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State v. Massey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LLOYD MASSEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 00-12-2444.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 18, 2007

Before Judges Stern, A. A. Rodríguez and Collester.

Defendant was convicted of three capital murders but the jury could not reach a unanimous verdict as to penalty and defendant was sentenced to three consecutive sentences of life imprisonment without parole thereon.*fn1 Defendant was also convicted of attempted murder of Terrance Harris for which he received a twenty-year sentence with 85% to be served before parole.*fn2 After merger, the judgment provides for two additional sentences, but the State acknowledges that we must remand to correct the judgment which is inconsistent with the sentence as imposed on counts seven and eight. On the remand we hereinafter order the judge to clarify the sentence he imposed, and enter a corrected judgment.

The following is a brief and generalized statement of the proofs. A person identified as defendant fired an AK47 assault rifle into a car killing three occupants, and hitting a fourth, Terrance Harris, who was able to run away. The State's proofs included identification testimony and evidence that defendant had previously possessed an AK47, that all of the bullets came from the same AK47, and that defendant had a prior fight with a friend of the victims and a confrontation with one of the victims, Michael Demps, who had threatened defendant earlier on the morning of the 4 A.M. shootings. The passenger in defendant's vehicle at the time of the shootings, Gary Way, was a witness, as were passing motorists including Karen Simpkins, and Harris, the surviving passenger. Harris did not identify the shooter, and did not see Way with a gun. A cellmate of defendant's also testified that defendant said he killed the victims because they "pissed him off."

The defendant asserted that Way was the shooter, that Simpkin who made a positive identification did so after seeing his photo "at least five times in three different arrays," that the jail mate was not in the same location of the jail as defendant, and that a Harrah's security officer believed he saw Way with a gun. Defendant also endeavored to refute other evidence produced by the State. Part of the testimony developed by the defense was that the witnesses described Way as wearing baggy clothing, which could have concealed the murder weapon.

The State rebutted the defense with proofs which included evidence that the long barreled gun could not have been hidden in Way's clothing, and that the shells found all came from the same gun.

Defendant makes the following specific arguments:

POINT I THE TRIAL COURT ERRONEOUSLY APPLIED N.J.R.E. 702 AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WHEN IT PRECLUDED DR. STEVEN PENROD FROM TESTIFYING AS AN EXPERT ON PROBLEMS WITH THE EYEWITNESS IDENTIFICATION IN THIS CASE.

POINT II THE DEFENDANT WAS DENIED HIS SIXTH AND FOURTEEN AMENDMENT RIGHTS BY THE STATE"S FAILURE TO DISCLOSE UNTIL MID-TRIAL THAT IT HAD RECOVERED AND TESTED A NORINCO AK-47 ASSAULT RIFLE THAT MAY HAVE BEEN THE MURDER WEAPON; BY THE COURT'S FAILURE TO TAKE ANY MEANINGFUL REMEDIAL ACTION; AND BY HIS ATTORNEYS' FAILURE TO PRESENT EXCULPATORY EVIDENCE RELATED TO THE GUN.

A. The Factual Background

B. The Defendant Was Denied His Fourteenth Amendment Rights To Due Process Of Law By The Prosecutor's Failure To Provide Him With Any Information About the Existence Of the AK-47 Until Mid-Trial.

C. The Trial Court's Wholly Inadequate Response To The State's Discovery Violation Denied Defendant His Sixth Amendment Right To A Fair Trial and His State Constitutional Right Of Fundamental Fairness.

D. The Defendant Was Denied His Sixth Amendment Right To Effective Assis- tance Of Counsel By His Attorney's Failure To Make Any Use Of The Recovered Firearm.

