On remand from the Superior Court, Law Division.
For affirmance -- Justice Pashman, Schreiber, Handler and Pollock. For reversal -- Chief Justice Wilentz and Justices Sullivan and Clifford. The opinion of the Court was delivered by Schreiber, J. Clifford, J., dissenting. Chief Justice Wilentz and Justice Sullivan authorize me to record their concurrence in this opinion.
[91 NJ Page 94] This is another episode arising out of the murder convictions of Rubin Carter and John Artis. The matter first came before us in 1969 following their convictions for the murders of a bartender and two patrons in the Lafayette Bar and Grill in the City of Paterson. Three life sentences were imposed on each defendant. Two consecutive life sentences were imposed upon Carter, with the third to be concurrent with the second life term. As to Artis, the three life terms were concurrent. We affirmed the convictions. 54 N.J. 436 (1969). The United States Supreme Court denied their petitions for certiorari. 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).
The defendants sought a new trial, asserting that the State's key identification witnesses had recanted their trial testimony, that the prosecutors had knowingly permitted these witnesses to testify falsely, and that the State had failed to disclose material evidence that would have tended to exculpate the defendants. Two separate motions for a new trial were denied by the trial court, State v. Carter, 136 N.J. Super. 271 (Cty.Ct.1974), and State v. Carter, 136 N.J. Super. 596 (Cty.Ct.1975). Defendants appealed and we certified the matter on our own motion. We vacated the judgment because the State had not disclosed to the defendants a tape recording of an interview of an eyewitness, Alfred Bello, containing information material and favorable to the defendants' cause that "clearly possessed the capacity to have affected the jury's evaluation of the credibility of Bello's . . . identification testimony." 69 N.J. 420, 434 (1976).
The retrial commenced on October 12, 1976 and concluded on December 21, 1976 when the jury again returned verdicts of guilty of murder in the first degree. The Appellate Division affirmed in an extensive unreported opinion. We granted the defendants' petitions for certification, 84 N.J. 384 (1980). After oral argument, we remanded the cause to the trial court to hold hearings and make factual findings to determine whether the rule in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), had been violated and whether the violation warranted vacation of the judgments of conviction. Further, if the trial court found no Brady violation, it was to determine whether a new trial should be granted based on newly discovered evidence. State v. Carter, 85 N.J. 300 (1981). We retained jurisdiction. We intimated no view on the ultimate merits of these issues or of defendants' numerous other claims of error.
The trial court held extensive hearings and submitted detailed findings. It found that there was no Brady violation, and that a new trial was not warranted on the basis of newly discovered evidence. We held further oral argument and now affirm.
Both defendants argue that the jury verdicts were contrary to the weight of the evidence and that the trial court erred in not granting their motions for a new trial. Our obligation in this respect is to determine whether "it clearly and convincingly appears that there was a manifest denial of justice under the law." See State v. Sims, 65 N.J. 359, 373-74 (1974); R. 2:10-1. Indeed, in reviewing a trial court's action on a motion for a new trial following a jury verdict, the appellate court must weigh heavily the trial court's "views of credibility of witnesses, their demeanor, and [its] general 'feel of the case.'" Id. at 373. The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present. See Jackson v. Concord Co., 54 N.J. 113 (1969). Tested by these standards, the verdict is sustainable.
A brief summary of the evidence introduced in the second trial is in order. The tragedy occurred at the Lafayette Bar and Grill on June 17, 1966. William Marins was seated at the bar with his friend, Fred Nauyaks. Hazel Tanis was also there and the bartender, James Oliver, was behind the bar. At about 2:30 a.m., two armed black men entered and began shooting. Oliver and Nauyaks were killed immediately. Tanis suffered multiple gunshot wounds and died four weeks later. Marins was shot in the temple.
