On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 271-78.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...