POINT III THE DEFENDANT'S CONSTITUTIIONAL RIGHTS WERE VIOLATED BY THE TRIAL COURT'S RULINGS THAT THE STATE NEED NOT PROVIDE DISCOVERY RELATING TO GARY WAY'S FAILED POLYGRAPH EXAM; THAT NO EVIDENCE COULD BE PRESENTED AT THE GUILT PHASE RELATING TO WAY'S INTERVIEW WITH THE POLYGRAPH EXAMINER; AND THAT THE DEFENSE COULD NOT PRESENT TESTIMONY AT THE SENTENCING PHASE SHOWING THAT WAY HAD BEEN DECEPTIVE ON THE CRUCIAL ISSUE OF WHETHER HE WAS THE SHOOTER.

A. The Defendant's Fourteenth Amendment Right To Due Process of Law Was

Violated By The Prosecution's Refusal To Disclose The Statements Made By Gary Way To Sgt. Rochelle Before And After The Polygraph Exam.

B. The Defense Was Entitled To Use Gary Way's Statements To Sgt. Rochelle To Impeach Way's Credibility.

C. The Polygraph Results Were Clearly Admissible At The Sentencing Phase, Where the Rules Of Evidence Do Not Apply And Where The Defendant Has An Eighth Amendment Right To Present Relevant And Reliable Mitigating Evidence.

POINT IV THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE STATE'S CONTINUING FAILURE TO TURN OVER EXCULPATORY EVIDENCE CONTAINED IN TWO AFFIDAVITS FILED BY PROSECUTOR'S INVESTIGATORS WHEN APPLYING FOR SEARCH WARRANTS.

POINT V THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE PROSECUTOR'S ARGUMENTS IN SUMMATION, WHICH ACCUSED DEFENSE COUNSEL OF MAKING "SCURRILOUS AND LARGELY IRRELEVANT" ATTACKS ON THE POLICE OFFICERS IN THE CYNICAL BELIEF THAT THEY WOULD DISTRACT THE JURY FROM THE FACTS OF THE CASE.

POINT VI THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW WAS VIOLATED BY THE PROSECUTOR'S USE OF PEREMPTORY CHALLENGES TO STRIKE AFFRICAN-AMERICAN JURORS FROM THE PANEL FOR REASONS THAT WERE NOT RACE-NEUTRAL, BUT WERE AIMED AT REMOVING BLACK JURORS WHO WERE SENSITIVE TO ISSUES OF RACIAL DISCRIMINATION OR CROSS-RACIAL IDENTIFICATIONS.

In Point III of his brief, defendant contends that the trial court improperly ruled "that the state need not provide discovery relating to Gary Way's failed polygraph exam; that no evidence could be presented at the guilt phase relating to Way's interview with the polygraph examiner"; and that no testimony could be presented at the penalty phase that Way was found to be "deceptive." We address this issue first because we believe it has merit, and that a remand is required for additional fact-finding before we consider the remaining issues that may become moot if the matter must be retried. The parties have advised that one defense counsel passed away after the trial and another retired and left the country, and urged a decision on the direct appeal without a remand. However, we are convinced that defendant's extremely able appellate counsel can handle the remand or educate new trial counsel before any argument, or additional evidentiary proceedings, may be necessary. We are satisfied that the matter must, in any event, be further developed before we can properly consider the direct appeal because the trial court did not have the opportunity to consider the impact of State v. Castagna, 187 N.J. 293 (2006).

We agree with the trial judge that on the motion for new trial, anything related to the penalty phase is irrelevant given the jury's findings as to penalty. If, as defendant states, he was convicted because of the wrongful exclusion of evidence, a guilt phase issue would be involved. Defendant, in any event, has abandoned his sentencing phase claim in light of the United States Supreme Court opinion in Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed. 2d 1112 (2006) (precluding evidence of alibi at sentencing phase). In any event, we believe that discovery should have been provided with respect to the unstipulated polygraph examination of Way even though the examination was itself inadmissible.*fn3

Way had provided two statements to the police, one on September 10, 2000, and a second on September 18, 2000. Prior to trial, in addition to the statements, defendant received two documents in discovery that indicated the State had administered a polygraph test to Way on September 18, 2000, the day he gave the second statement.

