On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 271-78.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded January 24, 2007
Before Judges Graves, Grall and Espinosa.
Defendant is serving a term of life imprisonment for felony murder and a concurrent term of five to seven years for breaking and entering. On April 24, 1978, sixty-two-year-old Harriet Atkinson was killed in her retirement-community home in Ocean County. In February 1979, defendant and co-defendant Cornell Sparrow were indicted for the crimes. Sparrow pled guilty pursuant to a negotiated agreement and testified on behalf of the State at defendant's trial. Defendant's confessions were introduced into evidence at trial, and he also testified. There was no physical evidence linking either defendant or Sparrow to the crime. The jury found defendant guilty of breaking and entering with intent to steal, N.J.S.A. 2A:94-1, and felony murder, N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. His convictions and the denial of his first petition for post-conviction relief were affirmed. State v. Sutton, No. A-2059-79 (App. Div. May 26, 1981), certif. denied, 88 N.J. 465 (1981); State v. Sutton, No. A-1991-83 (App. Div. Oct. 15, 1986), certif. denied, 107 N.J. 105 (1987).
This appeal is from the denial of defendant's second petition for post-conviction relief, which is based on defendant's claim that the State withheld evidence favorable and material to his defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963); see United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed. 2d 481, 490 (1985); State v. Marshall, 148 N.J. 89, 156, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Knight, 145 N.J. 233, 245-46 (1996). The appeal returns to this court following a remand to address that claim. State v. Sutton, No. A-2682-03 (App. Div. Jan. 24, 2007).
The evidence at issue on this appeal was discovered long after defendant's conviction when the State connected Curtis Brown with fingerprints left at the scene of the crime. Brown was not a suspect at the time of defendant's prosecution. In 1994, Gerald Boswell, who was then an assistant deputy public defender, was assigned to represent Brown. On Boswell's request, an assistant prosecutor gave him the State's entire file on defendant's case. Boswell showed some of the documents he believed were favorable to the defense to Charles Frankel, the attorney who had represented defendant at trial, and Frankel told Boswell that he had not seen them before. Frankel, however, died before defendant's second petition for post-conviction relief was filed, and the defense cannot locate his file.
Boswell subsequently filed a certification in support of defendant's second petition for post-conviction relief. The Boswell certification included thirty-seven paragraphs, each of which identified one or more specific documents that Boswell had uncovered while reviewing the State's file.
Judge Giovine conducted the proceedings on defendant's petition. Robert Konzelman was appointed to represent defendant. Konzelman presented argument on three of the thirty-seven paragraphs of Boswell's certification.
After review of the documents referenced by Konzelman, Judge Giovine found that the State had withheld evidence of Sparrow's pretrial statements that the defense could have used to impeach Sparrow's credibility at defendant's trial. Nonetheless, after considering the numerous inconsistencies in Sparrow's testimony and pretrial statements that were brought to the attention of the jurors and the strength of the evidence of guilt found in defendant's confessions, Judge Giovine concluded that there was no "reasonable probability" that the defendant would have been acquitted if his trial attorney had the evidence. Judge Giovine's factual findings and legal conclusions are set forth in a comprehensive written opinion.
This court affirmed Judge Giovine's decision on appeal. State v. Sutton, No. A-5270-99 (App. Div. June 3, 2002).*fn1 The Supreme Court vacated our decision and "summarily remanded to the trial court for a post-conviction relief hearing on the thirty-four items" not considered by Judge Giovine. State v. Sutton, 175 N.J. 73, 73-74 (2002).
On that remand, the evidence addressed in the remaining thirty-four paragraphs of Boswell's certification was not provided to the trial court, and the court denied relief. On defendant's appeal from that order, we remanded with direction to comply with the Supreme Court's order. Sutton, No. A-2682-03, supra, slip op. at 17-18. Because the documents and Boswell's notes had been misplaced when Boswell lost or relinquished control of the file during a dispute with his superior, we ordered production of the documents and directed defense counsel to provide certifications or affidavits from competent witnesses if defendant intended to rely on information not included in those documents or the trial record. Id. at 17. In ...