On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Matthews, Furman and Havey.
Defendant was tried before a jury on charges of aggravated assault (N.J.S.A. 2C:12-1 b(1), count one); possession of a handgun without a permit (N.J.S.A. 2C:39-5 b, count two); possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4, count three), and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1 b(2), count four). The jury returned a verdict of guilty on all counts, and defendant was sentenced to a custodial term of ten years on count one, a custodial term of five years on count two, and a custodial term of ten years with a five year period of parole ineligibility on count three. The conviction on count four was vacated as it merged into count one. All sentences were ordered to run concurrently with each other and to a sentence defendant was already serving.
Defendant contends that the police did not adequately investigate and gather evidence in this case, and as a result, he was deprived of a fair trial. We are asked to extend the rule in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), so as to impose upon the police a duty to investigate "vigorously" every criminal case.
In Brady v. Maryland, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused violates due process whether the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. "Materiality" has been held to be more than the mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial. United States v. Agurs, 427 U.S. 97, 109-110, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342 (1976).
Defendant, basing his argument on notions of due process, argues that the rule of Brady should be extended to require the police to investigate and gather evidence thoroughly. Since a trial is a truth-finding proceeding and all relevant facts must be
presented, he asserts that the police must investigate every conceivable aspect of a case to a defendant's satisfaction.
We agree that the objective of a trial is to ascertain the truth. Every conceivable fact relating to the case, however, need not be introduced. Under our system, counsel for each side is at liberty to decide what evidence to adduce at trial. Defendants themselves often do not testify or present certain witnesses if they feel it would be detrimental, although such testimony undoubtedly would be helpful in reaching the truth.
Brady cannot be read to be so broad as to impose upon the police a duty to investigate. The rule expressed is limited to those instances where the prosecution has information in its possession.
In United States v. Weisz, 718 F.2d 413 (D.C.Cir.1983), a somewhat analogous argument was raised. There the government, during its Abscam investigation, recorded some conversations with the Abscam targets but not others. Defendant argued that the government's failure to record or in some manner memorialize all conversations during the investigation deprived him of a fair trial and violated principles of due process. Weiz argued that the government had a duty to gather and maintain all the evidence that it could. It was held that the government was under no duty to create evidence. 718 F.2d at 436. See also United States v. Muzychka, 725 F.2d 1061 (3 Cir.1984). Similarly, in United States v. Butler, 499 F.2d 1006 (D.C.Cir.1974), the defendant sought to discover the results of a blood alcohol test claimed to have been performed on a sample of his urine taken by the police. Although the government acknowledged that the urine sample had been taken, it was unable to find any record indicating that the blood alcohol test had been performed. The case was remanded for an evidentiary hearing to determine whether the test had been performed. The Court held that if a test was performed, the government was required to preserve the results but if no test was made, that would end the matter. 725 F.2d at 1007-1008.
The Court clearly concluded that the government was under no obligation to perform a blood alcohol test and create the ...