The first document was headed "Atlantic County Prosecutor's Office," dated September 18, 2000, at 11:17 a.m., and signed by Way as the "SUBJECT" and by Sgt. George Rochelle of the Atlantic County Prosecutor's Office as the witness:

I do hereby voluntarily submit to a truth verification examination with respect to the following criminal investigation:

__________________MURDER____________________

The following are my constitutional rights. By signing my name at the bottom of this form, I acknowledge that I have read fully these rights and understand them:

1) I have the right to remain silent and refuse to answer any questions.

2) Anything I say may be used against me in a court of law.

3) I have the right to consult with an attorney at any time and have him present before and during questioning.

4) If I cannot afford an attorney, one will be provided if I so desire prior to any questioning.

5) A decision to waive these rights is not final and I may withdraw the waiver whenever I wish either before or during questioning. I fully understand the above statement of my rights. I understand what I am doing. No promise or threats have been made to me and no pressure of any kind has been used against me. I hereby authorize the [sic] Atlantic Co Prosecutors Office to disclose both orally and in writing the results and opinions of the truth verification examination and or any statements made by me to all interested persons.

The second document was a supplemental report signed by polygrapher Rochelle and dated September 18, 2000. The report read as follows:

The undersigned investigator was requested to give a polygraph examination to Gary Donte Way by Investigator Henry Carr of the Atlantic County Prosecutor's Office Major Crime Unit. Below are the relevant questions used on the examination and their results.

Q1): Did you shoot any of the victims?

Answer: NO/fail

Q2): Are you lying when you said you saw Massey shoot the victims?

Answer: NO/inconclusive

Q3): Did you lie to the investigators about any portion of the shooting?

Answer: NO/inconclusive For clarity and detail see the investigative report of Investigator Henry Carr.

At 3:25 p.m. on September 18, 2000, after he took the polygraph, Way provided the police with the second taped statement in which he admitted that he had seen the gun used in the shootings at defendant's home some time prior to August 11, 2000, and that he also had seen the gun in the back seat of the car before the shooting began. In that statement, Way also told Carr he had been "feeling a little scared, a little responsible for what happened," at the time he was interviewed by Rochelle.

On June 28, 2001, defendant served a discovery "demand" on the State that included a request for "[r]eports by Sgt. Rochelle on polygraph tests and interviews of Terrence Harris and Gary Way." On November 29, 2001, defendant moved to compel the State to produce discovery of a list of items, including "[a]ny notes and charts taken or made in relation to polygraphs administered involving this case."*fn4

At argument on the motion, defense counsel specifically sought "any of the prequestions asked by Sergeant Rochelle." He argued that the examiner's charts were extremely relevant for review by the defense and its expert. But the prosecutor argued that "absent stipulations," the results and the "circumstances" surrounding the polygraphs were inadmissible at trial and the State had no "legal duty" to turn over the information. According to the prosecutor, "I don't see that there's any legal duty to supply information where there is no legal basis for it ever being admitted at the time of trial."

The court agreed with the prosecutor and characterized the polygraph as "an investigative tool only," questioning why "this was turned over in the first place." It cited State v. McDavitt, 62 N.J. 36 (1972), and found that "[t]his material with regard to the preparation for [sic] polygraph exam that's unstipulated to [sic] that's used as an investigative tool would not be discoverable in accordance with the rule or in accordance with case law." It distinguished a polygraph interview from "a straight up interview," for discovery purposes. The trial court ultimately denied defendant's motion and "bar[red] [him] from referring to the fact that any polygraphs were done or interviews taken in conformity with a polygraph exam."

At pre-trial proceedings on January 8, 2002, the court reiterated its decision that the evidence was "inadmissible unless stipulated and agreed upon and therefore should not be discoverable nor mentioned at any time under any circumstances."

During Way's direct examination at trial, the prosecutor elicited from Way that he had spoken to the police more than once, but Way said he did not recall if he gave the police more information the second time. Prior to cross-examination of Way, the court told defense counsel at side bar regarding the polygraph evidence that "if you bring it up, I will fine you [both defense attorneys] the same amount of money you're getting paid for this trial, okay?"

