State v. DreherState v. Dreher
After a trial by jury, defendant was convicted of the purposeful and knowing murder of his wife, Gail B. Dreher, contrary to
At 3:32 p.m. on the afternoon of January 2, 1986, the Chatham Township police department received a telephone call from defendant, who had just returned home from work, reporting that his house had been burglarized. Five minutes later, in a second telephone call, he requested that the police hurry, stating that “I think my wife is dead.” When the police arrived at defendant‘s home he led them to the basement where they found decedent‘s lifeless body. The lower part of her form was in a prone position, and her head was suspended by a ligature which passed about her neck and around a “Lally” column at a height of 15 or 16 inches above the floor. The ligature also circled decedent‘s right arm at three places and around her left wrist so that her hands were tied behind her. The body had sustained a number of bruises and twelve stab wounds, some of which penetrated the pleural spaces and the jugular vein. The face was battered and decedent‘s lips were deeply cyanotic, as were her ears and nail beds. Death was found to have been caused by strangulation. The deep furrows around her neck above the larynx suggested that the ligature was the instrumentality of death.
Signs of intrusion were evident in the second floor master bedroom. Jewelry and jewelry boxes were on the floor, night stand drawers and an armoire drawer had been pulled out and their contents scattered. The bed was in disarray. No other rooms upstairs had been disturbed. No signs of a forced entry were noted.
The State‘s case against defendant was crucially dependent upon the testimony of Nancy Seifrit, which was given under a grant of use immunity pursuant to
In March 1985, Seifrit was transferred by her company to Chicago. She stayed in telephone contact with defendant on a daily basis and they met whenever defendant was in Chicago. In October 1985 — approximately three months before the homicide — Seifrit moved to the east coast, first staying in Pennsylvania with her mother and then moving to Chatham, New Jersey, where defendant resided with his family. She stated that she made the move at defendant‘s behest, that she was in love with defendant and that she wanted to be near him. They then began seeing each other on a regular basis, with defendant visiting Seifrit‘s apartment on weekday mornings at about 5:00 or 5:30 a.m.
Seifrit testified that early in the relationship defendant asked her what she would think if he were to kill his wife. She stated that she dismissed the suggestion by calling defendant an
According to Seifrit, defendant told her that he was “unhappy” in his marriage, that “things ... were happening at the house that he didn‘t like when he was out of town” and that the “problems in the marriage” worsened during holiday times.
At approximately 4:30 a.m. on January 2, 1986, defendant came to Seifrit‘s apartment. He appeared to be “upset.” He had had a New Year‘s “that was not what he had planned. Christmas — he talked about Christmas was not happy, there was fighting.” She testified that defendant “wanted to settle things that day, he was just tired of what was going on. He asked me if I would come over to the house and let him introduce me as the other woman. He felt — he told me that it would help him out.”
Seifrit reluctantly agreed to defendant‘s request. He told her to be at his house at 7:30 a.m. and to dress to “look good.”
At the prearranged time, Seifrit drove to defendant‘s house which she entered through the door in the garage. Stepping in, she saw defendant in the doorway leading downstairs to the basement. He was saying “move, just move” while another voice (the decedent‘s) was “just saying, `please,’ begging, `do what you want, I don‘t care, please.‘”
At that point, Seifrit stated that she “choked, I was just upset.” Again, she visited the bathroom and then entered the kitchen where she waited for about five minutes for defendant to come back upstairs. When he returned he went to the hall closet and handed Seifrit a fur coat, and at his instructions she put it in her car. Thereafter, the two went up to the master bedroom where they emptied the contents of a jewelry box into a pillow case, and then busied themselves to give the bedroom and the den downstairs the appearance of having been ransacked by a burglar. Defendant told Seifrit that he had to leave because he could not be late picking up his father for work. Before leaving, he said that she should take certain jewelry from the pool table in the basement and to make sure “everything was done.”
After defendant left, Seifrit returned to the basement and struck Gail over the head with a metal cobbler‘s last which she found on the pool table. The blows left three crescent-shaped wounds which penetrated the skin to expose the underlying skull bone. She also stabbed Gail‘s body several times with the kitchen knife which she then put in the pillow case with the jewelry and left the basement.
