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State v. Damon


December 16, 2008


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-1785.

Per curiam.


Argued October 20, 2008

Before Judges Carchman, Sabatino and Simonelli.

Following a jury trial, defendant Michael Damon was convicted of the murder of Michael Vanderhurst, who he allegedly shot to death in a Camden alley one evening in January 2003.

The sole alleged eyewitness to the shooting was a drug dealer, Giles Broome, who had been selling crack cocaine with Vanderhurst that evening. Although Broome initially told police that he had seen defendant speak with Vanderhurst in the alley and then shoot him, Broome recanted that accusation at trial. The gun was never recovered, and no forensic proofs linked defendant to the crime scene. Consequently, the State's proof of the shooter's identity hinged upon Broome's out-of-court statement to the police inculpating defendant.

At trial, after the State rested, the defense attempted to present testimony from Jeremy Rodriguez, a neighbor who had heard the shots from the alley, and who had brought Vanderhurst a blanket as he lay bleeding on Rodriguez's steps. Rodriguez stated that he asked Vanderhurst if he had seen "anybody" before he was shot, to which Vanderhurst allegedly replied in the negative, that he "didn't see anything." That testimony was offered to negate Broome's claim that defendant and the victim had been speaking with one another in close proximity right before the shots were fired. The court struck this testimony and told the jury to disregard it, because defense counsel had not supplied the State with a summary of Vanderhurst's statement to Rodriguez in pre-trial discovery.

Although defendant raises several issues on appeal, many of which clearly lack merit, we are satisfied that defendant is entitled to a new trial because the court should not have excluded Jeremy Rodriguez's testimony as a discovery sanction. The court instead should have explored less drastic measures, such as a brief adjournment of the trial, to address the asserted surprise to the State. We are also persuaded that the court's mistaken exclusion of Rodriguez's testimony was not harmless given the substantial identification issues that permeated the trial.


Vanderhurst, then age twenty-three, was shot in the upper abdomen on January 19, 2003, while selling crack cocaine on the streets of Camden. A few hours later, he died on the operating table at Cooper Hospital.

The proofs at the five-day trial focused upon the pivotal question of who shot Vanderhurst. According to the State's witnesses, Vanderhurst belonged to a four-man narcotics operation, or "set." His set sold crack from an alley between Boyd and Rand Streets, near the intersection of Boyd Street and Midvale Avenue in East Camden. The other three members of the Boyd Street set were Broome, Cinque Dredden, and Jeffrey Whye (a/k/a "Jay F"). Whye and Dredden were considered the managers of the set, although both men denied having that title.

Defendant ran a competing set, which sold crack on Rand Street. His twin brothers, Max Damon and Tyrock Damon ("the twins"), ran a third set that sold marijuana on nearby Marlton Pike. Vanderhurst had once worked for defendant's brothers but had switched to the Boyd Street set, supposedly because the latter's drug trade was better. Vanderhurst had the reputation of being a hard worker, and various sets in the area wanted him to sell drugs for them.

Vanderhurst and Broome first met one another when they worked for the twins' Marlton Pike set. Broome, who was age nineteen at the time, considered Vanderhurst a friend. He enjoyed working with him, describing Vanderhurst as a "true hustler." According to Broome, he and Vanderhurst left the Marlton Pike set because they could make more money working for the Boyd Street set, where crack was selling for about one-half of the usual price in that part of the city. Because of its price discounting, the Boyd Street set's brisk business came at the expense of the other sets in East Camden.

On the evening of January 19, 2003, Vanderhurst and Broome were working as a two-man team at the Boyd Street alley. On instructions from Whye, Vanderhurst was selling the drugs, and Broome was acting as lookout. As such, Vanderhurst stood near the alley entrance, which was flanked by abandoned houses on Boyd Street. The drugs were stashed in the rear of the alley. Meanwhile, Broome, as the lookout, stood across the street from the alley entrance.

At around 6:30 p.m., Vanderhurst and Broome ran out of drugs. They called Whye from a nearby pay phone on Marlton Pike to request more supply. In response, Whye and Dredden drove to the location. They provided Vanderhurst with two more packages of individually-wrapped five-dollar bags of crack cocaine. Dredden claimed that the packages were entrusted solely to Vanderhurst, because Broome's job was only to act as the lookout. After Whye and Dredden drove off, Vanderhurst and Broome resumed their respective positions in the alley and on the street.

Broome, after getting out of Whye's car, remained on Boyd Street while Vanderhurst went into the alley to stash the new supply of drugs. Vanderhurst then spoke briefly with a person who pulled up in a blue car. After that car pulled away, he went into the alley. Moments later, Broome allegedly saw Vanderhurst talking with a man with braids at the far end of the alley. Broome claimed to have observed the braided man pull a gun and shoot Vanderhurst. As Broome fled the scene, he heard three gunshots.

Neighbors who lived near the alley also heard the gunshots. Jeremy Rodriguez and his sister Jenice, who lived in a duplex on Boyd Street near the alley entrance, looked out of their window. They saw Vanderhurst emerge from the alley and collapse on their front steps. They went out to render aid to him. The police and ambulance arrived shortly thereafter.

