State v. Gross

• Decision Date: 30 July 1990
• Citation: 121 N.J. 1,577 A.2d 806
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anthony GROSS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 1

121 N.J. 1

577 A.2d 806

STATE of New Jersey, Plaintiff-Respondent, v. Anthony GROSS, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 17, 1990.

Decided July 30, 1990.

Randall W. Westreich, Designated Counsel, for defendant-appellant (Thomas S. Smith, Jr., Acting Public Defender, attorney).

Virginia M. Lincoln, Asst. Prosecutor, for plaintiff-respondent (Herbert H. Tate, Jr., Essex County Prosecutor, attorney).

The opinion of the Court was delivered by

HANDLER, J.,

This appeal, as well as State v. F. Gross, 121 N.J. 18, 577 A.2d 814 (1990), also decided today, involves the standards that govern the admission and use at trial of a prior inconsistent statement inculpating a criminal defendant, given by a witness while held in police custody as a criminal suspect. In this case, defendant, Anthony Gross, was convicted of murder and of a weapons offense arising out of the killing of Thomas Pinkney during the robbery of two other persons. The evidence against defendant included a statement given by Clifford Plant prior to trial. The statement, taken from Plant while he was in police custody as a criminal suspect, was inconsistent with his trial testimony and was admitted without a hearing conducted specifically to determine its reliability.

Following an appeal from the conviction, the Appellate Division remanded the case, ruling that such a hearing should have been conducted to determine the reliability of the statement. 216 N.J.Super. 98, 523 A.2d 215 (1987). There was a partial dissent from the court's opinion, differing only with respect to the proper burden of proof required to establish the reliability of the prior inconsistent statement. That difference presents the sole question on defendant's appeal as of right to this Court based on the dissent, R. 2:2-1(a)(2), his separate petition for certification having been denied. 108 N.J. 194, 528 A.2d 19 (1987).

I.

On January 7, 1981, several persons, including defendant, forcibly entered the Newark apartment of Thomas Pinkney and killed him; in addition, they robbed two other persons who were in the apartment, Alfred Boatright and Andre Loney. Defendant was indicted in January 1983. At the trial, both Loney and Boatright were called as prosecution witnesses. Loney testified that he and Pinkney had heard a knock at the apartment door. Loney had opened it and admitted Boatright. Two men in ski masks, one with a .22 caliber rifle, the other with a sawed-off shotgun, had then entered and scuffled with Loney. Defendant, without a mask, had kicked the door open, entered, and shot at Loney. Protesting as he rose from his chair, Pinkey had been shot and killed. The intruders had then searched Loney and Boatright, looked around the apartment, and left after taking $4.00 from Loney. Boatright testified to a somewhat similar version of these events. Both indicated that defendant, who was described as light-skinned, had shot Pinkney.

Clifford Plant, who at the time of trial was incarcerated as the result of a plea to complicity in the Pinkney murder, also testified. Two weeks after the murder, Plant had given the police a sworn statement. In that statement Plant had said that he, defendant, Charlie Williams, and Eddie Maxwell had gone to Pinkney's apartment, and that after he had knocked on Pinkney's door, a "guy" had opened it, whereupon Gross and Williams had entered the apartment, armed with rifle and shotgun. Plant said that while he and Maxwell had waited in the hall, they had heard a shot. The others had then come out of the apartment and all four left. He also said that defendant had put away "the rifle and the shotgun" and stated he had taken $4.00. Plant also described defendant as "light-skinned," said that it had been defendant's idea to rob Pinkney, and suggested it was "[m]ost likely Tony" who owned the guns. Plant further told the police that he did not know who had shot the decedent, but that defendant had entered and left Pinkney's apartment armed with a .22 caliber rifle. He also stated he had not been induced by threat or promise to give the statement. Later, as part of his plea bargain, Plant agreed to testify truthfully and in accordance with his prior statement.

Plant claimed at trial, out of the presence of the jury, that he had agreed to testify against only one defendant, Charles Williams, and not against Anthony Gross. Plant said that although he had gone to the police station with his father, had been given his Miranda rights, and had signed and sworn to the truth of his statement, he had not implicated Anthony Gross in the robbery and murder, and that defendant "wasn't even involved."

