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December 4, 1981

UNITED STATES ex rel. Warren HERRING, Petitioner,
Peter J. FENTON and Attorney General of New Jersey, Respondents

The opinion of the court was delivered by: BIUNNO


This is a petition by Warren Herring, under 28 U.S.C. § 2254, challenging the judgment of conviction entered against him in Superior Court of New Jersey on the verdict of a jury after trial.

 Union County Indictment No. 399-77 charged Warren Herring and three other persons with various offenses arising out of a robbery at DeGeorge's Jewelry Store, in Union N. J., on November 30, 1977.

 The other three defendants, Donald Shamberger, Gary Richards and Kia Grasty, were the ones who actually entered the store, took jewelry, as well as money from the person of John DeGeorge and Dorothy Wickins, took Jacquelyn Faryna and Lorraine Vitale as hostages (kidnapping) when police arrived after a silent alarm, and were eventually captured when their stolen car crashed following a chase. Guns were used and fired. There was also a substantive conspiracy charge against all four.

 The other three defendants entered guilty pleas, and the trial was of Warren Herring alone, on the theory that he had conceived and planned the crime, was a co-conspirator, aider and abettor, and hence chargeable as a principal despite the fact he was not at the robbery scene.

 Two of the co-defendants, Kia Grasty and Gary Richards were called as State witnesses. Donald Shamberger was called by the defense, as well as a handwriting expert.

 The only federal issue cognizable here arises out of the contention that the State failed to inform the defense about the parole or probationary status of the co-defendant/witness, Kia Grasty, as the result of juvenile offenses in Pennsylvania, at the time she testified.

 This issue arises under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and later cases in the line. The principle of Brady is not confined to the disclosure of direct exculpatory evidence. It also embraces information of potential value to the defense even when it goes only to the credibility of a witness, and particularly one whose reliability is critical to the issue of guilt. See, for example, Giglio v. U. S., 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) and U. S. v. McCrane, 527 F.2d 906 (CA3, 1975). See the fuller discussion of the subject in U. S. v. Five Persons, 472 F. Supp. 64, at pp. 66-67 (D.N.J., 1979).

 It is also established as federal law on this "due process" issue, that the test is one of the materiality of the undisclosed information, judged in light of the whole record, and not by the good faith or bad faith of the prosecutor. See U. S. v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).

 There can be no doubt that Kia Grasty was a crucial witness, and that her credibility was critical to the issue of guilt. No witness who was a victim, a law enforcement officer or other observer purported to identify petitioner as having been present and participating at the scene and during the commission of the crimes, including the frustrated attempt to escape with hostages.

 Kia Grasty testified that petitioner picked her up in his car on November 29th when she arrived from Philadelphia for the purpose of engaging in the planned robbery. She testified that he drove her to the locale and showed her the jewelry store to be robbed the next day, and then took her to an apartment where she later spent the night. She testified that on arrival at the apartment, petitioner arranged chairs to portray the physical layout of the interior of the jewelry store, and described step by step the functions each participant was to carry out during the robbery. She testified that he returned the next morning in the same brown Cadillac he had used the night before, assigned the guns and handcuffs, arranged for the three robbers (all of whom were present) to reassemble with him after the robbery (with the loot), and then led the 3 robbers (in their stolen car) in his brown Cadillac to the locale, left them there and drove away. No more damning or inculpatory testimony can be imagined than this.

 It is true that she was corroborated in part by the testimony of Gary Richards, to the extent that he confirmed petitioner's arrival at the apartment in the morning (but denied he had participated in any of the talk), and to the extent that he said he saw petitioner in his car ahead of him on the road while the robbers were going to the scene (but denied that petitioner "led" them there, and denied petitioner's instruction to reassemble).

 On the record as a whole, however, information withheld, if any, that could have been used to challenge the credibility of Kia Grasty would have been material to create a reasonable doubt of guilt that did not otherwise exist.

 On this federal issue the record shows beyond dispute that there was no evidence withheld that could have been used. The assistant prosecutor who tried the case insisted that all he had of Kia Grasty's record was her arrest on the offense being tried. The defense pointed out during the motion for new trial that another judge had commented that Kia Grasty had a more extensive past record than her co-defendants. This observation was true, as the sealed presentence report (which was made part of the record before the Appellate Division) shows. But that prior record was as a juvenile, and could not itself be used to attack her credibility.

 That evidence of past convictions may be adduced as a basis for challenging the credibility of a witness, including a party witness, is well-known and widely recognized. There has been considerable scholarly debate about the kinds of offenses that may be shown, and about how far back in the past the inquiry should be allowed, but no general bar to this class of evidence has ever been established, either on policy or constitutional grounds.

 A different rule has generally applied in cases where the past offenses occurred when the witness was a juvenile, and the matter was prosecuted as a juvenile offense. The Advisory Committee Notes to the Proposed Federal Evidence Rules proposed in 1972, cited Thomas v. U. S., 74 App. D.C. 167, 121 F.2d 905 (CA DC, 1941), and Cotton v. U. S., 355 F.2d 480 (CA10, 1966), for the statement that: "The prevailing view has been that a juvenile adjudication is not usable for impeachment." See Notes to Proposed Rule 609.

 The rule as first proposed and as finally adopted expresses this prevailing view, Fed.Ev.Rule 609(d), but also permits the court to allow evidence of juvenile convictions if (a) conviction of the offense would be admissible to attack the credibility of an adult, and (b) the court is satisfied that its receipt is necessary for a fair determination of the issue of guilt or innocence. But that exception applies only to non-party witnesses.

 In New Jersey, past convictions may be shown on the issue of credibility under the statute, N.J.S. 2A:81-12, allowed to remain unaltered by the elimination of Draft Rule 21 when the Supreme Court promulgated the N.J. Evidence Rules in 1967. And, in State v. Hawthorne, 49 N.J. 130, 228 A.2d 682 (1967) as well as in State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978) the court declined to set a remoteness limit on past convictions, although in the latter ruling it held prospectively that a trial judge could exclude proof of a past conviction of an accused on trial if it were remote, was not a serious offense, and did not involve lack of veracity, dishonesty or fraud. The exclusion would be under N.J. Ev. Rule 4, the parallel to Fed. Ev. Rule 403.

 Since a juvenile adjudication is not a "conviction of a crime", New Jersey does not allow such adjudications to be shown on the matter of credibility. State v. Laws, 50 N.J. 159, 233 A.2d 633 (1967), mod. on other grounds, 51 N.J. 494, 242 A.2d 333 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384; State v. Wolak, 26 N.J. 464, 140 A.2d 385 (1958), cert. den. 365 U.S. 822, 81 S. Ct. 710, 5 L. Ed. 2d 701.

 But, where a juvenile was charged, not with a juvenile offense but with an adult offense, and was tried as an adult, then the past conviction is allowed to be shown on the issue of credibility, State v. Steffanelli, 133 N.J.Super. 512, 337 A.2d 625 (App.1975).

 The foregoing analysis discloses that evidence law in the federal courts and in New Jersey, while varying in some detail, follows the same general path.

 The record here shows that on April 5, 1978, more than 2 months before petitioner's trial began, Kia Grasty entered a negotiated guilty plea to charges of kidnapping (Count 1), robbery (Count 3) and being armed (Count 6). It also shows that on April 28, 1978 nearly two months before petitioner's trial began, she was sentenced to indeterminate concurrent terms of 30, 10 and 5 years, to be served at the Women's Correctional ...

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