STATE OF NEW JERSEY v. ALLATEEF LIVINGSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2189-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLATEEF LIVINGSTON a/k/a

FUQUAN DAILY,

Defendant-Appellant.

______________________________________

January 17, 2014

 

Argued October 29, 2013 Decided

 

Before Judges Sabatino, Hayden, and Rothstadt.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-3192.

 

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).

 

Debra G. Simms, Special Deputy Attorney General/Executive Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Simms, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury convicted defendant Allateef "Lateef" Livingston of aggravated manslaughter among other crimes after finding that on December 9, 2007, he killed Klalife Logan by repeatedly shooting him with an automatic assault rifle. The killing was the alleged result of a dispute over illegal drug transactions. In this appeal, defendant raises several issues, including claims that the trial court (a) failed to properly address an issue relating to juror misconduct and (b) improperly admitted into evidence a State's witness's prior inconsistent statement that included defendant's alleged confession.

After carefully considering the record and the parties' arguments, we agree with his argument regarding the issue of juror misconduct and, therefore, despite other substantial evidence of defendant's guilt, we reverse defendant's conviction and remand for a new trial. With respect to the admission into evidence of the witness's prior inconsistent statement, we defer to the trial court to conduct a fuller exploration of the pertinent factors relating to the statement's admission, if necessary at the new trial.

I.

On October 31, 2008, a grand jury returned an indictment charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b);1 second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a); fourth- degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j); and third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f). After a ten-day trial and two days of deliberations, the jury acquitted defendant on count one (murder), but convicted him of the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and all the remaining charges.2

The trial court sentenced defendant on May 27, 2010 to a forty-five year extended term, as a persistent offender, with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree aggravated manslaughter conviction (the lesser-included of murder, count one); a concurrent seven-year term on count three (possession of a weapon for an unlawful purpose); a concurrent eighteen-month term on count four (unlawful possession of a large capacity ammunition magazine); and a concurrent four-year term on count five (unlawful possession). Although the trial court did not state on the record whether defendant's sentence was concurrent with or consecutive to any sentence he was then serving, the judgment of conviction stated that the sentence was "consecutive to any sentence defendant is currently serving." The court credited defendant with 29 days of jail credit, and 626 days of gap credit.

On appeal, defendant, through counsel, raises the following issues3:

POINT I

 

THE COURT ERRED IN ADMITTING STATE'S WITNESS ACQUIL HORNE'S STATEMENT UNDER N.J.R.E. 803(a)(1) BECAUSE IT WAS UNRELIABLE, SELF-SERVING, AND CONTRADICTED BY THE OTHER EVIDENCE IN THE CASE, AND THE PROSECUTOR COMMITTED MISCONDUCT BY KNOWINGLY ADMITTING THAT FALSE EVIDENCE AT TRIAL.

 

POINT II

 

DEFENDANT'S RIGHT TO TRIAL BY JURY WAS VIOLATED WHEN THE FOREPERSON WITHHELD PREJUDICIAL INFORMATION DURING SELECTION, WHEN THE JUDGE APPLIED THE WRONG STANDARD IN THE POST VERDICT MOTION FOR A MISTRIAL, AND WHEN THE JUDGE FAILED TO INTERVIEW THE OTHER JURORS.

 

POINT III

 

THE COURT ERRED IN FAILING TO PROVIDE THE TAILORED INSTRUCTION REGARDING OTHER CRIMES EVIDENCE THAT IS REQUIRED BY STATE v. COFIELD (Not raised below).

 

POINT IV

 

BECAUSE THE COURT'S IDENTIFICATION CHARGE MISSTATED CRITICAL FACTS, LIVINGSTON IS ENTITLED TO A NEW TRIAL (Not Raised below).

