On certification to the Superior Court, Appellate Division, whose opinion is reported at 393 N.J. Super. 218 (2007).
(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).
In a matter of first impression, the Court determines whether, under the Rules of Evidence, a witness's hearsay statement implicating a defendant in a crime should be admissible when through violence, intimidation, or other unlawful means, the defendant made the witness unavailable to testify at trial.
In 2001, defendants Dionte Byrd and Freddie Dean, Jr. decided to rob Charles Simmons, a known drug dealer. They traveled to Simmons's apartment, along with Kenneth Bush, in a van. At the apartment, Byrd and Dean, both armed, exited the van leaving Bush behind. The two men forced their way into the apartment and shot Simmons. Another shot struck Byrd in the thigh. Both defendants ran from the apartment, rejoined Bush in the van, and fled.
Byrd and Dean were indicted on charges in connection with Simmons's death. At trial, an out-of-court statement by Bush was introduced. That statement was made nine days after Simmons's shooting as a result of Bush's interrogation by Trenton police detectives, who transposed the questions and Bush's answers onto a typewritten statement that Bush signed and dated. In the statement, which was read to the jury, Bush described the events leading up to the arrival at Simmons's apartment, defendants' return to the van, the fact that Byrd had been shot in the leg during the incident, and Byrd's insistence that Dean had fired the shot that wounded his leg. According to Bush, the defendants continued to argue and Byrd cracked open his shotgun to show Dean that he had not shot himself in the leg during the incident because his shell had not been fired. Bush also reported observing that the slide to Dean's handgun was open, suggesting that all the bullets had been fired. Bush reported that he decided to leave after two individuals arrived and stated that "the guy who got shot may die." In addition, the trial court permitted the jury to hear that Bush handwrote and signed an affidavit, provided to the defense, recanting his statement to the detectives. In the affidavit, Bush attested that the detectives had arrested him on unrelated charges, "coerced" and "pressured" him into signing the statement implicating Byrd and Dean, and threatened to charge him with the homicide. Bush maintained that he had no first hand knowledge of the homicide, and did not see Dean with any weapons or hear Dean admit to the crime. In a separate affidavit, Bush directly repudiated any statements he made inculpating Byrd in the death of Simmons. The jury also heard from a detective in the Mercer County Prosecutor's Office that, before the trial, Bush confessed that he had fabricated the statements given to defense because he believed the investigating detectives had not treated him fairly in an unrelated matter. Finally, the jury heard about Bush's criminal past and his participation in an earlier robbery and attempted robbery of Simmons.
At the time of the trial, Bush was serving a sentence for an unrelated crime. He was housed in the same correctional facility and on the same tier with Byrd and Dean. He also was taken to the courthouse in a van with one of them. When he was brought to court to testify against Byrd and Dean, he refused to take the oath or testify and told the prosecutor that he had been placed in situations that endangered him. Later in the trial, the prosecutor advised that Bush wanted to inform the judge about the threats. Without placing Bush under oath, the court questioned Bush in camera, on the record, and out of the presence of the defendants, their counsel, and the prosecutor. Bush acknowledged that the statement he gave to police after the shooting was truthful, but refused to testify and provided details of the circumstances and statements that made him fear for his safety and the safety of his family.
Defense counsel objected strenuously to the in camera hearing and argued, in part, that the proceeding violated defendants' due process and confrontation rights and their right to present evidence controverting Bush's assertions. Defense counsel argued further that they were denied the opportunity to subpoena the production of prison records or testimony of inmates and corrections officers to contradict Bush's accusations. The trial court was convinced that the defendants' conduct had intimidated Bush, causing him to fear for himself and his family and to refuse to testify.
The court determined that because their threatening conduct made Bush unavailable as a witness, defendants had waived any objection to the admission of Bush's statement to the police. Based on the doctrine of forfeiture by wrongdoing, the court permitted the statement and other contradictory and affirming statements made by Bush to be read to the jury. The jury found Byrd and Dean guilty of felony murder and other crimes.
