Decided. As Corrected March 23 1994.: February 25, 1994.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Baime, Conley and Villanueva. The opinion of the court was delivered by Baime, J.A.D.
On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearny, New Jersey. One of the robbers shot and killed a Newark police officer, John Snow. Defendant Vincent James Landano and three other individuals were subsequently arrested. Tried alone, defendant was convicted of murder and other related offenses. Over the next sixteen years, defendant repeatedly challenged his convictions in both the State and Federal courts. In these proceedings, defendant contended that his convictions were tainted by prosecutorial misconduct. This appeal is from the latest denial of defendant's petition for post-conviction relief.
We find that the prosecutor violated defendant's constitutional rights by withholding exculpatory evidence. Although we will examine this evidence in greater detail later in our opinion, we briefly describe it here. First, the State suppressed evidence that its principal identification witness was under investigation for having ties with organized crime and was suspected of having engaged in loansharking and money laundering, and further, that on the very day his earlier tentative identification of defendant became positive, he was questioned about the possibility he had paid illegal gratuities to Officer Snow. Second, the State suppressed evidence that its chief witness, who pleaded non vult and testified against defendant, had been involved in a longstanding criminal venture with others and that they had committed numerous armed robberies similar to the Hi-Way Check Cashing Service robbery. Newly discovered evidence, including fingerprints and ballistics tests, disclosed that the witness and his closest associate had committed an earlier armed robbery in which the gun used to kill Officer Snow had been fired. Third, the State suppressed evidence that the only eyewitness to the shooting
rejected defendant's photograph because the perpetrator had "curlier" hair than Landano. And fourth, another witness who had possibly seen the suspects before the robbery and killing also rejected defendant's photograph because the individual she had met was "younger" than Landano.
We conclude that there is a reasonable probability the outcome of the trial would have been different had this evidence been disclosed to the defense. This constitutional violation undermines our confidence in the jury's verdict and warrants a reversal of defendant's convictions.
At the outset, we note the tortuous path this case has taken. In order to understand the issues raised here, it is necessary to distinguish the evidence presented at trial from that developed in various post-conviction proceedings.
The Hudson County grand jury returned a multi-count indictment, charging defendant, Allen Roller, Victor Forni and Bruce Reen with felony murder, armed robbery, breaking and entering with intent to steal, receiving a stolen motor vehicle, possession of a firearm and conspiracy. David Lee Clyburn was named as an unindicted co-conspirator. The trial of Forni and Reen was severed from that of defendant and Roller.*fn1 Roller pleaded non vult to felony murder. He testified at defendant's trial, as did Clyburn. The State's theory was that Roller and Forni planned the robbery and the killing of John Snow, and recruited defendant for this purpose. The prosecutor contended that only defendant and Roller actually participated in the robbery, and that defendant fired the fatal shots.
At trial, Clyburn testified that he, Roller and Forni had a long history of engaging in armed robberies. Roller generally supplied the weapons, while Forni usually served as the "get-away driver" and "back-up." Roller often recruited African-Americans to assist in these crimes. According to Clyburn, defendant and Forni had a very close relationship. Clyburn testified that they were very "tight" and each had a great deal of "respect" for the other.
Clyburn recounted that in July 1976 Roller and Forni conceived the plan of robbing "a check cashing place in [New] Jersey." Clyburn testified that Forni was the "chief coordinator" in this endeavor. They discussed the plan at a meeting early in the summer in Staten Island at the clubhouse of "the Breed," a motorcycle gang to which Roller and Bruce Reen belonged. Roller and Forni told Clyburn his role was to "take care" of a police officer who generally delivered large amounts of cash, and that an unnamed "white guy" would accompany him and "hit" a security guard located inside the check cashing trailer. Forni then drove Roller and Clyburn to Jacobus Avenue in South Kearny to view the site. According to Clyburn, they returned to the area the following week in order to make a "dry run" and to determine the police officer's schedule in delivering the money. The three men waited in the parking lot of a nearby tavern until the police car arrived. They observed the officer deliver the money and then departed. A third visit apparently occurred toward the end of July for the same purpose. Clyburn ultimately decided to withdraw from the scheme because he did not want to kill a police officer and feared that his confederates might "turn on" him because he was the only black involved.