 

POINT V

 

BECAUSE THE JUDGE WAS UNAWARE OF THE CORRECT SENTENCING RANGE FOR AN EXTENDED TERM SENTENCE, THE MATTER MUST BE REMANDED FOR CORRECT SENTENCING. A REMAND IS ALSO APPROPRIATE BECAUSE THE SENTENCE WAS EXCESSIVE; THE JUDGE NEVER STATED IN OPEN COURT WHETHER THE SENTENCE WAS CONCURRENT OR CONSECUTIVE TO THE SENTENCE LIVINGSTON WAS ALREADY SERVING; AND THE JUDGE FAILED TO AWARD PROPER JAIL CREDIT

 

In addition, the defendant himself filed a supplemental brief raising the following issue:

POINT ONE: THE TRIAL COURT ERRED BY FAILING TO GIVE A HAMPTON CHARGE, THUS CREATING REVERSIBLE ERROR.

 

II.

For the reasons we now discuss, we are compelled to order a new trial because of the unusual incident of juror misconduct that the trial court failed to adequately investigate and remedy. That critical error tainted the integrity of the jury's verdict, and deprived defendant of his ability to exercise preemptory challenges based on truthful information that potential jurors are obligated to provide during the jury selection process.

The specific misconduct occurred on October 20, 2009. During voir dire, the court inquired of all juror candidates, "have you or any family member or close friend ever been accused of committing an offense other than a minor motor vehicle offense[?]" The subject juror responded, "No." She was then seated on the jury panel and ultimately served as juror number one and the jury's foreperson.

After the jury reached its verdict, but before sentencing, defendant's mother sent the court a letter dated January 6, 2010, stating that on numerous occasions subsequent to the verdict, while visiting defendant at the Essex County Jail, she had seen juror number one exiting the visiting area. Upon learning of these visits, defense counsel subpoenaed the jail's visitation records, and confirmed that juror number one had visited an inmate who was the father of her child (the "Inmate") nine times in September 2009, nine times in October 2009, and nine times in November 2009. The Inmate was incarcerated while waiting for a trial before defendant's trial judge. As it turned out, on three separate occasions, the Inmate and defendant actually shared the court's holding cell while attending court sessions.

On March 19, 2010, defendant filed a motion, pursuant to Rule 1:16-1, asking that the court interview all of the deliberating jurors. Initial attempts to locate juror number one were unsuccessful and, eventually, the court ordered the Sheriff's Department to find her. The Sheriff's Department discovered that she had open bench warrants for non-indictable offenses. She had been charged with a disorderly persons theft and obstruction at a correctional facility.

On May 17, 2010, the court interviewed juror number one. When asked why she had answered "no" to the specific voir dire question, she responded, "I honestly was thinking like you [were] looking for like a sister or brother or my mother or somebody. I wasn't taking it into consideration that it was talking about my son's father." The court then clarified that the question asked about "not only family members but close friends," and asked her "do you have in fact a close friend that was accused of a crime?" She responded, "My son's father, yes." She also told the court that she did not know the charges that were brought against the Inmate. Because juror number one was the first juror selected, the court reminded her that she had sat through approximately two days of the court questioning other potential jurors, and asked, "It never came to mind about telling me about [the Inmate]?" Juror number one responded, "I didn't think to tell you about him to tell you the truth. He was already in jail. I didn't even think about to say anything about him so to be honest about that I didn't think to say anything about it." The following colloquy ensued between the court and juror number one:

THE COURT: Again the fact that [the Inmate] who seems to be more than a close friend, he's the father of your child, but that never came to mind about revealing that to me?

 

[JUROR NUMBER ONE]: At the time when he was on trial or going to trial before he was incarcerated we were not speaking so that could have been why it didn't come into play. I was just not thinking about him at that point, at that present time when the question was asked so that's my only reasoning for that.

 

THE COURT: Were all your communication with [the Inmate] in person or did you talk to him on the phone as well?

 

[JUROR NUMBER ONE]: I talked to him on the phone sometimes.

 

THE COURT: Was that during the course of the trial, if you recall?

 

[JUROR NUMBER ONE]: It might have been off and on 'cause a lot of time he was locked in. I can't be particular about all the times I spoke to him.

 

Notwithstanding juror number one's response, the jail's visitation records revealed that she had visited the Inmate on seventeen occasions in September and October prior to the juror voir dire on October 20, 2009; her last visit was just six days prior, on October 14.

