On appeal from Superior Court, Law Division, Essex County.
Approved for Publication June 15, 1995
Before Judges Landau, Conley and Newman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
Following a jury trial, defendant was convicted of first degree murder, N.J.S.A. 2C:11-3a(1), (2) (count one); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). His co-defendant was acquitted of all three counts. Counts two and three were merged into count one and a life term of imprisonment with a 30 year parole disqualifier was imposed. Because we are of the view that State v. Sanchez, 129 N.J. 261, 609 A.2d 400 (1992), precludes the admission of defendant's statement and further that in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), certain material information was not disclosed by the prosecutor, we reverse.
The record is fairly extensive. We will not recite it at length, but only refer to the evidence that is relevant for our Disposition of the appeal. The State's theory was that defendant, along with co-defendant Caesar Glenn, and another individual who was never identified, bludgeoned Glenn Brown on the morning of September 12, 1988 with a metal pipe. Mr. Brown died two days later. An indictment for the murder was returned against defendant in March 1989.
The State produced one eyewitness to the assault, Marie Robinson. There were at least two other witnesses, Betty Shells and Dwight Goines, neither of whom identified defendant as the perpetrator. Marie Robinson did not come forward as a witness until September 23, 1988, eleven days after the assault. Her initial disclosure occurred in a conversation with a probation officer. That conversation occurred during the preparation of a presentence report on a drug possession charge that she had pled guilty to in August 1988, and for which she was then pending sentence. The terms of the plea were fairly favorable - a dismissal of possession with intent to distribute and any custodial term not to exceed 364 days jail time as a condition of probation. During the plea proceeding, however, the trial Judge cautioned:
And let me emphasize that (1) When I have to make up my mind whether to accept this Plea that is go along with it, what sentence I should impose, do I give you straight probation or do I give you probation where you do 364 days in jail is going to depend in large part on what I come to learn about you when I read that report so it seems to me that it's in your best interest to tell the Probation Officer everything you want me to know about you as of a positive nature that will help me decide what should be done in this case. [Emphasis added].
It was following this caution that Robinson disclosed to the prosecutor that she saw defendant hit Brown on the head with a metal pipe.
During her trial testimony, Robinson essentially related that between 7:00 a.m. and 8:00 a.m. on September 12, 1988, she was inside 254 Prince Street in Newark where she saw the victim whom she knew. He was sitting on the back stairs sleeping or "nodding." She could not fully wake him; he seemed "high" and told her that he had been up for four days, was running from people and could not go home because of all the "dirt" he had done. She left him in the hallway and went outside to the front of the building where she hung out with two other women, Hakima (later identified as Kim Loyal) and Ms. Mohamid, for 15 or 20 minutes. She saw two other men enter the hallway of the building from the back and take Brown by the arm towards a back porch. She saw defendant follow them out. She went back inside the building to see what they were doing and saw defendant hit Brown from behind with a metal pipe.
Robinson's credibility was not without question. There were substantial discrepancies between her trial testimony and the statement she gave to the police. There were discrepancies between her direct testimony and testimony on cross examination. And she admitted having pending charges at the time she first came forward to help the police solve the murder. Moreover, the medical evidence concerning the nature and location of Brown's injuries was such that it raised questions as to whether Robinson's description of how defendant had hit the victim was consistent with the actual injuries.
Further, the testimony of Dwight Goines, produced by defendant, was not consistent with Robinson's version. He was employed by the Newark Housing Authority and was the cousin of the victim. At 8:15 a.m. on the morning of the assault, he was painting inside 254 Prince Street, a building owned by the Housing Authority. He saw Brown in the hallway. They talked for a few minutes and Brown went out towards the back porch while Goines went out to the front of the building. About five minutes later, Goines heard a gun shot. When he ran to the back, he found Brown lying on the back porch. At no time did he see either defendant or Robinson. He saw two men run off but could not identify either.
The State also presented evidence of a Pepsi-Cola baseball cap found at the scene. Robinson testified that a year before the murder she had seen defendant wearing a Pepsi-Cola cap. In addition, the operations manager for Pepsi-Cola testified that defendant had worked at a Pepsi-Cola plant from 1984 to 1987 and that the baseball caps were given out each year to the employees. Neither Robinson nor Goines nor anyone else, however, identified any of the perpetrators as wearing such a cap. The cap, moreover, was never retained, apparently having been sent to the hospital with the victim because the police initially thought it was his. It was never examined for hair samples or any other identifying evidence.
The other evidence inculpating defendant was a metal pipe found in his girlfriend's car when he was apprehended in California by federal agents on a fugitive warrant almost a year after the killing. Robinson testified that the pipe looked like the one she had seen defendant use. There were, however, no particular identifying features or any other attributes of the pipe that would distinguish it from any other metal pipe. Defendant's girlfriend testified that she had picked the pipe up while jogging to ward off some dogs and then put it in her car.
