(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 22, 1998 -- Decided June 4, 1998
O'HERN, J., writing for a unanimous Court.
In this appeal, the Court addresses the right of a prisoner serving a sentence for murder to offer the
newly discovered , exculpatory, hearsay statement of a deceased witness to the killing as grounds for a new
trial.
This case concerns two related barroom incidents. In the first incident, in February 1982, a patron
of the C&B Tavern in Newark shot and killed one of the tavern's owners, Melvin Mann, and then escaped.
Several people, including the now deceased witness, Jo Ann Brown, witnessed the murder. Brown told police
that she did not know the shooter prior to the night of the killing. Rather, he had approached her on the
street and forced her to accompany him inside the tavern. Despite the police investigation, the shooter was
never apprehended.
A year and a half later, on September 12, 1983, defendant, Jeffrey Bunyan, was in the C&B tavern.
During an argument with Sylvia Mann, Bunyan assaulted her with a razor blade. Police apprehended
Bunyan, and five witnesses identified him both as the man who assaulted Sylvia Mann and as the shooter
who murdered Melvin Mann over eighteen months earlier.
Bunyan was tried for both crimes. Although he was convicted of the assault against Sylvia Mann,
the jury could not reach a unanimous verdict on the murder charge. The court declared a mistrial and the
State retried Bunyan.
During the second murder trial, the State relied on the testimony of several witnesses. Jo Ann
Brown did not testify during either trial as she could not be located. Bunyan called several witnesses to
rebut the testimony of the State's witnesses. The jury convicted Bunyan of the murder of Melvin Mann, and
he was sentenced to a life term with a twenty-five-year period of parole eligibility.
Following an unsuccessful appeal, Bunyan hired a private investigator, Herbert Bell, to find Jo Ann
Brown. Bell finally located Brown in 1990. Although she initially denied that Bunyan was the shooter after
viewing his photographs, she later contacted Bell and informed him that she did not want to get involved and
threatened to implicate Bunyan as the killer should Bell persist in attempting to contact her. Bell's further
efforts to contact Brown were unsuccessful.
More than two years later, Bunyan filed a motion for a new trial based on Bell's affidavit in which
he relayed Brown's exculpatory statement. By this time, Brown had died. The trial court denied Bunyan's
motion because that portion of Bell's affidavit that related Brown's statement did not fall within any
exception to the hearsay rule.
The Appellate Division reversed the trial court's denial of the motion and remanded the matter for
an evidentiary hearing to determine the reliability of Brown's statement contained in Bell's affidavit. The
panel reasoned that a reliable statement might be admissible through an analogy to New Jersey Rule of
Evidence 804(b)(6), which permits civil litigants to introduce statements of a deceased declarant. The
Appellate Division further reasoned that the statement might be admissible under the Sixth Amendment of
the U.S. Constitution, which guarantees a criminal defendant the right to present evidence of innocence.
The Supreme Court granted the State's petition for certification.
HELD: The exclusion of Brown's exculpatory statement has not so prevented a fair trial as to be
unconstitutional and the trial court correctly denied Bunyan's motion for a new trial.
1. Although rules of evidence were traditionally the sole province of state law, constitutional protections
have been held in some circumstances to override the literal application of state hearsay rules. (pp. 5-6)
2. Under the federal “residual hearsay exceptions,” not adopted by New Jersey, when considering the
admissibility of a hearsay statement that does not fall within one of the recognized hearsay exceptions, the
statement must, as a threshold consideration, be supported by a showing of particularized guarantees of
trustworthiness. ((pp. 7-9)
3. The circumstances of this case do not require exercise of an exception to the hearsay rule. (pp. 9-10)
4. Taken as a whole, Brown's statement does not rise to a level of trustworthiness that would justify an
exception to the hearsay rule. (pp.11-14)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
81 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JEFFREY BUNYAN,
Defendant-Respondent.
Argued January 22, 1998 -- Decided June 4, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
299 N.J. Super. 467 (1997).
Barbara A. Rosenkrans, Assistant Prosecutor,
argued the cause for appellant (Clifford J.
Minor, Essex County Prosecutor, attorney;
Ms. Rosenkrans and Raymond W. Hoffman, of
counsel and on the briefs).
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney;
Mr. Smith and Kevin B. Dowling, Designated
Counsel, on the briefs).