She told the court that she did not discuss her service on the jury with the Inmate until after the trial, and that she never told the other members of the jury that her son's father was incarcerated. While she was aware that the Inmate faced criminal charges, she was not aware of the specific charges against him, although she did know that the charges were serious and that he faced between thirty and thirty-five years in prison. She also claimed that she did not know that the Inmate was in the court's holding cell during defendant's trial.

When the court questioned juror number one about the theft and obstruction charges against her, she claimed that she was unaware of them at the time of the juror voir dire. She only became aware of them because a prospective employer informed her about them after a job interview.

Significantly, the court never asked juror number one whether her relationship with the Inmate or the fact that she had criminal charges pending against her had affected her ability to be fair and impartial. In addition, the court declined to question any of the other jurors.

On May 20, 2010, the judge denied defendant's motion for a mistrial4 because "[juror number one] was unequivocal that she never discussed [the Inmate] with her fellow jurors and again her impartiality was not affected by [her] association [with the Inmate]." He then explained that "assuming" juror number one had responded "yes" to having a relationship with someone against whom charges had been made, he would have asked some follow-up questions, and he "would have certainly asked whether or not given the fact that she knew someone connected or involved with the criminal justice system, whether or not that would have an impact upon her ability to be fair and impartial in the case of Mr. Livingston." If she answered "no," "[he] would have taken that at face value and have seated her." The judge explained: "Clearly if she answered that as to whether or not it would have an impact upon her impartiality, if she answered 'yes,' it would then clearly that would be an issue that the State would raise, not necessarily the defense."

Although the judge found that juror number one's demeanor and character were "somewhat juvenile," he thought she was telling the truth when she said she did not think that question applied to her. Even though she and the Inmate had a child together, "it didn't seem from her testimony that they were real close, . . . it didn't seem this was a really a real close relationship." As a result, "what happened here in this case....did not impact negatively upon [defendant]'s Sixth Amendment Rights . . . with respect to a fair trial."

Despite the judge's conclusion, there is nothing in the record to support his statement. Trial courts have traditionally been accorded deference "in exercising control over matters pertaining to the jury." State v. R.D., 169 N.J. 551, 559-60 (2001); see also State v. Simon, 161 N.J. 416, 466 (1999) (holding court has discretion over whether to exclude juror from jury pool based on responses to questions on voir dire). However, a trial court must ensure that every criminal defendant is fairly tried by an impartial jury in accordance with the constitutional rights afforded by both the Sixth Amendment of the United States Constitution and article I, paragraph 10, of the New Jersey Constitution. State v. Williams, 93 N.J. 39, 60-61 (1983) ("The securing and preservation of an impartial jury goes to the very essence of a fair trial."); see also Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961); State v. Feaster, 156 N.J. 1, 50 (1998).

Therefore, any juror misconduct that "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge" is grounds for a new trial. Panko v. Flintkote Co., 7 N.J. 55, 61 (1951). For example, a juror's failure to disclose during voir dire the fact that he knows a defendant "is presumed . . . prejudicial if it ha[s] the potential to be prejudicial." State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000).

To root out any potential prejudice, the court "must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality." State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997). The key determinant is not whether the juror misconduct has actually influenced the result, but whether it had the capacity to do so. Cooper, supra, 151 N.J. at 349. In order to make this determination, the court at times must question each juror individually, "to determine . . . whether the juror is capable of deciding the case impartially, based solely on the evidence presented at trial." Scherzer, supra, 301 N.J. Super. at 487-88 (citing State v. Bey, 112 N.J. 45, 87 (1988)).

Given the unusual situation that arose here, the trial court only partially performed its function by speaking to juror number one and not to the other jurors. Without interviewing any of the other jurors, the trial court was deprived of a sufficient record in this case to fully ascertain any potential for prejudice not only based on juror number one s own impartiality, but also based on whether any other juror could have been influenced by anything juror number one said or did as a result of her relationship with the Inmate or her own pending criminal charges. Without that information, the trial court was not in the best position to determine whether the jury was truly impartial.5 See Williams, supra, 93 N.J. at 60-62; Scherzer, supra, 301 N.J. Super. at 487.

