On appeal from the New Jersey Superior Court Law Division, Criminal Division, Mercer County, Indictment No. 02-03-0399.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2007 - Decided
Before Judges Axelrad, R. B. Coleman and Gilroy.
The question presented is whether the trial court properly allowed introduction of an inculpatory out-of-court statement of a witness who refused to testify because defendants had threatened him with bodily harm if he testified against them. The answer requires an analysis of a defendant's right of confrontation under the Sixth Amendment and whether the statement fits within one of the exceptions to the hearsay rule of preclusion, or is admissible by other law. Because, unlike Fed. R. Evid. 804(b)(6), our Rules of Evidence do not contain a forfeiture-by-wrongdoing exception to the hearsay rule permitting admission of such a statement, we reverse.
These two appeals, calendared back-to-back,*fn1 arise from an indictment returned by a Mercer County Grand Jury on March 22, 2002. Following a jury trial, both defendants were found guilty of aggravated manslaughter (lesser-included offense of first-degree murder) (Count One); first-degree armed robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (Count Two), and felony murder, N.J.S.A. 2C:11-3a(3) and 2C:2-6 (Count Three). Defendant Dean was also found guilty of second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a and 2C:2-6 (Count Four), and third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b and 2C:6-2 (Count Six). Byrd was also found guilty of second-degree possession of a weapon (shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a and 2C:2-6 (Count Five) and third-degree unlawful possession of a loaded shotgun, N.J.S.A. 2C:39-5c(2) and 2C:2-6 (Count Seven).
On October 29, 2004, both defendants were sentenced. As to Byrd, Counts One and Two were merged with Count Three, and Count Seven was merged with Count Five. On Count Three, defendant was sentenced to life imprisonment with thirty years' parole ineligibility, and on Count Five, he was sentenced to a concurrent ten-year term with five years' parole ineligibility. As to Dean, Counts One and Two were merged with Count Three, and Count Six was merged with Count Four. Like Byrd, Dean was sentenced to life imprisonment on Count Three with thirty years' parole ineligibility and a concurrent ten-year term, with five years' parole ineligibility, on Count Four. All appropriate fees and penalties were also imposed. Defendants appeal, and the State cross-appeals.
On appeal, defendants present numerous arguments for our consideration. Among them, defendants argue that the trial judge erred in admitting the inculpatory statement of Kenneth Bush, a non-testifying State witness, depriving them of the right of confrontation and in violation of the Rules of Evidence. Because we agree that the judge erred in admitting the inculpatory statement, we reverse all convictions; remand for a new trial; and do not address the remaining issues raised by either defendants or the State.
The facts pertaining to the admission of the hearsay statement are as follows. At approximately 9:20 p.m. on August 26, 2001, Clinton Fudge; his friend Charlie Blackshear; his roommate Charles "Minnesota" Simmons, a known drug dealer; and Simmons' girlfriend, Catherine Cruser, were in Simmons' and Fudge's apartment in Trenton. Simmons and Cruser were in the back of the apartment, while Fudge and Blackshear were in the front of the apartment.
After hearing a knock at the door, Fudge glanced out the peephole and saw a man with his head down. He then heard a voice say, "Mini, Mini, Mini," and concluding that the visitor was there for Simmons, opened the door. Two men in their mid-twenties immediately pushed their way into the apartment. The taller of the two was armed with a gun, which Fudge believed was a shotgun, and ordered Fudge to get down on the floor.
As the shorter perpetrator began looking for other persons in the apartment, Simmons burst out from the rear of the apartment and backed the taller man into a corner. Fudge got up and assisted Simmons as he struggled with the armed intruder, causing the gun to go off three times without hitting anyone. The weapon discharged one final time and hit Simmons, who staggered down an interior hallway and fell face down.*fn2
Officer Joseph Mondello of the Trenton Police Department was the first to arrive at the scene. Fudge met him in the hallway and advised the officer that Simmons had been shot. Upon entering the apartment, Mondello observed that it was in total disarray, with blood on the walls. Simmons, who was dead, was lying face down on the floor in an internal hallway of the
apartment. Mondello retrieved two nine-millimeter shell casings from the interior hallway and another two from an adjacent room.
On August 27, 2001, Trenton Police Detectives Anthony Manzo and John Zappley proceeded to the Sleepy Hollow Motel and spoke to Stephen Robinson and Melissa Fink. These individuals suggested that the officers speak with Kenneth McNeil. After McNeil was brought to police headquarters for questioning regarding some unrelated robberies, he was interviewed by Zappley.
McNeil told Zappley that, a week prior to Simmons's death, he, along with defendant Dean and Kenneth Bush, had robbed Simmons. The three had driven to Simmons' apartment in McNeil's van where he and Bush got out, leaving Dean inside. McNeil lured Simmons out of his apartment and into the hallway. Bush then joined the pair and displayed a sawed-off shotgun he had received from Dean. McNeil told Simmons that he wanted money and crack cocaine. After Simmons gave them the items, McNeil and Bush left to smoke the crack with Dean.
McNeil further related that he, Bush and Dean attempted to rob Simmons again a day or two later. The plan was for McNeil to get Simmons to open his door so that the other two could barge in and rob Simmons. Dean was again armed with the sawedoff shotgun. Simmons, however, failed to answer the door, and the three left.
According to McNeil, on August 26, he and Bush were at the Sleepy Hollow Motel getting high with drugs he had received after loaning his van to a known drug dealer. The drug dealer returned to the motel at 8:00 p.m. with Dean. McNeil recalled that Dean was acting crazy and aggressive, shouting, "I don't care who gets in my way," and "if I have to, I'll take somebody down." The four then took the van to drop the drug dealer off and took Dean to pick up a handgun. After Dean returned to the van, he demanded that McNeil loan him the van. When McNeil declined, Dean showed him the butt of a handgun that was stuck in his pants and stated that if McNeil ...