Patricia Valentine lived above the tavern. Awakened by gunshots at about 2:30 a.m., she ran to the window and saw two black men run to an automobile and drive away. The car was white and had taillights shaped like triangles, wider at the outside and tapering toward the center. The rear lights did not extend across the whole back of the car. It had out-of-state license plates with yellow or gold numbers on a dark blue background. Mrs. Valentine saw the car leave the corner of Lafayette and East 18th Streets, where the tavern was located,
and head west on Lafayette Street toward East 16th Street. She threw a raincoat over her pajamas and ran downstairs to the bar where she met Bello at the front door. He cautioned her not to go inside, but she did. She observed the scene and returned to her apartment and called the police. Mrs. Valentine dressed and went back downstairs. She gave Police Officer Alexander Greenough a description of the car. Shortly before 3:00 a.m., two police cars escorted a white car to the Lafayette Bar and Grill. Carter and Artis were in that car. It was a new white 1966 Dodge Polara with New York State license plates having yellow numbers on a dark blue background. Carter, who had leased the car, had not loaned it to anyone else that night. Mrs. Valentine identified this vehicle as the same one she had seen twenty minutes earlier.
Bello testified that Arthur Bradley and he were in the process of breaking into the Ace Metal Company offices located near the Lafayette Bar and Grill. Bello, who was acting as a lookout, walked down Lafayette Street toward the tavern to purchase some cigarettes. He testified at the trial that he heard some shots and saw two black males come around the corner, one carrying a shotgun and the other a pistol. Bello ran into a nearby alleyway. When he heard the screeching of a car, he came out and saw a white vehicle drive away. He noticed that the rear lights were triangular in shape and that the car had New York or Pennsylvania license plates. Bello went into the bar, took some money from the cash register and telephoned the police.
Bello told Officer Greenough of the white car with the blue and yellow license plates and the two black males. When Carter and Artis were brought to the bar in the 1966 Dodge automobile, Bello identified it as the same vehicle he had previously seen. Bello did not tell the police that Carter and Artis were the same individuals he had previously seen with the weapons. A month later, Bello met Paterson Police Officer Donald LaConte and explained why Bradley and he had been in the vicinity. In October, Bello told LaConte that Carter and Artis were the two
armed men at the scene. He identified them to the police in an interview on October 11 and in a formal statement signed on October 14, 1966. He testified to the same effect in the 1967 trial.
Subsequently, while in jail in 1974, Bello signed a statement at the behest of Fred Hogan of the Monmouth County Public Defender's Office in which he recanted his 1967 trial testimony. In that statement he said that he could not positively identify Carter and Artis. On October 30, 1975, Bello met with Assemblyman Eldridge Hawkins who, at Governor Byrne's request, was investigating the case. His affidavit obtained by Hawkins stated he was in the bar when the shooting occurred. He did not recall seeing Carter and Artis in the bar, but did remember seeing them when he ran outside the bar. Bello also gave a second affidavit to Hawkins in which he related that two black men came in the side door and started shooting.
In December 1975, Bello testified before an Essex County Grand Jury. He said then that as he entered the tavern, he noticed a white Dodge at the side of the building. Two black males entered by the side door and began shooting. He went out the front door and, as he turned left, he ran into a white man. He then turned in the other direction and saw Carter and Artis. At the 1976 trial Bello returned to his original story. He testified that Carter and Artis were the two men he had seen outside the Lafayette Bar and Grill carrying a shotgun and pistol, respectively.
Officers Greenough and John Unger were the first police to reach the scene in response to a radio report of the shooting. They were flagged down by Bello who was standing by the curb. Sergeant Robert Tanis and Officer John Nativo were on patrol when they received a radio alert at about 2:34 a.m. They had been traveling west on Broadway. They turned around and went east on Broadway to East 18th Street and then headed north toward the tavern. While traveling on East 18th Street near Hamilton Street, they observed a white car turn into 12th
Avenue. See Appendix I, which is a map of the area and shows the routes of the vehicles involved.