That the trial court believed the State was more likely than defendant to challenge juror number one does not alter the result of its failure to fully investigate juror number one's impact on her fellow jurors, or justify depriving defendant of the opportunity to challenge her. "[P]eremptory challenges are not constitutionally mandated," but are nonetheless significant, State v. Scher, 278 N.J. Super. 249, 262 (App. Div. 1994) (citing N.J.S.A. 2A:78 7(c); R. 1:8 3(d)), certif. denied, 140 N.J. 276 (1995), as they serve the court s goal of maintaining an impartial jury. State v. Singletary, 80 N.J. 55, 80 (1979) (Handler, J., dissenting).

Thus, while "[r]esponses to questions on voir dire that indicate bias may result in a juror being excused for cause[, h]ints of bias short of that required for a challenge for cause may be combatted by exercise of a peremptory challenge." Scher, supra, 278 N.J. Super. at 263. Accordingly,

[w]here a juror on voir dire fails to disclose potentially prejudicial material, such as that involved in this case, a party may be regarded as having been denied fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury.

 

[In re Kozlov, 79 N.J.232, 239 (1979).]

Also, it is irrelevant whether "the juror's failure to respond to the voir dire inquiry was deliberate or that the juror was in fact prejudiced or that his background tainted his verdict or that of his fellow jurors." State v. Thompson, 142 N.J. Super. 274, 280 (App. Div. 1976).

Still, even with the presumption of prejudice, a defendant must show that the voir dire omission was not harmless. The defendant must "demonstrate that, had he or she known of the omitted information, he or she would have exercised a peremptory challenge to exclude the juror." Cooper, supra, 151 N.J. at 349-50. This is so because

[o]nce the jury is sworn, . . . the law presumes that every juror in a case is indifferent and above legal exception, or otherwise he would have been challenged for cause. This presumption puts a duty on a party to show that they were or would have been dissatisfied with the jury as finally impaneled, and that they would have exercised the right of additional peremptory challenges given them by statute if they were aware of the true situation.

 

[Ibid. (quoting Wright v. Bernstein, 23 N.J. 284, 295 (1957)).]

 

The information that juror number one failed to disclose during voir dire was potentially prejudicial: her son's father was in the same jail as defendant, shared a holding cell with defendant, and stood to be tried before the same judge. He was clearly in a position to discuss with juror number one defendant and his case, and she could have shared that information with other jurors. At a minimum, there was a significant potential for mischief that manifestly could have played a role in defendant's conviction.

Under the circumstances of this case, defendant made the necessary affirmative showing that he would have exercised a peremptory challenge to exclude juror number one.Immediately upon learning the undisclosed information, defense counsel subpoenaed the relevant visitation records and moved to voir dire the jurors. His actions, after learning about juror number one's failure to disclose her relationship with the Inmate, indicate that he would have used a peremptory challenge to exclude her from the jury. See Cooper, supra, 151 N.J. at 349. Defendant was improperly deprived of his right to that peremptory challenge. For these many reasons, defendant is entitled to a new trial. See Kozlov, supra, 79 N.J. at 239; Wright, supra, 23 N.J. at 295; Thompson, supra, 142 N.J. Super. at 280.

III.

A.

We now turn to the admissibility of the State's witness's out of court statement to the police. According to police, the witness, Acquil Horne told them that defendant admitted to shooting Logan. Other than the shooter's identity, the facts surrounding Logan's death were largely uncontroverted at trial. Specifically, it was uncontroverted that on December 9, 2007, Logan was shot eleven times with an assault rifle; and that the weapon was ultimately recovered in a residence during an unrelated police investigation.6 At approximately 1:20 a.m. on that day, the Newark police received a call about a shooting near 7th Avenue and North 13th Street. The department dispatched Officer Ricardo Velez and his partner Officer Jason Ortiz to the scene, which Velez described as a high-crime area.

Velez and Ortiz arrived within a couple of minutes of receiving the call. Upon their arrival, Velez found Logan lying on the sidewalk, severely injured and bleeding heavily. He could not communicate with Logan because Logan was in so much pain. Logan was taken to the hospital, where he eventually died. Thereafter, the department assigned the investigation to homicide squad detective Richard Warren.

