rule 607, wherein the circumstances under which a party may neutralize surprising testimony from a witness are set forth.

A jury convicted defendant, Curtis Benthall, as an accomplice to first-degree robbery and second-degree possession of a weapon for an unlawful purpose. He received a fifty-year extended term sentence with a seventeenyear parole disqualifier on the robbery conviction.

The State alleged that Benthall's role in the robbery of a barbershop was that of driver of the getaway car. At approximately eight o'clock p.m., or near closing time, Clyde Anthony Ingram and another barber, known only as Jay, were working at the barbershop when a light-skinned black male entered with a handgun. His face was covered by a mask and a bandana printed in a pattern representative of dollar bills or dollar bill signs. The perpetrator robbed the barbers of the cash in their possession and snatched gold chains from their necks.

During the robbery, Ingram was able to flee. While outside, Ingram saw the perpetrator run from the barbershop with Jay in pursuit. Ingram joined the chase, and the gunman jumped into a vehicle (allegedly Benthall's vehicle) that drove away.

When police arrived at the barbershop, Jay refused to speak to the officers and refused to identify himself further. The State never called him as a witness. Ingram also resisted speaking with the officers at first, but agreed to go to the police station if accompanied by the barbershop manager.

Meanwhile, shortly after the robbery occurred, a patrol officer noticed a vehicle driving the wrong way down a one-way street and attempted to pull the vehicle over. The vehicle did not stop. It proceeded toward some nearby housing projects where it slowed down, and a passenger jumped from the vehicle. That person was never apprehended.

Subsequently, Benthall, who was the driver of the vehicle, heeded the police and pulled over. The vehicle was brought to the police station where, according to the police report and officer testimony, Ingram identified it as the getaway car. Ingram's statement was not taken under oath. An inventory of the car's contents yielded a bandana, a metal clasp (also identified by Ingram), a jacket, and approximately $1,300 in cash. Benthall was arrested and indicted.

The State's case against Benthall was circumstantial and heavily dependant on Ingram's identification of the vehicle and the other recovered articles. Ingram testified before the grand jury but was a reluctant witness whose memory failed him on several points. When called as a witness at trial, Ingram failed to appear and a material witness warrant was issued. On finally taking the stand, Ingram testified that the vehicle he was shown at the police station was not the vehicle involved in the robbery and that he could not identify the jacket recovered from the vehicle.

The prosecutor moved for permission to neutralize Ingram's testimony through use of the police report, and to treat Ingram as a hostile witness. Defense counsel argued that Ingram's testimony could not constitute surprise to the prosecution in light of Ingram's grand jury testimony. The trial judge, however, found that the prosecutor was surprised by Ingram's testimony and granted the motion. Although the trial court ruled that the police report could not be used as substantive evidence pursuant to N.J.R.E. 803(a)(1), a contemporaneous jury charge was not given.

On appeal to the Appellate Division, Benthall argued, among other things, that the trial court erred in allowing neutralization and that the neutralizing evidence was used impermissibly for substantive purposes. The Appellate Division affirmed Benthall's robbery conviction, remanding for merger of the weapons offense. This Court granted Benthall's petition for certification.

HELD

The State failed to demonstrate the surprise required for neutralization of the witness' testimony. As a result, hearsay was improperly put before the jury, and the prosecutor was permitted to comment on that hearsay as substantive evidence.

1. Neutralization is the process by which a party utilizes a witness' previous contradictory statement to erase or cancel the witness's present testimony. Evidence Rule 607 provides that a party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. Rule 803(a)(1) requires that the evidence meet certain reliability requirements. Where those reliability requirements are not met, neutralization is permitted only if the proponent was surprised by the testimony. The element of surprise requires that the proponent have no indication that a witness will repudiate his prior statement and is truly surprised by the contradictory testimony given. In addition, the trial court must give the jury a limiting instruction that the jury cannot use the prior statement to prove the truth of the matter therein allegedly stated. (pp. 5-8)

2. The record fairly discloses that Ingram was an unwilling witness from the start, a fact noted in the police report. Although in the police report Ingram allegedly positively identified Benthall's vehicle as the getaway car, he refused to make a formal statement and walked out of the police station stating that he didn't want to get involved. When next he appeared before the grand jury, Ingram's testimony was confusing, often contradictory, and given grudgingly. At trial, Ingram denied that the car he saw at the police station was the getaway car. Thus, Ingram's grand jury testimony and his trial testimony were inconsistent with the police report. Based on Ingram's unwillingness to testify, and his grand jury testimony, the prosecution was on definite notice that it had an unwilling witness on its hands. In sum, the State failed to demonstrate surprise and, therefore, neutralization was improper. Further, not only was hearsay put improperly before the jury, but the prosecutor was permitted to comment on that hearsay as substantive evidence. Neutralization evidence may only be used to erase or cancel the surprising testimony. It may not be used affirmatively to prove the truth of the hearsay statement. Although the trial court gave a limiting instruction at the close of trial, that belated instruction was too little and too late to overcome the prejudice to Benthall. (pp. 8-16)

