On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County.
O'Brien, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c. (temporarily assigned).
CONLEY, J.S.C. (temporarily assigned).
In this interlocutory appeal the State challenges an order permitting defendants to ask a principal State witness on cross-examination his current name and address. Although the State objected on the basis of prior threats of harm to the witness attributed to defendants some three years earlier, the trial court concluded the defendants' sixth amendment right to confrontation outweighed the State's need to protect its witness. We modify and remand for further consideration.
Defendants have been indicted for numerous offenses including loan sharking and gambling. The criminal activity is alleged to have occurred between May 1986 and June 1988. One of the State's primary witnesses is an individual whose real name is Charles Breitweiser. Following an arrest for sale of cocaine, Mr. Breitweiser agreed to cooperate with the State during its investigation of defendants in 1987 and did so over a 10-month time period. During this time, Mr. Breitweiser wore a "body mike" and recorded several conversations with defendants arising from an alleged usurious loan of $2,500 defendants made to Mr. Breitweiser and their alleged attempts to extort repayment through threats of harm.
We have not been supplied with copies of transcripts of the conversations and the record does not reflect the language of the actual threats. We are aware the trial judge heard the threats at the time he listened to all the tapes during a Driver*fn1 hearing. And, although we do not have a verbatim version, the threats were thus characterized by the prosecutor during arguments before the trial court on defendants' application for disclosure:
I mean, I wouldn't say that the threats which are on the tapes themselves are overwhelming -- I mean, they're not threats which would jump out at you, but they are threats. . . .
Mr. Anagnos was present with Mr. Driscoll when they told him -- Mr. Anagnos says to him I'm holding him back right now and Driscoll says I'm not going to let him hold me back, I'm going to find you. . . .
I don't have a tape by Mr. Postorino threatening him, but the clear impact is Mr. Postorino's the one in charge of this. . . .
While Mr. Breitweiser expressed concern over his safety and his family's safety if he testified for the State, he declined protection pursuant to the federal Witness Protection Program, 18 U.S.C. §§ 3521-3528. However, he requested and was given a new name and address, in addition to a new car and $2,500. For the last three years he has lived under his new name at the new location. His family has remained at their prior address. There is nothing in the record to support any determination that his family has in any way been threatened or harmed over the
last three years.*fn3 Aside from the State's representation that Mr. Breitweiser has no further arrest or conviction record under his new name, nothing is known about him during the last 3 years.
Shortly prior to trial, defendants made a Brady*fn4 request upon the prosecutor for, among other information, Mr. Breitweiser's current address. This request was refused based on the mistaken assumption Mr. Breitweiser was in the federal Witness Protection Program and because of the threats. However, a "rap sheet" in addition to a written but unsigned agreement concerning Breitweiser's cooperation and benefits in return, were disclosed. Additionally, the State provided a representation by the prosecutor that there was no rap sheet under Mr. Breitweiser's new name.
Preliminarily, we note defendants' request for the current name and address of Mr. Breitweiser was initiated during pretrial discovery, albeit shortly before trial. In this respect, it has been cautioned that the sixth amendment right to confront witnesses is a trial right, and "does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40, 54 (1987); State v. Cusick, 219 N.J. Super. 452, 462, 530 A.2d 806 (App.Div.), ...