State v. Gross

• Decision Date: 11 March 1987
• Citation: 216 N.J.Super. 98,523 A.2d 215
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anthony GROSS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 98

216 N.J.Super. 98

523 A.2d 215

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

Superior Court of New Jersey Appellate Division.

Argued Oct. 28, 1986.

Decided March 11, 1987.

Randall W. Westreich, Designated Counsel, Basking Ridge, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Randall W. Westreich, Basking Ridge, and Herbert Levenson, Designated Counsel, Morristown, on the briefs).

Brian W. Mason, Asst. Prosecutor, for plaintiff-respondent (Herbert H. Tate, Jr., Essex County Prosecutor, attorney).

Before Judges PRESSLER, GAULKIN and BAIME.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Defendant was found guilty by a jury of murder ( N.J.S.A. 2C:11-3a(3)), first-degree robbery ( N.J.S.A. 2C:15-1) and second-degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a). He was sentenced on the murder conviction to a 25 year custodial term with 12 1/2 years of parole ineligibility and on the weapon possession conviction to a consecutive 10 year term with 5 years of parole ineligibility; the armed robbery conviction was merged into the murder conviction. On this appeal from the judgment, defendant urges:

POINT I.

Pursuant to Rule 8(1) of the Rules of Evidence--preliminary inquiry by judge--court erred in not making a ruling as to whether a statement was admissible or not.

POINT II.

Court by admitting prior written statement of Clifford Plant violated Rule 63(1)--previous statements of witnesses.

POINT III.

The court, in its charge to the jury, failed to advise jury that guilty plea of co-defendant should not deny defendant on trial the right to have his guilt or innocence determined by evidence presented against him, not by what has happened with regard to criminal prosecution against someone else.

POINT IV.

In the interest of justice, the Appellate Court should notice the plain error of permitting the sworn written statement of Clifford Plant to be admitted into evidence especially in the face of considerable conflicting testimony on the part of other State's witnesses.

POINT V.

The statement of Clifford Plant should not have been admitted because it was not made "in circumstances establishing its reliability."

POINT VI.

The court committed reversible error in failing to admit the statement of Reginald James, a co-defendant, as exceptions to the hearsay rule as being against the penal interest of the declarant at the time they were made.

We find the contentions made in Points III and VI to be clearly without merit. R. 2:11-3(e)(2). Our consideration of the remaining issues requires a full exposition of the facts.

I.

The convictions arise out of a January 7, 1981 incident in which two or more persons forcibly entered the Newark apartment of Thomas Pinkney, killed Pinkney and robbed Alfred Boatwright and Andre Loney.

Both Boatwright and Loney testified at trial. Boatwright said that he, Loney and Pinkney were in the apartment when a knock came at the door. Loney opened the door and two men came in with a .22 calibre rifle, saying "back up or freeze or something." Pinkney, who was sitting in a chair, "jumped up and came toward them" when "the shot went off." The intruders then told Boatwright and Loney to "get on the floor and empty out our pockets." After taking money from Boatwright, the men left. Boatwright testified that one of the men was masked and that the other, who shot Pinkney, was "[l]ight skinned and he had either green or brown eyes." Boatwright initially said that because he was "high" ¹ he was unable to identify the masked man. On cross-examination, however, Boatwright acknowledged that he believed that person to be Reginald James, a friend with whom he had spent time earlier that day.

Loney gave a somewhat different description of the occurrence. Loney, who also acknowledged being "high" although not "spaced out," said that he had opened the door to let Boatwright in the room. As he started to close the door, two men burst through, both wearing ski masks, one carrying a sawed-off shotgun and one with a .22 calibre rifle. Loney started "scuffling" with the two men. Suddenly "another third party kicked the door," the door "flew open" and Loney "got another rifle aimed at me." The third person, who was not masked, fired his rifle at Loney, but the "bullet and the shell just rejected out from the side...." At that point Pinkney got up, "comes around ... [a]nd, boom, he got shot in the stomach." Although Loney had apparently made no pretrial identification of defendant, at trial he said he was "positive" that defendant was "the guy that didn't have the mask on that shot my buddy."

