State v. Green

• Decision Date: 23 December 1965
• Docket Number: No. A--40,A--40
• Citation: 215 A.2d 546,46 N.J. 192
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Billy GREEN, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 192

46 N.J. 192

215 A.2d 546

The STATE of New Jersey, Plaintiff-Respondent, v. Billy GREEN, Defendant-Appellant.

No. A--40.

Supreme Court of New Jersey.

Argued Oct. 25, 1965.

Decided Dec. 23, 1965.

Donald G. Marshall, Newark, for appellant.

Philip R. Glucksman, Asst. County Pros., for respondent (Brendan T. Byrne, Pros. of Essex County, attorney, Philip R. Glucksman, Newark, on the brief).

The opinion of the court was delivered by

PROCTOR, J.

The appellant, Billy Green, and five co-defendants, Clayton Anderson, Carlton Blanchard, Percy Edmonds, Clyde Hightower and Jesse Williams, were jointly tried in the Essex County Court for first degree murder. The jury acquitted three, Edmonds, Hightower and Williams. The jury found Anderson guilty without a recommendation of life imprisonment, and he was sentenced to death. Green and Blanchard were found guilty with a recommendation of life imprisonment. In a prior appeal arising from the same trial, Anderson's conviction was reversed on the ground that the introduction into evidence of the out-of-court statements of his codefendants was prejudicial. State v. Blanchard, 44 N.J. 195, 207 A.2d 681 (1965). Green, the sole appellant here, appeals to this court as of right pursuant to R.R. 1:2--1(c).

On the night of May 9, 1963, the body of James Dodd was found in the hallway at 405 Hunterdon Street, Newark. The autopsy showed that he had been stabbed to death. All six defendants were indicted for this crime on July 23, 1963, but Green was not arrested until March 5, 1964. The State's theory at the trial was that Dodd had been killed while all six defendants were acting in concert to rob him.

I

Shortly after each defendant was arrested he signed a detailed typewritten statement, in question and answer form, describing the events leading up to and after the stabbing of Dodd. At the trial the State introduced these statements into evidence, and police officers also testified to oral admissions which several of the defendants had made at the time of their arrests and interrogations. When the State offered into evidence the statements of Green's codefendants, his counsel objected to their admission because the statements implicated his client. ¹ The trial court overruled the objection. It held that the statement of each declarant was admissible against him alone and that a proper instruction to the jury to that effect was all that was required. Each statement was subsequently read to the jury by the prosecutor and the trial court cautioned the jury that the statement was evidentiary only against the defendant who made the statement. In its charge the trial court again cautioned the jury as to the restricted use of each defendant's statement. The written statements were submitted to the jury as exhibits for their consideration during deliberation.

It is beyond doubt that the out-of-court statements of the other defendants were inadmissible against Green. State v. Young, 46 N.J. 152, 215 A.2d 352 (1965); State v. Blanchard, supra. In Blanchard, Anderson's conviction was reversed because we found the statements of his codefendants so honeycombed with references to his participation in the crime that it would have been psychologically impossible for the jury to follow the judge's instructions and ignore these statements when determining Anderson's guilt and punishment. Green claims, and we agree, that the reasoning which compelled our ruling on that appeal applies equally here.

Since all six defendants admitted being together in Anderson's automobile on the night of the crime, the acquittal of Edmonds, Hightower and Williams clearly establishes that the jury did not consider that fact to be sufficient evidence of guilt. Green, like the three acquitted defendants, claims that he did not knowingly participate in the crime, and he maintained this position both in his written statement to the police and in his testimony at the trial. However, the statements of Green's five codefendants all agree that, far from being an innocent bystander, Green knowingly joined Anderson in the robbery and killing of Dodd.

Blanchard's statement contained the following description of the crime:

'While we (the six defendants) was riding around we drove up West Kinney St. to 16th. Ave. and went up 16th. Ave. and while we was riding we saw a man wearing a white apron dragging a man (Dodd) across the street on 16th. Ave. and put the man on park bench, and the man that put him on the bench walked back across the street and went into a tavern or a restaurant. Calvin (Anderson) stopped the car on 16th. Ave. right by the gas station on the corner of Hunterdon St. and 16th. Ave. and Calvin said 'lets see if he got any money' and Calvin and his brother Billy (Green) ² got out of the car and walked over to the park bench and they walked back with the fellow that had been sitting on the bench, they was holding him up by the arms and they put him in the back seat of the car. As soon as they put the guy in the car Calvin and his brother (Green) started to go through his pockets

After Calvin opened the door and was stabbing at the guy, Billy helped to pull the guy out of the car and started kicking at him.'