Robert E. Bonpietro, Deputy Attorney General,
argued the cause of amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This appeal concerns the right of a prisoner serving a sentence for murder to offer the newly discovered, exculpatory,
hearsay statement of a deceased witness to the killing as grounds
for a new trial. Because the witness had threatened to recant
her statement before her death and because her statement is
cumulative of other evidence of innocence, we find that the trial
court correctly denied defendant's motion for a new trial.
I
This case concerns two related barroom incidents. On
February 7, 1982, a patron of the C&B Tavern in Newark shot and
killed one of the tavern's owners, Melvin Mann, and then escaped.
Several people, including the victim's brother, two customers,
and two employees of the tavern, witnessed the murder. During
the police investigation, witnesses viewed photo arrays, a line-up, and three witnesses contributed to the preparation of a
composite sketch. Despite these efforts, the police were not
able to apprehend the shooter.
Jo Ann Brown had accompanied the shooter into the C&B Tavern
on the night of the killing. Police interviewed Brown two days
after the murder. Brown said that she had not known the shooter
prior to Mann's murder. Brown stated that the shooter, whose
name she thought was Michael, approached her on the street just
minutes before the murder. According to Brown's statement, the
shooter forced her to accompany him inside the tavern. Brown
said the shooter looked "like he was about seven feet tall."
Defendant is approximately six feet tall.
A year and a half later, on September 12, 1983, defendant
Jeffrey Bunyan, was in the C&B Tavern. During an argument with
Sylvia Mann, defendant assaulted her with a razor blade. Police
apprehended defendant, and five witnesses identified him both as
the man who assaulted Sylvia Mann in September 1983 and as the
shooter who murdered Melvin Mann over eighteen months earlier.
Defendant was tried for both crimes. In January 1984, a
jury convicted him of possession of a weapon for an unlawful
purpose and aggravated assault in connection with the 1983 attack
on Sylvia Mann. The jury was unable to reach a unanimous verdict
on the 1982 murder charge, and the court declared a mistrial.
The State retried defendant.
During the second murder trial, the State relied on the
testimony of the victim's brother, three customers, and two
tavern employees who witnessed the murder. The testimony of
these witnesses was different in several respects from the
testimony the same witnesses gave in the first trial. Their
descriptions of the shooter were more elaborate and their
identifications of defendant more confident. Conflicting
descriptions given in the first trial were not repeated. Neither
the State nor the defense called Jo Ann Brown during either trial
because she could not be located.
Defendant did call three witnesses to challenge aspects of
the testimony of the State's identification witnesses. All of
the defense testimony rebutted specific facts testified to by the
State's witnesses in an effort to show that defendant was not the
individual who killed Melvin Mann. Defendant testified that he
was not in the C&B Tavern on the night of the murder.
The jury convicted defendant of the murder of Melvin Mann.
The court sentenced him to a life term with a twenty-five-year
period of parole ineligibility.
Following an unsuccessful appeal, defendant hired a private
investigator, Herbert Bell, to find Jo Ann Brown. Bell located
Brown in January 1990. After verifying Brown's identity, Bell
showed Brown a photograph of defendant that had been taken in
March 1984. According to Bell, Brown could not identify the man
in the photograph and stated that the man in the photograph was
not the individual who committed the 1982 murder. Brown also
said that she did not know anyone named Jeffrey Bunyan. Bell was
unsuccessful in persuading Jo Ann Brown to give him a written
statement memorializing what she had disclosed to him. According
to Bell, Brown contacted him on the evening following their
meeting. Brown informed Bell that she did not want to get
involved and threatened to implicate defendant as the killer,
despite her statement to the contrary, should Bell persist in
attempting to contact her. Bell's further efforts to contact
Brown were unsuccessful.
Bunyan waited more than two years before filing a motion for
a new trial based on Bell's affidavit. By this time, Brown had
died. The trial court denied Bunyan's motion, in December 1993,
because the portion of Bell's affidavit relating to Brown's
statement did not fall within any exception to the hearsay rule.
The Appellate Division reversed the trial court's denial of
defendant's motion and remanded the matter for an evidentiary
hearing to determine the reliability of Brown's statement
contained in Bell's affidavit. The Appellate Division reasoned
that a reliable statement might be admissible through an analogy
to N.J.R.E. 804(b)(6), which permits civil litigants to introduce
statements of a deceased declarant. State v. Bunyan,
299 N.J.
Super. 467, 475 (1997). In addition, the Appellate Division
reasoned that the statement might be admissible under the Sixth
Amendment of the United States Constitution, which guarantees a
criminal defendant the right to present evidence of innocence.