Sergeant Theodore Capter and Officer Angelo DeChellis were on patrol on 17th Avenue near East 24th Street, when they received the same radio alert. While driving up East 24th Street toward the tavern, they saw a white car with out-of-state plates cross the intersection of East 24th Street and 12th Avenue traveling east on 12th Avenue. Immediately thereafter, Capter and DeChellis were told that the getaway car was white and was occupied by two black males. Surmising that the car would be headed to New York, they proceeded down 10th Avenue. This route would allow them to reach the bridge over the Passaic River more rapidly than a vehicle going down 12th Avenue, which ends several blocks west of the River. When the officers reached the bridge and Route 4, they did not see the white car. They turned around and returned on Broadway, which is an extension of Route 4. As they approached East 28th Street, a white car crossed in front of them. They stopped it at the corner of East 28th Street and 14th Avenue. It was 2:40 a.m., six minutes after the initial radio alert.
The white car with its New York license plates and butterfly taillights was occupied by Artis, Carter and a third man, John Royster. Capter checked Artis's driver's license and the registration and let the car go. Capter and his partner proceeded to the Lafayette Bar. When they arrived, Bello described the car he had seen. Capter testified that upon hearing this description, "I looked at my partner and he looked at me and we took off looking for the car again." They proceeded down East 18th Street and saw the same car at the intersection of Broadway and East 18th Street. They pulled the car over. Only Carter and Artis were in it. After the patrol car of Sergeant Tanis and Officer Nativo arrived, they escorted Carter's vehicle to the Lafayette Bar.
The Carter-Artis vehicle was then driven to police headquarters and was searched. The police found a 12-gauge shotgun
shell in the trunk and a red .32 caliber S & W long shell on the floor alongside the front seat. Both were live shells. The seven spent bullets located at or near the scene were identified as .32 caliber S & W long shells. The unfired bullet found on the front floor in the car was the same caliber and would fit in the same gun from which the spent bullets had been shot. Further, a ballistic expert testified that the same weapon could be used to shoot the 12-gauge shotgun shell found in the trunk and the shotgun shells found in the tavern.
The automobile search did not uncover any pistol or shotgun. Bello had testified that Carter had a shotgun and Artis a pistol but no weapon was found in the car or on their persons when apprehended. Moreover, the attire of Carter and Artis was not the same as described by the witnesses. Valentine testified that one of the two men wore a hat and both wore sports jackets. Officer Capter said that Carter was wearing a hat and sports jacket and Artis was not wearing a sports jacket when first stopped by the police.
The State contended that the jury could reasonably infer that after leaving the bar, the Carter vehicle stopped at Eddie Rawls' home at the corner of East 28th Street and 12th Avenue and deposited the weapons and some clothing there. Rawls, the bartender at the Nite Spot, was well acquainted with Carter and was a close friend of Artis. He was the stepson of Leroy Holloway, a black bartender who had been shot to death by a white man in a dispute over a business matter several hours before the Lafayette Bar murders.
The movement of the car and the fact that several minutes had elapsed between the time the car was first spotted and when it was stopped by Sergeant Capter could justify this inference. Sergeant Capter saw the white car speeding across 12th Avenue at 24th Street and he stopped the car at 14th Avenue and East 28th Street. Carter and Artis could have stopped briefly at Rawls' house before proceeding to the point where Capter pulled the car over. See Appendix I.
Some consideration may also be given to the testimony of three alibi witnesses who had testified in 1967. Welton Deary stated at the first trial that he was at the Nite Spot, located five blocks south of the Lafayette Bar on East 18th Street, at 2:00 a.m. on June 17, 1966 and he had seen Rubin Carter with Catherine McGuire and her mother. He further testified that Carter told him that he was going to drive them home and then he would return. At the 1976 trial Deary admitted that these statements were not true and that he realized it when he testified in 1967.
Catherine McGuire also testified at the 1967 trial. At that time she indicated that Carter brought her home at about 2:15 on the morning of June 17, 1966 and that he left around 2:30. At the 1976 trial she testified that this was not true and that she was aware of this in 1967. Catherine McGuire also testified that she had received a letter from Carter while he was in the Bergen County Jail in which he asked her to remember that he had brought her home at 2:30 a.m. on June 17. Anna Brown, Catherine McGuire's mother, offered similar alibi testimony in 1967, but stated at the 1976 trial that it was untrue.