Late in the evening of December 9, Warren went to the Logan family's home and spoke to his mother. She suggested to Warren that he talk to Logan's girlfriend, who had been with Logan prior to and at the time of the shooting. Warren spoke to the girlfriend who ultimately confirmed that she was with Logan during the shooting, and she identified defendant as the shooter.

In addition to the girlfriend's identification, another witness, Horne, identified defendant as the shooter in a statement the State contends he gave to the police during their investigation. The police obtained Horne's statement following a police investigation unrelated to Logan's killing. That unrelated investigation began the day after the shooting when Newark Police Officer Carmelo Perez and his partner Anthony Bagano were dispatched to a three-family residence on Littleton Avenue, on the report of a possible home invasion.7 Perez and Bagano entered the premises and, as they approached the second-floor landing, Perez observed an assault rifle next to a white bag, which contained several more weapons and ammunition. According to Perez, the assault rifle was just in the hallway, "laid against a little door frame." The officers seized the weapons and ammunition and secured them in the trunk of their police cruiser.

Upon reentering the residence, they proceeded to the third-floor apartment where they found Horne and another individual. Perez also found a high capacity magazine for the assault rifle on top of the refrigerator in the kitchen. Horne and the other individual were taken into custody on unrelated outstanding warrants; neither was charged with home invasion, possession of the firearms recovered in the hallway, or possession of the high-capacity magazine found in the apartment.

Later, a lieutenant from the robbery/homicide squad contacted Warren, informing him that the weapon used in Logan's shooting8 may have been recovered on Littleton Avenue, and that Horne might have some knowledge about the homicide. As a result, Warren interviewed Horne.

According to Warren, while in police custody, Horne told Warren that he had information about the homicide, and he agreed to give Warren a formal statement about Logan's death. Horne was not reluctant to give a statement. However, according to Warren, it was "paramount" to Horne that it "not be[] known to anyone that he's talking to the police or cooperating with the police." He was specifically concerned about his own safety and the safety of his family. As a result, he did not want to be tape recorded because he did not want anybody to be able to recognize his voice.

Warren assured Horne that the statement would be confidential "to the best of [his] ability." He told Horne that he would request a protective order and that Horne could provide a statement as a "John Doe." Just prior to taking Horne's statement on December 11, 2007, Warren read Horne his Miranda9 rights. Horne also signed a Miranda waiver form by initialing "J.D." for John Doe; and also signed it as "John Doe" even though he did place his actual initials ("A.H.") in parentheses on the form. The statement was entitled, "Voluntary statement of John Doe (A.H.)," and was marked "confidential."

The interview with Horne began at 4:57 a.m. in the presence of Lieutenant William Brady. During the interview, Warren sat opposite Horne, so that they were face to-face. He asked Horne questions and typed out the questions and Horne's response on a laptop computer. Warren observed that Horne was alert throughout, aware of the questioning and very responsive. He did not appear to be under the influence of drugs or alcohol.

To make Horne feel comfortable and to ensure that he was acting voluntarily, Warren had Horne refer to himself in the third-person and required Horne to identify a picture of himself. He also allowed Horne to take bathroom breaks during the interview, and provided refreshments. In the written statement, Horne acknowledged that no "promises, threats or pressure of any kind" were made in order to get him to answer the questions asked, and he swore or affirmed that the statement given was "the whole truth and nothing but the truth."

The interview ended at 7:35 a.m. According to Warren, Horne reviewed the statement afterward and signed it "John Doe," adding the initials "A.H." in parentheses. Brady also signed and dated the statement as a witness.

In his "John Doe" statement, Horne10 provided that he and defendant are cousins, had known defendant "[a]ll [his] life," and had known Logan "[e]ver since [he] was young." As to the December 9 events, Horne said that earlier that day, words were exchanged between Logan's brother and defendant about selling marijuana in the same vicinity. A fight then broke out on the corner of 6th Avenue and 12th Street between members of the Logan family, Horneand defendant. Then a couple of hours after the fight, Logan "got killed by Lateef."

