State v. McKiver

• Citation: 199 N.J.Super. 542,489 A.2d 1256
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Kenneth McKIVER, a/k/a David Rahim, Defendant-Appellant.
• Decision Date: 25 March 1985
• Court: New Jersey Superior Court — Appellate Division

Page 542

199 N.J.Super. 542

489 A.2d 1256

STATE of New Jersey, Plaintiff-Respondent, v. Kenneth McKIVER, a/k/a David Rahim, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted March 5, 1985.

Decided March 25, 1985.

Elizabeth Anne Cohen, Highland Park, atty. for defendant.

Irwin I. Kimmelman, Atty. Gen. of N.J., atty. for plaintiff (Mildred Vallerini Spiller, Deputy Atty. Gen., of counsel and on the brief).

Before Judges ANTELL, J.H. COLEMAN and SIMPSON.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

After a trial by jury defendant was convicted of attempted theft by extortion, N.J.S.A. 2C:20-5 and 2C:5-1. He was sentenced to a term of twelve years in New Jersey State Prison and now appeals.

On the afternoon of August 20, 1980 the driver of another vehicle signalled Edward Frielinghaus to stop his car and then approached Frielinghaus on foot. Frielinghaus rolled down his window and the stranger demanded payment of $10,000 for jewelry he said he had delivered to Frielinghaus. When Frielinghaus answered that he knew nothing of this, the man said he had a gun which he partially displayed and again warned Frielinghaus he would have to pay $10,000.

Frielinghaus then drove on to his yacht club in South Kearny, arriving at about 5:00 p.m. He worked on the pump of his boat until around 11:00 p.m. when he was visited by another stranger. The intruder announced that unless the $10,000 was paid he would kill Frielinghaus, his daughter and three grandchildren. In one hand he carried a white envelope initialed "J.D.," which he referred to as a "contract"; in the other, he held a gun. Frielinghaus was told to meet his visitor the following day at Stegment Street and Ocean Avenue in Jersey City at 2:00 p.m. with the money.

Frielinghaus reported the incidents to the police. Pursuant to an arrangement, he appeared at the designated time and place while the police took up a surveillance in the immediate area. At 2:00 p.m. a third person whom Frielinghaus had not seen previously, defendant herein, arrived. He knocked on Frielinghaus' car window and entered the vehicle. Frielinghaus described the encounter as follows:

Well, he showed me this white envelope again. This fellow did. I never saw him before, but he showed me this envelope. We have the contract. Do you have the $10,000? I said to him no, I don't have no $10,000. He said well, we have to go through with the contract. He was getting out of the car and that is when the detectives grabbed him.

The white envelope bearing the initials J.D. was taken from defendant at the scene and was positively identified by Frielinghaus as the one shown to him and described as a contract at the yacht club the previous night.

We first consider defendant's contention that there was insufficient independent evidence of a conspiracy between defendant and Frielinghaus' first two visitors to authorize introduction of the latter's out-of-court declarations. Principal reliance is placed upon Evid.R. 63 which provides:

Evidence of a statement offered to prove the truth of the matter stated which is made other than by a witness while testifying at the hearing is hearsay evidence and is inadmissible except as provided in Rules 63(1) through 63(32).

The following exception appears in Evid.R. 63(9):

A statement which would be admissible if made by the declarant at the hearing is admissible against a party if ... (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.

The coconspirator exception to the hearsay rule posits three conditions: (1) the statement must have been made in furtherance of the conspiracy; (2) it must have been made during the course of the conspiracy; (3) "there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it." State v. Phelps, 96 N.J. 500, 509-510, 476 A.2d 1199 (1984). Defendant's challenge addresses the third of these conditions. Although the trial judge received the hearsay statements before hearing independent evidence of the conspiracy, his ruling was expressly made subject to the prosecutor's representation "that she can tie it in." Although this alteration in the order of proof lay within the judge's discretion, our concern is with the kind of evidence necessary to satisfy the rule and whether this was actually furnished.

In State v. Phelps, supra, 96 N.J. at 512, 476 A.2d 1199, the Supreme Court observed that the trial court, in determining whether the coconspirator exception applies, is not precluded by Evid.R. 63 from considering some hearsay evidence in conjunction with independent evidence:

For example, suppose government agents who are monitoring a narcotics operation pursuant to a court order overhear a conversation in which a dealer, A, speaks to a buyer, B. A tells B that he can expect a carrier, C, to arrive at B's home in a blue 1980 Chevrolet at midnight, that C is a 35-year-old white male about six feet tall, that C will be wearing a leather jacket and black pants, and that C will use the code name "Meatball." Suppose further that B turns State's witness and testifies at C's trial that this entire description turned out to be correct. There is no compelling reason why the circumstantial indicia of reliability provided by A's hearsay statement ought not be considered in determining whether A's hearsay statement is admissible against C under the coconspirator exception. When the coconspirator's hearsay statement is used because of its inherent reliability, it ought to be considered in tandem with the independent corroborative proof.

We find independent evidence of a conspiracy in the white envelope taken from the defendant at the time of his arrest. "The least degree of concert of action suffices to render the act of one conspirator the act of all." State v. Carbone, 10 N.J. 329, 340, 91 A.2d 571 (1952). Frielinghaus' identification of the paper as that shown him the previous night did not depend on the out-of-court declaration.

As the court stated in Phelps, supra, 96 N.J. at 511, 476 A.2d 1199, "independent evidence may take many forms." In this case, the white envelope connected defendant to the previous visitor. Defendant displayed the envelope to Frielinghaus, described it as a "contract," and asked whether Frielinghaus had the $10,000. When Frielinghaus answered that he did not, defendant said "well, we have to go through with the contract." Disregarding for the moment the content of the out-of-court declarations, it is inferable from this much that defendant was acting at the behest of, and in concert with, at least one other person.

Because the foregoing events are not free of ambiguity, we may now look to the out-of-court declarations for clarification since they give "meaning and color" to defendant's statements and conduct just prior to his arrest. State v....