State v. Williams

• Decision Date: 05 January 1982
• Citation: 182 N.J.Super. 427,442 A.2d 620
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Gary WILLIAMS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 427

182 N.J.Super. 427

442 A.2d 620

STATE of New Jersey, Plaintiff-Appellant, v. Gary WILLIAMS, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 24, 1981.

Decided Jan. 5, 1982.

Charles J. Hanlon, Jr., Deputy Atty. Gen., for plaintiff-appellant (James R. Zazzali, Atty. Gen., attorney; Charles J. Hanlon, Jr., of counsel and on brief; Kenneth N. Lipstein, Deputy Atty. Gen., on the brief).

Sheri Woliver, Asst. Deputy Public Defender, and Joseph Di Geronimo, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney; Joseph Di Geronimo of counsel; Sheri Woliver, on the brief).

Before Judges MICHELS, McELROY and J. H. COLEMAN.

The opinion of the court was delivered by

MICHELS, P. J. A. D.

Pursuant to leave granted by the Supreme Court, the State appeals from a pretrial determination of the Law Division which held that the out-of-court statement of a prosecution witness, Kevin Madison, would not be admissible in evidence as a prior inconsistent statement under Evid.R. 63(1)(a) at the trial of defendant Gary Williams.

Defendant was indicted by the Hudson County grand jury and charged with seven counts of felony murder (N.J.S.A. 2A:89-1, N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2), one count of arson (N.J.S.A. 2A:89-1) and one count of possession of an incendiary substance for an unlawful purpose (N.J.S.A. 2A:151-59). The State's witness, Madison, had been charged in another indictment with the identical offenses with which defendant was charged. The indictments against both defendant and Madison were returned as a result of a police investigation into an incendiary fire that occurred in an apartment building located in Jersey City, New Jersey. The investigation pointed to Madison as someone who might have been involved or might provide relevant information concerning the crimes. Madison subsequently gave a signed statement to the Jersey City police detailing his own involvement in the crimes as well as that of defendant.

Madison was tried first and convicted by a jury of seven counts of felony murder and one count of arson and sentenced to State Prison for 30 years with a parole ineligibility term of ten years. Madison is presently appealing those convictions.

Prior to the trial of the indictment against defendant, a pretrial conference was held at which time the State indicated its intention to call Madison as a prosecution witness and, if necessary, to grant him immunity from the use of his testimony pursuant to N.J.S.A. 2A:81-17.3. The State had been informed by Madison's attorney that Madison would invoke the Fifth Amendment privilege against self-incrimination if he were called to testify, and that even if granted immunity it was doubtful that he would testify. The trial judge held a pretrial hearing pursuant to R. 3:13-1(b) to determine the admissibility of Madison's statement as substantive evidence at defendant's trial. At that hearing Madison was called by the State and, after being sworn, was questioned concerning the events surrounding the apartment building fire. Madison declined to answer any questions, asserting his Fifth Amendment privilege against self-incrimination. The trial judge found that the privilege was properly asserted and the State thereupon petitioned and obtained an order granting Madison immunity. Madison was then recalled to the stand and questioned concerning the fire. Madison again invoked his Fifth Amendment privilege. The trial judge informed Madison that he had no such privilege and ordered him to answer the questions put to him. Madison refused, continuing to assert his purported Fifth Amendment right to remain silent. The State thereupon offered Madison's statement as a prior inconsistent statement under Evid.R. 63(1)(a).

Following argument, Judge Hamill held that Madison's out-of-court statement was inadmissible. He reasoned, in part, that (1) although Madison's present refusal to answer any questions might be deemed inconsistent with his prior statement, it did not constitute "testimony" within the purview of Evid.R. 63(1)(a), and (2) the use of Madison's statement, coupled with his refusal to answer any questions for whatever reason, would deny defendant his constitutional right to confront witnesses against him. We agree and affirm.

It is elementary that Madison's out-of-court statement is hearsay and therefore is inadmissible in evidence to prove the truth of the matters contained therein unless it falls within one of the exceptions to the hearsay rule set forth in Evid.R. 63(1) through 63(32). Here, the State's theory is that Madison's statement is admissible as a prior inconsistent statement under recently amended Evid.R. 63(1)(a), which now, in part, 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:

(a) Is inconsistent with his testimony at the hearing, is offered in compliance with the requirements of Rule 22(a) and (b); either is in writing signed by the witness under circumstances establishing its reliability or was given under oath subject to the penalty of perjury at a trial, judicial hearing, proceeding before an agency empowered to issue subpoenas, or in a deposition ....

