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State v. Sutton


January 24, 2007


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 271-78.

Per curiam.


Argued January 9, 2007

Before Judges Skillman, Holston, Jr. and Grall.

On November 27, 2002, the Supreme Court vacated this court's decision affirming the denial of defendant Michael Sutton's second application for post-conviction relief (PCR). State v. Sutton, 175 N.J. 73, 73-74 (2002). The Court "summarily remanded to the trial court for a post-conviction relief hearing on the thirty-four items" that defendant's PCR counsel alleged the prosecution wrongfully withheld from defendant's trial attorney. Ibid. Despite the Supreme Court's mandate, neither defense counsel nor the prosecutor presented the "thirty-four items" to the PCR judge or presented argument on the materiality of those items. The judge denied relief, and defendant filed this appeal. We reverse and remand with direction to complete the proceeding directed by the Supreme Court no later than April 12, 2007.

In February 1979 defendant and co-defendant Cornell Sparrow were indicted for crimes committed in April 1978. Tried to a jury before Judge Addison, defendant was convicted of breaking and entering a home with intent to steal, N.J.S.A. 2A:94-1, and felony murder, N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. Sparrow, who pled guilty pursuant to a negotiated agreement, testified on behalf of the State. Defendant's several confessions were introduced into evidence, and he testified at trial. There was no physical evidence that linked him to the crime scene. The jury found defendant guilty of both charges, and on December 21, 1979, he was sentenced to a term of life imprisonment for felony murder and a concurrent term of five to seven years for breaking and entering. This court affirmed the convictions on appeal, and the Supreme Court denied defendant's petition for certification. State v. Sutton, No. A-2059-79 (App. Div. May 26, 1981), certif. denied, 88 N.J. 465 (1981).

On November 18, 1983, the trial court denied defendant's first application for PCR. We affirmed that decision, and the Supreme Court denied certification. State v. Sutton, No. A-1991-83 (App. Div. Oct. 15, 1986), certif. denied, 107 N.J. 105 (1987).

This petition for PCR was first filed on August 31, 1998. It is based on a claim that the prosecution withheld favorable evidence material to guilt or punishment, which the State must provide under principles established in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963), and evidence that could have been used to impeach the State's witnesses, which the State must provide under United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed. 2d 481, 490 (1985). See State v. Knight, 145 N.J. 233, 245-46 (1996) (discussing both types of evidence). Where such evidence is withheld, a defendant is entitled to relief "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. Marshall, 148 N.J. 89, 156 (quoting Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed. 2d at 494 (plurality opinion of Blackmun, J.) and citing id. at 685, 105 S.Ct. at 3385, 87 L.Ed. 2d at 496 (White, J., concurring)), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).

The claim was first raised on defendant's behalf by Assistant Deputy Public Defender Gerald Boswell who filed the brief and certification in August 1998. In his certification, Mr. Boswell listed thirty-seven matters that the State had failed to disclose to the defense prior to defendant's trial. Mr. Boswell had been given access to these materials by an assistant prosecutor in 1994, while he was representing Curtis Brown, who was charged and subsequently adjudicated delinquent based on his role in this 1978 felony murder and breaking and entering.

Judge Giovine assumed responsibility for the PCR application. Mr. Boswell was removed as counsel for defendant due to a conflict of interest. On January 7, 1999, defendant filed a pro se brief and a certification referencing the thirty-seven items listed by Mr. Boswell.

Robert J. Konzelmann, Esq. then undertook defendant's representation. He filed a brief and certification in support of defendant's application.*fn1 His certification focused on three of the thirty-seven items. He alleged that two items labeled as memoranda were reports prepared by officers who investigated the crimes. He described one memorandum, dated January 26, 1979, as a report from an investigator who detailed thirteen inconsistent accounts of the crimes given by Sparrow, only five of which were known to defendant's trial attorney, which was item thirty on Mr. Boswell's list. He described the second memorandum, dated July 3, 1978, as a report advising that Sparrow told a third person, Darnell Strong, that defendant was not involved in the crimes. That claim relates to item twenty-two on Mr. Boswell's list. In addition, Mr. Konzelmann certified that a plenary hearing "might also disclose" that the State gained information through "possible illegal and unethical cooperation" of an attorney representing Sparrow who passed privileged information to a detective. That claim relates to item thirty-two on Mr. Boswell's list and, as Judge Giovine later found, to one inconsistent statement discussed in the report listed in item thirty. Defendant's attorney also asserted that "the gist of the remaining appendix materials is detailed in Mr. Boswell's certification[, which] contains a wealth of exculpatory information that would have been most helpful to [the] defense of Mr. Sutton." He did not provide the "items" listed in the Boswell-certification.