3. Benthall also argues that an identification instruction should have been given. The jury is to be instructed on identification only when it is a key issue in the case before the jury. In this case, eyewitness identification did not feature in the State's case. (pp. 16-17)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for further proceedings.

CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE and RIVERASOTO join in JUSTICE LaVECCHIA's opinion.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 27, 2004

This criminal appeal involves application of New Jersey Evidence Rule 607, wherein the circumstances under which a party may neutralize surprising testimony from a witness are set forth. Because we conclude that the State was not surprised by the testimony of an uncooperative witness in this matter, the State should not have been permitted to neutralize that witness's testimony or to use the neutralized testimony for substantive purposes in securing defendant's conviction. We therefore reverse.

I.

A jury convicted defendant, Curtis Benthall, as an accomplice to first-degree robbery, contrary to N.J.S.A. 2C:15-1, and for second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-5a. He received a fifty year extended term sentence with a seventeen-year parole disqualifier on the robbery conviction, and a concurrent eight year prison sentence with a four-year parole disqualifier on the possession offense.*fn1

The State alleged that defendant's role in the robbery was that of driver of the getaway car. The facts presented at trial are these. At approximately eight o'clock p.m., or near closing time at the barbershop, Clyde Anthony Ingram and another barber, known only as Jay, were working when a light-skinned black male entered with a handgun. His face was covered by a mask and a bandana printed in a pattern representative of dollar bills or dollar bill signs. The perpetrator robbed the barbers of cash in their possession and snatched gold chains from their necks. Nothing was taken from the customers present or from the shop.

Ingram was working closest to the entrance of the shop. As the perpetrator's attention focused on Jay, Ingram was able to flee. While outside, Ingram saw the perpetrator run from the barbershop with Jay in pursuit. Ingram joined in the chase, but before the two barbers could catch the gunman, he jumped into a vehicle (allegedly defendant's vehicle) that drove away.

Back at the barbershop where the police had arrived,*fn2 Jay refused to speak with the officers and refused to identify himself other than by his first name. The State never called him as a witness. Ingram also resisted speaking with the officers at first, but agreed to go to the police station if accompanied by the barbershop manager.

Meanwhile, shortly after the robbery occurred, a patrol officer noticed a vehicle driving the wrong way down a one-way street and attempted to pull the vehicle over. The vehicle did not stop. It proceeded toward some nearby housing projects where it slowed down. The officer observed a passenger jump from the vehicle and run into a building. That person was never apprehended. Subsequently, defendant, who was the driver of that car, heeded the police and pulled over. The vehicle was brought to the police station where, according to the police report and officer testimony, Ingram identified it as the getaway car. Ingram's statement was not taken under oath. An inventory of the car's contents yielded a bandana, a metal clasp (also identified by Ingram), a jacket, and approximately $1,300 in cash. Defendant was arrested and indicted.

The State's case against defendant was largely circumstantial and heavily dependant on Ingram's identification of the vehicle and the other recovered articles. Ingram testified before the grand jury but was a reluctant witness whose memory failed him on several points. When called as a witness at trial, Ingram failed to appear and a material witness warrant was issued. On finally taking the stand, Ingram testified that the vehicle he was shown at the police station was not the vehicle involved in the robbery and that he could not identify the jacket recovered from defendant's vehicle.

The prosecutor moved for permission to neutralize Ingram's testimony through use of the police report, and to treat Ingram as a hostile witness. Defense counsel argued that Ingram's testimony could not constitute surprise to the prosecution in light of Ingram's grand jury testimony. The trial judge, however, found that the prosecutor was surprised by Ingram's testimony and granted the motion. Although the trial court ruled that the police report could not be used as substantive evidence pursuant to N.J.R.E. 803(a)(1), a contemporaneous jury charge was not given.

On defendant's appeal, the Appellate Division in an unpublished opinion remanded for merger of defendant's convictions of possession of a weapon for an unlawful purpose and robbery. All other arguments challenging the conviction were rejected, including the argument that neutralization was permitted improperly and that the neutralizing evidence was used impermissibly ...


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