During cross-examination, defense counsel reviewed the discrepancies between Way's first and second police statements, including that in the first statement, Way had told the police he had never seen the gun before the night of the killings, and that he did not see the gun in the car before the actual shootings. The cross-examination also developed that Way had given the police a second statement because they believed portions of his first statement were "inaccurate."

On June 17, 2002, prior to commencement of the penalty phase, defendant again moved for discovery of "all charts, all notes, all procedures used" during the administration of the polygraph on the basis that the material was relevant to the penalty phase "to set forth the mitigating factor of circumstances of the offense." The prosecutor again argued that the information was not discoverable because unstipulated polygraphs were inadmissible at the penalty phase as well. However, he gave the court a sealed envelope with the "originals" of the "polygraph materials." The prosecutor did not describe the contents of the envelope, and it is unclear whether it included any reports from Rochelle and Carr regarding their interviews with Way. In any event, the trial judge again refused to order that the material be disclosed to defendant because "polygraph evidence is not admissible at trial unless stipulated to by both parties."

Any polygraph examination results and related statements or reports were discoverable. See R. 3:13-3(c)(3), (7), (8), (9). Nothing in the rule precludes the production of a witness's statement to the police or a police report because it was provided in connection with the administration of a polygraph exam. Our rules do not preclude discovery merely because it would be inadmissible at trial irrespective of whether it might result in the discovery or production of admissible evidence. Stated differently, the rule does not afford the prosecutor any discretion to withhold evidence that falls within the parameters of Rule 3:13-3 because it ultimately will be inadmissible at trial.

The State contends, however, that "[c]ontrary to defendant's analysis, there is absolutely no reason to believe that any 'statements' within the meaning of Rule 3:13-3(c)(7) or 'police reports' within the meaning of Rule 3:13-3(c)(8) were composed surrounding Way's polygraph. Those paragraphs are therefore inapplicable." The State accuses defendant of "fabricat[ing] an assertion that Way made 'statements' to Rochelle 'before and after the test,'" and of making "baseless protestations" on the same issue to the trial court. Citing State v. McDavitt, supra, 62 N.J. at 46, the State further contends that the "polygraph periphery like charts and control questions" were not discoverable. Whether or not that assertion is correct,*fn5 the discovery issue relating to the evolution of the testimony of the State's critical witness who is alleged by the defense to be the perpetrator, requires knowledge of what was withheld from the defense.*fn6 As noted in McDavitt, supra, 62 N.J. at 46, n.3, "[t]he better practice would be to have the charts and their correlation to the questions and answers made part of the record."

We cannot accept the State's representation of the contents of its June 17, 2002 submission to the trial judge and statement as to what was not provided in discovery because there is a related question which must be addressed by the trial judge after he details on the record the contents of the submission.

That relates to defendant's argument that the trial court erred when it refused to allow defendant to develop before the jury that Way changed his story after he failed a polygraph.

The State is correct that, in general, the results of a polygraph test are inadmissible in a criminal trial absent a stipulation between the defendant and the State. State v. McDavitt, supra, 62 N.J. at 44-46. However, in State v. Castagna, supra, 187 N.J. at 311-12, the Supreme Court recently held that a defendant could cross-examine a witness on the fact that she "changed her story" after learning that she failed a polygraph test, and could develop the differences in her stories, even though no stipulation existed between the defendants and the State as to the admissibility of the witness's polygraph exam results.

In Castagna, a group of people chased and beat a man to death. Id. at 300-02. One of the participants in the attack, Violet Arias, reached an agreement with the State to plead guilty to second degree manslaughter and testify against her three co-defendants. Id. at 302-06. During the investigation Arias had provided the police with three different versions of the attack. Id. at 306. In the first, she claimed no involvement. However she implicated two of the co-defendants, saying she saw one of them strike the victim, and heard the other, Josephine Castagna, express alarm over leaving fingerprints on a pipe at the scene. Ibid. In the second statement, Aria admitted that she kicked the victim on the legs, but denied that she used a weapon or struck him on his head. Ibid. She also implicated other co-defendants and claimed Castagna hit the victim with a pipe. Ibid. After Arias gave the second statement, she received a plea offer from the State, based on her agreement to take a polygraph test. Ibid. She "agreed to take the test and that the results could be admitted in evidence if she went to trial." Ibid.

