On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 00-12-2444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...