The Appellate Division determined that the New Jersey Rules of Evidence have no forfeiture-by-wrongdoing exception to the hearsay rule and held that the trial court erred in admitting Bush's hearsay statement. The panel reversed the convictions and remanded for a new trial. 393 N.J. Super. 218 (2007).
HELD: Defendants' convictions are reversed and the matter is remanded for a new trial because the trial court improperly introduced the statement of a witness who allegedly was made unavailable by intimidation, examined the witness outside the presence of defendants and their counsel, took testimony without placing the witness under oath, and denied defendants the opportunity to present evidence to rebut the evidence of intimidation. The Court determines also to seek the adoption of a forfeiture-by-wrongdoing exception to the hearsay rule that will allow the admission of a witness's statement offered against a party who has engaged in wrongdoing that was intended to, and did, procure the unavailability of the witness.
1. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Generally, hearsay is not admissible unless it is specifically exempted by an evidence rule or other law. Unlike many other jurisdictions, such as the federal courts, New Jersey's Rules of Evidence do not contain a forfeiture-by-wrongdoing exception to the hearsay rule. The Federal Rules of Evidence codify the common law doctrine of forfeiture by wrongdoing, under which the hearsay statement of a witness is admissible if the defendant "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." The forfeiture-by-wrongdoing doctrine is founded on three significant public policy rationales. The first is to remove any profit that a defendant might receive from his own wrongdoing. The second is to provide a strong deterrent against intimidation and violence directed at witnesses by defendants attempting to game the judicial system. A defendant calculating whether to contrive to make a witness unavailable may find that his trial prospects are worse off by the admission of an unimpeachable out-of-court statement inculpating him than by the testimony of a live witness subject to cross-examination. Last, the doctrine furthers the truth-seeking function of the adversary process. The doctrine does not offend the Sixth Amendment to the United States Constitution, which gives the accused the right to confront the witnesses against him. The United States Supreme Court has declared that a defendant who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. (Pp. 19-25).
2. The Court takes notice of the persistent problem of witness intimidation in New Jersey, including in cases involving gangs, drug racketeers, organized crime and domestic violence, and concludes that New Jersey should amend its evidence rules to embrace the forfeiture-by-wrongdoing doctrine. The Court also finds that the Confrontation Clause in New Jersey's Constitution gives no more quarter than the Sixth Amendment to those who would silence a witness from testifying at a trial. Therefore, if a defendant attempts to undermine the judicial process by procuring or coercing silence from witnesses and victims, his confrontation rights under Article I, Paragraph 10 of the State Constitution will be extinguished on equitable grounds. (Pp. 25-28).
3. In New Jersey, the adoption of evidence rules is governed by the Evidence Act, 1960, N.J.S.A. 2A:84A-33 to -44, and the process involves all three branches of government. The Evidence Act provides two different paths to adoption. One path allows for a Judicial Conference to consider a draft of a new rule, approval by the Supreme Court, and the filing of the rule with the Legislature and the Governor, after which the rule would take effect unless rejected by a joint resolution of the Senate and General Assembly that is signed by the Governor. Because the adoption of a forfeiture-by-wrongdoing exception would render a fundamental change in the hearsay rule, with serious and far-reaching consequences, the Court determines to adhere to the second path for adopting a new evidence rule and to submit a proposed rule to the Senate and the General Assembly for approval by resolution, and to the Governor for his signature. The Court believes that this route will facilitate a more expeditious adoption of the proposed rule, which will allow for the admission of a witness's statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the witness. The Court asks that the Legislature and Governor act as soon as possible to adopt this hearsay exception. (Pp. 28-39).