The results of the exam indicated that Arias "was being 'deceptive.'" Id. at 307. When informed of the results, Arias agreed to provide a third statement. Ibid. In that statement, she admitted that she kicked the victim in the head, but "continued to deny that she hit [him] with an object." Ibid.

The defendants sought to introduce the polygraph test results at trial to impeach Arias's testimony, and they also sought to present the polygrapher as a witness. Ibid. The trial judge ruled the polygraph test results were inadmissible "absent a stipulation, and the defendants were not a party to the stipulation between Arias and the State." Ibid. As in this case, however, "[t]he trial court made it clear that defendants were not prohibited from cross-examining [the witness] regarding any inconsistencies in her testimony," but they were "precluded from making any reference to the polygraph test results and the opinion of the polygrapher." Ibid.

At trial, Arias admitted "she had not always told the truth to the prosecutor." Id. at 308. But she claimed that she had been "very scared" and eventually provided the third statement because she "just wanted to be truthful and honest" and did not "want to live with [her] lie." Ibid. On cross-examination, she admitted that she told the truth finally "because the Prosecutor's Office confronted her with evidence that she was lying" and, as a result, "she believed her plea agreement was in jeopardy." Ibid.

We reversed the convictions of all three defendants because we "found that defendants were deprived of their constitutional right to cross-examination when the trial court prohibited them from asking Arias questions concerning the results of [her] stipulated polygraph examination." Id. at 303.

The Supreme Court agreed that the defendant's right to confrontation as set forth in Sixth Amendment's Confrontation Clause and in the New Jersey Constitution article I, paragraph 10, required that she be allowed to refer to the polygraph results in his cross-examination of Arias. Id. at 308-13. As the Court wrote:

[u]nlike in McDavitt, here the reliability of the polygraph test results was not important. It was Arias's belief that the polygraph test results revealed she had not told the truth in her second statement that was crucial. It was apparent that Arias believed she needed to change her story for the State to accept her statement and to agree to offer her a plea agreement. We hold that the trial court erred in denying defendants the right to cross-examine Arias concerning the polygraph test results, not because those results were reliable, but because the test results caused Arias to change her statement. [Id. at 311-12 (emphasis added).]

The Court further held that "[t]he jury was entitled to hear that Arias changed her story after she was confronted with the results of her polygraph test." Id. at 311.

In light of the holding in Castagna, we must conclude that the trial court abused its discretion when it denied defendant's efforts to introduce Way's polygraph results as impeachment evidence. As with Castagna, defendant was entitled to show the jury that the State's primary witness changed his story after he failed a polygraph exam.

The fact that the Supreme Court stated "[w]e need not re-examine our holding in McDavitt to decide this case," id. at 311, and subsequently adhered to McDavitt concerning the inadmissibility of unstipulated polygraph examination results in State v. Domicz, 188 N.J. 285, 313 (2006), does not change the holding in Castagna concerning the right of confrontation. Castagna dealt with the defendants' right of confrontation, rather than the issue of the reliability or unreliability of polygraph evidence for purposes of admission into evidence, which had formed the basis for the rule in McDavitt. As the Court said, "[u]nlike in McDavitt, here the reliability of the polygraph test results was not important." Castagna, supra, 187 N.J. at 311. See also Carter v. Rafferty, supra, 826 F.2d at 1306-09.