On October 7, 1999, Judge Giovine wrote to defendant's attorney and instructed him to provide the materials he wanted the court to consider and a "personal certification" by November 5, 1999. The judge explained, "You may not rely upon the certification of Assistant Deputy Public Defender Gerald Boswell, former counsel in this case."

On March 9, 2000, at oral argument on defendant's PCR application, the attorney noted that his certification included only the most "egregious" examples of Brady violations and asked the judge to consider additional materials referenced on Mr. Boswell's list but not included in his certification or to grant an adjournment to allow him to comply with the judge's earlier directive. Those requests were denied.

Judge Giovine issued a written opinion. He concluded that the State did not provide the materials discussed above and that they were favorable to the accused, but he determined that there was no reasonable probability that the outcome of defendant's trial would have been different if the materials he considered had been disclosed.*fn2 Judge Giovine based that determination on defendant's confessions and inconsistencies in Sparrow's accounts that were disclosed to the jurors and utilized by defendant's trial counsel during cross-examination. We affirmed that decision and, as noted, the Supreme Court vacated that order and "remanded to the trial court for a post-conviction relief hearing on the thirty-four items . . . that were not previously considered." Sutton, supra, 175 N.J. at 73-74.

The case was assigned to a different judge, who held a conference with the attorneys on April 7, 2003. Defendant was represented by the same attorney, Mr. Konzelmann, who was then serving as an Assistant Deputy Public Defender. The attorney filed a brief on May 5, 2003, and the State responded by brief dated May 23, 2003.*fn3 The State argued that defendant could not establish that the additional thirty-four items had been withheld because his trial attorney had died. The State also contended, in general terms and without reference to the substance or content of the individual items, that if the most egregious examples, those previously identified by Mr. Konzelmann and considered by Judge Giovine, were inadequate to demonstrate a reasonable probability of a different outcome at trial, then the additional less egregious materials must be inadequate. The State also criticized the defense for arguing that the judge should consider the impact of the materials considered by Judge Giovine in evaluating the significance of the additional materials and urged the judge to resolve the matter on written submissions.

On June 18, 2003, defendant's attorney responded. He argued that the court was required to consider the cumulative impact of the materials and contended that the Supreme Court's order required a hearing at which he would be permitted to present testimonial evidence to demonstrate materiality.

On July 1, 2003, the judge again met with counsel. On July 2, 2003, Mr. Boswell prepared a certification in which he represented that he and Mr. Konzelmann went to the Ocean County Public Defender's Office, searched Mr. Boswell's former office and the basement but were unable to locate his file or the indexes he prepared prior to the thirty-seven item certification he submitted in August 1998. He further certified that he had "extensive present recollection about the facts and the theory behind the PCR" and "sufficient present recollection to answer any and all questions concerning this case which may arise at any future hearings." On July 14, 2003, the State responded to this certification and urged the judge to resolve the matter on the papers submitted to date.

On July 21, 2003, the judge responded. He reminded the assistant prosecutor that the Supreme Court had remanded the matter for a determination about the thirty-four items and that neither the prosecutor nor defendant's attorney had provided the materials or briefs that addressed the materiality of that evidence. The judge further "stress[ed]" that on July 1, 2003, he had directed the State to determine whether it had the thirty-four items and the prosecution had an obligation to comply with that direction.

The prosecutor's office complied. By letter dated August 8, 2003, the judge informed Mr. Konzelmann that he had received a certification from an investigator with the prosecutor's office who had located all of the materials. The judge directed defendant's attorney to obtain the materials and provide a supplemental brief.

On September 16, 2003, the judge wrote a letter confirming the following: defense counsel received the materials on September 5, 2003, and was obligated to provide a brief on whether any of the evidence was material by September 30, 2003; the assistant prosecutor was obligated to reply by October 15, 2003, and a motion hearing was scheduled for October 31, 2003.

On September 30, 2003, the judge granted Mr. Konzelmann an extension until October 17, 2003, and the prosecutor an extension until October 29, 2003. The motion date was not changed from October 31, 2003.

