Guilty finding vacated based on state failure to provide evidence State v. Brown
State v. Brown (A-23/24-17) (079553/079556) Argued October 10, 2018 -- Decided February 4, 2019
SOLOMON, J., writing for the Court.
The Court considers whether the State’s failure to produce nineteen discovery items until one week after the start of the trial of defendants William Brown and Nigil Dawson for the murder of Tracy Crews violated defendants’ due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The Court’s Brady analysis requires review of two evidentiary rulings, made after the withheld evidence was provided to defendants, because those rulings circumscribed the evidence on which the State and defense were able to rely. Also at issue is the appropriate remedy for a Brady violation under the circumstances of this case.
In 2008, Crews was shot in his home. His wife, Sheena Robinson-Crews, asked him, “Who did this to you?” She claimed that her dying husband incriminated defendants. Police arrived, and Robinson-Crews made two phone calls within earshot of Detective Bolognini, who reported what he overheard to Detective Norton. Norton, in turn, swore in an affidavit (the Norton Affidavit) that Bolognini heard Robinson-Crews apparently call “who[m]ever shot the victim” and say, “You got what you came for, you did not need to shoot him,” and then make a second call, in which she said, “Those boys did not have to shoot him. They got what they came for . . . .” Robinson-Crews later called Crews’s mother, Barbara Portis, and told her that Crews said “Paperboy and Youngin” had shot him. Robinson-Crews identified “Youngin” as Dawson and “Paperboy” as Brown. About two months after Crews’s death, Robinson-Crews filed a false police report against Brown saying he pointed a gun at her.
The case went cold for approximately three years, at which time Robinson-Crews admitted in an interview at Muncy State Correctional Institution in Pennsylvania, where she was incarcerated for drug offenses, that her husband “only uttered Paperboy” in his dying declaration and that she “added on Youngin.”
Defendants were charged with Crews’s murder, arrested, and incarcerated. Isaiah Franklin and Terrell Black were in the Mercer County Correctional Center where they met and spoke to Brown and Dawson. According to Franklin and Black, Brown and Dawson made admissions to them regarding Crews’s murder. After notifying prosecutors of defendants’ admissions, Franklin and Black arrived at favorable plea agreements in exchange for their testimony against Brown and Dawson. Almost a year later, a detective received a letter representing that Robinson-Crews admitted to inmates at the Muncy Correctional Institution that she had conspired to kill her husband (the Muncy Report).
Pretrial motions were heard in 2014. The motion judge ruled that Crews’s alleged statement of who shot him was inadmissible because Robinson-Crews was not credible.
One week after the trial started, after counsel made opening statements and examined four State witnesses, the prosecutor turned over eighteen reports that concerned facts discussed in the testimony of the investigating officers who had already testified. The records included the Norton Affidavit. Defense counsel obtained the cell-phone records of defendants, which showed they did not receive phone calls from Robinson-Crews on the night of the murder. The following Monday, the State disclosed discovery item nineteen, the Muncy Report. The trial court conducted an N.J.R.E. 104 hearing and ruled that the defense could challenge the Muncy report by calling a witness and through cross-examination.
At trial, the prosecutor called Robinson-Crews to testify. The State argued that a question asked by defense counsel on cross-examination opened the door to testimony about Crews’s dying declaration. After an N.J.R.E. 104 hearing, the trial judge reversed the motion judge’s holding and allowed Robinson-Crews to testify to the jury about the dying declaration. The judge also ruled that Portis could testify regarding what Robinson-Crews claimed to her Crews said as he was dying -- that Paperboy and Youngin shot Crews. Defense counsel sought to introduce as a past recollection recorded the Norton Affidavit to impeach Robinson-Crews’s credibility. The court ruled it inadmissible, in part because of the “remarkable” inability of Detective Bolognini to recall any of the conversations.
A jury found defendants guilty of murder, robbery, and a weapons offense. The trial judge denied their motions for a judgment of acquittal notwithstanding the verdict or a new trial, and the Appellate Division affirmed their convictions and sentences. The Court granted defendants’ petitions for certification. 231 N.J. 526 (2017); 231 N.J. 533 (2017).
HELD: The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial.
1. Three essential elements must be considered to determine whether a Brady violation has occurred: (1) the evidence at issue must be favorable to the accused, either as exculpatory or impeachment evidence; (2) the State must have suppressed the evidence, either purposely or inadvertently; and (3) the evidence must be material to the defendant’s case. The first Brady element is clearly satisfied here. Withholding the Norton Affidavit and the Muncy Report deprived defense counsel of the opportunity to cite the evidence of third-party guilt in their openings and to cross-examine the four officers who had already testified against defendants about evidence acquired at the crime scene and referred to in the withheld documents. The second Brady element is also satisfied. The State acknowledges that the withheld reports were in a file in the State’s office for a significant time before trial.
2. The third Brady element requires that the suppressed evidence be material to defendants’ case. Evidence is material if there is a reasonable probability that timely production of the withheld evidence would have led to a different result at trial. Here, the State’s case relied, in part, on Robinson-Crews’s testimony, but Robinson-Crews gave inconsistent statements to police, erroneously implicated Dawson in Crews’s dying declaration, and filed a false police report against Brown. The circumstantial evidence upon which the State relied was, likewise, assailable. Because counter-arguments were available to challenge a great deal of the evidence on which the State relied at trial, the materiality inquiry is influenced by the following two evidentiary rulings made after the withheld evidence was provided to defendants: (1) overturning a pretrial determination that excluded Crews’s dying declaration; and (2) excluding the Norton Affidavit as unreliable.
3. Crews’s statement qualifies as a dying declaration under N.J.R.E. 804(b)(2) and it has substantial probative value, see N.J.R.E. 403; the trial judge did not abuse his discretion by overturning a pretrial ruling excluding Crews’s dying declaration. However, the trial court abused its discretion by excluding the Norton Affidavit, which was used in four separate search warrant applications. Surveillance video footage of the crime scene showing Detective Bolognini near Robinson-Crews supports that she was on the phone and that the detective was within earshot of her. The records of defendants’ known cell phones show they did not receive these phone calls, and Detective Norton swore before a judge to the veracity of the information hours after the murder took place. N.J.R.E. 803(c)(5) specifically allows that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence. As to the third Brady element, materiality, the Court stresses that the trial court admitted the dying declaration one week after trial began. Although it was proper to admit the declaration, the timing of its admission was highly prejudicial to the defense. That prejudice was compounded by the trial court’s later exclusion of the Norton Affidavit and was not substantially lessened by allowing defendants to challenge the Muncy Report. Because there is a reasonable likelihood that the State’s Brady violation, in light of the trial court’s evidentiary rulings, affected the judgment of the jury, the third Brady element is satisfied.
4. The remedy of dismissal of an indictment with prejudice is not available here because there is no allegation that the State intentionally withheld Brady information and no evidence of prosecutorial misconduct. However, because the State’s Brady violation, in the circumstance of the trial court’s evidentiary rulings, undermines confidence in the jury’s verdict, a new trial is required. On retrial, Portis’s statement can be offered to rebut a charge of recent fabrication under N.J.R.E. 803(a)(2), but only as to Brown. And the trial court should review, pretrial, offered testimony of jailhouse informants Franklin and Black to resolve any issues under Bruton v. United States, 391 U.S. 123 (1968).
The judgment of the Appellate Division is REVERSED, defendants’ convictions are VACATED, and the matter is REMANDED for a new trial.
