State v. Manning , 82 N.J. 417 ( 1980 )

The opinion of the Court was delivered by

SULLIVAN, J.

Defendant Henry Manning was tried by jury and convicted of breaking and entering, robbery while armed, conspiracy and contributing to the delinquency of a minor. The theory of the State at trial was that defendant, working with a juvenile, waited outside the robbery victims’ home in the getaway car while the juvenile entered the home and carried out the robbery.

The Appellate Division affirmed the convictions. 165 N.J.Super. 19 (1978), 166 N.J.Super. 56 (1979). One judge dissented on the ground that a detective’s testimony on how he elicited an admission from defendant of his involvement with the juvenile contained highly prejudicial inadmissible hearsay and required reversal of the conviction. This appeal as of right followed, R. 2:2-l(a)(2), limited to the issue raised by the dissent.¹

The basic facts are undisputed. The juvenile broke into the home of an elderly couple and robbed them at gunpoint. While the robbery was taking place, the police were notified of a breaking and entering in progress. Police cars responded to a radio call and arrived at the home just as the couple ran out the front door. A search of the house disclosed the juvenile hiding in a closet.²

The first police to arrive at the scene found defendant seated in a parked car a few doors away from the victims’ home. The motor of the car was running but the lights were out. Defendant was slumped down in the driver’s seat. Upon being questioned by an officer defendant said “I ain’t done nothing” and added that he was on his way home and had stopped to rest. The officer noticed that defendant was wearing a hat and that there was another hat on the rear seat of the car. Defendant said the second hat was his but when it was placed on his head it did not fit.

After the juvenile had been apprehended, the two were taken to police headquarters and interrogated separately. Defendant, who was questioned by Detective Dilkes, was advised of his constitutional rights and then told he was being charged with armed robbery and that he had been implicated in the incident by the juvenile. In response, defendant shook his head and said “I should ought to let the kid steal that lady’s pocket.” He then cut himself short and said nothing further.

In fact, the juvenile had implicated defendant in the robbery. However, he later recanted and, in a Williams hearing,³ denied that defendant was involved in any way. For that reason the State did not call the juvenile as a witness at trial. The defense likewise elected not to have the juvenile testify apparently for the reason that his written signed statement implicating defendant could then have been offered in evidence by the State. See Evid.R. 63(l)(a).

At trial, when the State attempted to put defendant’s cryptic remark “I should ought to let the kid steal that lady’s pocket” into evidence, defense counsel objected to any testimony by the officer that he had told defendant that the juvenile had implicated him in the robbery. The court ruled that the reference would be allowed as background for defendant’s response but would be subject to cautionary instructions to the jury.

The trial then proceeded with Detective Dilkes on the stand as a State’s witness:

Q All right. At the time you interviewed him, what if anything did you say to Mr. Manning?

A At the time I advised him that he was being charged with armed robbery at the home of the Braun residence and that he had been implicated in the incident by the King youth.

THE COURT: Members of the Jury, on this point I instruct you as follows: This statement as to the defendant being implicated by the King youth is allowed into evidence for your consideration only for the purpose of giving you the background for the response that — any response the defendant may have made to what Detective Dilkes said to him. You’re not to consider this in any way as proof that somebody else, specifically the juvenile, implicated the defendant in this crime. The juvenile is not in Court and his testimony most likely will not be adduced and you’re not to speculate and you’re not to speculate either way about the reasons for that and as you can appreciate in police work it may very well be that in order to get some response from a suspect, they may represent something to the suspect that is not really true for the purpose of getting some response from him, but you’re not to speculate about that, whether it’s true or not and I’m telling you to and instructing you very specifically disregard this portion of what Detective Dilkes told the defendant as any proof that somebody else was involving this defendant or saying that he was implicated in this incident. Again, it is simply for you to judge what weight if any is to be given to the response, any response the defendant may have made to the statement. You may continue, Mr. Zeltner.

Q Detective Dilkes, did the defendant reply to you when you stated that to him?

A Yes, sir. He did.

Q Would you tell us what he said to you, please?

A I don’t have my report exactly, but he shook his head in a negative way and stated to me that he should have ought to let the kid steal that lady’s pocket and then he cut himself short and that was the end of the interview.

As part of its case, the State produced proof that a fingerprint taken from defendant’s ear matched that of the juvenile. Defendant did not take the stand and, as noted above, was found guilty on all charges.

The State argues that Detective Dilkes’ comment to defendant was necessary to give meaning to defendant’s response. It submits that the comment was not admitted for its truth and that the jury was promptly and emphatically instructed that it was to be used solely as background for defendant’s response and not as proof that the juvenile had in fact implicated defendant in the robbery.

Although the comment was admitted for a limited purpose and that the jury was promptly and emphatically so instructed, we conclude that the potential for prejudice was devastating. The State’s burden was to connect defendant with the juvenile and the robbery. It could not call the juvenile as a witness as he had recanted at a Williams hearing and testified that defendant had nothing to do with the robbery or the juvenile being at the scene. However, through the mechanism of Detective Dilkes’ comment, the State was able to have the jury told that the juvenile had implicated defendant in the robbery. Despite the court’s admonition to the jury as to the limited purpose and effect of the comment, it is difficult to see how the jury would not give such a crucial statement some probative effect. State v. Bankston, 63 N.J. 263 (1973). If the comment had been admitted as substantive proof, it would undoubtedly have been highly prejudicial hearsay, would have denied defendant a right of confrontation and would have constituted reversible error. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Young, 46 N.J. 152 (1965). The State’s attempt to draw a line of demarcation is too tenuous where as here a defendant’s constitutional rights are involved. The comment should have been excluded under Evid. R. 4.

The detective could simply have been asked what defendant’s response was when advised that he was being charged with armed robbery. There was no need to have the jury told that defendant had been implicated in the robbery by the juvenile.

The judgment of the Appellate Division is reversed, the judgment of conviction set aside and the matter remanded for a new trial.

1 Defendant filed a petition for certification as to other issues which was denied. 81 N.J. 358 (1979).

2 The juvenile later was charged as an adult, pleaded guilty to armed robbery and was sentenced to the Youth Correctional Institution Complex.

3 State v. Williams, 59 N.J. 493, 496-497 (1971).