Domicz, like McDavitt, involved a defendant's attempt to introduce the results of a polygraph examination, albeit in support of his own credibility. Domicz, supra, 188 N.J. at 310-14. At his suppression hearing, Domicz disputed the account of the police officers who searched his home. Id. at 291-92. He sought to bolster his credibility with expert testimony from a private polygraph examiner who tested him at his lawyer's office. Id. at 310. The State never stipulated to the reliability of the polygraph results, and the trial judge refused to allow the expert to testify even at the suppression hearing. Ibid.*fn7

Although the Castagna Court found evidence of Arias's polygraph results admissible, it ultimately decided that that the preclusion of the information was harmless error under the circumstances. Castagna, supra, 187 N.J. at 312-13. The jury heard that Arias changed her statements to implicate herself when "confronted with evidence" that her prior statements were untrue; "was told that something happened between the time" of her second and third statements "that revealed she was not telling the truth"; and defendants were able to establish that the reason Arias changed her story was not "because she could 'live with the lie no more.'" Id. at 312. In addition, "other eyewitnesses" provided "substantial" evidence of the defendants' role in the attack. Ibid. "The only evidence on this issue that the jury did not receive was that it was the results of a polygraph test that had caused Arias to change her statement." Id. at 313. The preclusion of cross-examination on that fact therefore was found to be "harmless beyond a reasonable doubt." Ibid.

Based solely on Way's testimony and cross-examination, defendant's inability to tell the jury that Way had changed his story after he failed the polygraph may be harmless error. However, we think it inappropriate to perform a harmless error analysis without knowledge of what may have been withheld in discovery and what defendant asserts he could have provided in terms of actual or concrete testimony based thereon. Moreover, as the trial judge was unfamiliar with Castagna, we do not have the benefit of his review of its impact on how it may have affected his ruling on the motion for new trial.

Accordingly, we remand for discovery of all information concerning the notes and records of Way's polygraph examination and related reports, and a determination of whether that information warrants a new trial.

Defendant also argues that his due process rights were violated by a separate discovery violation and the court's denial of his application for the State to disclose the source of potentially exculpatory evidence contained in two affidavits in support of search warrants.

On September 11, 2000, three days after the shootings, Investigator Henry Carr of the Atlantic County Prosecutor's Office executed an affidavit to obtain a search warrant for 322 W. Wright Street, defendant's person, and a 1996 Ford Explorer parked in front of the residence. The initial paragraphs of the affidavit read as follows:

1. On September 8, 2000 Lloyd Massey and Gary Way entered Fuller's Bar, Washington Avenue, Pleasantville. Upon entering the bar all patrons are subject to review of a weapon detecting wand at the door. Massey entered and stopped to be checked. An unknown male went through [sic] the area on the left side of the wand check point in an attempt to avoid being checked. His action prompted the management to close the establishment for the remainder of the evening.

2. On September 8, 2000 at approximately 3:50 a.m. Tara Mays, a bartender at Fuller's, and Gary Way, AKA Hype "g", were in the parking lot listening to a dispute between Lloyd Massey and Michael Demps. The altercation lasted 10 - 20 minutes. During the dispute, Way states to Mays "I got the AK, You don't want no part of this," while motioning to is [sic] waist. At this juncture, Massey, visibly angry about the argument with White, indicates to Way that he is leaving. WAY TELLS HIM TO WAIT BECAUSE HE [sic] has to kiss Mays.

3. Way hugged and kissed Mays. At this time she felt a gun under his shirt at the waist. The gun also extended further down his pant leg. Following the hug, both Massey and Way entered a 4 door black Ford Explorer that Massey operates. Massey burned rubber while exiting the parking lot. Way is described as being 5'7" to 5'8", dark skinned, black male, with hair worn in corn row style, and wearing a Mecca Jacket. He has a beard and mustache. Massey is described as a black male wearing a white shirt with blue writing and twists in his hair, [sic] He is described furthr [sic] as stocky, or fat in build.

The affidavit was written on September 11, 2000, the day after Way's first interview with the police, and it contains his account of the shooting along with Harris's.

The next day, September 12, 2000, Investigator Larry Wade employed identical language in an affidavit he submitted for a search warrant for an apartment at 440 N. New York Avenue.