The defense and prosecution both submitted briefs. Neither provided the court with the documents referenced in the Boswell-certification and the Supreme Court's remand order.*fn4 Neither attorney provided a brief that discussed materiality with reference to the information included in any of the thirty-four items.

Mr. Konzelmann contended that the purpose of his brief was to address "whether an evidentiary hearing is necessary on the issue of 'materiality.'" He argued:

In order for the court to evaluate each of the 37 item[s] it must first determine what investigation was done by Boswell to clarify, expand and/or bolster each item[]. Boswell's certification simply described the "documents" that were not turned over. It does not address what his investigation of these documents disclosed.

Nor does the mere review of the 37 items explain why the state withheld them. Because the 37 items are summaries of the state investigation, the detectives who produced the documents must be questioned at an evidentiary hearing to determine why these documents were not turned over to the defendant[]. The reasons for not turning these items over may give insight into how the state viewed the items. . . .

Defense counsel further contended that the impact of the prosecution's failure to disclose was to render trial counsel's performance ineffective. On that basis, defense counsel contended that Mr. Boswell's testimony, the testimony of those Mr. Boswell had interviewed and the testimony of any person who prepared one of the items at issue was required.

The prosecution's brief was no more enlightening on the significance of the items the judge was compelled to consider. After discussing defense counsel's failure to comply with the court's directive on briefing, the prosecutor presented general argument based on the probative value of defendant's confessions and the absence of any duty on the prosecution's part to provide notepads of investigating officers.

The judge decided the matter after considering the trial transcript and the briefs and certifications submitted on the petition. Noting defense counsel's failure to argue materiality, the evidence that supported defendant's conviction and the fact that the court had been given nothing more than a numbered list of items suppressed, the judge found that defendant failed to establish a prima facie case under the Brady standard. This appeal followed.

We are confronted with an abject failure of all involved to comply with the Supreme Court's mandate. Obedience to the mandates of the Supreme Court "is fundamental to our system of justice." State v. Soricelli, 302 N.J. Super. 193, 207 (App. Div. 1997) (Humphreys, J.A.D. dissenting), rev'd on other grounds, 156 N.J. 525 (1999). "[T]he trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written." Flanigan v. McFeely, 20 N.J. 414, 420 (1956); see Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241, 247 (App. Div. 2003). The obligation is shared by the attorneys involved, who are duty-bound to make reasonable efforts to expedite litigation in accordance with the orders of the tribunal and controlling procedural rules and legal principles. See RPC 3.2, 3.3(a)(3), 3.4(c); R. 3:22-8 (requiring a petition that "set[s] forth with specificity the facts upon which the claim for relief is based"); R. 3:22-10 (which requires courts to give preference to PCR proceedings and promptly determine the issues). More than four years have passed since the Supreme Court summarily remanded this case to the trial court "for a post-conviction relief hearing on the thirty-four items," yet none was held and neither attorney even provided the judge assigned with the materials the Court directed him to consider. There is no right to disregard valid court orders, procedural rules or controlling precedents with which one does not agree. Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961).

We remand so that this matter can be resolved as the Supreme Court directed. Because of the delay in complying with the Supreme Court's mandate, we retain jurisdiction and direct that the proceedings be completed no later than April 12, 2007, and in accordance with the schedule set forth below. Because of the fundamental misunderstanding of controlling rules and legal principles demonstrated by counsel, we provide specific guidance.

Preliminarily, defense counsel is wrong in concluding and insisting that the Supreme Court directed an "evidentiary" hearing. The Supreme Court directed a "post-conviction relief hearing." The term "hearing" is used to refer to proceedings in court. Rule 3:22-10 is entitled "Presence of Defendant at Hearing; Preference." The rule addresses in-court "proceedings" on PCR applications and requires defendant's presence only "when oral testimony is adduced on a material issue of fact within the defendant's personal knowledge." R. 3:22-10. Similarly, Rules 1:6-2, 1:6-6 and 1:6-7, which address procedures on motions, refer to hearings on motions and motions being heard but contemplate testimony in rare instances. While there is a presumption favoring a "hearing" to permit oral argument on a petition for PCR, there is no presumption in favor of an evidentiary hearing. State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001) (noting that the question of oral argument is left to the discretion of the judge).