Seifrit drove back to her apartment and after discarding the pillow case and its contents she telephoned defendant at his
Seifrit‘s phone bill showed that the call to defendant‘s office was made at 8:49 a.m. and that it lasted for 10 minutes. At 9:30 a.m. that morning defendant called Seifrit back to reassure her that “everything will be alright,” and to be sure that she had gotten rid of all the jewelry. The record is silent as to the location from which that call was made. No toll records were offered by either party as to this question which proves to be of some significance for reasons which we will now relate.
To corroborate Seifrit‘s testimony that in her first conversation with defendant he stated, with regard to the earrings left on the pool table, “Don‘t worry about it, I‘ll take care of it,” the State undertook to prove that immediately after that telephone call defendant returned from his office in Newark to his home in Chatham to do three things: (1) remove the earrings from the pool table in the belief that their presence would belie the theory of a burglary, (2) to let the family‘s two dogs in from the back yard and, finally, (3) to kick Gail‘s body to insure that it was dead. In this connection, certain time sequences became highly relevant.
The proofs appear to be undisputed that it normally takes 35-40 minutes to travel between defendant‘s office and his home, but that it can be done in 25-30 minutes when traffic is light. Defendant‘s vehement challenge to the theory of his return to the house after finishing that telephone conversation at 8:59 a.m. is based upon uncontradicted testimony by two employees that shortly after 10:00 a.m. he left his office to go to a nearby bank where he made a deposit which was recorded by the bank at 10:09 a.m. Two other employees testified to seeing him in the office at 9:15 and 9:30 a.m. respectively.
Admission of Pre-Hypnotic Recollection
According to Lett, who lived across the street from defendant, his report to the police was that he had seen defendant‘s car leaving the driveway on the morning of January 2 at 9:15 a.m., give or take 20 minutes, but that he could not discern who was actually driving it. The police report states that the sighting was made at 9:15 a.m. In an effort to reconcile Lett‘s information with information furnished by another neighbor to the effect that she had seen defendant‘s car leave his house at 7:30 a.m. and return at about 7:45 a.m., and then again saw the car at a nearby intersection at 8:15 a.m., the police requested Lett to submit to hypnosis by a psychiatrist in an effort to sharpen his recollection as to the time he saw the car and who was driving it. The session was conducted on January 23, 1986.
It is important to note that in the pre-hypnotic interview with the psychiatrist Lett firmly stated as his best recollection that the correct time was 9:35 a.m. Both the pre-hypnotic, the hypnotic and the post-hypnotic sessions were recorded on video tape. While under hypnosis Lett remembered that the time he
Pointing to numerous violations of the Hurd guidelines in Lett‘s hypnotic session, defendant argues that once a witness has been hypnotized, violation of those requirements requires that all of that witness‘s testimony be deemed tainted, and hence inadmissible. He argues that the exclusion must apply even to that portion of the testimony which recites events recalled prior to the hypnotic session. The State replies that such testimony is not excluded as a matter of law, but that its weight and credibility must be resolved in the sound discretion of the jury. Although Lett testified on direct examination that the sighting of defendant‘s car occurred at “approximately 9:30 in the morning,” he conceded on cross-examination that his previous estimates placed the sighting at sometime between 9:15 a.m. and 9:35 a.m. and that the police report records him as saying 9:15.1 Thus, the jury was fully able to make the credibility determination necessitated by the possible inconsistency. In our view, admissibility is controlled by the fact that his trial testimony was consistent with his recollection as stated in the recorded pre-hypnotic interview with the hypnotist.