On October 25, 1989, Special Agent Wilson arrested defendant at 8:35 a.m. on a federal fugitive warrant arising from the New Jersey murder indictment. At 4:14 p.m. the same day, defendant was advised of his Miranda *fn1 rights and questioned by Wilson. Wilson initially denied that he knew any details about the New Jersey charges or that he had had any contact with New Jersey officials prior to questioning defendant. He admitted, however, that his involvement with defendant was not just for the federal warrant, but rather was in connection with the State indictment and that before questioning defendant he had spoken to a Detective Allerton, a New Jersey officer, who told him defendant was wanted for murder and that it involved a beating. During a subsequent Brady hearing, it turned out that, in addition, Wilson also had seen an F.B.I. teletype from the F.B.I. Newark office which contained the following information:
Re Newark telephone call of SA Ron Butkiewicz with SA Ralph DiFonzo, Los Angeles Division, 9/27/89.
On Monday, September 12, 1988 at approximately 8:45 a.m. an individual named Glenn Brown was assaulted at the rear of 254 Prince Street, Newark, New Jersey. Brown was struck several times on the head with a bludgeon and left unconscious. On September 14, 1988, Brown died of the injuries sustained during the assault on him occurring on September 12, 1988.
Subsequent investigation resulted in the arrest of co-defendant Caesar Glenn and the identification of Curtis Knight as being involved in the murder of Glenn Brown.
Curtis Knight was indicted for homicide during March, 1989, by an Essex County, New Jersey grand jury.
On 5/17/89, an unlawful flight warrant was obtained on Knight before United States Magistrate G. Donald Haneke at Newark, New Jersey. Recommended bail on Knight is one hundred thousand dollars ($100,000.00) cash.
On 9/27/89, Detective Michael Stigliano, Essex County Prosecutor's Office, Newark, New Jersey, contacted case agent in this matter and provided information relative to a possible location for Curtis Knight. Stigliano advised that he had checked the last known address of Knight in Belleville, New Jersey, and determined that Knight had been living at that location with a girlfriend, Cathy Capella, a white female, not further identified. Knight and Capella have a child who was born in approximately September, 1987: sex of the child is unknown. As part of their tenant application, a credit check was required and Capella provided a Master Card Credit Card number. Stigliano established contact with appropriate authorities at Master Card and determined that the Master Card and number assigned to Capella had been used as recently as August 9, 1989, in her name and that the address associated with the use of the card on that date was 3446 Bromley Court, Palmdale, California, 93651. Telephone number (805) 266-0254.
Additionally, it is known that Knight has a brother, George Knight (FBI Number 93568R4). George Knight has two prior known addresses in California, the first being 1617 South Saint Andrew's, Los Angeles, California, and the second 11122 Exposition Boulevard, Los Angeles, California.
The teletype included a detailed description of defendant, including his social security number, New Jersey driver's license number and F.B.I. number, and set forth the following instructions:
Los Angeles, at Palmdale, California: Conduct discreet investigation at 3446 Bromley Court, in order to assess likelihood of subject Knight currently being at that address. Conduct logical follow-up investigation to locate and apprehend.
At Los Angeles, California: Conduct logical fugitive investigation at 1617 South Saint Andrew's and 11122 Exposition Boulevard, both addresses known to have been previously utilized by subject's brother, George Knight, FBI Number 93568R4.
Newark will attempt to facsimile photograph of Knight to Los Angeles, and will forward mug shot of Knight to Los Angeles by overnight mail.
Newark maintaining liaison with Detective Stigliano, Essex County Prosecutor's Office. [Emphasis added].
It is clear that the purpose of Wilson's interrogation was to obtain information about the murder from defendant for the New Jersey authorities, and that Wilson was fully filled in on the details. Indeed, Wilson conceded that his instructions were to question defendant about the murder and see "if he wanted to talk to us."
Defendant was by then under indictment, a fact Wilson knew through the teletype. No separate warnings, apart from the Miranda rights, concerning his right to counsel were given.
Through the interrogation process, the following information was obtained. Defendant told Wilson that he knew nothing of the outstanding warrant, and had lived in California for about a year. He said that prior to leaving New Jersey someone had told him that there was a contract out for him for beating up "this guy" and that the man's friends were looking for defendant. Defendant related that he had been robbed in New Jersey by someone he had not recognized, but that other people had told him "it was a guy named Hassan *fn2" Defendant left New Jersey because he had heard the person looking for him was part of a gang, and defendant was concerned for his family's safety. This statement provided a basis for the prosecutor's claim of flight as well as the alleged motive for the killing, that defendant had been robbed by the victim.
Following defendant's conviction, a hearing was held on a motion for new trial based upon newly discovered evidence consisting of another eyewitness who had not come forward until after defendant's conviction. The witness was a friend of both the victim and defendant. He said he had been at the scene and saw Brown being beaten. The assailant was not defendant. This witness's credibility, however, was sharply challenged by the prosecutor and the trial Judge ...