For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.
[69 NJ Page 423] In May 1967 defendants Rubin Carter and John Artis were convicted of first degree murder on a three-count indictment and were sentenced to terms of life imprisonment. Their convictions were affirmed by this Court, State v. Carter, 54 N.J. 436 (1969). The United States
Supreme Court denied a petition for a writ of certiorari. Carter v. New Jersey, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).
The present proceedings seeking a new trial were commenced in October 1974. The relief sought was essentially bottomed on three grounds. First, it was claimed that the State's key identification witnesses had recanted their trial testimony insofar as the identification of defendants was concerned. Second, defendants charged that at trial the prosecution knowingly permitted these witnesses to give false testimony that no promises had been made to them except for promises of protection from defendant Carter's friends. Third, it was claimed that the State suppressed and failed to disclose material evidence which would have tended to exculpate defendants. Following hearings in the matter, the trial court denied the several motions submitted by defendants and held that no basis for the grant of a new trial had been shown. State v. Carter, 136 N.J. Super. 271 and 596 (Cty. Ct. 1974).*fn1 We consider each of these contentions in turn, and, for reasons hereinafter set forth, we conclude that defendants are entitled to a new trial.
The factual background of the case, an understanding of which is necessary for consideration of the issues now presented, was summarized in this Court's previous opinion, supra, 54 N.J. at 439-441 as follows:
At about 2:30 A.M. on June 17, 1966 two men entered the Lafayette Bar and Grill in the City of Paterson. One man held a .32-caliber revolver, the other a 12-gauge shotgun. Their motive was obscure, no doubt because events moved so rapidly. We gather from the testimony of the sole surviving victim that the bartender saw the armed men as they entered and threw a bottle at them,
precipitating the shooting before a word was said. The bartender was killed instantly, as was also one of the patrons. Another patron, Mrs. Tanis, who suffered multiple wounds, died four weeks later. The lone survivor, also a patron, was shot in the head. His ability to tell what happened was obviously impaired; he could contribute little more than that the armed men were Negroes. The State failed in its effort to prove a dying declaration by Mrs. Tanis. We know only that she and also the surviving patron were unable to identify either defendant, but the testimony does not suggest that either patron was able to say affirmatively that the defendants were not the offenders.
Mrs. Valentine, who lived above the tavern, was awakened by the shots. She went to the window and saw two men run from the sidewalk in front of the tavern to a white automobile parked across the street, about a car-width from the curb. Mrs. Valentine could not see their faces but observed that they were Negroes, that the license plate had a dark background with gold or yellow lettering, and that the rear lights were triangular in shape tapering toward the center. She hurried to the tavern, where she met one Alfred Bello, who urged her not to enter. She nonetheless did, saw the gory scene, returned to her apartment, and telephoned the police.
Alfred Bello was a key witness for the State. He and Arthur Dexter Bradley were in the area on a criminal mission of their own. Bradley was attempting to break into a building about two blocks away while Bello was at the intervening intersection looking out for the police. Bello ran out of cigarettes and was walking to the tavern to buy some when he heard the shots. As he neared the tavern, two men, Negroes, came toward him, one with a shotgun and the other with a pistol. They were talking loudly and laughing. When Bello realized they were not detectives, he took off and ducked into an alleyway. Presently a white car passed by. Bello recognized it as a 1966 Dodge and noted it had New York license plates. Bello entered the tavern, and seeing the dead and the dying, he went to the cash register to obtain a dime to call the police. The sight of money was too much for Bello who, explaining he was a thief, admitted he scooped some bills from the register. He left the tavern and handed the money to Bradley who, having heard the shots, had started toward the scene. Bello returned to the tavern. He called, or had already called, the police, and when they arrived, he flagged them down.
At 2:34 A.M. patrol cars were alerted for a white car with two Negro occupants. At 2:40 A.M. Sergeant Capter and his colleague stopped a white car with three Negro occupants. Defendant Artis was driving and defendant Carter was in the rear seat. Carter, a professional pugilist, was well known to Sergeant Capter. After checking the registration, the officers permitted the car to proceed. The officers then went to the tavern, and learning that Mrs. Valentine and Bello had given the additional information that the car
had out-of-state plates and that the rear lights looked like "butterflies," they took off to search for the car they had stopped, for that car had New York plates and its rear lights answered the description given by Mrs. Valentine and Bello.
The car was located. Artis and Carter were then the only occupants. They were ordered to drive to the tavern in an escort of police cars. When they arrived, Mrs. Valentine identified the car as the one she had seen. By then a large crowd had gathered. The car was taken by the police to headquarters where it was impounded. At 3:45 A.M. a search of the car yielded a live .32-caliber S. & W. long bullet, found on the floor under the right front seat, and a live 12-gauge shotgun shell, found in the trunk under boxing gear. * * *
Both Carter and Artis were questioned early that morning. Both denied involvement. A detective was permitted to testify to each defendant's account of where he had been that night. * * * Both defendants were released that morning. On June 29, twelve days later, both Artis and Carter ...