Although Dr. Martin Orne, a research scientist, expert on the subject of hypnosis, was available to testify on defendant‘s behalf, no scientific basis was entered upon the record as to why Lett could not reliably testify to his pre-hypnotic recollection. Rather than impeach Lett‘s credibility by telling the jury that he had been hypnotized and by having Dr. Orne explain why his testimony was tainted, the defendant‘s strategy was to assail Lett as a biased witness who had a personal grievance against defendant and because he was an alcoholic.2
At the time of the hypnotic session on January 23, 1986, the police were not even aware of the telephone call between Seifrit and the defendant which ended at 8:59, had not seen any toll records and were unaware of any need to harmonize the time of Lett‘s observation with the narrow time frame within which defendant would have to be limited in driving home and then back to the office. The reason for the interview, as we explained earlier, was to explore Lett‘s time estimate under hypnosis in order to make a reliable comparison of that estimate with those given by another neighbor. We conclude that Lett‘s testimony as to his pre-hypnotic recall was properly received.
In a recent annotation it is stated that many courts, even those holding hypnotically enhanced testimony otherwise inadmissible, have ruled that a witness may testify as to matters “demonstrably recalled and related” before he was hypnotized. Annotation, Admissibility of Hypnotically Refreshed or Enhanced Testimony, 77 A.L.R. 4th 927, 940 (1990). Courts have generally required, as a prerequisite to the admission of such testimony, that the witness‘s pre-hypnotic recollections be recorded in written or taped form, such that the extent and particulars of the recall may be sufficiently established. Id. Some courts have also explored the following additional factors: the degree to which the witness had confidence in his initial recollection before he was hypnotized, the extent of the witness‘s belief in the ability of hypnosis to yield the truth, the nature of questioning employed, and any other factor relevant to determining whether hypnosis so enhanced the witness‘s confidence in his original recollection as to substantially impair the opposing party‘s right to cross-examination. Id.
According to the New York courts, the “emerging consensus” is that events recalled after hypnosis are inadmissible per se but that the witness can still testify to events recalled prior to hypnosis. People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 492, 466 N.Y.S.2d 255, 263 (1983). This line of authority permits pre-hypnotic recollection even though it is far more restrictive as to post-hypnotic recall than in New Jersey where such evidence is admitted subject only to the Hurd guidelines. See State v. Hurd, 86 N.J. at 545-46, 432 A.2d 86.
According to the Hughes court, the most extreme view is that a hypnotized witness is contaminated and incompetent to testify, even as to pre-hypnotic events — a view that, at the time of the Hughes opinion, was followed only in California. Hughes, supra, 453 N.E.2d at 492, 466 N.Y.S.2d at 263 (citing People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal. Rptr. 243 (1982), cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982)). Indeed, in Shirley the California court had adopted the view of a leading expert in the field and had ruled inadmissible the testimony of any witness who had undergone hypnosis for the purpose of restoring his memory of certain events. Such testimony was deemed inadmissible as to all matters relating to those events. Shirley, supra, 723 P.2d at 1384, 181 Cal. Rptr. at 273. This holding in Shirley had become the “premier opinion” discussing the inherent unreliability of such testimony, although some courts called it a “draconian” ruling which was unnecessarily overinclusive. Stokes v. State, 548 So.2d 188, 193-94 (Fla. 1989). As will be seen infra, the Shirley ruling has been subsequently limited in its scope.
Under the New York approach, it is recognized that a major difficulty arises because a hypnotized witness acquires increased confidence in his recollections which could then inhibit a defendant‘s right of cross-examination. This difficulty warrants a pretrial inquiry and a resolution of two particular issues: (1) the extent of the witness‘s pre-hypnotic recall; and (2) the degree to which the hypnosis itself was so “impermissibly suggestive as to require exclusion of in-court testimony with respect to prehypnotic recollection.” Hughes, supra, 453 N.E.2d at 496, 466 N.Y.S.2d at 267.
With respect to the first prong, any evidence, testimonial and documentary, which is material to the determination should be received at the pretrial hearing. With respect to the second prong, the general standards and guidelines proposed by experts with regard to hypnosis should be used as a basis for assessing suggestibility. Id.; see People v. Tunstall, 63 N.Y.2d 1, 468 N.E.2d 30, 34, 479 N.Y.S.2d 192, 196 (1984) (further refining these standards).