The State also called Clifford Plant, who had earlier pleaded guilty to complicity in the murder of Pinkney. At a hearing outside the presence of the jury, he was confronted with his plea agreement that, in return for a recommendation that he would not serve more than 20 years in prison, he would testify truthfully and in accordance with his January 21, 1981 statement at any trial of the other participants. Plant said that "there is something wrong" with that recitation of the plea agreement because he "was only supposed to have been testifying against one person, that was another co-defendant of mine, not against Anthony Gross." Asked about his January 21 statement, Plant acknowledged that he had gone to the police station with his father, had been given his Miranda warnings and had signed and sworn to the truth of the statement. However, he testified that he had not implicated defendant in the murder or robbery and that defendant "wasn't even involved." Plant further testified that he had not told the police that Charlie Williams "had a shotgun and went in the place with a shotgun" although he later so testified in the trial of Williams. Pressed as to what he had testified in the Williams trial, Plant said "I refuse to answer. I plead the Fifth Amendment."

Without any ruling by the trial judge or objection from defense counsel, the jury was returned to the courtroom and Plant was resworn in its presence. He again acknowledged having pleaded guilty to complicity in the murder and to having signed and sworn to the January 21 statement. However, he denied knowing defendant and said that the first time he saw defendant was "[w]hen I got locked up" after the killing. The prosecutor then sought to elicit the contradictory January 21 statement. Defense counsel objected at sidebar "to the foundation which has been laid.... The proper foundation would be to ask him what happened on that day and then if there is an inconsistency--." The prosecutor agreed to "ask the question." He asked Plant a series of questions concerning defendant's involvement in the incident. After Plant testified that defendant was neither present nor otherwise involved ² and without further objection from defense counsel, the prosecutor elicited the prior contradictory statement.

The substance of the prior statement was that Plant, Williams, defendant and one Eddie Maxwell went to the building where Pinkney lived. Plant knocked on Pinkney's door. When the door opened, defendant and Williams "pulled the rifle and shotgun out," went inside and closed the door. Plant and Maxwell remained in the hallway. Plant heard a shot, immediately after which defendant and Williams came out of the apartment. All four went to 84 Boyd Street in Newark, where defendant left the rifle and shotgun in apartment 1C. Plant then went to his apartment, 2E, in the same building. Plant acknowledged that Williams and Maxwell were with him at Pinkney's, but insisted that defendant was not; he said that the police had inserted the references to defendant and he had signed the statement "because that's all he told me to do was sign it." On cross-examination, Plant said he had signed the statement because he wanted to minimize the time he would have to spend in prison and because he had been pressured, handcuffed to a chair for four hours and a plastic bag had been put over his head.

After Plant testified, the prosecutor called Police Sergeant Williams, who had taken the January 21 statement. He testified Plant had come to police headquarters with his father, that the father had provided food to his son and had been present during part of the interrogation, that all of the answers contained in the statement were Plant's, that Plant had read the statement after it was typed, that he was asked to make any corrections that he wished to make, that he had made corrections on the first page and "on the last question" and that he had placed his initials at each correction. Williams said that no plastic bag was put over Plant's head and that Plant had not been handcuffed or otherwise threatened. Williams also said that the first time he had ever heard defendant's name was when Plant mentioned the name in the course of the interview and the statement.

The prosecutor then asked Williams "[w]hat specifically did Mr. Plant tell you about Mr. Gross' participation in this crime?" Defense counsel objected that "[i]t's hearsay." The trial judge overruled the objection and the prosecutor thereupon elicited the essence of the January 21 statement. Williams further testified that a search warrant had been obtained based upon the information provided by Plant and a sawed-off shotgun had been recovered at 84 Boyd Street. ³ At the conclusion of his testimony, the written statement itself was admitted in evidence without objection from defense counsel.

Defendant did not testify or present any witnesses in his behalf. In charging the jury, the trial judge instructed that the jury was "to determine whether or not [the January 21] statement was actually made by [Plant], and if made, whether that statement or any portion thereof is credible"; that "the circumstances and the facts surrounding the giving of the statement as well as other evidence" should be considered in determining its credibility; that...