State v. Abrams

• Decision Date: 17 March 1976
• Citation: State v. Abrams, 356 A.2d 26, 140 N.J.Super. 232 (N.J. Super. App. Div. 1976)
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Barry ABRAMS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 232

140 N.J.Super. 232

356 A.2d 26

STATE of New Jersey, Plaintiff-Respondent, v. Barry ABRAMS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 21, 1976.

Decided March 17, 1976.

William E. Norris, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Mart Vaarsi, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges CARTON, CRAHAY and HANDLER.

PER CURIAM.

On this appeal from his conviction of the possession and distribution of a controlled dangerous substance defendant assigns as error the trial court's holding inadmissible that portion of his codefendant's prior confession which was exculpatory of him. We agree.

The State's main witness, an undercover detective, testified that he purchased some cocaine from the codefendant, Chenille Smith, and had seen her in turn purchase it from defendant, Barry Abrams. After her arrest Smith stated to the police: 'I, Chenille Smith, sold Ernest (the detective) a bag of cocaine, but I didn't and never got nothing from Barry.'

Smith did not testify at their joint trial and the only part of her statement which was permitted to be introduced into evidence was her admission that she sold cocaine to the detective. On the State's motion, and over defense objections, the judge directed that the second part of the statement, exculpating Barry Abrams, be excised on the ground that it was hearsay not within any exception to the hearsay rule. The jury was instructed that the admitted portion of the statement be considered only as to Smith.

Under Evid. R. 63(10) hearsay statements are admissible if they were against the penal interest of the declarant at the time they were made. In our view Smith's complete statement is admissible with respect to Abrams under that rule. Compare, State v. Kennedy, 135 N.J.Super. 513, 343 A.2d 783 (App.Div.1975) (defendant's statement was ruled admissible against him as an 'admission' though not against penal interest when made).

The portion of Smith's declaration which is exculpatory of Abrams suggests that Smith was not merely his agent or partner in the drug sale; it intensifies her personal criminal responsibility for the transaction. The rule does not require that each discrete part of the statement imply involvement in a crime, but only that the statement 'so far subjected (the declarant) to a * * * criminal liability * * * that a reasonable man in his position would not have made the statement unless he believed it to be true * * *.' Evid. R. 63(10); Cf. State v. Davis, 50 N.J. 16, 28--29, 231 A.2d 793 (1967) (defendant's hearsay statement that the driver of the car in which he was captured 'didn't have anything to do with it' was held admissible on the ground that it 'inferentially indicated his own involvement').

The State argues that the portion of Smith's statement exculpatory of Abrams should be isolated from the portion in which she admitted her own participation in the crime because, having confessed, 'she had utterly nothing to lose by tacking on an additional sentence in which she sought to clear her friend.' This factor, however, bears only on the weight to be given it by the trier of fact, not on its admissibility. The appropriate test for admissibility is whether, in the context of the whole statement, the particular remark was plausibly against the declarant's penal interest, even though it might be neutral or even self-serving if considered alone. Cf. Appelget v. Van Hise, 44 N.J.Super. 507, 520, 131 A.2d 20 (App.Div.1957) (semble). Evidence that it was possibly...