The Hughes court further noted that a rough analogy could be drawn between the taint of a witness who has been exposed to an impermissibly suggestive hypnotic session and the taint of
The New York approach has been adopted, with minor variations, in numerous other states — even in those states expressly declaring post-hypnotic testimony inadmissible per se. See, e.g., Contreras v. State, 718 P.2d 129, 139-140 (Alaska 1986) (witness may testify as to facts related before hypnosis as long as such information is adequately preserved); State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266, 1295 (1982) (witness may testify with regard to those matters he was able to “recall and relate” prior to hypnosis, as long as the hypnotic procedure itself is designed to minimize the danger of contamination); Elliotte v. State, 515 A.2d 677, 680-681 (Del. 1986) (pre-hypnotic recall is admissible as long as the two-pronged Hughes/Tunstall inquiry is made); Stokes v. State, supra, 548 So.2d at 196 (witness may testify to statements made before hypnosis if “properly recorded“); State v. Moreno, 68 Haw. 233, 709 P.2d 103, 105 and n. 3 (1985) (witness may testify as to matters recalled prior to hypnosis, even though separating the “wheat” of prior recall from the “chaff” of hypnotically induced recollection may be difficult); State v. Bainbridge, 117 Idaho 245, 787 P.2d 231, 239-240 (1990) (witness must testify from “present recollection” of those matters recalled prior to hypnosis; the recording of his pre-hypnotic statements is required to verify that he has not been tainted by the hypnosis); People v. Zayas, 131 Ill.2d 284, 137 Ill.Dec. 568, 574, 546 N.E.2d 513, 519 (1989) (proponent must establish that
We note that California, the state which had long led the field in the wholesale rejection of hypnotically induced testimony, recently decided to align itself with this “nearly unanimous body of sister-state decisions,” and now holds that a witness who has undergone hypnosis is not barred from testifying to events which the court finds were “recalled and related” prior to the hypnotic session. People v. Hayes, 49 Cal.3d 1260, 783 P.2d 719, 725-727, 265 Cal. Rptr. 132, 139-141 (1989). This alignment came notwithstanding the court‘s reaffirmation of the Shirley rule with respect to post-hypnotic testimony. Hayes, supra, 783 P.2d at 724-725, 265 Cal. Rptr. at 138-139.
The State‘s Violation of Discovery Obligations
According to pretrial discovery furnished by the State, the medical examiner was expected to testify that the distribution of the victim‘s lividity was “consistent with the position in which the body [was] found.” “Lividity” on a dead body is a pinkish blush which begins to appear within a half hour after death as the red blood cells settle to the dependent parts. When he testified, however, the medical examiner stated there was also a secondary line of lividity on the body which confirmed the State‘s theory that the body had been moved approximately one hour after death.
Defendant contends, as he did at trial, that the testimony concerning the secondary line of lividity should not have been received because of the State‘s failure to furnish this information to defendant prior to trial. It is clear to us that the State‘s failure to meet this obligation was inexcusable and deserves admonishment. Defendant insists that this information, which
Further discussion of this issue is unnecessary for the reason that on the retrial, which we mandate for reasons to be stated, defendant will now be fully informed and prepared to deal with all the forensic proofs to be offered by the State.
Admission of Decedent‘s Hearsay
In presenting its main case the State called to the stand Jane Peltier and Diane Wells, friends of Gail Dreher. They testified that during the few months before her death Gail told them that her marriage was in very bad condition, that she was considering leaving defendant, and, as stated by Peltier, “that she wanted to get a divorce.” In response to defendant‘s objection the State argued that the testimony was admissible to show defendant‘s motive to commit the murder. In a supporting memorandum it categorically stated that defendant‘s “discovery of [Gail‘s plan to leave defendant] was his motive for killing her.” It further stated:
[T]he State is offering Ms. Peltier‘s testimony for the precise purpose of showing Gail‘s plan to leave her husband in the immediate future and because this plan to leave was the catalyst that caused defendant to kill her when he did....
The court pointed out that the State was proposing to do what State v. Machado, 111 N.J. 480, 545 A.2d 174 (1988), “says precisely you cannot do.” It was then that the State altered its
Clearly, this is offered, after my conversation here with ... [the prosecutor], it‘s being offered to set forth the state of mind, statements of state of mind of the declarant relating to her potential actions and nothing more.