Roller's version of the events preceding the robbery deviated from that of Clyburn in various particulars. He denied engaging in other robberies with Clyburn or Forni. Roller conceded that he had lent Clyburn a gun and had received a share of the proceeds, but claimed he did not directly participate in these robberies. Roller's testimony regarding the planning of the robbery of the Hi-Way Check Cashing Service also conflicted with
that of Clyburn. Roller denied telling Clyburn he would supply a "white guy" to assist him with the robbery. He also claimed that the three men visited the scene on only one occasion. According to Roller, he asked Forni if he would be interested in participating in the robbery. Roller testified that Forni wanted "no part in it," but offered to recruit a person named "Jimmy." According to Roller, two days before the robbery, he, Forni and Reen went to defendant's apartment in Staten Island to discuss the plan. Defendant allegedly agreed to participate. On the next day, Forni allegedly drove Roller and defendant to South Kearny to inspect the area of the proposed robbery.
Roller recounted that he met defendant at Forni's house at approximately 7:45 a.m. on the day of the robbery. Neither Roller nor defendant had an operable automobile. Roller thus requested Forni to drive them to Kearny. According to Roller, Forni became upset and reiterated that he would not participate in the robbery. Roller testified that despite his protestations, Forni ultimately agreed to drive him and defendant to New Jersey. En route, the three men stopped at a parking lot where Roller, using a "dent puller," stole a 1968 green Chevrolet. At Roller's request, Forni purchased containers of coffee for him and defendant. He then departed. Roller testified that he and defendant waited in the parking lot of the nearby tavern for the owner of the check cashing service to arrive.
Jacob Roth, the owner of the Hi-Way Check Cashing Service, had arrived earlier in the morning, having driven his son's automobile. Jacob's son, Jonathan, had taken his father's white Cadillac for servicing. Both Roller and defendant were unaware of this fact and continued to await the arrival of Roth's Cadillac, which Roller had seen in the course of one of his surveillances. Jonathan arrived in the Cadillac at approximately 9:20 a.m. and entered the trailer. Also present in the trailer was a customer, John De Maritz. Another customer, Colin McCormick, had just cashed a check and was seated in his van.
Roller testified that upon seeing the Cadillac, he and defendant approached the trailer. Roller recounted that he told defendant to grab McCormick and place him underneath the van. According to McCormick, a tall thin man with broad shoulders and dark hair approached him with a gun and told him to lie on the floor of the van. As McCormick complied, he observed a bearded man with red hair, whom he later identified as Roller, holding a gun. McCormick testified that Roller went first to the check cashing window and then moved to the trailer door. At trial, McCormick claimed that defendant was the dark haired perpetrator. However, he admitted that he did not observe the man's face and that his pretrial photographic identification of defendant was based upon his recollection of the perpetrator's build. McCormick indicated that defendant's photograph was the "closest" of those shown to him, but he couldn't "say for sure." McCormick's in-court identification was barred following an Evid.R. 8 hearing (now N.J.R.E. 104(a) and (c)). The trial Judge characterized McCormick's attempt to identify defendant as "unreliable."
Both Jacob and Jonathan Roth testified at trial. Viewing their testimony in its entirety, the chronology of events is somewhat murky. According to Jacob Roth, a man came to the trailer window, placed a gun on the ledge and ordered him to open the door. Jacob testified that there was a "bullet proof" glass partition with a small aperture used for check cashing transactions. The man was unable to place the gun "under the window." Jacob described the man as being five feet, ten inches tall, between 160 and 170 pounds, and having black hair and a "Fu Manchu" mustache. As soon as he observed the gun, Jacob pressed the silent burglar alarm and yelled "[h]it the deck." He then fell to the floor and "never looked up." Jacob testified that he heard the "shattering of glass," and someone standing over him, saying, "[n]obody look up and no one will get hurt." The man then "stepped over [him]," pulled the drawer out, took the money and left the trailer. Jacob recounted that he waited several seconds after the man left and then went to the glass door where he saw
two men run to an automobile. Jacob was able 0 to record the license plate number which he later gave to the police.
At trial, Jacob testified that he identified defendant from a photographic array that had been shown to him toward the end of August 1976. Apparently, that identification was tentative. Jacob commented that the photograph of defendant "resembled" the perpetrator and that "it might be the person if he had a Fu Manchu mustache." The record indicates that Jacob did not sign the back of the photograph. In the photograph shown to Jacob, defendant had a slight mustache. Jacob later made a more positive identification of defendant from a photographic array.*fn2 On the latter occasion, defendant, as shown in the photograph, was clean-shaven. That photograph was signed by Jacob and dated. Jacob was positive at trial that defendant was the man who entered the trailer and stole the money. He was never aware of the red-bearded man.*fn3
1 Jonathan Roth identified the defendant with an element of uncertainty. He testified that he observed defendant for "a second or two," running past the trailer door. According to Jonathan, defendant "banged" on the door, demanding that it be opened. Jonathan then noticed another man with red hair and a beard in front of the check cashing window. At this point, Jonathan heard his father call out and the sound of glass breaking. The red-bearded man entered the trailer and ordered the occupants to lie face down. A "split second" after the man left, Jonathan heard one or two shots fired.
