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State v. Harris

November 24, 1998


Before Judges King, Wallace and Newman.

The opinion of the court was delivered by: Newman, J.A.D.

[9]    Argued: November 5, l998

On appeal from Superior Court of New Jersey, Law Division, Essex County.

This appeal raises the issue of whether police personnel records should be disclosed for an inspection to determine whether the file contains evidence material to the defense consistent with a defendant's right of confrontation. We hold that the right of confrontation requires disclosure where a defendant advances some factual predicate making it reasonably likely that information in the file could affect the officer's credibility. The disclosure here should be made to both the defense and the State in chambers and on the record.


On August 13, 1996, the Essex County Grand Jury indicted defendant Kareem Harris on eighteen-counts: second degree conspiracy to commit robbery and aggravated assault, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:12-1b (Count One); three counts of first degree robbery, contrary to N.J.S.A. 2C:15-1 (Counts Two through Four); three counts of second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (Counts Five through Seven); three counts of first degree kidnapping, contrary to N.J.S.A. 2C:13-1b(1) (Counts Eight through Ten); first degree attempted murder, contrary to N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (Count Eleven); third degree unlawful possession of a weapon (handgun), contrary to N.J.S.A. 2C:39-5b (Count Twelve); second degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-4 (Count Thirteen); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (Count Fourteen); two counts of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(5)(a) (Counts Fifteen and Sixteen); second degree eluding police, contrary to N.J.S.A. 2C:29-2b (Count Seventeen); and fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2 (Count Eighteen).

Defendant was found not guilty of the first thirteen counts of the indictment, all of which involved a robbery occurring on January 6, 1996. Defendant was found guilty of Counts Fourteen through Eighteen, all of which concerned a police pursuit of defendant resulting from a telephone call to police headquarters by the victim of the January 6, 1996 robbery accusing defendant as being the perpetrator.

On March 26, 1997, the trial Judge sentenced defendant to nine years' incarceration on the second degree aggravated assault of Detective Mario Simmons (Count Fourteen); concurrent five-year terms on the third degree aggravated assaults of Detectives Simmons and Robin Robinson (Counts Fifteen and Sixteen); and a consecutive eight-year term for eluding the police (Count Seventeen). The trial Judge merged the resisting arrest conviction (Count Eighteen) with the aggravated assault conviction (Count Fourteen). The usual fines and fees were imposed. Defendant appealed.

On March 5, 1998, defendant filed a motion to unseal the trial court's March 7, l997 interview with Captain Archibald J. Davison, the Captain in charge of Internal Affairs at the Newark Police Department, regarding the suspension of Detective Mario Simmons, the arresting officer and the key witness in this case. On April 30, 1998, this court ordered the following:

The Panel has examined the "sealed" portion of the transcript of the trial on March 7, 1997, specifically the in camera testimony of Captain Archibald Davidson, in charge of the Office of Internal Affairs of the Newark Police Department. The Panel is unable to determine from the sealed portion of the transcript if disclosure is required in the circumstance for compliance with the Confrontation Clause. Without consideration of the full record and the legal arguments on the plenary appeal, the Panel is without a context in which to make this important determination.

The Panel therefore reserves decision on this motion, ... , and the Clerk is directed to list the case for oral argument in Trenton before Part B upon perfection on a date when Judge King is sitting. Upon that plenary submission, the court will then rule on this motion.

Having now considered the motion in plenary fashion, we grant the relief requested and remand for further proceedings to be concluded within sixty days of the date of this opinion.


The relevant facts of the incidents of January 6, 1996 and January l9, l996 may be summarized as follows. On January 6, 1996, at approximately 11:00 a.m., Tom Austin, Arthur Hicks and Lloyd Glover were in Austin's Auto Body Shop at 381 Jeliff Avenue in Newark, New Jersey watching television. Austin noticed a BMW pull up outside the shop. Although he did not recognize the automobile, Austin assumed that it belonged to one of his customers. Two men wearing ski masks exited the car. As they entered the shop, one of the men, pointing a gun to Austin's face, stated "Austin, I got to have a thousand." Austin responded that he did not have any money. Unhappy with this response, one of the intruders threw Austin to the floor, handcuffed him behind his back, and taped his mouth and eyes shut. After demanding $1,000 from Austin, but only receiving $100, one of the intruders shot Austin grazing his head causing him to bleed profusely.

Before leaving, the intruders again demanded more money from Austin. When Austin reiterated that he did not have any more money, the gunman shot Austin in the leg. As the intruders left the shop, the gunman warned Austin, "[t]he next time I bring my car to you, you better have it ready on time." The intruders took $100 from Austin, approximately $400 and a ring from Hicks, and $1,245 from Glover.

Austin was hospitalized for about seven days. Although he could not provide a physical description of the two intruders because they had worn masks, he told the police during his hospital stay that he had heard the gunman's voice "many times before" but could not place it.

Subsequently, on January 19, 1996, Austin was in his shop when defendant, one of Austin's customers, entered and requested an estimate on his damaged car, an Acura Legend, which had been repaired by the shop. On prior occasions, defendant had brought in a Lexus for repairs. Austin recognized the customer's voice as being the gunman who shot him. Austin told his daughter to record the license plate number of the customer's car and ...

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