STATE OF NEW JERSEY VS. RYAN RINKER
A-1238-14T3
Defendant was tried for the theft and possession of his father's revolver. The State contended that defendant sold the gun to his co-defendant, who was tried separately and convicted at an earlier trial. Defendant's father reluctantly appeared and testified at the co-defendant's trial, indicating to representatives of the prosecutor's office at the time: "I know I have to come in, but I will not trial prep, and I will not bury my son. I will come in and testify but I will not bury my son."
When the father refused to appear at his son's trial held several months later, the State sought to introduce his testimony at the co-defendant's trial pursuant to the forfeiture-by-wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9). After conducting a hearing pursuant to N.J.R.E. 104(a), the trial judge concluded that defendant had "indirectly engaged in wrongdoing . . . that was intended to procure the unavailability of his father as a witness in this case." The State then played a recording of defendant's father's testimony at the co-defendant's trial.
We reversed. We examined the factual predicates necessary for admission of hearsay pursuant to N.J.R.E. 804(b)(9) and its federal counterpart and concluded the State failed to meet its burden of proof for admission. We also concluded that the error was not harmless.