Broome, meanwhile, ran to the pay phone on Marlton Pike and called Whye, telling him that Vanderhurst had been shot. Whye, who also considered Vanderhurst a friend, was upset by the news. Whye and Dredden immediately drove to the scene, where they saw police and EMTs attending to Vanderhurst.

Whye testified that when he arrived, Vanderhurst was "wrapped up in a blanket" and laying on a step. Whye recalled that Vanderhurst "looked like bluish" and that he "could tell that he wasn't going to make it." The police were asking Vanderhurst what his name was, and Whye heard him respond that his name was "Mike." However, when Whye attempted to talk to the police, the officers supposedly instructed him to leave the scene.

Whye and Dredden then picked up Broome by the pay phone. They drove to the hospital to check on Vanderhurst. According to Whye, Broome appeared unusually calm and he did not seem upset by the shooting. Dredden similarly recalled that Broome acted "regular" and "calm." By contrast, Dredden recalled that Whye was "upset," "excited," and "afraid for [Vanderhurst]."

Whye repeatedly asked Broome who shot Vanderhurst, but Broome insisted that he did not know. Dredden also asked Broome what had happened. Broome responded only that he had heard shots and that he saw Vanderhurst come out of the alley "screaming."

Because Broome provided no details to their inquiries about the shooting, Whye and Dredden suspected that Broome might have been involved in it. Dredden testified that he was suspicious about Broome because, after they had picked him up from the pay phone, he returned one of the packets of drugs to Dredden. He did so even though both packets had been specifically entrusted to Vanderhurst. Broome never explained to Dredden and Whye how he came into possession of one of the packets of drugs.

Upon arriving at Cooper Hospital in downtown Camden, Whye, Dredden, and Broome were informed that Vanderhurst was in critical condition and that he was undergoing surgery. The trio then left the hospital and went out drinking. When Whye returned a few hours later, he learned that Vanderhurst had died.

Dr. Jan Hood, an Assistant County Medical Examiner, performed an autopsy of Vanderhurst. Dr. Hood determined that the cause of death was a single gunshot wound to the torso. Dr. Hood could not determine conclusively if Vanderhurst was shot in the abdomen or in the back, because the bullet had traveled through his body and out the other side. However, based on the nature of the bullet holes in Vanderhurst's body and in his clothing, Dr. Hood opined that it was more likely that Vanderhurst had been shot in the back.

The police never recovered the gun used to shoot Vanderhurst. Moreover, no forensic evidence was generated linking defendant to the crime in any way.

Investigator Jeffrey Long of the Camden County Prosecutor's Office and Detective Eric White of the Camden Police Department led the investigation into Vanderhurst's murder. The two officers interviewed Whye at the station house ten days after the shooting. Whye was interviewed for twelve hours before giving a formal statement. The officers allegedly told Whye that they believed the murder was over "gangs and drug territory," but Whye would not agree with that supposition. Whye contended that the officers threatened to charge him in connection with Vanderhurst's death if he did not go along with their theory of the case.

Dredden, who was in custody at the time of trial following his arrest in an unrelated matter, testified that he also had given a statement to Investigator Long. Dredden likewise claimed that Long had threatened to charge him with conspiracy to commit murder.*fn1

Meanwhile, following the murder, Broome had fled to Delaware to stay with relatives for a short time. He testified that he had left New Jersey to avoid being arrested on a probation violation. Eventually, Broome returned to Camden and police received an anonymous tip of his whereabouts. Following up on that tip, police picked up Broome at his girlfriend's apartment on the morning of February 5, 2003. He was taken to the police station for questioning. At the time, Broome was not considered a suspect.

About one and a half hours after Broome was taken to the station, he gave a twenty-one-minute taped statement. In that statement Broome identified defendant, whom he called "Mike," as the person who shot Vanderhurst. Specifically, when asked why Broome and Vanderhurst were on Boyd Street that day, Broome answered:

Selling drugs, we was selling cocaine on Boyd Street, we ran out, we went up to Marlton Pike and call Jay F [Whye] on his cell phone he said he was he'd be around there in fifteen minutes he came around there, we hopped in the car, we exchanged the money for the drugs... they had told [Vanderhurst] to go stash it in an alleyway, I was standing directly across the street from [the] alleyway. And like two minutes later it was three guns shots side alleyway, and I seen Mike [Damon] pull the trigger.

Later in the police interview, Broome repeated:

While I was watching out, [Vanderhurst] was, [Vanderhurst] was in the alleyway,... I thought he was packing stash up but I seen this purple hoodie from the corner of the alley, like he was talking to somebody and then he said a couple words, and three gunshots went off and I seen Mike [Damon] pull the trigger.

Broome was then shown a photograph by the detectives, which he identified as defendant.

After Broome identified defendant's photograph, the following dialogue occurred on the tape:

Q: Alright... and [defendant] it's who you saw point the gun at [Vanderhurst] and shot?

A: Yes.

Q: Okay, could you see, could you see the weapon?

A: It was black.

Q: It was black, okay, ahhm.


Q: Okay, was there anything in the alley that blocked your view[]?

A: No sir, there was a light next door, so I could see clearly through the alley.

When asked why he had not come forward right after the shooting with this information, Broome replied:

Cause I was scared, and though[t] Mike [Damon] seen me cause they had come to my house, came to my house looking for me, came to my girl['s] house looking for me, [saying] where Giles at he knows something, so I was scared if I would come forth.