Although William Hardney did not testify in 1967, he did appear at the second trial. He related a conversation that he had had with Carter in which the latter asked him to support his story that he left the Nite Spot around 2:30 a.m. on June 17, 1966 with two girls. In fact, Hardney had not seen Carter at that time.
The trial court's conclusion that the verdict was not contrary to the weight of the evidence is well-founded. It is highly unlikely that more than one white 1966 Dodge with New York license plates was roaming around this area in Paterson about 2:30 on a Friday morning. The identification of the car by Valentine and Bello, related to the police at the time, was strong evidence that the killers drove away in that car after committing the murders. Carter and Artis were picked up in that car within thirty minutes after the shooting, and Carter
admitted that no one else had used the car that night. The bullet found in the car matched the caliber discovered at the scene. There was also "consciousness of guilt" evidence in the solicitation of false testimony, as well as the identification by Bello, and evidence of motive discussed herein. The jury could and did reasonably arrive at its conclusion.
Evidence of Racial Motive
At the pretrial conference held a month prior to the retrial, the State advised that it would offer evidence to show that the motive for the murder was revenge for the killing earlier that evening of a black bar owner, Leroy Holloway. At the first trial, the defense had argued that the State had not established any reason for Carter and Artis to have committed the murders. Now, the prosecution was prepared to advance evidence to demonstrate their motive.
It is well established that the prosecution may introduce evidence of motive. See 1 Wigmore, Evidence § 118, at 558-59 (3d ed. 1940); 1 Wharton, Criminal Evidence § 170, at 314-15 (13th ed. 1972). Its purpose is to aid the jury, particularly in a case resting upon circumstantial evidence, in determining who the person was who committed the crime.
A wide range is permitted with respect to the nature of the evidence that may be introduced. Wharton expressed this thought:
In the introduction of evidence to show motive, a wide range is permitted. Thus, any evidence which logically tends to show a motive, or which fairly tends to explain the conduct of the accused, should be permitted. In order for evidence of motive to be admissible, it is not necessary that each part of it be sufficient to prove the motive. The facts supplying a motive may be adduced in connection with other evidence in the case. [1 Wharton, Criminal Evidence, supra, § 170 at 316-18]
We have adhered to this doctrine. In State v. Rogers, 19 N.J. 218 (1955), the prosecution's introduction of evidence to show that the defendant had been indebted to the murder victim and
was motivated at least in part by a desire to wipe out these loan obligations was permitted. Justice Wachenfeld, writing for a unanimous court, approved. He wrote:
In criminal prosecutions, whenever the motive or the intent of the accused is important and material, a somewhat wider range of evidence is permitted in showing such motive or intent than is allowed in the support of other issues. . . . Otherwise there would often be no means to reach and disclose the secret design or purpose of the act charged in which the very gist of the offense may consist. Such intent or motive may be proved either by direct or circumstantial evidence. All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission of the offense. [ Id. at 228]
Our courts have continued to follow Rogers. See State v. Baldwin, 47 N.J. 379, 391 (1966) (evidence that defendant killed victim to silence him as a prospective witness held proper); State v. Royster, 57 N.J. 472, 484-85 (1971) (evidence that defendant threatened victim several weeks before murder permitted). This is the majority rule throughout the country. See 22A C.J.S. Criminal Law § 614 (1961 & Supp. 1982); 29 Am.Jur. 2d, Evidence § 363 (1967).
State v. Mathis, 47 N.J. 455 (1966), relied upon by the defendants, is not to the contrary. The prosecutor cross-examined the defendant with respect to how much money he had at the time of the murder and when he had last worked. The trial court ruled that it would not permit proof of financial need unless the State would also show that things of value were stolen and that thereafter defendant was affluent. In approving this ruling, Chief Justice Weintraub agreed that evidence of lack of money alone is not sufficient to prove motive because "it would prove too much against too many." Id. at 471. Citing Rogers approvingly, he stated that "there must be something more than poverty to tie a defendant into a criminal milieu." Id. at 472. By analogy the defendants argue that proof they are black and members of a class is not sufficient justification to tie them into the murders. However, the flaw in this position is their failure to acknowledge all the pieces in the pattern of this heinous crime. Defendants' membership in the class was not their only tie to the motive.