In a subsequent motion to compel discovery, defendant requested "[c]opies of any discovery or interviews" for "[a]ny and all employees and/or owners of Fuller's Bar." When defendant's attorney repeated that request at oral argument, the court stated the State's discovery responsibility as follows:

[U]nder 3:13-3(c)(7), as I read it, it indicates you're entitled to copies of statements from all individuals whom the prosecutor, "Knows to have relevant information." If the State is in possession of such materials or if such materials are within the State's control the defendant is entitled to them. That's what you're entitled to.

No more, no less. So let's bring it into the rule and let me talk to and address Mr. Talasnik [the prosecutor] now as to whether or not you know to [sic] have any relevant information pertaining to any other witnesses at Fuller's Bar or any employees or owners of Fuller's Bar that have not been turned over to the defense.

The prosecutor responded that "the State has nothing that has not already been turned over to the defense," which the court pronounced as "compliant with the rule."

At trial, defense counsel began to question Wade on the fact that his and Carr's affidavits were identical in certain respects and on the source of that information. Wade testified that Carr may have taken his information from Wade's affidavit (even though Carr's affidavit had the earlier date). When the prosecutor objected on the basis of relevance, the court ruled that defense counsel was not permitted to question Wade about the information in "somebody else's affidavit," and it instructed defendant to call Carr as a witness if he wanted to question Carr on the affidavit. Counsel then stopped questioning Wade on the contents of the affidavit and never asked him the source of his information.

Defendant called Carr as a witness for the defense and attempted to question him regarding the sources of the information he included in the affidavit, specifically paragraph one, which contained the reference to the "unknown male" who walked around the metal detector. The prosecutor objected that "all of this would be hearsay" unless Carr had specifically observed "something that he included" in the affidavit. According to the prosecutor, "an affidavit for a search warrant is an accumulation of hearsay; that is to say, information learned from interviewing others." Carr testified that he did not conduct the interviews that supported the statements he made in paragraphs one to four of his affidavit, and he believed Wade had done the interviews and gathered the information. Defense counsel attempted to question Carr about the source of the information, and the court said he could do that, but believed that Carr "didn't know" the source, and stated "I still don't think it comes in."

Carr then testified that [he] "personally was aware" of the information included in paragraph one. Counsel asked if he was "personally aware of it by somebody telling it to [him]," and Carr replied, "[n]ot this particular paragraph. He said the information "was obtained through investigative techniques."

After Carr testified, defense counsel pointed out the prosecutor's hearsay objection and moved for additional discovery on the source of the information in paragraph one of Carr's and Wade's affidavit because it was not included in any of the investigative reports or other discovery that defendant had received. The prosecutor said he was "confused" because "[t]his material was included" in discovery provided to the defense "over a year and a half ago" and there was never "an application for anything more specific" or a motion to suppress the affidavit or a "Franks"*fn8 challenge to the affidavit for the search warrant.

The court observed that the statement in the affidavit "doesn't appear to make any sense" because all the witnesses had testified without dispute "that people were in the bar and coming in and out of the bar all night and all morning long until about 3:30 in the morning." It told the prosecutor that "it just appears to be fair game" to determine "if you can, where Sergeant Carr came up with this information." But, shortly thereafter, the court admonished defense counsel: "I don't know where you come off by saying . . . it's the Prosecutor's duty to tell me where they got that information from." The court saw no requirement in Rule 3:13-3 by which the prosecutor was "obligated to research everything in an affidavit and provide . . . you with a detailed history and chronicle of how that information came into his hands." It observed that "Fuller's Bar is a public place," and defendant had "[t]he same opportunity that the State does" to interview the workers there. Defense counsel pointed out that he had asked Carr for the source of the information during cross-examination, and Carr said he did not know.

In his brief before us, defendant states the source of the information was never produced. He argues that, contrary to the trial court's admonition, the prosecutor was obligated to provide defendant with the source of the information because it was favorable to the defense in that it supported Mays's original allegations to the police that Way was armed when she hugged him in the bar's parking lot before the murders.