4. In the expectation that the Legislature and the Governor will act favorably on the proposed amendment to the Rules of Evidence, and to ensure fairness in the application of the forfeiture-by-wrongdoing exception, the Court sets forth the procedures that must be followed before the admission of such evidence. Those procedures include notice by the party intending to invoke the rule, a hearing by the trial court outside the presence of the jury but with the presence of counsel and defendant to determine whether the rule's requirements have been met, and other procedures. At the hearing, the party invoking the rule will bear the burden of proof by a preponderance of the evidence. Before admitting an out-of-court statement of a witness under the new rule, the court also must determine that the statement bears sufficient indicia of reliability. (Pp. 39-45).
5. Here, at the time of defendants' trial, no codified evidence rule or precedent in this State permitted the introduction of an out-of-court statement inculpating defendants by a non-testifying witness, even if defendants were responsible for making the witness unavailable to testify. Even if such an exception were on the books when Byrd and Dean were tried, their convictions would have been reversed because the trial court admitted Bush's damning hearsay statement after conducting an in camera hearing, which excluded the defendants and their counsel in violation of their due process and confrontation rights. Nothing in the record suggests that Bush would have refused to give testimony if defense counsel had been present. The trial court also did not require Bush to take an oath or affirmation to tell the truth subject to the penalty provided by law, elicited a number of answers through leading questions, and made credibility determinations based on Bush's unsworn, unchallenged testimony in chambers. From the defense perspective, Bush was far from a disinterested citizen and, among other things, was a self-confessed drug user with a string of criminal convictions who gave his statement to police after he was arrested for a crime unrelated to Simmons's killing. Defense counsel wanted to expose his motives and test his recollection through cross-examination. Defense counsel also was denied the opportunity to present witnesses and evidence to rebut Bush's in camera assertions to the court. It was wholly inappropriate to hold an ex parte, in camera hearing in this manner. Even if the forfeiture-by-wrongdoing exception had been codified in the rules, the Court would reverse defendants' convictions because of the fundamental procedural violations that occasioned the admission of Bush's out-of-court statement. The introduction of that statement, which was central to the State's case, was not harmless error. Defendants' convictions are reversed and the matter is remanded for a new trial. (Pp. 45-51).
The judgment of the Appellate Division reversing defendants' convictions is AFFIRMED, and a forfeiture-bywrongdoing exception to the hearsay rule for inclusion in the Rules of Evidence is forwarded to the Senate and General Assembly for their approval by resolution and to the Governor for his signature.
JUSTICE LaVECCHIA, CONCURRING, joined by JUSTICES RIVERA-SOTO and HOENS, agrees with the judgment of the Court that embraces the forfeiture-by-wrongdoing doctrine, but would apply the Court's equitable powers, pursuant to the common law, and remand this matter for a new Rule 104 hearing at which the State and defendants would be present and would be allowed to examine the witness to establish whether he was truly unavailable to testify and whether his unavailability was the result of defendants' wrongdoing. If so, she would affirm defendants' convictions; if not, the convictions would be reversed.
CHIEF JUSTICE RABNER and JUSTICES LONG and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE LaVECCHIA, joined by JUSTICES RIVERA-SOTO and HOENS filed a separate, concurring opinion.
The opinion of the court was delivered by: Justice Albin
Witness intimidation in cases involving gangs, drug racketeers, organized crime, and domestic violence has become a significant challenge to the criminal justice system. In this appeal, we must decide whether, under our Rules of Evidence, a witness's hearsay statement implicating a defendant in a crime should be admissible, when through violence, intimidation, or other unlawful means, the defendant makes the witness unavailable to testify at trial.
We now hold that the time has come for New Jersey to follow the course taken by many other jurisdictions and codify a forfeiture-by-wrongdoing exception to the hearsay rule. That rule will allow the admission of a witness's statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the witness. A forfeiture-by-wrongdoing rule will achieve three important policy objectives. First, it will ensure that a criminal defendant will not profit from making a witness unavailable to testify. Second, it will provide a powerful disincentive against witness intimidation. Last, it will further one of the primary goals of every trial -- the search for truth. The proposed evidence rule will likely have far-ranging consequences in the trial of both criminal and civil cases. Therefore, in accordance with the Evidence Act, 1960, N.J.S.A. 2A:84A-33 to -44 (Evidence Act), we will forward to the Senate, General Assembly, and Governor, for their urgent consideration, the adoption of a forfeiture-by-wrongdoing exception to the hearsay rule.
