On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 4358-10-97.*fn1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 28, 2005
Resubmitted: October 9, 2007
Before Judges Cuff, Parrillo and Gilroy.
In his brief on appeal, defendant Eugene Seabrooks argued that he was entitled to a new trial due to prosecutorial misconduct. He asserted that the State presented a theory of the case that it knew was unsupported by the evidence. He further asserted that the prosecutor did not reveal to defense counsel before or during the trial that Damon Wise insisted that he, rather than Alkabir Sorey, was on the motorcycle with defendant at the time Anthony Lewis was shot and killed. In our April 24, 2006 opinion, we remanded this matter to the trial court to determine when the State procured this information and when, and if, this information was transmitted to defense counsel.
On remand, Judge Lester established that the State knew no later than October 1, 1997, that Wise, not Sorey, may have been on the motorcycle with defendant. A prosecutor's office investigator memorialized his interview with Wise in a four-page report. Judge Lester also established that the prosecutor's office included this October 1, 1997 report in the discovery package and the discovery receipt dated November 26, 1997 bore the signature of defense counsel.
The State may not advance a theory of a case not supported by the evidence or reasonable inferences that may be drawn from the evidence. State v. Papasavvas, 163 N.J. 565, 616 (2000); State v. Loftin, 146 N.J. 295, 388 (1996). The State may, however, present alternative theories of the case as long as they are supported by the evidence. Papasavvas, supra, 163 N.J. at 616; Loftin, supra, 146 N.J. at 388. As a corollary to this rule, the State may submit the theory of the case that it believes is the most plausible as long as that theory is supported by the evidence. State v. McAllister, 41 N.J. 342, 350-51 (1964); State v. Hipplewith, 33 N.J. 300, 309 (1960). We discern no basis on this record to question the prosecutor's good faith assessment of the most plausible theory of the case.
Having established the critical facts submitted by this court and based on our review of this record in its entirety, we have no hesitation to proceed to affirm the conviction.