Chief Justice Rabner wrote a separate concurring opinion to ask the Committee on Evidence to examine whether N.J.R.E. 803(c)(25) should be amended. Noting that the federal counterpart to Rule 803(c)(25) contains an additional requirement beyond those of the New Jersey rule — to be admissible, a statement against interest must not only be against the declarant’s interest but must also be “supported by corroborating circumstances that clearly indicate its trustworthiness,” Fed. R. Evid. 804(b)(3) — Chief Justice Rabner explains that the requirement serves to assure both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.
Chief Justice Rabner recommends that the Committee on Evidence consider whether a corroboration requirement should be added to N.J.R.E. 803(c)(25) for the same reason. The Chief Justice does not suggest that such a requirement would have had an effect in this case.
Justice Solomon, dissenting, reviews the evidence presented and writes that it undercuts several defense claims, notably that Rosa Flores did not know who “Rabb” was; that Salazar was shot from outside the car; that the Redd Report contained key information otherwise unavailable to the jury; and that the Redd Report and certain excluded testimony was purely exculpatory. In Justice Solomon’s view, defense counsel cannot be considered deficient in failing to use the Redd Report because it implicated defendant in the felony murder, robbery, and weapons charges he faced.
Justice Solomon adds that there is no reasonable probability that the result of the proceeding would have been different had the report been used because the Redd Report contains no evidence that undermines defendant’s felony murder conviction. For the same reason that defendant is unable to show ineffective assistance of counsel here, Justice Solomon writes, he is unable to demonstrate that the rules barring his PCR request must be relaxed to prevent a fundamental injustice. In Justice Solomon’s view, it is unclear why, after more than two decades, defendant’s ineffective assistance of counsel claim premised on counsel’s failure to use the Redd Report was not raised on direct appeal or during defendant’s first or second PCR and was instead raised after Thomas had died. Justice Solomon finds that the State presented overwhelming evidence of defendant’s guilt and that there is no clear reason to disturb the jury’s verdict.
This opinion is indicative of the Justices trends with regard to criminal case before the current New Jersey Supreme Court. Justice Albin, the author of the majority opinion, tends to be the most likely to side with the defense. He is joined by Justice LaVecchia, the second most likely Justice to side with the defense. Justice Pierre-Louis has only been on the Court for a short period of time and has been more of a swing vote with some inclinations towards the defense. Chief Justice Rabner cast a deciding 4-3 vote. He tends to be a swing vote with inclinations towards the prosecution.
Justices Solomon, the former head Camden County Prosecutor, tends to be the most likely to side with the prosecution. His inclinations are followed closely by the other two dissenting Justices: Patterson and Fernandez-Vina.