We agree with the Appellate Division that the criminal convictions of the two defendants in this case must be reversed. First, the trial court introduced the statement of a witness, who allegedly was made unavailable by intimidation, at a time when there was no forfeiture-by-wrongdoing exception in our evidence rules. Second, even had there been a codified rule, the hearsay statements of the allegedly threatened witness would not have been admissible because the trial court examined the witness ex parte, outside the presence of defendants and their counsel, denying defendants their right of confrontation. Moreover, the court took testimony without placing the witness under oath and did not permit defendants the opportunity to present evidence to rebut the State's evidence of intimidation. We therefore are compelled to remand for a new trial.
Defendants Dionte Byrd and Freddie Dean, Jr. were indicted by a Mercer County grand jury for crimes related to the killing of Charles Simmons. They were tried together before a jury during a four-week trial in 2004. The essential facts revealed that on the evening of August 26, 2001, Byrd and Dean hatched a plan to rob Simmons, a known drug dealer. They traveled to Simmons's Trenton apartment, along with Kenneth Bush, in a van driven by Hassan Wilson. At their destination, Byrd, wielding a shotgun, and Dean, armed with a nine-millimeter handgun, exited the van, leaving behind Wilson and Bush. When Byrd and Dean knocked on the door to Simmons's apartment, Clinton Fudge, one of the apartment's four occupants, heard a voice on the other side saying, "Mini, Mini, Mini, Mini," Simmons's nickname. After Fudge cracked open the door, Byrd and Dean forced their way inside and ordered Fudge to lie down on the floor. Apparently hearing the commotion, Simmons emerged from a back room and confronted the armed assailants. Simmons engaged in a struggle with Dean during which Dean's handgun discharged four times. One of the shots struck Simmons in the upper chest at point-blank range killing him. Another shot struck defendant Byrd in the thigh. Both defendants then fled the apartment, entered the van, and made their getaway. Fudge was the only eyewitness to testify about what occurred in the apartment. The jury heard from other witnesses about the events leading up to and following the shooting.
At the conclusion of the trial, both Byrd and Dean were convicted of felony murder, N.J.S.A. 2C:11-3(a)(3), first-degree aggravated manslaughter (as a lesser-included offense of murder), N.J.S.A. 2C:11-4(a)(1), and first-degree robbery, N.J.S.A. 2C:15-1(a) and (b). The jury also convicted Byrd of third-degree unlawfully possessing a loaded shotgun, N.J.S.A. 2C:39-5(c)(2), and of possessing a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and convicted Dean of third-degree unlawfully possessing a handgun, N.J.S.A. 2C:39-5(b), and of second-degree possessing a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).*fn1
The trial court sentenced both defendants on the felony-murder conviction to life imprisonment with a thirty-year minimum parole-ineligibility period. Byrd received a concurrent ten-year term with a five-year parole disqualifier for possessing a shotgun for an unlawful purpose, and Dean received a concurrent ten-year term with a five-year parole disqualifier for possessing a handgun for an unlawful purpose. The remaining charges were merged with those convictions.
The heart of this case concerns the introduction into evidence of Kenneth Bush's out-of-court statement, made to two Trenton police detectives, implicating both Byrd and Dean in the robbery and killing of Simmons. Nine days following Simmons's shooting, Bush was interrogated by the two detectives, who transposed the questions and answers onto a nine-page typewritten statement, which Bush signed and dated.
