On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Cohen and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
Defendant Linwood Jones, co-defendant Carlton Byrd and others were indicted for receiving stolen property, valued in excess of $75,000, and bringing it into New Jersey, contrary to N.J.S.A. 2C:20-7, and for conspiring to do so, contrary to N.J.S.A. 2C:20-7 and N.J.S.A. 2C:5-2. The charges against several of the co-conspirators were severed and they were each tried separately, but defendant Jones was tried together with co-defendant Byrd. Jones was acquitted of conspiracy but convicted of the substantive offense. He was sentenced as a persistent offender to twenty years' imprisonment with ten years' parole ineligibility.
Jones appeals on two grounds. First, he argues that he was prejudiced by the court's limitation on his cross-examination of Derek Bannerman, the State's principal witness. The court's ruling, he contends, erroneously precluded him from attacking Bannerman's credibility by showing the jury the full extent of the witness's ongoing employment by the prosecutor as an informant in other cases. For that alleged error, defendant asks us to remand the case to the trial court for discovery and a hearing at which he will be able to establish what information he could have adduced if he had been permitted to do so. Thereafter, if the information obtained would warrant the relief, defendant would move for a new trial. As a second ground of error, defendant claims that, although he did not move for a severance before trial, trying him together with his co-defendant, Carlton Byrd, was prejudicial error which, by itself, entitles him to a new trial.
Jones and Byrd were tried and convicted for participation in the theft and receiving of two truckloads of tires. To obtain the convictions, the State relied principally on the testimony of Derek Bannerman. He had worked in the office of H. & H. Tire Service, the company whose principals were charged as co-conspirators and whose warehouse was the site to which the hijacked tires were delivered. He had overheard plans for the
theft being discussed and had helped to unload a shipment of tires at the H. & H. Tire Service warehouse at one o'clock in the morning following their theft. For his assistance, he received four tires and $100.
Several months later, after his employment at the warehouse had been terminated, he approached the Camden County Prosecutor's office, telling them that he had information about a theft of tires. He cooperated in an investigation which was conducted by the prosecutor's office and, because the theft itself had occurred in Pennsylvania, by the Pennsylvania State Police. In order to obtain evidence against the perpetrators of the theft, Bannerman wore a hidden microphone and tape recorder, conversed with them, and recorded their conversations. He recorded incriminating statements by all of the conspirators except Jones.
During the trial, Bannerman positively identified both Byrd and Jones as two of the men who were involved in unloading the hijacked tires from the trucks at the H. & H. Tire Service warehouse. The State also introduced into evidence a taped conversation between Byrd and Bannerman which clearly incriminated Byrd. There was no tape recording of any statements by Jones.
Jones did not testify on his own behalf, but he presented four alibi witnesses. Two of these witnesses testified that they had gotten married to each other on June 27, 1985, the date of the hijacking. Their wedding took place in Sicklerville, New Jersey, commencing about 5:00 or 5:30 in the evening. They testified that Jones was a member of their wedding party, and their wedding program and photographs were introduced into evidence to corroborate their testimony.
The wedding photographer testified that Jones left the wedding with him and went to the photographer's house where they had some drinks and spent the night. According to the photographer, he kept Jones' car keys and Jones could therefore not have left the house during the night. He testified that Jones
stayed all night and helped him make breakfast ...