Plant was resworn before the jury. He testified that he did not know defendant and that he first saw Gross when he was imprisoned after the murder. He admitted to having pled guilty for his role in the murder and robbery, and that he had signed the sworn statement. Plant also acknowledged having entered a plea bargain, but denied that he had agreed to testify in accordance with his prior statement in exchange for a twenty-year-sentence recommendation by the State.

The prosecution sought to introduce Plant's prior inconsistent statement, but defense counsel objected because of the lack of a proper foundation. The prosecution then asked Plant about defendant's role in the murder-robbery, to which questions Plant responded that the defendant had not been present during or involved in the crime. Without further objection, the prior statement was introduced.

Plant then testified that defendant had not been at Pinkney's apartment, and any references to Gross in the prior statement had been inserted by the police, who had fabricated the statement and told him to sign it. On cross-examination, Plant claimed he had been pressured to sign by being handcuffed to a chair for four hours and having had a plastic bag placed over his head. He said he had reviewed only a small portion of the statement and had signed it because he had been afraid of further interrogation. He also testified that he had entered the plea agreement because he had four other charges pending against him at the time and he wanted to minimize his custodial term. On redirect examination, Plant said he had been unable to remember whether he had given the prior statement months before any plea agreement discussions, including his testifying in defendant's case.

The State called Police Sergeant Kenneth Williams, who had taken Plant's statement. Williams stated that Plant had come to the police station with his father, who had been present during part of the interrogation. He denied Plant had been handcuffed or had had a plastic bag placed over his head. He also testified that the answers in the statement were Plant's, who read the typed statement and corrected and initialled it. Williams said that the information in Plant's statement had furnished the basis for a search warrant, which had led to the discovery of a sawed-off shotgun identified at trial by Loney as the one used in the murder-robbery. At the conclusion of that testimony, Plant's statement was admitted in evidence without objection.

The jury returned a verdict finding defendant guilty of murder, N.J.S.A. 2C:11-3a(3), first-degree robbery, N.J.S.A. 2C:15-1, and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4e. The trial court merged the robbery conviction into the murder conviction and sentenced defendant to a total of thirty-five years, with seventeen-and-one-half years parole ineligibility.

On appeal, the Appellate Division ruled that because the reliability of Plant's statement was disputed, the trial court was required to determine such reliability as a condition for its admission. 216 N.J.Super. at 112, 523 A.2d 215. It ruled further that the matter should be remanded for a hearing under Evidence Rule 8, and if on remand it was determined that the statement was reliable and had been properly admitted, the conviction would stand, but if not, a new trial would be required. Ibid.

II.

Evidence Rule 63(1)(a) governs the admissibility of prior inconsistent statements. That rule provides:

A statement is admissible if previously made by a person who is a witness at a hearing, provided it would have been admissible if made by him while testifying and the statement:

Is inconsistent with his testimony at the hearing and is offered in compliance with the requirements of Rule 22(a) and (b); however, when the statement is offered by the party calling the witness it shall be admissible only if, in addition to the foregoing requirements, it (i) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (ii) was given under oath subject to the penalty of perjury or other judicial, quasi-judicial, legislative, administrative or grand jury proceeding, or in a deposition. [Emphasis added.]

Prior to July 1, 1980, Evidence Rule 63, interacting with Evidence Rule 20, provided for the admission of prior inconsistent statements of a witness at the request of the party calling the witness only if that party was surprised, and then only to neutralize the witness's testimony. E.g., State v. Ross, 80 N.J. 239, 403 A.2d 457 (1979); State v. Reddick, 169 N.J.Super. 115, 121, 404 A.2d 340 (App.Div.1979); see State v. Stefanelli, 78 N.J. 418, 432, 396 A.2d 1105 (1979). That Rule comported with what is known as the "orthodox" approach, under which "prior inconsistent statements by a witness may be considered for impeachment purposes only, and not as substantive evidence of defendant's guilt," State v. Denis, 384 So.2d 419, 420 (La.1980). The orthodox approach denies substantive value to witness' prior inconsistent statements "based on a threefold rationale of lack of trustworthiness: (1) the statement was not made under oath, (2) the trier of fact did not observe the declarant's demeanor at the time the statement was made, and (3) the declarant...