State v. Wilson , 135 N.J. 4 ( 1994 )

CLIFFORD, J.,

dissenting.

This case came to us under false pretenses. We granted defendant’s petition for certification, 134 N.J. 475, 634 A.2d 522 (1993), laboring under the illusion that we would come to grips with the provocative issue of the admissibility, in a capital-murder prosecution, of what the petition referred to as a videotaped reconstruction of the robbery and shooting. Had the tape been available before we considered the petition and had we discovered then, rather than after oral argument, that the tape displays little more than a sequential series of crime-scene photos, we would have denied the petition out of hand. At this point, rather than wrestle with a bunch of non-issues, I would vacate certification as having been improvidently granted.

I mean no disrespect to the State, but its insistence that the videotape was properly authenticated is nonsense. For whatever reason, the prosecutor failed to produce any witness to the occurrence to testify that he or she had viewed the tape and that to the witness’s knowledge and recollection the still-lifes, the crime scene, and the surrounding neighborhood appearing on the tape accurately represented the conditions and the locations of the various participants and witnesses as they had existed at the time of the crime. The proposition is so basic, so well-known, as to render unnecessary any citation of authority.

Nor do I mean any disrespect to the defense, but its insistence that the introduction of the videotape was prejudicially erroneous is likewise nonsense. If the three-minute contents do not put the viewer to sleep, they surely induce no more than mild bewilderment, a curiosity about what possible force anyone could be expected to attach to this innocuous little travelogue. The inculpatory potential is non-existent.

Finally, at the risk of straining the bonds of collegiality, and with assurances of my profound respect for the majority, I view the Court’s insistence on lavishing its collective energy on this now-unmasked appeal as—well, nonsense. Not one new statement of law comes out of this case, not one heretofore unannounced principle, not one little nuance or refinement of long-existing law—nothing not already familiar to every first-year law student. We should simply acknowledge that the issue is not at all what we thought it was and move on.

For affirmance—Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—6.

For vacation of certification—Justice CLIFFORD—1.