Id. at 475-76 (citing Chambers v. Mississippi,
410 U.S. 284, 302,
93 S. Ct. 1038, 1049,
35 L. Ed.2d 297, 312-13 (1973)). The
panel concluded that, in this case, principles of fairness
required that the statement be admitted if found reliable.
We are . . . persuaded that under the
extraordinary circumstances before us, the
vindication of defendant's right to a fair
trial and the interests of justice require
that [defendant] be afforded an opportunity
to demonstrate the reliability of the
evidence on which he now relies and to adduce
it at a new trial if it is found reliable.
We granted the State's petition for certification. 151 N.J. 74 (1997).
II
A.
This case represents a manifestation of what has been described as the "constitutionalization" of the law of evidence.
E.g., Edward J. Imwinkelried, The Constitutionalization of
Hearsay: The Extent to Which the Fifth and Sixth Amendments
Permit or Require the Liberalization of the Hearsay Rules,
76
Minn. L. Rev. 521 (1992). Traditionally, rules of evidence were
the sole province of state law. That viewpoint was recently
affirmed by the United States Supreme Court in Montana v.
Egelhoff,
518 U.S. 37, 43,
116 S. Ct. 2013, 2017,
135 L. Ed.2d 361, 368 (1996).
In some instances, however, rules of evidence may not
conform with constitutional requirements. Constitutional
protections have been held in some circumstances to override the
literal application of state hearsay rules. The Confrontation
Clause in particular has protected criminal defendants against
the admission of inculpatory hearsay statements that would
otherwise have been admissible under exceptions to state hearsay
rules. E.g., Idaho v. Wright,
497 U.S. 805, 814,
110 S. Ct. 3139, 3146,
111 L. Ed.2d 638, 651 (1990); Bruton v. United
States,
391 U.S. 123, 125,
88 S. Ct. 1620, 1622,
20 L. Ed.2d 476, 479 (1968); Barber v. Page,
390 U.S. 719, 724-25,
88 S. Ct. 1318, 1322,
20 L. Ed.2d 255, 260 (1968); Pointer v. Texas,
380 U.S. 400, 407,
85 S. Ct. 1065, 1070,
13 L. Ed.2d 923, 928
(1965). Other constitutional provisions, such as the Compulsory
Process Clause of the Sixth Amendment, may require admission of
evidence even though the evidence would be inadmissible according
to state rules of evidence. See Chambers, supra, 410 U.S. at
302, 93 S. Ct. at 1049, 35 L. Ed.
2d at 312-13.
B.
States have an interest "in ensuring that reliable evidence
is presented to the trier of fact in a criminal trial." United
States v. Scheffer, ___ U.S. __, ___,
118 S. Ct. 1261, 1265, ___
L. Ed.2d ___, ___ (1998). State hearsay rules exclude out-of-court statements because the opposing party will not be able to
test the reliability of those statements at trial. 2 McCormick
on Evidence § 245 (Strong ed., 4th ed. 1992). In order to
prevent the exclusion of hearsay evidence bearing "strong indicia
of reliability," a number of exceptions to the general rule of
exclusion have developed. State v. Phelps,
96 N.J. 500, 508
(1984).
Not all efforts to introduce the out-of-court statements of
witnesses will fit neatly within one hearsay exception or
another. The drafters of the Federal Rules of Evidence proposed
that "equivalent circumstantial guarantees of trustworthiness"
should justify the admission of otherwise inadmissible hearsay
evidence under what are known as "residual hearsay exceptions."
See Fed. R. Evid. 803(24) (in instances when declarant is
available to testify at trial), and 804(b)(5) (in instances when
declarant is unavailable to testify at trial). The most recent
version of the Federal Rules of Evidence consolidated the
residual hearsay exceptions of Rules 803(24) and 804(b)(5) in
Rule 807. The Senate Judiciary Committee stated that "[i]t is
intended that the residual hearsay exceptions will be used very
rarely, and only in exceptional circumstances" and that the
"committee does not intend to establish a broad license for trial
judges to admit hearsay statements that do not fall within one of
the other exceptions contained in rules 803 and 804(b)."