Horne never told the police that he was present at the crime scene, or that he had any firsthand knowledge of Logan's death. Rather, Horne stated that he knew defendant was the shooter because defendant allegedly confessed to him: "[defendant] said he shot him and empt[ied] out a clip on him."11 However, at least one witness to Logan's shooting who had known Horne since he "was a baby" identified Horne as also being present during the shooting.

According to Warren, based on the information gathered before the interview, Horne had not been a target of the investigation into Logan's death. Also, after giving the statement, the police never charged Horne with any crimes related to Logan's shooting, though Horne remained in custody on an unrelated warrant.12

The State later called Horne to testify at trial, where he initially refused to answer any questions, invoking his Fifth Amendment privilege. The judge determined that Horne was "stonewalling" and directed Horne to respond. Horne then admitted that he knew and was related to defendant, and identified defendant in court. He also admitted having "pending" criminal charges against him.13 However, he did not recall speaking with Warren or making the statement, and denied ever using "John Doe" in a statement he allegedly gave to the police. He denied using a different name because he was fearful of having his name revealed.

Before permitting the State to introduce Horne's written statement, the court conducted a hearing outside the jury's presence pursuant to Rule 104, to determine if Horne's pre-trial statement could be admitted into evidence as substantive proof of defendant's guilt. Warren was the only witness to give testimony at the hearing. At its conclusion, the court made the following findings:

THE COURT: It's clear to me from the testimony of Detective Richard Warren that the statement by Mr. Horne . . . has been proven by the State by a preponderance of the evidence to be reliable for the following reasons:

 

. . . .

 

. . . [Horne] had been escorted unrestrained, by that I mean uncuffed, unshackled, to the homicide office where a statement was taken. This occurred [at] approximately 4:45 a.m. Detective Warren indicated under oath that Acquil Horne was alert. He was not injured. He did not appear to be under the influence of any drugs or alcohol that would affect his judgment. He understood and read the English language.

 

It was explained by the detective that Mr. Horne was in fear of his safety. Reading the statement, it's my understanding that Mr. Horne is a cousin of Mr. Livingston, the defendant here. So he wished to use the moniker, John Doe. He initialed each question and the waiver contained in the Miranda warning, he signed or printed John Doe and he put in parenthesess A H; the initials of his name.

 

Detective [Warren] testified at length and in detail how the statement was taken and given. It was a Q and A format, as the detective read or stated the question to Mr. Horne, he typed it into his computer and as Mr. Horne answered, the detective typed the answer. He also allowed Mr. Horne to review the statement after it was completed. Mr. Horne was afforded a recess. He was allowed to go to the bathroom. The detective provided him soda and chips and did not -- Mr. Horne, according to the detective, did not hesitate in giving his statement and he wasn't induced or provoked.

 

Clearly, the issue of reliability is of importance here. Under the circumstances established by the State, the Court finds it to be sufficiently reliable so that the jury may consider it as substantive evidence. In particular, . . . certain of the fifteen criteria . . . have been established by the State. The presence or absence of any expressed or implicit pressures, inducements or coercion in making the statement, again there were none. Mr. Horne was alert, not under the influence of any alcohol or drugs, was not pressured or coerced, according to the testimony.

 

. . . .

 

. . . So, clearly, [the anticipated use of the statement] was made known to the declarant, the purposes of the statement.

 

The inherent believability or lack of believability of the statement? Court finds it to be sufficiently reliable; as far as believability and credibility, that will be left to the jury. The presence or absence of corroborating evidence, they knew that Mr. Logan was murdered with a high capacity or an assault weapon, high capacity-type of weapon, high capacity magazine type of weapon, and that was one that was recovered during the incident involving Mr. Horne.

 

The declarant was in custody, but he was not a target of this investigation and although he was in custody, he wasn't shackled or deprived any of the . . . human comforts that . . . one would be afforded -- food, drink, go to the bathroom. Physical and mental condition of the declarant; again alert, responsive, place and occasion for giving the statement [] [at the] Robbery/Homicide Squad. I don't find anything coercive about that.