Interestingly, racial revenge was first injected into the trial by the defendants when they put in evidence a taped interview of Bello by then Lieutenant Vincent DeSimone, which referred to the belief that the motive for the shootings was "for the reason of revenge because there had been a shooting earlier." The defendant had also elicited on cross-examination of Detective LaConte that as part of his investigation of the murders he had been present at the funeral of Leroy Holloway.
Holloway was the bartender and owner of the Waltz Inn, a bar frequented by black patrons and located in a predominantly black neighborhood. The tavern was situated a few blocks away from the Lafayette Bar. About 8:15 p.m. on June 16, 1966, a white man entered the Waltz Inn and killed Holloway with a blast from a shotgun. A little more than six hours later, two black men entered the Lafayette Bar located at the border between black and white areas and, using a shotgun, killed the white bartender and several patrons. This bartender had been known to refuse to serve blacks. There was also evidence that neither the bartender nor the patrons were robbed. There was money on the bar and those killed had money in their wallets when the police arrived.
A series of events between these two crimes lend further support to the relationship between the murder and racial revenge. After Holloway's shooting, part of the local black community became enraged. A crowd gathered outside the Waltz Inn. News of the upset spread. Artis heard about it while on the street. Carter also knew there was going to be "some trouble." Neither of them knew what had provoked the slaying. While in the Nite Spot Carter heard talk of a "shaking" (retaliatory action). Carter and Artis had more than a passing interest because of Eddie Rawls. Rawls, Holloway's stepson, was the bartender at the Nite Spot. Carter, a professional prizefighter, frequented the Nite Spot almost every day and had a special reserved table there known as the "Champ's Corner." Carter and Rawls were "pretty good friends." Artis was very friendly with Rawls.
Holloway died around 10:00 p.m. An agitated Rawls, accompanied by two friends, went to the police station and demanded to know what was being done about the shooting of his stepfather. Rawls threatened that if the police did not take care of it, they would. Shortly thereafter Carter saw Rawls at the Nite Spot where Carter expressed his condolences to Rawls and they talked about the murder. Then Carter began a search for guns that had been stolen from his training camp. One of the missing guns was a 12-gauge shotgun. Thereafter, Carter and Artis stopped in at several local bars where they continued to hear talk of a shaking. At around 1:00 a.m. Carter again met with Rawls, this time at Ritchie's Hideaway. They remained there for about a half hour. Carter and Artis were later seen back at the Nite Spot which they had left at closing time, 2:15 a.m. Approximately fifteen minutes later, two black men entered the Lafayette Bar and Grill, and, without uttering a single word, shot and killed the white bartender and patrons.
Rawls was seen in the group that gathered at the Lafayette Bar after the shootings at about 3:00 a.m. After Carter and Artis were charged with the murder, Rawls assisted in bringing "alibi" witnesses to defense counsel to be interviewed. Several of these witnesses later testified at the retrial that their alibi testimony in 1967 had been fabricated.
Defendants contend that the evidence introduced in support of the racial revenge theory was not probative of defendants' guilt and, secondly, even if it were found to be probative, it was too prejudicial to be admitted. Moreover, in their petition to this Court, defendants stress that the State's summation improperly injected racial prejudice into the jury's consideration. For the reasons that follow, we reject each of these claims.
Defense counsel err when they insist that the State's theory impermissibly casts all blacks as being motivated to seek retribution when a black person is murdered by a white person. There is no place in the courtroom for any such group labelling. The evidence offered by the State against Carter and Artis was
admissible not because they are blacks, but because they were members of the particular local community involved and had a special relationship to Holloway through his stepson Rawls. Artis was a good friend of Rawls and Carter was well acquainted with him. Fueled by the racial overtone, the defendants may have been motivated to avenge the death of Rawls' stepfather. At least it was for the jury to decide whether, under these circumstances, Carter and Artis's relationship to Rawls could impel them to retaliate for one murder by randomly killing others. See State v. Rogers, 19 N.J. at 230 (any circumstance may be put in evidence that tends to make the proposition at issue either more or less probable); 1 Wigmore, supra, § 118 (test of relevance is whether the evidence offered tends to prove the emotion alleged by the prosecution to be present).