Committee on the Judiciary, S. Rep. No. 93-1277, Note to
Paragraph (24), Fed. Rules Evid. Rule 803(24), 28 U.S.C.A.
(1984).
Courts do not assume the reliability of a statement when
employing one of the residual hearsay exceptions. When
considering the admissibility of a hearsay statement that does
not fall within one of the recognized hearsay exceptions, the
statement must, as a threshold consideration, be supported by "`a
showing of particularized guarantees of trustworthiness.'"
Wright, supra, 497 U.S. at 816, 110 S. Ct. at 3147, 111 L. Ed.
2d
at 653 (quoting Ohio v. Roberts,
448 U.S. 56, 66,
100 S. Ct. 2531, 2539,
65 L. Ed.2d 597, 608 (1980)); see Fed. R. Evid. 807.
Once that showing is made, the new federal residual hearsay rule
requires that the court determine
that (A) the statement is offered as a
material fact; (B) the statement is more
probative on the point for which it is
offered than any other evidence which the
proponent can procure through reasonable
efforts; and (C) the general purpose of these
rules and the interests of justice will be
best served by admission of the statement
into evidence.
New Jersey has declined to adopt a residual hearsay exception. The latest report of this Court's Committee on the
Rules of Evidence again rejects the adoption of a residual
hearsay exception. Supreme Court Committee Report on the Rules
of Evidence, January 15, 1998,
151 N.J.L.J. 729, 731 (Feb. 16,
1998). In its 1991 Report, the Committee had described the
residual hearsay exception as a "radical departure from New
Jersey practice." Biunno, Current N.J. Rules of Evidence, 1991
Supreme Court Committee Comment on N.J.R.E. 803(c)(24) [not
adopted] (1997-98).
III
The Appellate Division held that Brown's statement should be subject to a hearing under N.J.R.E. 104, to determine its reliability, as a predicate to determining its admissibility. Bunyan, supra, 299 N.J. Super. at 477; see N.J.R.E. 104(a) ("When . . . the admissibility of evidence . . . is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge. . . . The judge may hear and determine such matters out of the . . . presence of the jury."). The Appellate Division contemplated that the trial court would make a determination of admissibility based on the following reliability criteria contained in N.J.R.E. 804(b)(6): the statement was made in good faith, on personal knowledge, and in circumstances indicating reliability. The panel recognized that N.J.R.E. 804(b)(6) was designed for use in the civil context, not criminal. Because the trial court's decision
affected defendant's constitutional right to present exculpatory
evidence, however , the Appellate Division reasoned that the
Chambers rationale supported the use of N.J.R.E. 804(b)(6) in a
criminal context when addressing defendant's request to introduce
exculpatory evidence. Bunyan, supra, 299 N.J. Super. at 476-77.
Because the language of 804(b)(6) limits its applicability
to civil proceedings, the State argues that the Appellate
Division created a new rule of evidence without proper
consideration of the procedures established by the 1960 Evidence
Act. The State argues that although some "judicial modification"
of the evidence rules is permissible, Jacober by Jacober v. St.
Peter's Med. Ctr.,
128 N.J. 475, 493-94 (1992), the
"modification" required in this instance would amount to the
creation of a new hearsay exception.
We disagree that the Appellate Division has created a new
rule of evidence. The panel was instead reacting to the
fundamental lack of fairness that occurs when an accused is
deprived of the opportunity of having a court consider whether
the witness' statement was reliable. The Appellate Division's
central concern was with the due-process interests of the
defendant as set forth in Chambers. We disagree, however, with
the panel's conclusion that the "extraordinary circumstances" of
this case require exercise of an exception to the hearsay rule.
Defendant asserts that a criminal defendant's right, under the Sixth Amendment, to present evidence in his defense must sometimes trump the "mechanistic application of a state's hearsay rules." Bunyan, supra, 299 N.J. Super. at 475 (citing Chambers, supra, 410 U.S. at 302, 93 S. Ct. at 1049, 35 L. Ed. 2d at 312-13). However, the scope of Chambers is not unlimited. The Chambers Court declared:
In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.
[Chambers, supra, 410 U.S. at 302-03, S. Ct.
at 1049, 35 L. Ed.
2d at 313.]
