On appeal from the Superior Court, Law Division, Passaic County.
Conford, Pressler and King.
Defendant James Phillips was convicted by a jury of conspiracy to commit robbery and armed robbery. He was sentenced to an aggregate term of 17 to 23 years in State Prison. He predicates this appeal on essentially two claims of error below. He argues first that three items of State's evidence should have been excluded because of the prosecutor's violation of his discovery obligation in respect thereof. He further argues that the judge's charge to the jury was prejudicially erroneous in two respects.
The factual theory of the State's case was that on December 9, 1974 Phillips and his codefendant, wearing ski masks and carrying sawed-off shotguns, held up a bank in Paterson. Several others had allegedly participated in the conspiracy to commit this crime, both in its planning stage and in its execution, one of whom, Betty Jean Davis, was the State's primary witness. Ms. Davis agreed to testify for the State only because of a promise by federal authorities that she and her children would be relocated and given new identities. Her testimony regarding the events leading up to the commission of crime, its carrying-out and the sharing of the proceeds therefrom inculpated defendant as one of key participants. Her testimony was corroborated by her neighbor, a Ms. Bell, who had knowledge of the use of Ms.
Davis' apartment by the conspirators the night before the robbery. Ms. Davis' testimony as to modus operandi was further corroborated by the testimony of two employees of the bank, and testimony by law enforcement officers regarding the investigation of the vehicles used in the hold-up corroborated other details of Ms. Davis' story. Defendant offered no proofs at all on his own behalf. We are satisfied from this record that defendant's guilt of the crime was overwhelmingly established.
The three pieces of evidence of which the defendant complains are (1) the testimony of Ms. Bell, (2) an oral statement made by defendant to the officer who transported him to headquarters following his arrest, and (3) a threatening letter received by Ms. Davis while she was in custody, introduced by the prosecutor during redirect examination and in further corroboration of her motive for testifying. The basis of defendant's objection to the first two of these evidential matters is that the prosecutor, in violation of the discovery orders entered pursuant to R. 3:13-3(a) and (f), improperly withheld from defendant his intention to call Ms. Bell and to introduce proof of defendant's statement. His objection to the threatening letter is that the prosecutor failed to inform him at all of its existence.
We are satisfied that defendant's objections to the admission of Ms. Bell's testimony and defendant's own oral statement are patently without merit. The prosecutor's failure, if any, to comply with his discovery obligations in respect of Ms. Bell were technical rather than substantive. The materials which the prosecutor did in fact furnish to defendant pursuant to the pretrial discovery orders herein entered were adequate to advise defendant both of the substance of Ms. Bell's anticipated testimony and her availability as a State's witness. See R. 3:13-3(a)(7). The prosecutor also furnished to defense counsel a writing containing the substance of defendant's oral statement, the import of which was that he knew nothing about any bank robbery and had never been in Paterson. We do not agree
with defendant's contention that the prosecutor was further obliged to advise defense counsel in advance of trial of his intention to use that statement on the State's case. See R. 13:13-3(a)(2).
While we agree with defendant that he was given no advance notice of the existence of the letter threatening Ms. Davis, we do not agree that the State, as a consequence thereof, was necessarily precluded from using the letter in the manner it did, namely, on redirect examination of Ms. Davis and as further evidence of her motive for testifying. We are aware of the holding of State v. Spano , 69 N.J. 231, 235 (1976), requiring the State to disclose to defendant "information it possesses which is material to the defense, even where it concerns only the credibility of a State's witness." (Emphasis supplied). That holding was, however, based on the prosecutor's duty to disclose exculpatory material -- a duty imposed not by the discovery rules but by the constitutional principles enunciated by the United States Supreme Court in Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We consequently construe the Spano caveat in respect of materiality as excusing the prosecutor's nondisclosure where, as here, the information does not have an inherent capacity to undermine the credibility of a State's witness and is, moreover, introduced on redirect examination only in response to the defendant's effort on cross-examination to impeach credibility. While the prosecutor would have been better advised to have furnished this document to the defense, we are persuaded that since it did not constitute information material and favorable to defendant's cause, his use thereof, in context, did not result in harmful error. See State v. Carter , 69 N.J. 420, 432-433 (1976).
Defendant's first objection to the charge to the jury relates to the manner in which the judge recapitulated the evidence. We find that portion of the charge to have been neither misleading to the jury, nor intrusive of defendant's ...