Broome stated that defendant's twin brothers had apparently gone to his girlfriend's house looking for him. They allegedly told Broome's girlfriend and her mother that "Giles knows something about what's going on," and that "it won't be no trouble, [if] Giles don't make it no trouble."

According to Broome, his drug set previously had encountered trouble with defendant and his brothers, and that the three men were pressuring Vanderhurst to return to work for the Marlton Pike set. Vanderhurst had refused, apparently because his cousin had informed him that business in that set was declining. This refusal, asserted Broome, caused "a beef" between, on the one hand, the Boyd Street drug set and, on the other hand, defendant and the twins.

Broome further recounted in his taped statement that his set had been held up three times in the weeks before Vanderhurst's death, once by the twins, and twice by other persons that Broome thought were acting on orders from the twins. He believed that the twins and defendant were behind the attempted robberies because he recognized their black Mitsubishi jeep drive by immediately after one of those attempted robberies.*fn2

Two days after Broome gave his recorded statement, police arrested defendant and charged him with the murder of Vanderhurst. A grand jury's ensuing indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a) (Count One); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Two); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (Count Three); and second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7 (Count Four). After several pre-trial motion hearings and jury selection, testimony in defendant's trial began in September 2005.

Broome was the State's key trial witness. During the course of his direct examination, it quickly became apparent that Broome was recanting his positive identification of defendant as the shooter. He instead testified that "it could have been Mike [Damon]. It could have been anybody else. Whoever it was had braids on." After his recorded police statement was read to him by the prosecutor in an effort to refresh his memory, Broome repeated that the gunman was "either Michael or somebody that looked like Mike. Whoever did it had braids."*fn3

After Broome reiterated a third time an inability to identify defendant as the shooter, the prosecutor requested a Gross*fn4 hearing. During that hearing, the prosecutor sought to enter Broome's police statement into evidence because he had substantially changed his out-of-court account identifying defendant as the shooter. The trial judge conducted the Gross hearing outside the jury's presence, at which both Broome and Investigator Long testified.

Broome admitted during the Gross hearing to making the recorded statement to the police. He identified his voice on the tape, and he affirmatively recalled the answers he gave to most of the police officers' questions. However, Broome claimed he did not remember definitively telling the officers that he saw defendant pull the trigger. Rather, Broome insisted that he had told Investigator Long prior to trial on at least three occasions that he was not sure that defendant was the shooter.

Casting further doubt on his taped statement, Broome contended that on the day he gave the statement, he was likely high at the time, because he "smoke[s] weed [marijuana] all day" and "every day." Broome also contended that, while he was giving the statement, the officers turned off the tape recorder whenever he gave an answer they did not like. He could not recall if the detectives were rewinding and recording over his prior answers.

Investigator Long, a ten-year veteran of the narcotics unit, testified in the Gross hearing that Broome had never told him that he was unsure about the identity of the shooter. Nor did Broome tell Long that the shooter might have been someone else besides defendant. Long stated that Broome did not appear to be under the influence of marijuana or any other drug when he gave his statement. Long specifically denied that the tape had been turned on and off, asserting that the recorder remained in the "on" position throughout Broome's statement.

Based upon the testimony from the Gross hearing, the State sought the court's permission to play the entire audiotape of Broome's statement to the jury as substantive evidence. Defense counsel objected that, at the most, only those portions of the tape that conflicted with Broome's courtroom account should be read. The court ultimately allowed the entire tape to be played for the jury, although it never specifically ruled upon defense counsel's request to have the segments concerning the alleged robbery attempts redacted.*fn5

Apart from Broome, the State's case-in-chief included testimony from Whye, Long, White, Dr. Hood, Camden County Investigator Robert Norcross, Assistant Prosecutor Mary Ellen Murphy, and John Klamo, Broome's defense attorney in an unrelated indictment.

Long and White generally described their investigation following the shooting. Norcross testified about his physical investigation of the scene of Vanderhurst's shooting. Murphy and Klamo each testified regarding a plea bargain negotiated with Broome in the unrelated criminal matter. They contended that Broome had received no favorable disposition in that case in exchange for his testimony in defendant's case.

Defendant did not testify. He offered testimony from Jeremy and Jenice Rodriguez, Dredden, and a crime scene photographer hired by the defense, Althea Alson.

Defendant's essential theme was that he had been misidentified as Vanderhurst's killer, that Broome's hearsay statement to the police was unreliable, and that Broome himself could have been the shooter. As we have already noted, the trial judge instructed the jury to disregard Jeremy Rodriguez's testimony relating to Vanderhurst's alleged statement to him on the front steps. The court did so as a sanction for defense counsel's failure to disclose that statement in pretrial discovery.*fn6

Following closing arguments and the court's final charge, the jury deliberated for a day before delivering a guilty verdict on the first three counts of the indictment. For technical reasons, the State opted to dismiss Count Four, the "certain persons" weapons charge.

Defendant was sentenced to life imprisonment on Count One, with an 85% parole ineligibility period, and a concurrent sentence of five years on the unlawful weapon possession charge. Those sentences both ran concurrent to a six-year prison term imposed on a separate drug charge to which defendant had pled guilty but were consecutive to a prison term that defendant was already serving in an unrelated matter.

Defendant now appeals his conviction and his sentence. Among other things, he argues that the court should not have stricken Vanderhurst's post-shooting statement to Jeremy Rodriguez as a discovery sanction. He maintains that the statement was exculpatory in contradicting Broome's out-of-court identification testimony. Defendant further maintains that the court could have applied less drastic measures to remedy any alleged surprise to the prosecution.

Defendant also contends in his appeal that: (1) the prosecutor committed misconduct in various respects in her questioning of witnesses and in her summation; (2) the court improperly admitted Broome's out-of-court police statement in its entirety, failing to redact prejudicial references to the robbery attempts; (3) the robbery attempts were inadmissible as "other crimes" evidence; (4) the jury instructions were deficient respecting the proper use of Broome's police statement and the robbery attempts; and (5) defendant's sentence is manifestly excessive. We briefly comment on these arguments in Part III, infra.


Our review focuses upon what we regard as the most troublesome issue presented, i.e., the trial judge's decision to exclude Jeremy Rodriguez's account of what Vanderhurst allegedly said to him moments after the shooting. As we explain herein, we concur with the trial judge's predicate finding that defense counsel should have disclosed Vanderhurst's statement in discovery but failed to do so. However, we are also persuaded that the trial court should have explored less extreme sanctions for the discovery violation in lieu of excluding this exculpatory proof altogether. Such intermediate measures were particularly warranted given the questionable reliability of Broome's singular identification of defendant as Vanderhurst's assailant.

We begin our analysis of this issue with a more detailed account of the stricken testimony and its surrounding context. The testimony of Jeremy Rodriguez followed testimony that defense counsel elicited from Jeremy's sister, Jenice Rodriguez. Ms. Rodriguez established that in January 2003 she had been living with her family near the shooting location. On the night of the shooting, she had been playing cards in the kitchen with her husband, William Avelo; her brother, Jeremy Rodriguez; and her sister-in-law, Nancy Avelo. The card players heard several rapid gunshots and went to the front window. According to Ms. Rodriguez, they then saw the victim come through a gate and collapse on their front steps. The State did not cross-examine Ms. Rodriguez on any of these factual points.

Next, on direct examination of Jeremy Rodriguez, defense counsel elicited testimony that Jeremy had spoken with Vanderhurst after the shooting, as he lay bleeding on the Rodriguez's front steps. The following exchange on this subject took place between defense counsel and Rodriguez:

Q: What happened after you heard the gunshots?

A: The kids started to run to the window. We told them not to. Then my brother-in-law's nephew went to the window.

Q: What's your brother-in-law's nephew's name?

A: Jonathan Avelo. He looked. He saw someone crawling into the yard. He told us. We all ran downstairs and that's when we gathered around Michael [Vanderhurst].

Q: Did you speak to Mr. Vanderhurst?

A: Yes.

Q: Did he say anything?

A: Just answers I was asking him. I was asking him his name, do you know anything, did you see anybody. He told me his name, he didn't see anything. [(Emphasis added).]

At this point, the prosecutor requested a sidebar conference. She complained at sidebar that defense counsel's written summary of Jeremy Rodriguez's testimony supplied in discovery did not indicate that he had ever spoken to Vanderhurst. Defense counsel replied that he thought that the police report, which was in the possession of both parties, had indicated that Jeremy Rodriguez had indeed spoken to Vanderhurst. The prosecutor disagreed.*fn7

The trial court accepted the prosecutor's representation that before trial she had not been furnished with documentation showing that Jeremy Rodriguez had spoken with Vanderhurst, and what Vanderhurst had allegedly stated. The prosecutor moved to strike the testimony. The court did not explore any lesser sanctions, short of exclusion, to remedy this apparent discovery violation. The court only left open the opportunity for defense counsel to demonstrate that he had, in fact, disclosed Jeremy Rodriguez's statement previously to the prosecutor. The court also expressed doubt about whether Vanderhurst's statement to Jeremy Rodriguez would be admissible under a hearsay exception, although the court did not conduct a Rule 104 hearing on that evidentiary issue or invite defense counsel to lay a foundation for admitting the hearsay.

In sum, the court instructed defense counsel:

Unless you have something on you right now [to show that Vanderhurst's statement to Jeremy Rodriguez had been disclosed in discovery], I'm going to sustain the objection and tell the jury to disregard it. Later on, if you can produce something [that proves such pre-trial disclosure], you can recall the witness, but for present purposes it's certainly a pretty severe discovery violation, not to mention the fact that it's a hearsay exception... for which no evidentiary foundation has been laid.

In making this ruling, the court alluded to the fact that defense counsel had already been found earlier in the trial to have committed another discovery violation on an unrelated matter.*fn8 When defense counsel expressed resistance to the court's determination, the judge warned counsel that he would be held in contempt if he persisted.

At this point the judge advised the jurors:

Ladies and gentlemen, the objection to that particular piece of evidence was sustained. You should disregard the question and you should disregard the answer that was given.

Defense counsel posed no further questions to Mr. Rodriguez. The prosecutor did follow up with a brief cross-examination, in which Mr. Rodriguez acknowledged that he told an investigator of the prosecutor's office before trial that he had been playing cards with his family members before the shots rang out. Mr. Rodriguez denied, however, the prosecutor's suggestion that the group had been playing a drinking game.