Because the holding of Chambers is so intimately related to
the "facts and circumstances" of that case, Scheffer, supra, __
U.S. at __, 118 S. Ct. at 1268, __ L. Ed.2d at __, we must
consider the facts of Chambers and compare them to the facts of
this case. Leon Chambers called a witness, Gable McDonald, who
had previously confessed to the murder with which Chambers was
charged. During cross-examination, the State elicited testimony
indicating that McDonald had repudiated his confession. Chambers
sought to impeach McDonald on redirect or, in the alternative,
offer three witnesses who would testify that McDonald had
admitted the killing to them. Because of Mississippi's "voucher
rule," Chambers was not permitted to impeach the witness whom he
had called. Nor was he permitted to call the three witnesses to
impeach McDonald's testimony due to Mississippi's hearsay rule.
The Supreme Court found that the combination of the two
Mississippi rules that prevented the defendant from introducing
exculpatory evidence denied Chambers a fair trial. The Court
held that it was a denial of due process to exclude hearsay
statements that "bore persuasive assurances of trustworthiness"
and were "critical to Chambers' defense." Chambers, supra, 410
U.S. at 302, 93 S. Ct. at 1049, 35 L. Ed.
2d at 313. Each
statement "was made spontaneously to a close acquaintance shortly
after the murder had occurred," "was corroborated by some other
evidence in the case," and "was in a very real sense self-incriminatory and unquestionably against interest." Id. at 299-302,
93 S. Ct. 1048-49, 35 L. Ed.
2d at 311-13.
Given the changing stories of the witnesses, we agree with
the Appellate Division that a court must be concerned that a
possibly innocent man is serving a life sentence for murder.
Were there stronger circumstances of reliability surrounding
Brown's out-of-court statement, we might well agree with the
Appellate Division that strict application of the hearsay
doctrine would not be warranted. Chambers stated that "[f]ew
rights are more fundamental than that of an accused to present
witnesses in his own defense . . . [and] where constitutional
rights directly affecting the ascertainment of guilt are
implicated, the hearsay rule may not be applied mechanistically
to defeat the ends of justice." Id. at 302, 93 S. Ct. at 1049,
35 L. Ed.
2d at 312-13.
In contrast with the statements in Chambers, Jo Ann Brown's
statement does not have the same measure of reliability. There
is no "particularized guarantee[] of [its] trustworthiness."
Wright, supra, 497 U.S. at 816, 110 S. Ct. at 3147, 111 L. Ed. at
653. Her statement was not against her interests. She made it
years after the crime occurred. After making her statement to a
private investigator, Brown immediately threatened to disavow it.
Additionally, unlike the declarant in Chambers, who was available
for trial, there will be no opportunity to cross-examine Brown,
who is now deceased. And Brown's statement, unlike the
admissions of Gable McDonald, was not spontaneous. On the
contrary, she gave it in response to questions posed by a private
investigator defendant hired. (Concededly, that investigator has
been candid to disclose the unfavorable aspects of the statement
as well as the exculpatory.) Still, other circumstances of
reliability might better have supported defendant's position.
If, for example, her statement had been given to the
investigating police prior to trial and Brown had herself died
prior to trial, the argument in favor of admissibility would be
much more compelling. Taken as a whole, however, Brown's
statement does not share the same level of trustworthiness as
McDonald's declarations against interest in Chambers.
The touchstone of the Chambers analysis is fundamental
fairness. Lipinski v. New York,
557 F.2d 289, 292 (2d Cir.
1977), cert. denied,
434 U.S. 1074,
98 S. Ct. 1262,
55 L. Ed.2d 779 (1978). Defendant does not have an unlimited right to
present relevant evidence. That right is subject to
restrictions. See Chambers, supra, 410 U.S. at 295, 93 S. Ct. at
1045-46, 35 L. Ed.
2d at 308-09. Defendant cannot argue that he
did not receive a fundamentally fair trial. In a broader sense,
that is all Chambers requires.
In sum, the clear "indicia of reliability" envisioned by
Chambers to support a constitutionally required hearsay exception
are not found in the circumstances from which Jo Ann Brown's
statement emerged. The exclusion of Brown's statement has not
"so prevented a fair trial as to be unconstitutional." State v.
Cavallo,
88 N.J. 508, 526 (1982).
Accordingly, we reverse the judgment of the Appellate
Division and reinstate the judgment of the trial court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN, and COLEMAN join in JUSTICE O'HERN's opinion.
NO. A-81 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JEFFREY BUNYAN,
Defendant-Respondent.
DECIDED June 4, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY