On certification to the Superior Court, Appellate Division.
For remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- none.
[85 NJ Page 303] In challenging their murder convictions defendants present numerous claims of error. The one that presently engages the Court's attention focuses on the interpretation and use of a polygraph examination report concerning a prosecution witness. In order that we may have a more complete record presented for our considered deliberation of this issue, we remand the cause to the trial court for further proceedings, to be conducted on an expedited basis. We retain jurisdiction to the end that our final decision may be made upon receipt of the trial court's determination on the questions discussed below.
The protracted history of this case need be recited only briefly. Defendants, Rubin Carter and John Artis, were charged with homicide of three people in the Lafayette Bar and Grill in Paterson on June 17, 1966. They were convicted in May 1967 on three counts of first degree murder and sentenced to life terms. The judgments of conviction were affirmed by this Court, State v. Carter, 54 N.J. 436 (1969), and the United States Supreme Court denied certiorari, Carter v. New Jersey, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1969).
In 1974 defendants sought a new trial based on the recantation of trial testimony by the State's two key identification witnesses, Alfred Bello and Arthur Bradley. In addition defendants argued that the prosecution had withheld evidence of promises of leniency made to Bello. At the hearing on defendant's motion (recantation hearing) both witnesses repudiated their identification testimony given at trial.
The trial court, after conducting an evidentiary hearing, denied both the motion for a new trial, State v. Carter, 136 N.J. Super. 271 (Cty.Ct. 1974), and subsequent motions for reconsideration, State v. Carter, 136 N.J. Super. 596 (Cty.Ct. 1975). After certifying the case directly this Court vacated the judgments of conviction and ordered a new trial. State v. Carter, 69 N.J. 420 (1976). Although we refused to interfere with the trial court's findings that the recantation testimony was "patently untrue" and "unbelievable," id. at 428, we nevertheless concluded that the State had improperly withheld from defendants exculpatory evidence consisting of proof that promises of protection and favorable treatment had been made to both Bello and Bradley in 1966. Id. at 430-33.
Several months before the second trial in November and December 1976, Bello returned to his 1967 trial testimony, in effect recanting his recantation -- of the circumstances surrounding which, particularly the role of polygraphic testing, more below. At the retrial Bello testified consistently with the version
he had given at the first trial and again furnished critical identification evidence. Neither the State nor the defense called Bradley as a witness. The jury again convicted defendants of first degree murder and judgments were entered in February 1977. The court sentenced Carter to two consecutive life sentences and one concurrent life sentence. Artis was sentenced to life, with two concurrent life sentences. The Appellate Division, in an unreported opinion, affirmed the judgments of conviction. We granted certification, 84 N.J. 384 (1980).
In the second trial, as in the first, Bello's identification testimony constituted a prominent part of the State's case. The version he gave in both proceedings came to be known as the "on-the-street" story. According to this account Bello and Bradley were in the vicinity of the Lafayette Bar and Grill, Paterson, at about 2:30 A.M. on June 17, 1966 bent on effecting a breaking and entry at the Ace Sheet Metal Company, located at the other end of the block from the tavern. While Bradley was attempting to gain entrance into the building, Bello maintained a lookout. As related in our earlier opinions in the case,
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.
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 testified voluntarily before the Grand Jury after signing appropriate waivers.
Defendants were not arrested again until October, when Bello [,] * * * involved in other criminal charges, provided evidence directly incriminating the defendants. Bello said it was Carter who carried the shotgun and Artis who held the pistol; that he recognized both at once when he was confronted by them outside the tavern, and that he had withheld this information because of his own ...