In that statement, which was read to the jury, Bush related that on the day of Simmons's shooting he observed defendant Dean carrying a nine-millimeter handgun. Later that evening, Bush was riding in a van with defendants Byrd and Dean driven by Hassan Wilson. After driving around Trenton for fifteen to twenty minutes, Wilson parked on a street corner, where Byrd and Dean exited. They said that "they were going to check something out and they would be right back." While they were gone, Bush smoked crack in the back of the van.
Approximately five or ten minutes later Byrd and Dean "came running" back into the van, with Byrd exclaiming in words punctuated with expletives that Dean had shot him. Inside the van, Byrd continued ranting at Dean, "[Y]ou were shooting real crazy.... [Y]ou know you shot me, I don't believe you shot me." Dean retorted that "somebody came out with a gun and [was] shooting, too," and added, "[M]an, I put it in him. I let off on him." Dean was holding the same handgun that Bush had observed him with earlier in the day. The slide to the nine-millimeter handgun was open, suggesting that all the bullets had been fired from the gun. Dean repeated that someone in the apartment had a shotgun and that Byrd had been "hit with a pellet," but Byrd insisted that he "didn't see nobody else with a gun."
Eventually, they drove to the home of Dean's cousin. There, Bush viewed Byrd's leg wound while Dean and Byrd continued to argue about how Byrd had been shot. In an attempt to prove his point that, perhaps, Byrd had shot himself, Dean picked up Byrd's shotgun and "cracked it open." Out popped an "unspent" shell indicating that the shotgun had not been fired. During the course of this debate, Bush continued to consume crack. When two guests came to the house with the news that "the guy who got shot may die," Bush decided it was time to leave.*fn2
The court also permitted the jury to hear that Bush handwrote and signed an affidavit, provided to the defense, recanting his statement to the two detectives. In his affidavit, Bush attested that the two detectives had arrested him on charges unrelated to the Simmons killing and had "coerced" and "pressured" him into signing the statement implicating Byrd and Dean. Bush claimed that the detectives threatened to charge him with the Simmons homicide and "told [him] what to say." Bush maintained that he was "high on crack cocaine" at the time of his arrest, that he had "no first hand knowledge of [the] homicide," and that he "did not see [Dean] with any weapons," or hear Dean admit to "anything about [the] crime." In a separate affidavit, Bush directly repudiated any statements he made inculpating Byrd in the death of Simmons.
But that was not the last word the jury heard about Bush's statement to the detectives. Detective Frank LaBelle of the Mercer County Prosecutor's Office testified that, before trial, Bush confessed that he had fabricated the statements given to the defense. Bush explained to Detective LaBelle that he was "pissed off" at the investigating detectives because he felt they had not given him "a fair shake in an unrelated matter," and because Bush's co-defendants in that other case apparently "made out a little better than he did."
The jury also learned about Bush's prodigious criminal past. Bush was convicted of a fourth-degree sexual offense in 1986, of third-degree possession of cocaine and second-degree robbery in 1988, of fourth-degree aggravated assault with a weapon in 1996, and of third-degree possession of a weapon for an unlawful purpose in 2001. Moreover, according to the testimony of Kenneth McNeil, a week before Simmons was killed, he, Dean, and Bush had robbed Simmons in his apartment house, taking from him a quantity of cocaine. During the robbery, Bush wielded a shotgun -- the same shotgun that Byrd later used in the ill-fated robbery attempt that resulted in Simmons's death. McNeil testified that not only had he, Dean, and Bush robbed Simmons, but the very same day they attempted to rob him again. However, their efforts were thwarted because no one responded to the ringing of Simmons's doorbell.
Bush's hearsay statements were read to the jury only after Bush refused to testify at defendants' trial and the court concluded at an ex parte hearing that defendants' threatening and intimidating conduct had rendered Bush unavailable as a witness. We now turn to the events leading up to the ex parte hearing, the hearing itself, and the court's reasons for admitting Bush's out-of-court statement to the police.