De Maritz gave an account similar to that of Jonathan. He observed a red-bearded man bursting into the trailer with a gun in his hand. The man was wearing a blue denim jacket. De Maritz testified that he immediately complied with the man's order to lie down. As the man was leaving, 2 De Maritz heard shots coming from outside the trailer. Prior to trial, De Maritz selected Roller's photograph from an array.
Roller's account was that he gained entry into the trailer by breaking the door window with the butt of his gun. He then reached in, opened the door, entered and ordered everyone to lie down with their heads on the floor. Roller testified that while he was busy in the trailer, defendant was robbing McCormick. According to Roller's testimony, defendant was assigned the additional role of intercepting the police officer and stealing the cash that was to be delivered.
Joseph Pascuiti was the only person who actually witnessed the shooting of the police officer. Pascuiti worked at Modern Warehouse which was adjacent to the Hi-Way Check Cashing Service. From the vantage point of the loading bay, Pascuiti observed a man with dark hair "running from out of the little trailer" toward a blue and white police vehicle that had just arrived. Without warning, the man "raised his arm[ ] above his head and pointed a gun down" toward the driver of the patrol car. According to Pascuiti, the man was approximately "two to three feet" away from the driver. Pascuiti turned toward 3 the office in order to contact the police when he heard "three or four shots." He then observed the dark-haired man drive away in a green Chevrolet. At trial, Pascuiti described the perpetrator as having dark, curly hair and broad shoulders. The witness testified that he did not notice a mustache, but that he only saw the profile of the man. On cross-examination, Pascuiti related that he selected Forni's photograph from an array shortly before trial. He noted that the man depicted in the photograph "resemble[d]" the perpetrator, particularly his "curly hair." However, on redirect examination,
Pascuiti admitted that he was "not certain of anyone," and had not selected a photograph.
Roller testified that he rejoined defendant outside the trailer and that the two men drove off in the stolen Chevrolet. According to Roller, he sat in the rear seat while defendant drove. Roller related that defendant exclaimed he had to "ice or waste the cop." Roller testified that defendant "missed the turn" and mistakenly drove down a dead end street toward the railroad tracks.
Raymond Portas, a truck driver, testified that while sitting at a blocked intersection, he saw a green Chevrolet maneuver out of 4 traffic and then proceed along the nearby railroad tracks. According to Portas, the Chevrolet came "charging down" the street, "cut in on the railroad tracks," and then returned to the roadway. Portas's description of the vehicle's license plate number matched that recorded by Roth. Portas testified that the automobile came to a standstill and that he was able to observe the two occupants. A broad-shouldered man with long hair and a heavy brownish red beard was seated in the back. The driver appeared to be taller and younger and had a "five o'clock shadow." On the night of the robbery, Portas erroneously identified William Applegate as the rear seat passenger. Shortly before trial, Portas selected defendant's photograph from an array and identified Landano as the driver. In the photograph, defendant was "clean shaven." Portas testified that he did not "remember a mustache on the man driving the car." Portas recounted that after he selected defendant's photograph, one of the law enforcement officers said "[t]hat's him." At trial, Portas identified defendant as the one he "believe[d] to be the driver of the Chevrolet."
Roller confirmed the incident at the traffic block. He testified that 5 they later came to a dead end street abutting the river, where they removed the money and discarded their weapons. Roller testified that they left defendant's blood splattered jacket, gloves and hat in the car. According to Roller, the two men abandoned
the automobile and parted, meeting later at Forni's house where they divided the money.
At approximately 10:30 that morning, Kearny police officers discovered the abandoned getaway car. A search of the car and the surrounding area revealed a bloodstained white jacket or vest, two pairs of brown gloves, and a blue hat. The police also discovered an attache case containing $60 in coins, a .38 caliber shell and a partially filled coffee container. The blood found on the jacket, a relatively rare type, matched that of the slain police officer. Two handguns were recovered from the river. Roller identified the .38 caliber weapon as belonging to him, and the Browning automatic pistol as the one that had been used by defendant. Ballistics tests revealed that a bullet removed from the police officer's body was fired from the automatic pistol and that the shell found in the stolen Chevrolet had come from the same weapon. The automatic pistol 6 was traced to Forni.
