State v. Kennedy

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtBOTTER; FRITZ
Citation135 N.J.Super. 513,343 A.2d 783
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Thomas Earl KENNEDY, Defendant-Appellant.
Decision Date29 July 1975

Page 513

135 N.J.Super. 513
343 A.2d 783
STATE of New Jersey, Plaintiff-Respondent,
Thomas Earl KENNEDY, Defendant-Appellant.
Superior Court of New Jersey,
Appellate Division.
Argued May 27, 1975.
Decided July 29, 1975.

[343 A.2d 785]

Page 516

Forrest R. Goodrum, Newark, designated counsel, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Damon R. Sedita, Asst. Prosecutor, for plaintiff-respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).


The opinion of the court was delivered by


Defendant appeals from a conviction in a jury trial for forcible rape (N.J.S.A. 2A:138--1) and robbery (N.J.S.A. 2A:141--1) while armed (N.J.S.A. 2A:151--5). He was sentenced to State Prison for a term of seven to ten years on the rape conviction, with a consecutive term of two to three years for robbery and a concurrent term of one to three years for being armed while committing the robbery. On this appeal defendant contends that various rulings during the trial, as well as unfair comment by the prosecutor, warrant a new trial.

The victim, Mrs. S.P., testified that on December 19, 1971, at 5:30 p.m., a month after getting married, she was

Page 517

on a street corner waiting for a bus when defendant confronted her with a handgun. Defendant demanded money and she gave him five dollars. Defendant then ordered her to accompany him to a vacant garage where she submitted to sexual intercourse. Fearing for her safety, S.P. flattered defendant. She said she was enjoying herself. He said his name was James. He [343 A.2d 786] asked to see her again. She agreed and a meeting was arranged for the next day. As S.P. was late for work, defendant took her there by cab. He paid the fare with the five dollar bill he had taken from S.P. and gave her the change.

S.P. worked a night shift at the Newark Post Office. She testified that upon entering the post office she told a security officer that she had just been raped and robbed. A call was made to her husband. She was taken to the nurse's office and later to a hospital where the police interviewed her. She described her assailant to the police and said that he identified himself as James.

The next day S.P. met several detectives and they accompanied her to the meeting place previously arranged between S.P. and defendant. When defendant arrived S.P. gave a signal, identified defendant, and he was arrested. Defendant was given Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and was transported to police headquarters. On cross-examination S.P. denied that she had ever before seen or known defendant. Other evidence by the State was offered to corroborate S.P.'s conduct after arriving at the post office and to show that she was upset and wept shortly after reporting the incident, and that her clothing was soiled.

Evidence was then offered for the defense tending to prove that defendant did not possess a gun on the day in question and that S.P. lived in defendant's neighborhood and had been seen with defendant and at defendant's house on several occasions in 1969 during S.P.'s last year in high school. S.P. was then recalled in rebuttal to disprove the description of her 1969 hair style given by defendant's witnesses.

Page 518

Through S.P. the State introduced a high school yearbook containing pictures of her, and other photographs were introduced to show how she wore her hair in 1969. The State also recalled a detective who had arrested defendant and transported him to headquarters. The witness testified that defendant at that time denied committing rape and said he 'didn't know the girl.'

Defendant then took the stand. He testified that he had had sexual relations with S.P. on a number of occasions in 1969 at his home. He also testified that: he had a chance encounter with S.P. on December 19, 1971; she made overtures to him; they started to embrace on the street corner; they searched for a place where they could have privacy; they found a garage with an open door where they had sexual relations; they agreed to meet again; a short while later defendant took her to the attic of his mother's house where they again had intercourse; S.P. tried to persuade him to take up with her again but he refused because he was then married; she became angry and threatened retaliation and, finally, he went to meet her the next day at the behest of a frend so that he could give his friend the opportunity of taking up with her. It was at this meeting that defendant was arrested. Defendant denied having a gun, denied raping and robbing S.P. and denied taking her to work in a cab. He admitted using various names in connection with his religion, such as Thomas 27X, John 27X, Ali 27X, Salim 27X, Sabu 27X and others, but not the name James. He also testified that because he was frightened he told the police he did not know S.P. Other evidence was elicited that tended to impair his credibility and his defense.