We have no doubt that the purpose of having Peltier and Wells recount Gail‘s hearsay statements was to show why defendant was motivated to take Gail‘s life. Indeed, in summation the prosecutor said so: “Motive, the motive for killing his wife. The motive, a bad marriage. You save yourself a costly divorce. The motive.” (emphasis added). That the jury would not overlook this evidence was insured when it was instructed by the court in the following language:
The State, however, is not required to prove a motive. If the State has proved the essential elements of the offense beyond a reasonable doubt, the defendant must be found guilty of that offense, regardless of defendant‘s motive or lack of motive. If the State, however, has proved a motive, you may, of course, consider that insofar as it gives meaning to other circumstances. On the other hand, the absence of motive may be considered in weighing whether or not the defendant participated in the crime charged.
See State v. Carter, 91 N.J. 86, 102-103, 449 A.2d 1280 (1982).
It is settled that a decedent‘s hearsay statements are not admissible to prove the defendant‘s motivation or conduct, and convictions have been reversed where such statements were admitted. State v. Machado, supra; State v. Prudden, 212 N.J. Super. 608, 515 A.2d 1260 (App.Div. 1986); State v. Downey, 206 N.J. Super. 382, 502 A.2d 1171 (App.Div. 1986). The decedent‘s hearsay statements in those cases were contained in a letter left by the deceased victim in which defendant was named as the victim‘s likely killer. In State v. Downey, 206 N.J. Super. at 392-93, 502 A.2d 1171, we noted three well-defined exceptions in which a victim‘s hearsay statement concerning his state of mind have been admitted. These apply (1) where defendant asserts a claim of self-defense as justification for killing, (2) where defendant seeks to defend upon a claim
The hearsay statements here considered are of two distinct characters, and in determining whether their admission was error they must be separately considered. We conclude that those statements made by the decedent which generally describe the foundering state of the marriage are “admissible as background to establish the nature of the relationship between the victim and the defendant.” State v. Machado, 111 N.J. at 489, 545 A.2d 174. That the marriage was an unhappy one seems not to be disputed, and the prosecutor was entitled to head off any attempt by defendant to argue that the State had failed to show that relations between husband and wife were not so harmonious as to be inconsistent with the commission of a homicide by one upon the other.
Gail‘s statements concerning her intent to leave defendant and obtain a divorce, however, fall into a completely different category. As the State argued from the outset, its only purpose in offering proof of those hearsay statements was the impermissible one of demonstrating a motive for the murder. Its prejudicial impact cannot be underestimated. Had that evidence been excluded, all that the State would have been able to urge as a reason for the killing was the fact that defendant was mired in an unhappy marriage. Nothing in the evidence suggests that he committed the crime in order to marry Seifrit. It does not even appear that the subject of marriage was ever discussed between them. Thus, from all appearances, although this was not a healthy marriage, defendant
The admission of the hearsay evidence and its utilization by the State constituted error.
The State‘s Use of Peter Dreher‘s Out-of-Court Statement
On January 12, 1986, ten days after the killing, officers from the Chatham Police Department and the Morris County Prosecutor‘s Office interviewed Peter Dreher, the defendant‘s younger son, who was then 12 years old. During the interview Peter was shown the length of string used to strangle his mother. Although Peter did not give a written statement at that time, the police investigation report of the interview stated: “Peter indicated that maybe it was the type his dad used to tie up newspapers, and that it might be kept in his dad‘s desk which is in the first floor den.” (Emphasis added.)
When Peter was called as a witness by the State he was presented with the same string and asked whether he had ever seen it in the den or in his father‘s desk. When he replied that he had not, the following exchange of questions and answers occurred:
Q. Had you ever seen string like that used to tie up newspaper?
A. It‘s not biodegradable so it wouldn‘t really be good, no. Q. Do you recall indicating that maybe this was the type that was kept in the desk in the den?
