On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 97-10-2439-A.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2001
On October 15, 1997, defendant-appellant John Clark was charged in Atlantic County Indictment No. 97l-10-2439 with second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); third degree aggravated assault, contrary to N.J.S.A. 2C:12- 1b(2) (count two); second degree possession of a weapon (knife) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count three); and third degree possession of a weapon (knife) under circumstances not intended for lawful use, contrary to N.J.S.A. 2C:39-5d (count four). Following a jury trial, defendant was convicted of all charges. The sentencing judge granted the State's application to sentence under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to find defendant a persistent offender under N.J.S.A. 2C:44- 3a. Defendant received an aggregate sentence of eighteen years with a parole ineligibility of eighty-five percent pursuant to NERA. Defendant appeals his conviction and sentence. We reverse and remand for a new trial.
The salient trial testimony was as follows. On July 9, 1997, at about 8:30 p.m. defendant John Clark and Bruce Reas were in Reas' Brigantine apartment when they got into an argument. As a result of 9-1-1 calls from neighbors, the police arrived. Officer Thomas Flickinger saw the defendant sitting on the lawn holding his head with one of his eyes swollen, and an abrasion on his forehead. The man, later identified as Robbie Sponsel, was "screaming, hollering... on the border of hysterical." He told the officer that the man lying on the front lawn had stabbed a man who was in the back yard. Sponsel led Flickinger to the back of the house where Reas was standing with blood running from his neck to his knees and holding a torn shirt to his neck to stop the bleeding from a two inch puncture wound. Flickinger described Reas as "agitated and uncooperative." He gave him Miranda *fn1 warnings.
Sponsel told Flickinger that there had been an argument between defendant and Reas over repairs to their boat which led to a fist fight. Defendant ran back into the apartment, came out with a knife and stabbed Reas in the neck. Defendant then drove off but returned a minute or two later and pulled up on the front lawn. As defendant got out of the car, Reas hit him in the face with a brick and ran to the back of the house.
Officer Flickinger tried to assist Reas, who was walking around the back yard. He pushed him down on a bench and held a shirt over the wound until Officer Timothy Reed took over and the ambulance arrived. Testifying for the defense, Officer Reed said that he repeatedly asked Reas what happened and Reas replied that "it was an accident." Both Reas and the defendant were taken to the hospital for treatment.
A rusty, unsheathed bayonet with blood on its tip was found on the front passenger seat of defendant's car, and its scabbard was located hanging by the front door in Reas' apartment. Drops of blood were seen on a kitchen chair and a kitchen knife. A blood stained towel was found by the stoop. An unidentified man and woman in the apartment told police that they had not seen anything.
Further investigation led police to talk to John Cutillo, a seventy-four year old man who lived next door to Reas' building. Although initially reluctant to talk to police, Cutillo said he was sitting on his deck when he saw the defendant and Reas rush out of the apartment punching each other. He said the defendant ran back inside and returned to strike Reas in the neck with a "big knife." While Cutillo testified to this effect at trial, neither Reas nor Sponsel were called as witnesses.
On appeal defendant makes the following arguments:
POINT I - ROBBIE SPONSEL'S HEARSAY STATEMENT WAS IMPROPERLY ADMITTED AS AN EXCITED UTTERANCE, VIOLATING DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
POINT II - THE PROSECUTOR'S FAILURE TO PROVIDE DEFENSE COUNSEL WITH THE ADDRESS AND TELEPHONE NUMBER OF ROBBIE SPONSEL WAS A DISCOVERY VIOLATION, AND THE PROSECUTOR'S REFUSAL TO PROVIDE THE INFORMATION AND THE COURT'S REFUSAL TO DIRECT THE PROSECUTOR TO DO SO DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III - THE TRIAL COURT'S REFUSAL TO GRANT A CONTINUANCE WAS AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV - THE PROSECUTOR AND THE BRIGANTINE POLICE ENGAGED IN REVERSIBLE MISCONDUCT. (Not Raised Below.)
POINT V - DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.
It is undisputed that neither the Brigantine police reports nor any other pretrial discovery made mention of Robert Sponsel. The case went to trial on November 3, 1999, more than two years after the incident and a month shy of two years from the date of indictment. Throughout this time defendant was never given Sponsel's name, his address or any information respecting this important eyewitness.
The trial prosecutor represented that she knew nothing of Sponsel until the late afternoon of November 1 when she was preparing the police witnesses for trial. She called defense counsel the same day and left word on his answering machine. The following day was election day, a legal holiday. Defense counsel represented that he was not advised as to identity or knowledge of Sponsel until ten minutes before opening statements, but he made no application for a mistrial or a continuance. The prosecutor stated that Sponsel had been subpoenaed, and would testify for the State. The prosecutor received permission to inquire of the sworn jurors as to whether any of them knew Robert Sponsel. None did.
No mention was made of Sponsel in opening statements. However, Detective Raymond Cox, the State's first witness, testified he saw Sponsel at the scene and that "he appeared to be upset and I guess nervous about what happened... He was pacing around, and he was throwing his hands up in the air, and I overheard some of the comments he was making to other officers." Cox added that Sponsel's comments were "contemporaneous with the incident that just happened... within a minute of the 9-1-1 calls." When the prosecutor asked Cox what Sponsel told him, defense counsel objected on the ground of hearsay. The trial judge ruled Sponsel's statements admissible under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2)(1).
Defense counsel then moved to exclude any testimony by Sponsel or the use of any of his statements since his name was not mentioned in any discovery. The trial judge ...