For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Murder indictments were returned against George Taylor, Richard Garner, Gerue Sullivan and Joseph Aiken charging them with the fatal shooting of Lester Drew on February 21, 1962 during an attempted robbery. Sullivan and Aiken pleaded non vult, and testified for the State against Taylor and Garner, who went to trial. The jury returned a verdict of murder in the first degree with a recommendation of life imprisonment against Taylor and Garner, and that sentence was imposed. Sullivan and Aiken were the active participants in the attempted hold-up, Sullivan doing the shooting. On their non vult pleas they too were given life imprisonment.
Shortly thereafter, Sullivan and Aiken, obviously disappointed with their sentences, recanted their confessions and their trial testimony, saying there had been no attempted robbery of Drew. Their new version of the killing was that they had visited Drew to collect a debt owed by him, and that a shooting fracas had been precipitated by him in the course of his refusal to pay the debt. They maintained also that Taylor and Garner had no part at all in the affair, that they had lied about the robbery and about the participation of
Taylor and Garner in it. The latter two defendants thereupon moved for a new trial. The motion was denied after a full hearing, the trial court holding that the attempted recantation was "a post-conviction fabrication, not worthy of any credibility."
Taylor and Garner appealed to this Court from their convictions and from the order denying a new trial. We affirmed the judgments. State v. Sullivan, 43 N.J. 209 (1964), certiorari denied 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2 d 477 (1966).
Some time later Taylor instituted this post-conviction proceeding under R.R. 3:10A, seeking vacation of the judgment of conviction on the ground that he had been denied a fair trial. Numerous grounds were urged in support of the application. We find merit in only one of them, and conclude that the error is sufficiently egregious to require a new trial as to Taylor.
Taylor claims he was denied a fair trial because, prior to the trial, the assistant prosecutor who handled the prosecution promised Sullivan that he would recommend leniency to the court in the matter of his sentence if Sullivan would appear for the State and stand by and testify in accordance with his confession, which clearly implicated Taylor. (Sullivan's confession did not charge any guilty knowledge of or participation in the attempted robbery by Garner.) And Taylor contends that under circumstances appearing at the trial the assistant prosecutor was under a duty to reveal the promise so it could be considered by the jury in evaluating Sullivan's credibility. The point was hinted at on the original motion for a new trial and on the appeal. It was not developed in full measure at the new trial hearing, however, because of a situation over which this defendant had no control. The assistant prosecutor was not available as a witness in that proceeding; he had suffered a rather serious illness and either he could not appear or, at least, it seems to have been agreed
that existing health considerations made it unwise to call him. His health had been restored by the time this post-conviction proceeding was brought, and his testimony, which we consider crucial, was taken and became part of the record.
At the hearing on the motion for a new trial, and again in this proceeding, Sullivan said that he testified against Taylor and Garner because the assistant prosecutor had promised a light sentence -- less than 15 years. The trial court obviously disbelieved that any such specific promise was made. See, State v. Sullivan, supra, 43 N.J., at pp. 230-232. We agree that it is unlikely that a promise of a less-than-15 year sentence was made. We agree also that the proof adduced does not support the claim of such an agreement. But the issue does not turn on the need for a finding that Sullivan truthfully stated the exact nature of the sentence compact he made with the representative of the State. In our judgment the focal and decisive testimony came from the assistant prosecutor, and we base our determination on the arrangement he made with Sullivan on the matter of sentence, the substance of which follows.
There is evidence in the record that, for a considerable time prior to the date fixed for the trial of the four defendants, Sullivan and Aiken were interested in pleading non vult. It seems plain that for tactical reasons the State preferred to wait until the trial date was close at hand. We do not regard that course as objectionable in murder cases of this type, where frequently the State finds itself dependent in large measure upon the testimony of accomplices. Be that as it may, the record shows that, shortly before the trial date, Sullivan's attorney communicated with the assistant prosecutor and offered the non vult plea. The assistant prosecutor responded by asking if Sullivan would testify in accordance with the statement he gave to the police. Upon receiving an affirmative answer, he said he would arrange a conference on the matter. This was done. Two conferences followed and there is no doubt that at least one of them was held shortly before the trial began. Sullivan's attorney attended both conferences.
The discussion covered a number of aspects of the case, the plea and the possible sentence. Mention was made of the fact that the charge against Sullivan was first degree murder, and that if the jury found him guilty and did not recommend life imprisonment the penalty would be death. Sullivan was told that if the prosecutor agreed to recommend to the court acceptance of a plea of non vult, which recommendation would probably result in its acceptance, the death penalty would be out of the case; the maximum sentence then possible would be life imprisonment. The assistant prosecutor made clear that such a recommendation depended upon whether he would testify for the State against Taylor in accordance with his statement to the police, which he had said was the truth. The statement was discussed with Sullivan and he agreed to so testify. The assistant prosecutor then said:
"I told Mr. Sullivan that for his cooperation I would ask the court for consideration at the time of sentencing, calling to the Court's attention the fact that he had turned a State's witness and cooperated with the prosecutor's office and also saved the State the expense of a trial as far as Gerue Sullivan, that's what I told him."
He said also that he would recommend "leniency" to the court, and although he asserted there was no specific discussion about a sentence "lower than life imprisonment" he testified that in his opinion, if the court accepted his recommendation, "leniency" would mean a term of years; i.e., less than life imprisonment. A fair reading of the testimony leads irresistibly to the conclusion that the assistant prosecutor intended to convey and did convey the impression to Sullivan that, if he kept his word and testified favorably for the State, the prosecutor would recommend a sentence of less than life imprisonment.
The assistant prosecutor's promise to or agreement with Sullivan with respect to his sentence brings us back to the original trial, and the State's duty to disclose the facts or to permit them to be disclosed to the jury. This Court has declared it to be proper for a defendant on trial to inquire on
cross-examination of an accomplice who is testifying for the State against him, as to whether he is doing so to curry favor in the matter of his own prosecution, or because of a promise or expectation of a lenient sentence for himself. Such matters go to the witness' interest in helping the State to achieve a conviction of the defendant on trial, and obviously are material to an evaluation of his credibility. State v. Curcio, 23 N.J. 521, 525-527 (1957); State v. Spruill, 16 N.J. 73, 78-81 (1954). Thus the State is under a duty when the matter is raised at trial not to conceal the existence of a promise of or agreement to recommend a specific sentence or leniency for an accomplice who is testifying for the State. Or, put affirmatively, it has the duty to disclose the arrangement when proper inquiry raises the question. See, Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2 d 215 (1963).
When Sullivan was on the witness stand at the original trial testifying for the State, the assistant prosecutor on direct examination established that he had entered a plea of non vult to the indictment against him. On cross-examination by Taylor's attorney, the following took place:
"Q. When did you plead non vult to the indictment for this murder?
Q. Was that the first day of this trial?
Q. Have you been sentenced yet?
Q. Do you have any idea what sentence you ...