A. Yes.
Q. And you recall indicating that maybe this was the type that was used to tie up newspaper?
A. Yes.
Peter‘s foregoing testimony provided no competent evidence to connect the string used to kill Gail Dreher with defendant‘s desk in the den. Nevertheless, the State argued in summation that the string used to tie Gail came from defendant‘s desk. Defendant‘s objection was overruled on the court‘s determination that the “jury‘s recollection will govern.” The prosecutor then continued with his summation and made the following statement to the jury:
Peter Dreher has said that that string is what his father keeps in the desk of the den, that type of string, tied up.
The statement that defendant had taken the string from his desk was repeated by the prosecutor later in his summation. The State‘s argument had no support in the evidence and was prejudicial. Its only basis was Peter‘s out-of-court oral statement which was inadmissible hearsay. Furthermore, even if it were admissible, it furnished no support for the prosecutor‘s statement that Peter “said that that string is what his father keeps in the desk of the den.” Peter never testified to this and all that he was recorded as saying out of court was that “maybe” it was the type defendant used to tie up newspapers and that it “might” be kept in defendant‘s desk. In his testimony Peter denied that the string used in the killing was the same as that which defendant kept in his desk, and the prosecutor‘s argument was actually contrary to the evidence.
Although in other settings we have left the witness‘s testimony to the recollection of the jury, in this case the evidence of record is too susceptible of misinterpretation to allow for this as a workable disposition. The prosecutor‘s reference to Peter‘s statement that the string “is what his father keeps in the desk of the den” could well have found acceptance in the minds of
The significance of allowing the prosecutor to claim that the string came from defendant‘s desk is that this “murder weapon” thereby became distinctively identified with defendant. As the prosecutor argued, because the string came from defendant‘s home, the murderer could only have been someone who knew where it could be found and could put his hands on it quickly and easily when needed — obviously, the defendant. The likelihood that it would be used by an intruder who was a stranger to the house, the hypothesis tendered by defendant, seems too remote to be seriously considered.
Harmless Error?
The State argues that the admission of Gail‘s hearsay statement and the use made of Peter Dreher‘s distorted hearsay statement as substantive evidence constitute at most harmless error. We disagree. In the last analysis the State‘s case was vitally dependent upon the testimony of Nancy Seifrit, an admitted accomplice who testified against defendant only after receiving a grant of immunity. While the jury was free to accept, as it did, the truth of her testimony, it is necessary to discuss the reasons for our serious concern as to whether her credibility would have been accepted by the jury absent the illegally received evidence.
Implying that it was Seifrit herself, either alone or assisted by an unknown person, who committed the murder, the defense demonstrated through three-and-a-half days of cross-examination,
On cross-examination, Seifrit was forced to admit that she had repeatedly lied in her several appearances before the grand juries that were investigating the murder and that she had lied in parts of her trial testimony. Some of her testimony and mendacious conduct could well be understood as calculated to divert suspicion from herself as the person solely responsible for the homicide. Some examples are appropriate. In her trial testimony she stated that when she arrived at defendant‘s house on the early morning of the crime she pulled into the driveway and parked her car “right by the garage.” However, when she testified before a grand jury she stated that she “pulled into the garage.” The difference is not without significance. The Dreher family owned two cars and the garage was built to accommodate two cars. If Seifrit pulled “into the garage” it would be at least inferable from the fact of a half-empty garage that defendant had already left for work and was not in the house when Seifrit arrived.
At the time of the killing Seifrit weighed 186 pounds, approximately 40 to 50 pounds more than the decedent. During the months following the murder she visited a doctor in New York for assistance in losing weight. Using an incorrect social security number and wearing an Eastern Airlines flight attendant‘s jacket, she falsely stated to the doctor that she was a
In determining whether the errors were harmless it is also relevant to question closely Seifrit‘s account of the morning‘s events in terms of common experience with human behavior. Although Seifrit stated that defendant wanted her to come to his house at 7:30 that morning in order to introduce her to Gail as the “other woman” and to “settle things,” if her entire testimony is to be believed it was his real purpose to have her witness a murder. We find that proposition inherently dubious.