Subsequent to these events, defense counsel did not attempt to show that he had supplied the prosecutor in discovery with a summary of Jeremy Rodriguez's testimony. In fact, the State's investigative report*fn9 alluded to by defense counsel in his colloquy with the judge did not contain such a summary. That report did reflect that Investigator Long and a police detective had spoken at the scene with another male member of the Rodriguez family, Daniel Rodriguez. The report indicated that Daniel Rodriguez had conversed with Vanderhurst while waiting for emergency workers to arrive, and that "the victim kept asking him [David] if he could come into his home and stated that he was cold."

The record also reflects that defense counsel had supplied the State before trial with a one-page summary of an interview that a defense investigator had conducted with Jeremy Rodriguez in March 2005, more than two years after the shooting. In that defense-initiated interview, Jeremy Rodriguez recounted that right after the shooting he had run out of the apartment and encountered Vanderhurst collapsed on the front stairs. He then retrieved a blanket for Vanderhurst and covered him "because he was cold." The defense summary contains no other suggestion that Vanderhurst had conversed on the steps with Jeremy Rodriguez.

Under Rule 3:13-3, a criminal defense attorney is obligated to provide the State before trial with the "names, addresses, and birthdates of those persons... who may be called as [defense] witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements." R. 3:13-3(d)(3). This provision further specifies that, where a violation of its discovery obligations has occurred, the court has several alternatives to consider. It "may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g).

Although Rule 3:13-3 does not specify how precise the disclosure of a witness's statement must be, the long-standing policy in our State courts is to require "broad and extensive discovery." State v. DiTolvo, 273 N.J. Super. 111, 115 (Law Div. 1994). The purpose of such discovery is to "prevent surprise, eliminate gamesmanship, and afford a party an opportunity to obtain evidence and research law in anticipation of evidence and testimony which an adversary will produce at trial." Ibid. Such in-depth reciprocal discovery helps assure that the trial will fulfill its purpose "to ascertain the truth." Ibid. (citing William J. Brennan, Jr., The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U.L.Q. 279 (1963)).

Defendant does not quarrel with these well-established principles that underlie our system of open and reciprocal pre-trial criminal discovery. He contends instead that the trial court misapplied its discretion here by imposing the severe penalty of exclusion when it became apparent that the State had not been furnished in advance with a summary of Vanderhurst's alleged statement to Jeremy Rodriguez.

We recognize that, as a general matter, trial courts have considerable discretion to remedy discovery violations. However, where a discovery ruling adversely impacts a defendant's constitutional right to a fair trial, appellate courts must review the ruling more stringently. See State v. Williams, 214 N.J. Super. 12, 22 (App. Div. 1986), certif. denied, 107 N.J. 629 (1987); see also State v. Bellamy, 329 N.J. Super. 371, 377 (App. Div. 2000).

The United States Supreme Court has declared that "[t]he right [of a criminal defendant] to offer testimony is... grounded in the Sixth Amendment." Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653, 98 L.Ed. 2d 798, 810 (1988). This constitutional right is squarely implicated when a court, as sanction for a discovery violation, precludes testimony proffered by the defense. See, e.g., Williams, supra, 214 N.J. Super. at 22; see also Taylor, supra, 484 U.S. at 417, 108 S.Ct. at 657, 98 L.Ed. 2d at 815; State v. Gonzalez, 223 N.J. Super. 377, 383 (App. Div.), certif. denied, 111 N.J. 589 (1988). In such situations, the court must carefully weigh the need to enforce the discovery rules that are, at their core, designed to ensure a fair trial against the accused's constitutional right to present a defense.

We have addressed this delicate balance in earlier decisions. For instance, in State v. Dimitrov, 325 N.J. Super. 506, 510 (1999), certif. denied, 163 N.J. 79 (2000), the trial judge barred a defense witness because the defendant's counsel had not divulged the identity of the witness and his anticipated testimony to the prosecutor until the morning of trial. Ibid. The judge decided that he would not delay the trial to give the prosecutor time to prepare for the belatedly-disclosed testimony because the case was "very old," and had been adjourned several times already. Ibid. We reversed that determination in Dimitrov, concluding that the trial judge's asserted reasons for barring the witness, whose testimony was critical to the defense, "fell short." Ibid.

We observed in Dimitrov that where a criminal defendant is deprived of the opportunity to prevent favorable testimony, "[c]ountervailing considerations used to deny defendant that opportunity must be weighty indeed." Ibid. (citing Gonzalez, supra, 223 N.J. Super. at 377 (holding that defendant had been unfairly deprived of his right to present a defense when the trial court refused to adjourn the case to allow him to investigate a potential favorable witness)); Williams, supra, 214 N.J. Super. at 22 (holding that a new trial was required where the court had barred exculpatory testimony by a defense witness because of a discovery violation).

In comparable situations involving a defendant's violation of the notice-of-alibi rule, Rule 3:12-2(b), several factors apply: (1) the prejudice to the State flowing out of the lack of notice; (2) the prejudice to defendant flowing from preclusion of the evidence; and (3) whether a less severe sanction other than preclusion, such as continuance, is feasible. Gonzalez, supra, 223 N.J. Super. at 385; State v. Francis, 128 N.J. Super. 346, 351 (App. Div. 1974). These factors have similarly been applied to discovery violations outside of the alibi context.

Our Supreme Court recently addressed those considerations of fairness and an accused's right to present his defense in State v. Bradshaw, 195 N.J. 493 (2008). There the defendant, who was on trial for sexual assault, notified the prosecution for the first time in the midst of trial that he intended to testify that he was elsewhere at the time of the rape. Id. at 498. The trial court precluded defendant from testifying to any such alibi, finding that the prejudice to the State was great. Id. at 498-99. The Supreme Court, applying numerous balancing factors, concluded that the trial judge had misapplied his discretion by issuing too severe of a sanction for the defendant's failure to abide by the Court Rules requiring disclosure. Id. at 509. The Court further concluded that the preclusion of the alibi testimony was not harmless error. Id. at 509-10.

In discussing the applicable principles in Bradshaw, the Court traced the history of state and federal case law that led to the three-part balancing test enumerated in Gonzalez, supra, and in Francis, supra. Recognizing the importance of the accused's right to present a defense, the Court added a fourth consideration: "whether the [defendant's] failure to give notice-of-alibi evidence constituted willful misconduct and [was] intended to gain a tactical advantage." Bradshaw, supra, 195 N.J. at 508. The Court further held that, "[a]bsent a finding that the factors on balance favor preclusion, the interest of justice standard [found in the alibi rule] requires a less severe sanction." Ibid.

Applying these four factors to the situation in Bradshaw, the Court was satisfied that the case did not present "that rare circumstance" where a defendant's non-disclosure of an alibi defense warranted "the sanction of preclusion." Ibid. Finding no willful misconduct on the part of defense counsel, the Court observed that "defense counsel [had] mistakenly believed that the [alibi] rule did not apply... and [that] there was no indication that [the non-disclosure] was a strategic choice by counsel to gain an advantage." Ibid.

The present case is likewise one that does not exemplify the "rare circumstance" in which the harsh sanction of preclusion of exculpatory testimony was warranted. The trial court unfortunately did not undertake an analysis of the totality of pertinent factors before striking Jeremy Rodriguez's account of what the victim had supposedly told him, and before it conclusively instructed the jury to disregard that testimony. The court should have considered other alternatives, such as granting the prosecution a short adjournment of the trial to enable the State to rebut or impeach Jeremy's testimony.

Defendant was manifestly prejudiced by the total preclusion of Vanderhurst's statement to Jeremy Rodriguez. Vanderhurst's statement that he did not see "anybody" before he was shot, implicitly including his assailant, was pivotal evidence. It directly contradicted Broome's statement to the police that he had seen Vanderhurst talking with defendant before defendant shot him. Because the State's entire case against defendant depended upon whether or not the jury believed Broome's later-recanted identification in his police statement, any evidence tending to impeach that police statement was highly relevant and tended to exculpate defendant.

The trial record as a whole reflects that this was a close case. The State's theory of identification distilled down to the out-of-court statement to the police of a drug dealer, Broome. The statement was obtained after Broome had fled from the area because of a probation violation and was apprehended. Once at the police station, Broome told the police that he supposedly observed Vanderhurst and his assailant at night from the end of a darkened but partially illuminated alley. When the set leaders encountered Broome after the shooting, his reaction to his partner's demise seemed unusual.

In addition, the coroner was unable to find gunpowder marks or other forensic proof that the shots had been fired at close range. The weapon was never recovered, nor any fingerprints placing defendant at the crime scene.

Given this setting, the victim's alleged statements after the shooting were particularly germane to the pivotal question of his shooter's identity. The prejudice to defendant in specifically admonishing the jury to disregard Vanderhurst's assertion that he "didn't see" anything or anybody before he was shot is considerable.

On the other hand, it is not readily apparent that the prosecution was irreparably harmed by defendant's failure to disclose Vanderhurst's statement to Jeremy Rodriguez in the pre-trial discovery phase. A brief adjournment of the trial could have afforded the prosecutor a chance to interview Jeremy Rodriguez. Such an interview might have provided the prosecutor with insights about the Vanderhurst's condition and demeanor when he spoke with Jeremy, whether other matters were discussed, and Jeremy's certitude of his recollection of the discussion. Additional time also would have given the State a chance to re-interview the other Rodriguez family members who had been at the scene to determine if they had overheard the victim's alleged conversation with Jeremy and whether the victim had told them anything to the contrary.

The prosecutor might also have used a brief hiatus to develop additional grounds for impeaching Jeremy, such as bias, a poor memory, or impaired perception. In fact, the prosecutor pursued such impeachment, albeit in a limited manner, in asking Jeremy on cross-examination whether he had been playing a "drinking game" with the other family members inside the house, thereby suggesting that he could have been inebriated when he encountered Vanderhurst and that his recollection of their conversation was suspect.

Moreover, it should have not been a complete surprise to the prosecutor that Jeremy had spoken with Vanderhurst before the emergency workers arrived. The defense investigator's report does reflect that Jeremy had brought Vanderhurst a blanket because he was cold. To be sure, the report does not state explicitly how Jeremy knew that Vanderhurst was cold, i.e., whether it was from something that Vanderhurst said or from Jeremy touching him and feeling a lack of warmth, or both. The State did know from its own investigation that Jeremy's relative who had also come to the front step, Daniel Rodriguez, spoke with the victim, and that, in the words of the prosecutor's investigation report, "the victim kept asking him [Daniel] if he could come into his home and stated that he was cold."