Identity of the source of the claim in the affidavit may have been favorable to the defense because, especially in conjunction with the discovery of the discarded AK-47 with a folded stock, it could have supported defendant's claim that Way committed the murders with just such a weapon.

As noted, even though there was no motion to suppress based on any mistake in the affidavit, see, e.g., Franks v. Delaware, supra, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978); State v. Novembrino, 105 N.J. 95 (1987); State v. Petillo, 61 N.J. 165 (1972), information in the possession, custody and control of the prosecutor concerning the source of the information in the affidavit should have been provided in discovery. See R. 3:13-3(c)(6). State v. Nelson, 155 N.J. 487, 498-500 (1998). It may well be, as the prosecutor seems to have represented, and the trial testimony seems to suggest, that the source of information was unknown at the time of trial and that aspects of the affidavit turned out to be incorrect,*fn9 but that the State had sufficient belief in the accusation's validity at the time to present it to the court as one of the bases for a search warrant.

Nevertheless, in light of the remand and the harmless error analysis which must be performed in light of Castagna, the trial judge is directed to clarify for the record if there was any information in the possession of the State which was not provided in connection with the source of the information in paragraph one of the Carr and Wade affidavits and the impact of any non-disclosure or non-development of the source issue in connection with defendant's right to a new trial.

Finally, during his cross-examination the State's ballistics expert, State Police Detective James Storey, testified that he had been given parts of an AK-47 to test fire and compare with the shells found at the scene of the crime. This testimony came as a surprise to the defense. The expert report provided in discovery did not include reference to the finding of a gun. The trial judge denied a mistrial which was premised on the lack of a full report in discovery and failure to give defendant an opportunity to test the gun or its parts.

The judge stated that the gun was found at a time and location too remote from the scene of the crime and believed the gun could not be tested.

In response to a later request for a read back of Storey's testimony during deliberations, the judge told the jury that "there is no evidence or testimony in the record . . . in this trial to suggest that those parts are in any way related to the assault firearm used on September 8th of 2000" and that the jury should draw no inference "against or in favor of either side from this portion of his testimony."

Defendant contends that the jury should have been advised of when and where the parts were found, because defendant could not have taken them there before he had been arrested,*fn10 and only Way could have done so, which would have supported the defense that he had to have possessed the AK-47 and shot the victims.

Defendant does not explain how testing by his expert could have helped the defense or what could be introduced to benefit defendant's case. In fact, his expert retained the gun (which Storey could not test fire) at the time of sentencing, and apparently never came up with anything of substance beneficial to the defense.*fn11 In fact, we were so advised at oral argument by both counsel. It appears, therefore, that any discovery violation did not affect the result. Nevertheless, because there must be a remand,*fn12 the parties should update the record on the issue so that it can be considered in connection with the trial judge's reconsideration of defendant's motion for a new trial and our ultimate review of the case which may require consideration of the judge's instructions to the jury on the subject and a harmless error analysis.

We remand for further proceedings consistent with this opinion. We recognize that the remand may take some time because of the unavailability of trial counsel. However, the sentence imposed suggests that speed in the disposition may be less important to defendant or the State than a proper evaluation of defendant's claims which might result in a new trial sooner than later. In any event, he will have to be assigned new trial counsel if he prevails on the remand or before us, and a new trial is ordered, so we see no downside to a remand before complete review of the matter by us, even if new counsel must be appointed now. The issues raised in this opinion warrant further development.

The trial judge's disposition shall be concluded as expeditiously as prudently possible under the circumstances. We leave to the sound discretion of the judge the best manner for developing the record as ordered and for making findings on the issues we have addressed. If the remand proceedings convince the judge that a new trial is warranted, he may so order, but the State is granted leave to appeal such a ruling before the retrial. If the judge does not grant a new trial, the defendant shall immediately thereafter order the transcript of the remand proceedings, and the parties may supplement their briefs within thirty days after its production with respect to the issues addressed. Either party may request further argument.

We retain jurisdiction.


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