Although Seifrit said she arrived at the house at 7:30, this is the very same time that the Dreher sons, Peter and David, left for school that morning. They testified there had been no arguments or tension between their parents. Yet, according to Seifrit, it must have been within minutes of their departure that defendant flew into a homicidal fury. While the veracity of Seifrit‘s account was for the jury to determine, the probability of such behavior on the part of the defendant and the timing of the events are sufficiently questionable so as to have a place in a harmless error analysis.
Relevant also, is the State‘s reliance upon its contention that defendant drove from his office in Newark to his Chatham home and back between 9:00 a.m. and 10:00 a.m. that morning. Again, while the question was properly left to jury resolution, it was an extremely close one and is also fairly to be considered in determining whether the trial errors were harmless.
Finally, we come to the testimony of defense witness Kenneth Lussier. Lussier testified on behalf of defendant that in July 1987 he and Seifrit were engaged in a business transaction in North Carolina together with Seifrit‘s business partner, David Silverman. During an afternoon of heavy drinking around Lussier‘s swimming pool, Seifrit stated that Silverman deserves to be killed. When Lussier expressed his surprise at
Errors or omissions must be disregarded by an appellate court unless they are “of such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2. The test to be applied is whether the possibility of injustice is “sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336, 273 A.2d 1 (1971). In our view, the proofs in this case were not “overwhelming.” Cf. State v. Tirone, 64 N.J. 222, 227, 314 A.2d 601 (1974); State v. Wade, 116 N.J. Super. 449, 459, 282 A.2d 763 (App.Div. 1971); State v. Boiardo, 111 N.J. Super. 219, 233, 268 A.2d 55 (App.Div.), certif. denied, 57 N.J. 130, 270 A.2d 33 (1970).
After the most careful consideration we have a reasonable doubt as to whether the errors herein contributed to the verdict. We are therefore constrained to reverse the judgment of conviction and remand the matter for a new trial. In doing so, we emphasize that in reviewing the proofs and in resolving this appeal as we have we have no intent to substitute our judgment for that of the jury or to suggest what the proper outcome of a retrial should be. We merely decide that within the setting of all the evidence the errors committed were clearly capable of expunging from the mind of the jury its last remaining reasonable doubt as to the defendant‘s guilt.
Preclusion of Hearsay Testimony on Redirect Examination of Kenneth Lussier
We noted above that defense witness Kenneth Lussier testified to an admission by Seifrit that she alone killed a
Evidence of a statement offered to prove the truth of the matter stated, which is made other than by a witness while testifying at trial, is hearsay and “is inadmissible except as provided in Rules 63(1) through 63(33).” Evid.R. 63. Although defendant claims that the excluded out-of-court statement by Morris should have been allowed in order to rehabilitate Lussier, he does not suggest that the statement would not have been used to prove the truth of the matter stated. Although defendant wanted to rehabilitate the witness, he also wanted a jury to hear that Seifrit confessed to her crime on not one, but on two separate occasions to two different people.
To support his argument that hearsay is permitted to rehabilitate the credibility of a witness, defendant relies on State v. Mulero, 51 N.J. 224, 238 A.2d 682 (1968). That reliance is misplaced. In Mulero, the State was permitted on redirect to have its witness (the mother of the murdered victim) explain that she had never before complained to the police about other
To the extent that defendant contends that he needed this testimony to offset the damage done to his witness on cross-examination, the trial court did allow considerable leeway. The witness was allowed to say that he remained silent when first questioned by defense investigators because he referred them to another person who had more information. Further, Lussier was permitted to offer an even more plausible explanation for his silence. A resident of North Carolina, he was loath to be drawn into this matter, either on behalf of the prosecutor or the defense. His energies at that time were focused on establishing a business and his considerable financial difficulties were keeping him very much preoccupied. We find no error in the court‘s ruling.
Finally, defendant complains of error in the court‘s charge to the jury and in the wording of the indictment. These issues were not properly raised below and are therefore not appropriate for appellate review. Defendant will have an opportunity to raise them upon the remanded proceedings.
In view of our disposition herein it is unnecessary for us to consider defendant‘s claims of jury irregularities.
Reversed and remanded for a new trial.