The defendants claim that irrespective of the relevance of the motive evidence, its impact was so inflammatory that the jury was improperly swayed in its deliberations. However, "evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." 1 Wharton, Criminal Evidence, supra, § 170, at 316. There is nothing inherently wrong with advancing a theory of revenge as a motive for murder, if the facts bear out the theory.
Whether the probative value of the evidence is outweighed by the potential prejudice is a decision left to the discretion of the trial judge. See Evid.R. 4, Comment 1. The party seeking to preclude the admission of evidence must convince the court that the factors favoring exclusion substantially outweigh the probative value of the contested evidence. Cf. State v. Sands, 76 N.J. 127 (1978) (whether prior convictions may be excluded as too prejudicial). On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted. See State v. Rogers, 19 N.J. at 229; Evid.R. 4, Comment 2.
Here the trial court, having the "feel" of the case and after carefully considering the arguments of both the prosecution and the defense, decided to admit the evidence on motive. The Appellate Division found no abuse of discretion and no manifest denial of justice. We cannot say that on this record the Appellate Division's review of the trial court's action missed the mark so that a new trial is warranted.
Related to the evidentiary argument is the defendants' claim that the State's summation was an unacceptable appeal to racial prejudice, and, as such, violated the defendants' due process rights to a fair trial. The summation must be considered as a whole. The prosecutor's argument tied in the racial aspect of the revenge motive and constituted proper comment. Moreover, we note that defendants' objection to this part of the summation was not directed to the comment concerning motive, but to the analogy of the antipathy between citizens of different countries as "things outside this courtroom." Defendants have not established a case of plain error, the applicable standard under these circumstances. State v. Thornton, 38 N.J. 380, 396 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963).
The defendants rely on a number of cases to show that the prosecutor's argument constituted an improper appeal to racial prejudice. We find those cases inapposite. In McFarland v. Smith, 611 F.2d 414 (2d Cir. 1979), the prosecutor urged the jury to credit a police officer's testimony because the probability of truthfulness was increased when one black person testified against another. The court held the remarks improper. As Judge Newman explained in that opinion, this notion, in the absence of any support in the evidence for the underlying assumption, is illogical because it is not probative of the likelihood that accusing testimony by someone within the same group is more credible than accusing testimony between people of different groups. See id. at 418. Here, the prosecutor's argument is logical; it attempts to make the racial revenge theory
more credible by demonstrating how ethnic prejudice may cause people to engage in senseless acts.
In Withers v. United States, 602 F.2d 124, 126 (6th Cir. 1979), the court found that a prosecutor's argument that not one white person had supported the defendant's story was improper. Similarly, in United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 155, 160 (2d Cir. 1973), the court found that repeated, derogatory group references to blacks -- "their" intelligence, "their" sexual promiscuity, "their" manner of dress -- constituted a violation of defendant's right under the due process clause to a fair trial.
Here, despite the defendants' repeated protestations in their briefs and appellate oral arguments to the contrary, the prosecutor's advocacy attributed no qualities to a generalized class of blacks. The prosecutor did not ask the jury to believe that blacks in general possess an instinct to commit senseless violence that would lead any one of them to murder whites. Rather, he urged them to find that these two particular black men, Carter and Artis, committed the Lafayette Bar murders in retaliation for the slaying of a friend's stepfather. His remarks were not tangential asides to the jury designed to arouse latent racial hostility, see Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975), but were directed to one element of the State's case. "When a prosecutor's summation includes remarks in an effort to persuade a jury to return a guilty verdict, the resulting conviction is constitutionally unfair unless the remarks are abundantly justified." McFarland v. Smith, 611 F.2d at 416-17 (emphasis added). We find that the argument set out in this case is justifiable because it was relevant to the issue of motive, there being evidence in the record to support that proposition.