If Vanderhurst spoke with Daniel on the front steps repeatedly, one could readily infer that he was likely to have also spoken with Jeremy. Although we do not condone defense counsel's failure to apprise the State beforehand of Vanderhurst's alleged words to Jeremy, the fact of their conversation reasonably could have been anticipated. In any event, nothing in the record suggests that Jeremy was unavailable to the prosecutor before trial.

In attempting to justify the trial court's exclusion of Jeremy Rodriguez's direct examination, the State argues in its supplemental brief to us that "any undisclosed [defense] evidence capable of contradicting the sole eyewitness's [Broome's] account of the shooting would prove highly detrimental to a prosecution that rested largely upon the believability of that witness."

The State's frank acknowledgment that its case hinged upon "a sole eyewitness," one who recanted his identification of the shooter at trial, reveals the significance of the court failing to consider less drastic measures before this exculpatory proof from Jeremy Rodriguez was stricken from the record. The State's recognition of the closeness of the evidence demonstrates that the error committed here was harmful, not harmless. The court's error was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971); see also R. 2:10-2.

Without the benefit of Jeremy Rodriguez's testimony, the only impeaching evidence the defense produced came from Broome himself, who, as the State repeatedly argued, had ample reasons to lie. Thus, in the jury's eyes, Broome's repudiation of his own statement may have been worth little.

On the other hand, Jeremy Rodriguez seemingly was a dispassionate observer who had no motive to lie. His testimony that Vanderhurst said, in effect, that he did not see who shot him directly impeached Broome's prior statement. Since the evidence shows that Vanderhurst and defendant knew each other well, Broome's claim that he saw Vanderhurst speaking with defendant just before he was shot is completely at odds with Vanderhurst telling Rodriguez that he "didn't see" anything.

If the jury had been permitted to consider Vanderhurst's statement to Jeremy Rodriguez, it reasonably could have been persuaded either that (1) Broome deliberately lied to the police about what he saw, or (2) Broome's view into the alley that night was not as clear as he had previously indicated. Defendant forcefully argued in summation that Broome had misidentified defendant as the shooter. Jeremy Rodriguez's testimony strongly supports that theory and its omission was not inconsequential.

Additionally, the record does not demonstrate that defense counsel's failure to give the prosecution specific notice of Vanderhurst's statement to Jeremy Rodriguez was "willful and intended to gain a tactical advantage." Bradshaw, supra, 195 N.J. at 508.*fn10 Defense counsel identified Jeremy as a potential trial witness, having turned over before trial his investigator's report summarizing the interview with Jeremy. That report, as we have indicated, at least divulged that Jeremy had encountered Vanderhurst twice, initially on the steps and a second time after retrieving a blanket. The report also mentioned Jeremy's perception that Vanderhurst was cold. Although the source of that perception was not specified, the report could reasonably have prompted the prosecution to interview Jeremy before trial. Again, we do not condone defense counsel for his incomplete turnover of information concerning Jeremy, but the record is inadequate to support a finding of willful misconduct. Nor did the trial judge make such a finding.

Indeed, when the issue of non-disclosure first arose at sidebar, defense counsel's initial reaction was that the victim's conversation with Jeremy had been disclosed in the police report. Counsel's recollection turned out to be erroneous, although the report did refer to Daniel Rodriguez, rather than Jeremy, speaking with the victim. On the whole, the record before us fails to demonstrate that defense counsel willfully "intended to gain an advantage," see Bradshaw, supra, 195 N.J. at 509, by not disclosing Vanderhurst's statement to Jeremy before trial.*fn11 This also tips in favor of imposing a lesser sanction than the total preclusion of the defense witness.

Lastly, we give brief consideration to the trial judge's observation that Vanderhurst's alleged statement to Jeremy Rodriguez appeared to lack "an evidentiary foundation" to satisfy a hearsay exception. Because no Rule 104 hearing on admissibility was ever conducted, the record is insufficient for us to make a conclusive determination on this point. For purposes of the present appeal, we are satisfied preliminarly that there appear to be sufficient indicia present to admit Vanderhurst's statement either as a dying declaration under N.J.R.E. 804(b)(2), or as an excited utterance under N.J.R.E. 803(c)(2).

As to the former hearsay exception, the sequence of events from the gunfire through Vanderhurst's staggering to the Rodriguez's front stairs, his complaints about feeling cold, and the blood found at the crime scene are all consistent with a declarant having a consciousness that he was going to die. See N.J.R.E. 804(b)(2); see also State v. Taylor, 350 N.J. Super. 20, 28 (App. Div.), certif. denied, 174 N.J. 190 (2002).