 

So for those reasons, the Court will allow the statement as substantive evidence.

 

During Horne's later testimony before the jury, the court permitted Warren to read Horne's statement to the jurors and admitted the written statement into evidence.

B.

In our review of whether a trial court properly admitted into evidence a witness's prior, out of court statement, we generally accord substantial deference to the trial court's evidentiary ruling, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and overturn only where there has been "an abuse of discretion." State v. Burns, 192 N.J. 312, 332 (2007). Thus, a trial court's determinations must be upheld "unless . . . its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). That standard applies, therefore, to a trial court's determination of whether a witness's prior inconsistent statement should be admissible under N.J.R.E. 803(a)(1) when being offered by the party calling the witness. Burns, supra, 192 N.J. at 340.

When Horne refused to respond to questions and testified that he did not remember making the statements to the police, the trial court correctly determined that Horne's prior inconsistent statement might be admissible. State v. Soto, 340 N.J. Super. 47, 66 (App. Div.), certif. denied, 170 N.J. 209 (2001). However, before admitting that statement into evidence, the trial court had to first determine if the statement would have been admissible had the witness testified to it at trial; if it was recorded, or written and signed by the witness; and if it was made under "circumstances establishing its reliability." N.J.R.E. 803(a)(1). The importance of this requirement for "[s]uch antecedent reliability poses heightened concerns . . . [when] the prior inconsistent statement was made by a witness who was in police custody and was himself a suspect in the crimes for which defendant was charged." State v. Gross, 121 N.J. 1, 10 (1990). The evidence rule imposing this requirement serves "to limit substantive admissibility of prior inconsistent statements [of the proponent's witness] to those statements given in a form and under circumstances importing special reliability." Id. at 9 (quoting State v. Gross, 216 N.J. Super. 98, 107 (App. Div. 1987)).

The proponent of a statement under N.J.R.E. 803(a)(1) has the burden of proving the statement's reliability by a preponderance of the evidence. Gross, supra, 121 N.J. at 15. If these conditions are met, the statement may be considered "as proof of the truth of the matter stated, not simply as affecting the credibility of the witness." State v. Pasha, 280 N.J. Super. 265, 270 (App. Div.), certif. denied, 142 N.J. 453 (1995).

In determining reliability, the court should look to factors which "certainly . . . include such considerations" as:

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducements or coercion for the making of the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement and (15) the presence or absence of corroborating evidence.

 

[Gross,supra, 216 N.J. Super. at 109-10]

 

We conclude that the trial court erred by only considering the Gross factors relating to the voluntariness of Horne's prior statement without also considering those relating to its reliability under the circumstances of Horne's status as a possible participant in the crime for which the defendant was being tried. See ibid. While we recognize that not all fifteen factors apply in every case, "[t]he determination of the reliability of pretrial statements must take into account all relevant circumstances." State v. Michaels, 136 N.J. 299, 317 (1994). In this case, those circumstances had to include the factors relating to any "inducement" of Horne to fabricate and "the inherent believability of the statement." Ibid.

Although the trial judge enumerated the Gross factors, his actual analysis focused on whether Horne was properly advised of his Miranda rights prior to any police interrogation, and whether Horne's waiver of his Miranda rights was "knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000).14 Specifically, the judge found that Horne's statement was reliable because Horne was "unrestrained," "not injured," "did not appear to be under the influence of any drugs or alcohol that would affect his judgment," "understood and read the English language," "afforded a recess," "allowed to go to the bathroom," and provided "soda and chips." He focused on "[t]he presence or absence of any expressed or implicit pressures, inducement or coercion," that Horne was "alert, not under the influence of any alcohol or drugs, was not pressured or coerced," and that as a result of the Miranda warnings given, Horne know the purpose of the statement.

While those identified considerations mirror some of the Gross factors, a fair determination of reliability required the court to take into account all relevant factors. Michaels, supra, 136 N.J. at 317. But the court did not discuss the Gross factors pertaining to Horne's motive, if any, for fabricating his statement under the circumstances. Ibid. In this case, those circumstances required that the factors relating to any "inducement" to fabricate and "the inherent believability of the statement" be fully and explicitly considered. Ibid.

