State v. Powers

• Decision Date: 14 February 1977
• Citation: State v. Powers, 72 N.J. 346, 370 A.2d 854 (N.J. 1977)
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Armand D. POWERS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 346

72 N.J. 346

370 A.2d 854

STATE of New Jersey, Plaintiff-Appellant, v. Armand D. POWERS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 22, 1976.

Decided Feb. 14, 1977.

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 147 N.J.Super. 84, 370 A.2d 856 (1975).

Mart Vaarsi, Deputy Atty. Gen., for plaintiff-appellant (William F. Hyland, Atty. Gen., attorney).

Philip A. Kahn, Morristown, designated counsel, for defendant-respondent (Stanley Van Ness, Public Defender, attorney).

PER CURIAM.

The judgment is affirmed substantially for the reasons expressed in the majority opinion of the Appellate Division, State v. Gaines, 147 N.J.Super. 84, 370 A.2d 856.

For affirmance: Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN and PASHMAN and Judge CONFORD--5.

For reversal: Justices CLIFFORD and SCHREIBER.

CLIFFORD, J., dissenting.

The trial judge held inadmissible the statements under scrutiny here. The testifying witness was the arresting officer. Defendant Powers sought to introduce what his non-appearing co-defendant, Phillips, told the officer a 'few hours' after the arrest as an exception to the hearsay rule contemplated by Evid.R. 63(10).

The statements came to light on cross-examination by Powers' attorney and by the attorney for another defendant Gaines, on Voir dire. They are set forth in full in the Appellate Division opinion, 147 N.J.Super. 84, 370 A.2d 856 (1975). The trial judge termed them as 'equivocal,' not inculpatory of Phillips although exculpatory of Powers. The Appellate Division, one judge dissenting, reversed the conviction, holding (as does now this Court) that the statements were admissible as a matter of law. The State's brief describes them as 'uncorroborated hearsay statements of dubious reliability and competency made by an accomplice of the defendant who failed to appear for trial.' My agreement with that characterization of the proffered proof and my disagreement with the holding of its admissibility obliges me to dissent.

On the face of it the statements are excludable as hearsay. To come into evidence at all they must qualify as an exception to the hearsay rule. An indispensable feature of any exception is some indicia of trustworthiness or reliability. So it is that Evid.R. 63(10) permits introduction of a declaration against interest, the underlying rationale in the present context being that unless it is true, a declarant is not likely to say something calculated to get him into deep trouble. A specific requirement of the cited rule is that at the time it was made the statement so far subjected the declarant to criminal liability that a reasonable...