Testimony on a petition for PCR is required only when necessary to resolve disputed facts that, when viewed most favorably to defendant, would entitle the defendant to relief if believed. The Supreme Court has explained that "in determining the propriety of an evidentiary hearing, the PCR court should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed 'in the light most favorable to defendant.'" Marshall, supra, 148 N.J. at 158 (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)). The Court observed, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Ibid. (internal citations omitted). In this case, the Supreme Court did not have the thirty-four items that it directed the trial court to consider. Its order cannot be read to compel an "evidentiary" hearing without consideration of the need for testimony under the Court's precedents.

Defendant relies upon State v. Russo, 333 N.J. Super. 119, 141 (App. Div. 2000), and contends that an evidentiary hearing is required. In Russo, we directed an evidentiary hearing because a defendant convicted of assault proffered evidence that, if believed, created doubt as to whether a critical witness was able to see the incident and whether the victim was ever assaulted. Ibid. In this case, despite the judge's repeated directives, defense counsel did not proffer evidence demonstrating disputed facts or argument explaining the likelihood of a different outcome if defendant's trial counsel received the items at issue. Thus, to the extent that defense counsel sought to rely on information developed by Mr. Boswell from his review of the thirty-four items and subsequent investigation to establish materiality, it was his obligation to present a proper affidavit or certification from Mr. Boswell and another person who had competent, relevant evidence. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defense counsel was and is also incorrect in asserting that it was appropriate to conduct a testimonial hearing to explore, rather than present, evidence. "The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief." Marshall, supra, 148 N.J. at 158. The procedures and showing required for the narrow and limited discovery appropriate in PCR proceedings, which do not include an evidentiary hearing, are set forth in Marshall. Id. at 268-72. Thus, to the extent that defense counsel sought an evidentiary hearing for the purpose of determining why the items were material, he sought a hearing on an impermissible basis.

The State presented argument that is inconsistent with controlling legal principles when it contended that the judge should not consider matters addressed by Judge Giovine in evaluating the significance of the remaining thirty-four items. See Kyles v. Whitley, 514 U.S. 419, 421, 115 S.Ct. 1555, 1560, 131 L.Ed. 2d 490, 498 (1995). When "multiple items of evidence have been suppressed, the prosecution's Brady obligation 'turns on the cumulative effect' of such evidence. Thus, courts are obligated to consider the State's non-disclosures 'collectively, not item-by-item.'" State v. Knight, 145 N.J. 233, 246 (1996) (quoting Kyles, supra, 514 U.S. at 436, 115 S.Ct. at 1567, 131 L.Ed. 2d at 507). On remand, the State must address the materials under the proper standard.

We direct the following:

1. Because PCR counsel has on two prior occasions declined to comply with the trial court's directions, the Public Defender should take immediate action to assign a different attorney who will present the claims. See State v. Webster, 187 N.J. 254, 256-58 (2006).

2. No later than February 16, 2007, defense counsel must submit the documents mentioned in the thirty-four items listed in the Boswell-certification to the PCR judge. By the same date, if defense counsel intends to establish the materiality of the items by relying upon facts not included in those documents or the trial record, counsel must provide the court and the State with a certification or affidavit from a person competent to testify on the matters. In addition and by the same date, defense counsel must provide a brief that addresses the significance of any or all of the thirty-four items with specific references to the documents, any certifications or affidavits and pertinent trial testimony. In this regard, we note that the judge's obligation to consider the cumulative impact of evidence withheld necessarily begins with an assessment of the importance of the individual items. It is the obligation of defense counsel to present arguments as to how the items could have been used at defendant's trial to alter the outcome.

3. No later than March 2, 2007, the prosecutor must file and serve a responsive brief. That brief must discuss the significance of the thirty-four items and the cumulative impact of all thirty-seven items. We do not foreclose specific argument that any specific item among the thirty-four not yet considered is not exculpatory within the meaning of Brady, Kyle or subsequent decisions.

4. No later than March 9, 2007, defense counsel must submit any reply brief.

5. Oral argument, any evidentiary hearing the judge deems appropriate and the judge's oral or written findings and conclusions must be completed and submitted to the Clerk of this court by April 12, 2007.

6. Upon filing of the judge's decision and order, within five days of the decision, the Clerk of the Appellate Division will issue a schedule for expedited briefing and review by this court.

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