At the time of defendants' trial, Bush was serving an eight-year prison sentence with a three-year parole disqualifier for possessing a weapon for an unlawful purpose. While serving that sentence, Bush had been incarcerated in the same correctional facility and placed on the same tier where Byrd and Dean were housed. The prosecutor and Detective LaBelle had visited Bush there and expected his cooperation in the prosecution of Byrd and Dean. However, when Bush was brought to the Mercer County Courthouse and placed on the stand, he refused to take the oath or testify. Bush explained that he had made it known to the prosecutor that he had been put in "situations" that endangered both him and his family. Specifically, he complained that he had been incarcerated with the very defendants against whom he would be offering testimony. The prosecutor also brought to the court's attention that Bush had been transported in a van with Byrd from state prison for defendants' trial.
The trial court acknowledged the "screw-ups" that resulted in a key State's witness being housed with defendants, but also reviewed pragmatically the limited options. At the time of trial, Bush already had served three years of his sentence, and the parole board had given Bush a future parole eligibility date of eighteen months. The court did not believe it likely that either civil or criminal contempt would have the coercive effect of compelling Bush to testify.*fn3
Later in the trial, the prosecutor advised the court that Bush "wants to speak with your Honor regarding the threats that were put upon him by Freddie Dean and Dionte Byrd." The prosecutor also argued that defendants had forfeited their confrontation rights by making Bush unavailable as a witness and that Bush's statement inculpating defendants should be read to the jury.
Over the strenuous objections of defense counsel, the court questioned Bush in camera, on the record, out of the presence of defendants, their attorneys, and the prosecutor. Bush was brought into the court's chambers and, at the court's urging, his handcuffs were removed. Present in chambers, in addition to the judge and Bush, were three law enforcement officers, the judge's law clerk, and the court reporter. At no point was Bush placed under oath. The court and Bush engaged in a colloquy. Bush introduced himself as Alim Sprull, noting that his birth name was Kenneth Bush.
In response to questioning by the court, Bush acknowledged that the statement he gave to the police after Simmons's shooting was truthful. He stated that he refused to testify in court the previous week because "the police have put me in positions where I was locked up with both defendants at one time or the other, and then it happened again coming to court." Bush related that three years earlier he had been placed on the same tier with Byrd, who offered to have him bailed out if he changed his testimony. As a result of that encounter, Bush felt fearful.
Three or four weeks after that incident, Dean was transferred to Bush's tier. At some point, Dean learned about Bush's statement to the police and began to make what Bush construed to be indirect threats to him. Dean "kept pressuring" Bush to repudiate his statement to police, and in order to "keep peace" between the two, Bush signed the affidavit exculpating Dean. With an inmate's sense of realpolitik, Bush noted, "I can't stay on the same tier and then constantly tell the man I'm going against him." Bush also recanted his statement because he was "pissed off" that the investigating detectives had not carried through on their promise to transfer him to a different prison tier, leaving him with no choice but to "do what [he] had to do" to protect himself.
At the time Bush signed the affidavit for Dean's defense, Byrd had been transferred to another correctional facility. Sometime at the end of 2002 or beginning of 2003, Byrd's younger brother, who was "locked up" on Bush's tier, showed Bush a letter that suggested that "[s]omebody [could] get at [him] at any time." After seeing the letter, Bush considered his physical safety threatened. Moreover, in the summer of 2003, Bush received a letter from Dean that left him with the overall impression that "anyone" who testified against Dean "could be dealt with."
When Bush was brought to the courthouse for a pre-trial hearing, Byrd and Dean soon learned that he was there to testify for the prosecution, not the defense. Afterwards, Bush's wife, who was Dean's cousin, received an inquiry from another cousin about whether she knew the reason for Bush's appearance in the courthouse. On one occasion, Bush was transported to the courthouse in the same van as Byrd, and although no threats were directed at Bush, the situation was "tense." On yet another occasion, Bush was placed in a ...