Obviously, the issue is whether Madison's refusal to answer any question constitutes "testimony" within the above rule. In our view, it does not. The term "testimony" is not defined by the New Jersey Rules of Evidence (see Evid.R. 1), and therefore the term should be given its plain and ordinary meaning. "Testimony" is generally defined as a particular kind of evidence that comes to a tribunal through live witnesses speaking under oath or affirmation in the presence of a tribunal, judicial or quasi-judicial. Black's Law Dictionary (5 ed. 1979), 1324; Webster's Third New International Dictionary (3 ed. 1971), 2362. See State Hwy. Comm'n v. Lincoln Terminal Corp., 110 N.J.L. 190, 196, 164 A. 476 (E. & A. 1933); Bednarik v. Bednarik, 18 N.J.Misc. 633, 648-649, 16 A.2d 80 (Ch. 1940), overruled on other grounds in Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717 (App.Div.1950); State v. Ricci, 107 R.I. 582, 268 A.2d 692, 697 (Sup.Ct.1970). See, also, 31 C.J.S., Evidence, § 3 at 819-820. Testimony properly means "only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions." Black's Law Dictionary, supra.

State v. Provet, 133 N.J.Super. 432, 337 A.2d 374 (App.Div.1975), certif. den. 68 N.J. 174, 343 A.2d 462 (1975), relied upon by the State to support the admissibility of Madison's statement under Evid.R. 63(1)(a), is clearly distinguishable. There, defendant was convicted of robbing and raping a young student nurse. The victim testified on direct that she had seen defendant during the robbery, but that he had forced her to strip and tied her dress around her head so that she had not seen him during the rape. On cross-examination, however, the victim stated for the first time that during the rape she had tricked defendant into removing the dress, which allowed her to see his face. Furthermore, the incident about the removal of the dress from her head had not been mentioned in the victim's initial statement to the police. The trial judge instructed the jurors that they could find the prior omission of this information to be inconsistent with the witness' later testimony, and if they so found, that such an inconsistency could be considered solely in evaluating the witness' credibility. On appeal, defendant claimed that the trial judge erred in charging the jury that they could consider the omission of the material factual assertion in the statement given to the police by the complaining witness only for the purpose of affecting the credibility of the witness. We agreed with defendant and held that the statement, which omitted a material fact, was properly admissible as substantive proof of the negative proposition that the victim's dress was not removed, and that therefore she could not have observed her assailant during the rape. We concluded that the limiting instructions should not have been given, pointing out that

A statement from which there has been omitted a material assertion that would normally have been made and which is presently testified to may be considered a prior inconsistent statement. State v. Rosa, 71 N.J.L. 316 (58 A. 1010) (E. & A. 1904); Esderts v. Chicago, Rock Island & Pacific R. Co., 76 Ill.App.2d 210, 222 N.E.2d 117 (App.Ct.1966), cert. den. 386 U.S. 993, 87 S.Ct. 1309, 18 L.Ed.2d 339 (1967); Commonwealth v. West, 312 Mass. 438, 45 N.E.2d 260 (Sup.Jud.Ct.1942); Erickson v. Erickson & Co., 212 Minn. 119, 2 N.W.2d 824 (Sup.Ct.1942); 3A Wigmore, supra, § 1042 at 1056; McCormick, supra at 68. While it can be readily understood that a material omission in a prior statement may affect the credibility of a witness, the omission alone cannot logically serve as affirmative proof of a fact asserted. But the prior statement as a whole, because of the omission, may serve as an implied contradiction of the testimony given by the witness. 3A Wigmore, supra. In the case at hand the statement was offered to impeach G.T.'s testimony that her dress was removed from her eyes during the sexual assault. It was offered not simply to attack her credibility but to prove a negative proposition as well, namely, that the dress was not removed and that she could not have observed her assailant during the rape. For this reason the limiting instruction should not have been given. When a prior contradictory statement is introduced pursuant to Evid.R. 63(1)(a) it is now improper to give a limiting instruction unless the statement has been offered for a limited purpose (see Evid.R. 6) or as neutralizing evidence under Evid.R. 20). (133 N.J.Super. at 437-438, 337 A.2d 374) ¹

Here, unlike Provet,...