The statements of Hightower, Williams and Edmonds were similar to Blanchard's in describing Green's role in the robbery and killing.

And Anderson's statement also made several damaging references to Green:

'At this time Clyde (Hightower) was right by the guy and was going to frisk him down but I pushed him away and me and Billy Green each grabbed a arm and put him in the back seat of the car.

* * so Billy jumped out the car so then I got out and ran around when I got there Billy was standing up and the guy was half way down, Billy had a knife in his hand and I snatched it away from him.

Q. Did anyone else stab or cut Joseph Dodd?

A. I don't know but I saw Billy Green swinging at Dodd with a knife before I took it away from him.

Q. Did you see anyone kick, or punch Joseph Dodd.

A. I seen Billy kick him * * *.'

The statements of Green's codefendants were not only read to the jury by the prosecutor but were also quoted extensively during his summation and were given to the jury as exhibits. Moreover, several police officers testified to oral statements given by Anderson, Hightower, Edmonds and Williams which inculpated Green. We are convinced that the admission of the statements of Green's codefendants created a powerful potentiality for prejudice against which the limiting instructions of the trial judge could offer no protection. The number of statements, the frequency with which they referred to Green, and their unanimity in labeling him a principal actor in the crime, lead us to conclude that it would have been a mental effort beyond the power of any jury to ignore these statements when determining Green's innocence or guilt. See State v. Blanchard, supra, 44 N.J. at p. 203, 207 A.2d 681.

The State contends, citing State v. Ordog, 45 N.J. 347, 212 A.2d 370 (1965), that Green was not prejudiced because his own written statement was substantially similar to those of his codefendants. In Ordog, the two defendants both confessed to a robbery-murder, and both confessions contained identical information. There, because of the similarity of the confessions, we held that the jury was able to follow the judge's limiting instructions and that no prejudice could have resulted. Id., at pp. 355--357, 212 A.2d 370. In the present case, Green's written statement to the police conflicts with the statements of his five codefendants. While he did admit helping Anderson bring Dodd to the car, he did not admit knowing of Anderson's criminal intentions. However, the statements of his codefendants, if believed, would show that Green was a willing accomplice and an active participant who knew full well that Dodd was an intended robbery victim. And Green, contrary to the statements of his codefendants, denied that he ever stabbed, hit or kicked Dodd.

The State also argues that even if the jury was unable to follow the trial court's limiting instructions, Green was not prejudiced because there was substantial independent evidence supporting his conviction. We cannot accept this contention. Although there may have been sufficient other evidence of guilt, the admission of the codefendants' statements cannot be considered harmless, since no one can tell what part they placed in the jury's decision to disbelieve Green's claim of innocence. See State v. Tassiello, 39 N.J. 282, 296, 188 A.2d 406 (1963). Our courts have always held that where prejudicial evidence is placed before the jury there must be a reversal notwithstanding the existence of other competent evidence. State v. Petrolia, 21 N.J. 453, 460, 122 A.2d 639 (1956); State v. Tamburello, 69 N.J.Super. 166, 173, 174 A.2d 11 (App.Div.1961); State v. Samurine 47 N.J.Super. 172, 181, 135 A.2d 574 (App.Div.1957), reversed on other grounds 27 N.J. 322, 142 A.2d 612 (1958).

In the circumstances of this case, the admission into evidence of the statements of Green's codefendants, notwithstanding the trial court's cautionary instructions, was prejudicial and constituted reversible error. It should be noted that the problems concerning the proper use of these statements were not presented to the court until after the trial had commenced. In the recently decided case of State v. Young, supra, we set forth a procedure which would resolve these problems prior to the start of a trial. If in this pretrial procedure the court finds that effective deletions are impractical (as was true here), it should order separate trials. Dealing with the statements before trial will avoid subsequent prejudice both to the State and the defendants.

II

Soon after Green was arrested he gave a written statement to the police and made an oral statement to the police surgeon, both of which were admitted into evidence at his trial. Green contends that these statements were given...