At trial, the State introduced several photographs of defendant taken routinely at a Staten Island check cashing establishment. Two of the photographs, taken in July 1976, depicted defendant with a mustache, wearing a denim hat similar to the one found in the getaway car.*fn4 A third photograph, taken at 12:50 p.m. on August 13, 1976, showed defendant bareheaded. Strands of hair taken from the inside of the hat generally compared with that of defendant. However, the State Police chemist added that the test was not a "positive point of identification" and that the hairs could have come from another individual with the same general characteristics.*fn5 At trial, defendant tried on the blood stained jacket or
vest found in the Chevrolet. It was too small and did not fit him. Although there is testimony in the trial transcript indicating that the hat also did not fit the defendant, the record is not clear on this point.*fn6
7 Defendant elected to testify. He denied participating in the crime, placing himself at various locations in Staten Island and Manhattan during the day in question. Corroborating testimony was given by defendant's fiancee and her friend. Defendant also introduced evidence indicating that he attended a methadone clinic in Staten Island at approximately 6 o'clock on the morning of the robbery. He contended that he could not have travelled to New Jersey in time to participate in the theft of the green Chevrolet which occurred at approximately 6:35 a.m.
The jury viewed this case as a close one. After two days of deliberations and an intervening 8 weekend, the jury sent a message to the Judge indicating that it was unable to reach a verdict. The Judge gave a supplemental instruction similar to that approved by the United States Supreme Court in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) which emphasized the importance of reaching a unanimous verdict.*fn7 During its deliberations, the jury showed a special concern for the eyewitness testimony of Jacob Roth, Jonathan Roth and Joseph Pascuiti which it requested to have re-read. The jury also asked for clarification of the photographic arrays shown to Jacob Roth and requested copies of his identification statements.
9 B. MOTION FOR NEW TRIAL
Following his conviction, defendant moved for a new trial. In support of his application, defendant presented newly discovered evidence linking Forni with an armed robbery of a tavern in Jersey City on December 12, 1975. Fingerprint evidence available in November of 1976 indicated that Roller was one of several participants. However, it was only in March of 1978 that a report identified a fingerprint found on the automobile used in the robbery as belonging to Forni. At the same time, a ballistics test conducted by the State Police indicated that an expended shell found at the scene of the robbery was fired by the Browning automatic used to kill Officer Snow. As we noted earlier, this weapon belonged to Forni.
We emphasize that there was no contention the prosecutor had concealed evidence disclosing Forni's participation in the Jersey City robbery. In contrast, defendant presented additional evidence indicating that the prosecutor failed to disclose information in his possession at the time of trial regarding the involvement of Roller, Forni and Reen in two robberies of a Perth Amboy coin shop. The armed robberies were committed on September 26, 1975 and 0 January 23, 1976. The victim indicated that Roller, Forni and Reen were probably the perpetrators of the first robbery. An automobile registered under Roller's alias was used in the second robbery. Additional information identifying the perpetrators of the second robbery as those involved in the first one had also been conveyed to the Hudson County authorities, although not in detail. Information linking Roller, Forni, and Reen to the Perth Amboy robberies was known by a member of the Hudson County Prosecutor's Office who was in charge of the investigation of the Kearny robbery. The assistant prosecutor who tried the Landano case was aware of the fact that the Breed was involved in the Perth Amboy robberies, but did not know specifically that Roller, Forni and Reen were alleged to have participated.
Defendant also presented evidence that Roller recanted his trial testimony. We need not describe this evidence in detail. Suffice it to say that the trial Judge conducted an evidentiary hearing relating to this evidence and found it to be incredible. We note that Roller never recanted under oath, refused to testify at the evidentiary hearing and was cited for contempt.
In denying defendant's 1 motion, the trial Judge conceded that evidence pertaining to the Jersey City and Perth Amboy robberies was exculpatory because it tended to impeach Roller's trial testimony and confirm the defendant's argument that Roller was protecting Forni. The evidence also tended to show a series of crimes committed by Roller and Forni without the defendant. The Judge nevertheless concluded that neither the newly discovered nor the suppressed evidence was so favorable as to affect the jury's verdict. The Judge found that the result of the trial would have been the same had this evidence been presented.
We subsequently affirmed defendant's convictions and the denial of his motion for a new trial in an unreported opinion. The Supreme Court denied certification. State v. Landano, 85 N.J. 98, 425 A.2d 264 (1980).
C. DEFENDANT'S FIRST PETITION FOR POST-CONVICTION RELIEF
Defendant then filed a petition for post-conviction relief. Among other claims, defendant contended the State had withheld information concerning its investigation of allegations that Jacob Roth had connections to "underworld" figures, that he had engaged in "loan sharking" and 2 "money laundering" activities and that he had paid illegal gratuities to Officer Snow. The principal thrust of defendant's claim was that the prosecutor had improperly "pressured" Roth to make a positive identification of the defendant as one of the robbers and had concealed ...