This factual background is sufficient for the issues raised on this appeal. Defendant's first contention is that the trial judge committed reversible error in admitting the declaration made in the police car that he did not know S.P. Defendant contends that the statement was hearsay and was not admissible under Evid.R. 63(10) as a declaration against interest. Defendant contends that the erroneous admission

Page 519

of this statement, which undermined the defense offered through his witnesses, was [343 A.2d 787] unduly prejudicial since it compelled him to take the stand in rebuttal, with obvious disadvantage. Cf. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). Since we conclude that the testimony was properly admitted, we have no occasion to consider the issue of prejudice. We note in passing that the accumulation of poperly admitted evidence threatening conviction of a defendant always tends to move him to shed his shield against self-incrimination and testify, but no violation of constitutioal rights results from rules of evidence having this effect. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

The trial judge admitted this evidence, in rebuttal only, as a declaration against defendant's interest at the time it was made, purportedly in compliance with Evid.R. 63(10). 1 Defendant asserted then, and asserts now, that an admission of a party opponent can be put in evidence against that party only in a civil case as an exception to the hearsay rule provided by Evid.R. 63(7), 2 and not in a criminal case, unless it qualifies as a declaration against interest. Defendant further contends that defendant's statement denying that he knew or raped the complainant was exculpatory and was not a statement which 'so far subjected him to * * * criminal liability * * * that a reasonable man in his position

Page 520

would not have made the statement unless he believed it to be true * * *.' Evid.R. 63(10).

The unfortunate failure to draft and adopt an acceptable proposal for Evid.R. 63(6) 3 to govern admissions of a defendant in criminal cases has caused unforeseen difficulty. Undoubtedly, the adoption of Evid.R. 63(7), applicable to civil cases only, has given the impression to some that extrajudicial statements of a defendant in a criminal case are not admissible unless they qualify as declarations against interest under Evid.R. 63(10). This fallacious view is encouraged by the coincidence that 'most statements used as admissions do happen to state facts against interest,' and accordingly, some have been 'misled by this casual feature and treated admissions in general as obnoxious to the hearsay rule, and therefore as entering only under the exception to that rule for declarations against interest.' 4 Wigmore, Evidence (Chadbourn rev. 1972), § 1049 at 9. See Supplemental Report of N.J.Sup.Ct.Comm. on Criminal Practice, 98 N.J.L.J. 435 (1975) (proposing amendments to Evid.R. [343 A.2d 788] 63(7) and Evid.R. 8(3) to cure the absence of an admissions rule for criminal cases); Cf. State v. Thompson, 59 N.J. 396, 408--410, 283 A.2d 513 (1971); State v. Mayberry, 52 N.J.

Page 521

413, 422, 245 A.2d 481 (1968), Cert. den. 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Kuske, 109 N.J.Super. 575, 588, 264 A.2d 227 (App.Div.1970).

The view that the declaration against interest rule is not coincident with and was not intended as a surrogate for the rule on admissions of a party, and should not be so employed, has been stated by Professor Alexander Brooks (Supplemental Report, supra) who had served as the reporter for the Supreme Court Committee which revised the rules of evidence (Report of N.J.Sup.Ct.Comm. on Evidence (1963), at 6). Simply put, not all statements of a party are against their interest When made, although they may later prove to be so. Obviously, the original proposals for Rule 63(6), dealing with statements of an accused in a criminal proceeding, and Rule 63(7), dealing with statements by a party or his representative in a civil action, exhibit an intention 4 to distinguish extrajudicial statements of Parties from extrajudicial statements of Non-parties governed by Rule 63(10).

The basic issue is whether an ordinary, out-of-court statement of a defendant, considered hearsay when offered to prove the truth of the matter asserted (Evid.R. 63), is admissible against him if it was not against his penal or pecuniary interest when made. We assume, of course, the absence of privilege or any other exclusionary factor, such as involuntariness. The argument advanced is that the adoption of Evid.R. 63(7), limited to civil cases, and the failure to adopt the proposed Rule 63(6), applicable

Page 522

to criminal cases, reflects an intention to preclude the admission of noninculpatory statements of a defendant.

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