On appeal from the Superior Court of New Jersey, Law Division, Essex County.
As Amended April 17, 1997. As Corrected April 24, 1997.
Before Judges Pressler, Stern and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
Defendant Jeffrey Bunyan appeals from the denial of his petition for certification and his motion for a new trial. We reverse. We are satisfied that defendant was entitled to a hearing to determine the admissibility of the material "new evidence" on which he based his motion, and we remand for that purpose.
On February 7, 1982, a patron of the C & B Tavern in Newark shot and killed one of the tavern owners, Melvin Mann, and then made good his escape without being apprehended. The shooting was observed by the victim's brother, Erwin Mann, the other owner, who had never seen the shooter before that night. There were other witnesses as well including two patrons, a barmaid and a bartender. None of them knew the shooter or had seen him before. All five were shown photo arrays and line-ups, and three of them assisted in the preparation of a composite sketch, all to no avail. The only photo identification made was of someone other than defendant. These witnesses all noted the shooter's exceptional height, estimating it as between six feet three inches and six feet six inches, and estimating his weight at about 240 pounds. Of signal importance is the fact that the shooter was with a woman in the tavern at the time of the shooting. The woman, identified as Jo Ann Brown, was interviewed by the investigating police two days after the shooting. She told them that the shooter had picked her up that evening and brought her to the tavern in his car. She had not previously known him. She thought his name was Michael, and he told her he was from Jersey City, had been in the army, had served in Vietnam, and killed people for a living. She also gave a physical description of the shooter as looking "like he was about 7 feet tall," and weighing about 240 pounds. *fn1
For the next year and a half, the police investigation was unsuccessful, and the shooter remained unidentified. Then, on September 12, 1983, defendant went to the C & B Tavern. While there, he became involved in some kind of confrontation at the bar with the sister of the Mann brothers, whom he assaulted with a razor blade. He himself was shot. After he fled the tavern, several people there who had also been eyewitnesses to the murder of Melvin Mann claimed to have recognized defendant as the shooter of a year-and-a-half earlier. The police were called and were led to defendant by a child who knew him. All five of the eyewitnesses to the murder made out-of-court identifications of defendant not only as the assaulter with the razor blade but also as Melvin Mann's killer.
Defendant was charged with multiple offenses arising both out of the February 7, 1982, shooting and the September 12, 1983, razor-blade assault. Following a nine-day trial on all charges in January 1984, defendant was convicted of the two charges relating to the 1983 event, namely third-degree possession of a razor blade with an unlawful purpose and fourth-degree aggravated assault as a lesser-included offense of the second-degree aggravated assault with which he had been charged. The jury was unable, however, to reach a unanimous decision with respect to the murder and related weapons-possession charges arising out of the February 1982 killing. A mistrial was consequently declared.
Defendant was retried on the murder charge in February 1984. *fn2 The State's evidence consisted of the eyewitness testimony of the victim's brother, the two tavern employees, and the two patrons who saw the murder. Jo Ann Brown was not produced either by the prosecution or by the defense, both of whom claimed to have been unable to locate her despite their efforts to do so. Defendant, despite his criminal record, testified in his own behalf, denying that he had been in the tavern on February 7, 1982, and denying that he had shot Melvin Mann or anyone else. The jury, after being at first unable to agree and consequently instructed to continue its deliberations, finally found defendant guilty. He was sentenced to a life term subject to twenty-five years of parole ineligibility. By our opinion filed on February 18, 1986, under Docket Number A-3776-83T4, we affirmed the judgment of conviction on direct appeal, and the Supreme Court denied defendant's petition for certification. State v. Bunyan, 104 N.J. 412, 517 A.2d 412 (1986). No issue was raised on appeal respecting Jo Ann Brown's absence from trial, and it does not appear that defense counsel sought court aid to procure her presence.
The proceedings now before us are not the first post-conviction proceedings brought. Insofar as we are able to reconstruct the record, defendant filed a pro se petition for post-conviction relief shortly after the Supreme Court denied his petition for certification. The post-conviction relief petition was summarily denied and, on appeal to this court in 1988, after what appears to have been an inordinate delay in the filing of the notice of appeal and its perfection, we reversed, directing that a hearing be held and that defendant be accorded representation by the Public Defender. State v. Bunyan, Docket Number A-1770-86T4x. At the ensuing hearing, defense counsel raised issues relating to the unreliability of the eye-witness identification. Since these issues were or could have been raised on direct appeal, R. 3:22-4, relief was denied by the trial court. That order was appealed and, eventually, in February 1994, we affirmed under Docket Number A-4432-89T4.
The matter before us now was commenced by defendant's pro se motion for a new trial in June 1992. As we understand what happened, defendant continued his efforts, following his conviction, to prove his innocence of the murder and, with the aid of a "third party," hired Herbert Bell, a private investigator licensed by the State of New Jersey to attempt to find Jo Ann Brown. According to Bell's affidavit dated April 11, 1990, he succeeded in locating her at her place of employment in Union, New Jersey, in January 1990. Using the original 1982 police reports, he was able to verify her identity as the woman who was the shooter's companion on the night of the tavern murder. Among other indicia of identity, she gave Bell her social security number and the names and address of her parents as noted in those reports. Bell then showed her a photograph of defendant taken in March 1984 while he was incarcerated. She told Bell that she did not know that person, that he was not the man who had committed the tavern murder, and that she knew no one named Jeffrey Bunyan. Brown confirmed that she had never been contacted by the police after the initial interviews and had never been requested or subpoenaed to testify at Bunyan's trial.
Bell attempted either to obtain a written statement from Brown attesting to this information or her undertaking to give such a statement to either the prosecutor or the public defender. She refused to do so and refused to give Bell her address and telephone number, assuring him, however, that she would telephone him that evening. She did so, telling him she had decided not to get involved, that she had turned her life around since the shooting and that if he, Bell, persisted in drawing her into the matter, she would lie about her knowledge that Bunyan was not the shooter. At that point, according to Bell, a man identified only as Robert, took the phone from Brown, said he was her boyfriend, and physically threatened Bell in the event that Bell continued to involve Brown in the investigation.
The record does not indicate any further communication between Bell and either Brown or her boyfriend or, indeed, whether Bell ever ascertained the identity of the boyfriend. Defendant, in his pro se new-trial motion papers, asserts that after Bell had found and interviewed Brown, he advised defendant that he needed more money to carry on with the investigation. Since defendant was unable to provide him with additional funds, Bell concluded his investigation by providing defendant with his April 1990 affidavit in the tenor we have described. The record also does not indicate why it took two years after Bell had located and interviewed Brown for the new trial motion to be made. We do, however, note, that ...