For example, the court did not discuss the fact that there was substantial evidence to support a finding that Horne was with defendant when he shot the victim (thereby undermining Horne's statement to the police that he had learned about the shooting only through defendant's admission to him); Horne was in actual or constructive possession of the murder weapon; and, therefore, Horne had good reasons to lie and implicate someone other than himself in Logan's shooting. Moreover, the State was aware of these facts, but never prosecuted Horne for any involvement in the shooting, or for any offense that brought the police to him in the first place. This means that, at a minimum, in determining the reliability of Horne's statement to Warren, the trial court should have discussed the possibility that the State had offered Horne some type of agreement or leniency in exchange for his statement.

A witness's strong motive to lie goes to the heart of a court's consideration of the Gross factors. See Gross, supra, 121 N.J. at 16-17 ("[T]he status of a witness as an accomplice or codefendant invites special consideration."). However, the trial court's limited consideration of the Gross factors here did not satisfy its obligation to determine the reliability of a prior inconsistent statement being offered as substantive proof of a defendant's guilt at a trial, especially where the statement includes an alleged confession by the defendant. N.J.R.E. 803(a)(1); Gross, supra, 216 N.J. Super. at 109-10. Therefore, the trial court mistakenly exercised its discretion, as the admission of Horne's statement was clearly capable of producing an unjust result.

In light of the fact that we are remanding this matter for a new trial, we offer no opinion as to whether Horne's statement should be admissible. We trust, however, that if this issue is raised again, the trial court will undertake a more in depth discussion of the Gross factors as a full and proper Gross analysis might have required the exclusion of Horne's hearsay statement, a statement that was capable of having a significant impact upon the jury.

Reversed and remanded.

 

 

1 Prior to trial, the State dismissed count two of the indictment.

 

2 Upon the State's motion, the court dismissed a charge of possession of a weapon by a convicted felon, which was contained in a separate indictment.

 

3 Because we are reversing defendant's conviction and ordering a new trial, we decline to address the balance of defendant's other arguments which relate primarily to alleged errors in the trial court's jury charges for other crime evidence, witness identification evidence, and evidence regarding defendant's alleged confession discussed in this opinion. For the same reason, we do not address defendant's arguments regarding his sentence. We trust that the trial court will make new rulings on each of these issues when they are raised during the new trial.

4 Although defendant argued that the juror problem required a mistrial, he formally advanced that argument within a "motion to interview jurors subsequent to trial," pursuant to Rule 1:16-1. That "rule recognizes that there may be extraordinary circumstances in which jury misconduct or the introduction of extraneous factors into the jury's consideration is likely to have brought about an unjust result" requiring a new trial. Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 1:16-1 (2014). See also State v. LaFera, 42 N.J. 97, 107-08 (1964).

5 We are not suggesting that courts must interview all of the jurors in every case of alleged juror misconduct. Here however, the misconduct was so severe and its potential for taint so heightened that such interviews were required.

6 We derive these facts from the trial record, mindful that the proofs may not be identical at the second trial that we are ordering.

7 Neither officer apparently participated in the Logan homicide investigation.

 

8 Ultimately, before trial, ballistics experts positively identified the seized assault rifle as the one used to shoot Logan.

 

9 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

10 As explained hereinafter, at trial, Horne denied making the "John Doe" statement.

 

11 Horne also identified two brothers as being with defendant when he shot Logan.

 

12 Later, during his cross examination before the jury, when asked why Horne was not charged for the shooting, Warren responded, "that would be something [that] would have to be decided through the Prosecutor's Office."

 

13 At the Rule 104 hearing, Horne admitted that he had been "convicted of various offenses in Essex County," and that there were a number of cases to which he had entered a guilty plea, which resulted in him being sentenced to state prison.

14 In Presha, supra, 163 N.J. at 313, the Court explained:

 

At the root of the inquiry is whether a suspect's will has been overborne by police conduct. In determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation, including such factors as "the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." State v. Miller, 76 N.J. 392, 402 (1978).