Apart from the dying declaration hearsay exception, the applicability of the excited utterance exception should also be considered. N.J.R.E. 803(c)(2). The shooting was clearly a "startling event." Ibid. Although the victim's demeanor was not explored in the brief testimony elicited from Jeremy Rodriguez, the surrounding context is one in which we doubt he was speaking in a calm, measured manner. Vanderhurst's repeated entreaties to Daniel Rodriguez to get him a blanket and to bring him inside suggest a mindset of urgency, not tranquility. There also was no obvious opportunity for Vanderhurst to deliberate or fabricate. Ibid. See also State v. Buda, 195 N.J. 278, 297 (2008) (similarly finding the exception applied where the declarant's statement follows "action-filled chaos and stress-filled events"). The elements of an admissible excited utterance seem to be present, subject to further development of the record.

In sum, the trial court erred in foreclosing less drastic measures and instead striking Jeremy Rodriguez's potentially-exculpatory testimony as a discovery sanction. Although we appreciate the trial court's well-intentioned desire to enforce the discovery rules and its justifiable admonition of defense counsel, the proofs of identity in this case were so close that we cannot relegate this mistake to the dustbin of harmless error. That is particularly true in light of the Supreme Court's recent guidance in Bradshaw. In reaching that determination on this discrete issue, we do not overlook the trial judge's overall excellent and fair-handed management of this difficult and hotly-contested trial. Even so, the error requires a remedy.

Consequently, we vacate defendant's conviction and remand for a new trial. At or before such a new trial, the court shall conduct a Rule 104 hearing to explore in detail any pertinent hearsay exceptions relating to Vanderhurst's statement to Jeremy Rodriguez that defense counsel wishes to invoke On remand, defense counsel shall also supplement his discovery turnover to provide the State with a more fulsome account of Jeremy Rodriguez's conversation with Vanderhurst. The prosecutor, in turn, shall be afforded a reasonable opportunity to conduct additional interviews or otherwise muster proofs that may counter that evidence.


Because we have vacated defendant's conviction on the discovery point, we do not need to address at length his other arguments on appeal. Even so, in the interests of completeness, we offer some brief comments about those issues, some of which may be helpful in guiding the court and counsel at a new trial.

Defendant has argued that the prosecutor committed misconduct and deprived him of a fair trial by: (1) insinuating that Broome had recanted at trial out of fear of defendant and his brothers; (2) commenting that Broome did not maintain eye contact with the prosecutor while he was on the witness stand; (3) calling Assistant Prosecutor Murphy to testify about Broome's guilty plea in unrelated matters, and her statement that Broome's sentencing had been delayed until this trial because he was in danger of being harmed within the prison; (4) questioning Whye about him being seated outside of the courtroom with defendant's brothers, and about his contact with defense counsel before trial; and (5) alluding in summation to the victim's slow manner of death and to the feelings of the victim's mother. We have considered each of these arguments and find them without sufficient merit to warrant relief. R. 2:11-3(e)(2).

The State legitimately explored at trial the reasonable prospect that defendant, directly or indirectly, had caused Broome to recant and also caused Whye to provide him with certain favorable testimony. The prosecutor's efforts properly went to consideration of the potential bias of these fellow drug dealers. See N.J.R.E. 607; State v. Wakefield, 190 N.J. 397, 451-52 (2007) (noting the propriety of impeaching the credibility of witnesses); see also United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d 450 (1984) (upholding the time-honored practice of impeachment for witness bias).

Furthermore, we discern no plain or reversible error in the prosecutor's comments about Broome's demeanor while questioning him, or her remarks in summation, neither of which were objected to at the trial. See State v. Frost, 158 N.J. 76, 83-84 (1999).

Second, we are likewise satisfied that the trial court did not err in admitting proof of the alleged attempts by defendant's twin brothers to rob Vanderhurst's drug set, including the references to such attempts by Broome's taped police statement. The testimony fairly supported the State's theory that Vanderhurst had been killed because his proficiency as a drug dealer was placing defendant and his brothers at a competitive disadvantage.

We further agree with the trial court's ultimate determination to play the tape of Broome's statement in its entirety, so as to provide the jury with a full context of the statement, see N.J.R.E. 106, and also to rebut Broome's contention that the police had switched the tape on and off when he provided an answer that they did not like.*fn12

Next, we detect no error in the admission of Broome's taped police interview as a prior inconsistent statement countering his trial testimony, in which he was unable to identify defendant as the shooter, other than his braided hairstyle. The trial judge performed a careful analysis of admissibility following the Gross hearing, which showed that the prior statement had sufficient reliability to be presented to a jury. See Gross, supra, 121 N.J. at 7; see also N.J.R.E. 803(a)(1). The taped statement's admission also did not violate the Confrontation Clause because Broome was cross-examined by defense counsel at trial. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed. 2d 177, 197 n.9 (2004). Our State's Constitution affords defendant no greater protection. See State v. Kent, 391 N.J. Super. 352 (App. Div. 2007).

In addition, we are satisfied that the jury instructions, which defendant did not object to at trial, were adequate. The instructions tracked the pertinent model charges. See Model Jury Charge (Criminal), "Recanting Witness (Substantive)" (1994).

Although we need not comment on the sentencing in light of the remand for a new trial, we do note that the life sentence imposed on defendant for first-degree murder was not manifestly excessive, particularly given the narcotics "turf war" context of this homicide, and also defendant's lengthy prior criminal record. State v. Roth, 95 N.J. 334, 363-65 (1984).


For the reasons stated, defendant's conviction is vacated. The matter is remanded for a new trial, consistent with the rulings set forth in this opinion.

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