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State v. Hogan

May 23, 1996


On certification to the Superior Court, Appellate Division, whose opinion is reported at 281 N.J. Super. 285 (1995).

The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Garibaldi, and Coleman join in Justice STEIN's opinion.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).


Argued January 29, 1996 -- Decided May 23, 1996

STEIN, J., writing for a unanimous Court.

The State alleges that, on August 29, 1989, Benny Hogan was one of two men who broke into Elnora Daye's Jersey City house and stole her credit cards and $290 in cash. Daye's eyewitness testimony formed the foundation of the State's case. Daye claims that while in her house, she was confronted by the two men. When asked where her valuables were located, Daye told the men in order to protect her daughter and herself. Daye also observed the perpetrators leave her property. As she watched Hogan drive off in a car, she wrote down the car's license plate number on a piece of paper that she later lost.

The day after the robbery, Daye was standing in front of her house talking to a friend when she saw Hogan's car across the street. Hogan was sitting in the car. Daye approached the car and accused Hogan of having robbed her the previous night. Hogan denied any involvement in a robbery and claimed that he had loaned his car to a cousin the night before. Daye, however, recognized a distinctive scar on the side of Hogan's face. After this conversation, Daye contacted police and told them of the robbery and her Discussion with Hogan. At the police station, she picked out Hogan's picture from a book of photographs.

Hogan was arrested and, on January 12, 1990, was indicted on one count of robbery and one count of burglary. Because Hogan was on parole, the Parole Board began taking steps to revoke his parole and to require him to finish the sentence he had been serving for armed robbery, robbery, and possession of controlled dangerous substances.

Shortly after Hogan was indicted, Daye contacted the prosecutor's office and told an investigator that she had been threatened and harassed by Hogan and his family. On May 10, 1990, Hogan's wife escorted Daye to the public defender's office where Daye recanted her complaint against Hogan. Following this recantation, two prosecution investigators met with Daye to find out why she had changed her story. Under oath, Daye stated that several of Hogan's family members had threatened her life, as well as the life of her young daughter. In her statement to investigators, Daye insisted that her recantation was a lie and that she did it because she was afraid for herself and her daughter. Daye later testified at the parole revocation hearing, where she reaffirmed her original allegations against Hogan and explained why she had recanted those allegations. The hearing officer found Daye's testimony credible.

In mid-1990, the prosecutor's office decided to re-present the case to the grand jury to secure additional charges against Hogan relating to the alleged robbery. Defense counsel asked the prosecutor to inform the grand jury of Daye's recantation of her original complaint. The prosecutor rejected that request. On August 15, 1990, a second indictment was secured against Hogan, charging him with armed robbery, robbery, armed burglary, burglary, aggravated assault, and two weapons offenses. At his arraignment, Hogan pled not guilty to all charges. The court dismissed the January 12th indictment, because of the superseding August 15th indictment.

Prior to trial, Hogan moved to dismiss the superseding indictment, arguing that the prosecutor had committed misconduct in failing to present the exculpatory recantation to the grand jury. The trial court denied the motion to dismiss, noting that the role of the grand jury is a limited one, and that the reliability of Daye's complaint and retracted recantation was an issue properly reserved for a jury. The court also questioned the exculpatory value of the recantation evidence.

At trial, the court admitted into evidence Daye's recantation, the retraction of the recantation, and Daye's explanation of the reasons for the recantation. The jury found Hogan guilty of all charges, except unlawful possession of a weapon, which the trial court had dismissed, and aggravated assault. As a repeat Graves Act offender, Hogan was sentenced to a significant custodial term.

On appeal, Hogan raised nine points of error. The Appellate Division reversed Hogan's conviction, agreeing with his contention that the trial court should have dismissed the indictment because of the State's failure to present Daye's recantation to the grand jury as exculpatory evidence. The court relied on the standard set forth in State v. Smith under which prosecutors are obligated to inform a grand jury of any evidence that is clearly exculpatory or that directly negates the guilt of the accused. The court concluded that the prosecutor breached that duty because Daye's recantation was evidence that, if believed, would establish in itself that Hogan had not committed the robbery. The panel did not address Hogan's other contentions.

The Supreme Court granted the State's petition for certification.

HELD: A prosecutor has the limited duty to inform the grand jury of evidence that both directly negates the guilt of the accused and is clearly exculpatory.

1. The grand jury must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it. The grand jury not only must bring the guilty to trial, but must also protect the innocent from unfounded prosecution. An indictment handed down by a grand jury should be disturbed only when the indictment is manifestly deficient or palpably defective. The decision whether to dismiss an indictment lies within the discretion of the trial court and should not be disturbed on appeal unless there has been a clear abuse of discretion. (pp. 10-13)

2. In Smith, the Appellate Division held that a prosecutor must provide the grand jury with evidence that clearly exculpates the defendant, that is, evidence that directly negates the defendant's guilt. The Appellate Division's holding in this case reflects an unwarranted expansion of the prosecutorial duty set forth in Smith. (pp. 16-21)

3. In seeking an indictment, the prosecutor's sole evidential obligation is to present a prima facie case that the accused has committed a crime. However, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If such evidence is withheld from the grand jury, the prosecutor interferes with the grand jury's decision-making function. (pp 21-23)

4. The standard adopted today is intended to be applied only in the exceptional case in which a Prosecutor's file includes not only evidence of guilt, but also evidence negating guilt that is genuinely exculpatory. For those unique cases, the Court generally endorse the analysis set forth by the Appellate Division in Smith, as modified herein. Prosecutors have a limited duty to inform that is triggered only in the rare case in which the prosecutor is aware of evidence that both directly negates the guilt of the accused and is clearly exculpatory. (pp. 23-24)

5. Unless the exculpatory evidence squarely refutes an element of the crime, that evidence is not within the prosecutorial duty to inform. Whether the evidence in question is clearly exculpatory requires an evaluation of the quality and reliability of the evidence. The prosecutor need not construct a case for the accused, or search for evidence that would exculpate the accused. It is only when the prosecutor has actual knowledge of clearly exculpatory evidence that directly negates guilt that requires presentation of that evidence to the grand jury. Courts should dismiss indictments on this ground only after giving due regard to the prosecutor's own evaluation of whether the evidence in question is clearly exculpatory; courts should act with substantial caution before concluding that a prosecutor's decision in that respect was erroneous. (pp. 21-26)

6. In applying the above standard to this case, it must be concluded that the trial court properly denied Hogan's motion to dismiss the indictment. In view of the generally unreliable nature of recantation testimony, the circumstances surrounding Daye's recantation, and Daye's retraction of the recantation, such evidence could not conceivably be considered sufficiently reliable to be clearly exculpatory. (pp. 26-28)

Judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate Division for consideration of Hogan's remaining contentions.


The opinion of the Court was delivered by


This case presents issues concerning the existence and scope of a prosecutor's duty to present exculpatory evidence to a grand jury. After a jury trial, defendant was convicted of armed robbery, robbery, armed burglary, burglary, and possession of a weapon for an unlawful purpose. The Appellate Division reversed defendant's convictions, concluding that the trial court should have dismissed the indictment because the prosecutor failed to present to the grand jury evidence that the State's principal witness had retracted her complaint against defendant. State v. ...

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