May 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL SUTTON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 9, 2007
Remanded January 24, 2007
Reargued March 31, 2009
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 addition, we directed the trial court to address any additional requests for discovery in accordance with the procedures and standards set forth in Marshall, supra, 148 N.J. at 268-72.
Judge DeStefano completed the review required by the Supreme Court and this court.*fn2 Based on a thorough review of the materials referenced in the thirty-four paragraphs, the trial record and the certifications and briefs submitted on remand, Judge DeStefano determined that defendant had not raised any claim that required an evidentiary hearing and failed to establish grounds for a new trial based on the State's failure to disclose evidence favorable to the defense. The detailed factual findings and legal conclusions supporting Judge DeStefano's determinations are stated in his written opinion of May 23, 2007.
Defendant raises two issues on appeal:
I. THE TRIAL COURT'S MAY 23, 2007 DECISION MUST BE REVERSED AS IT FAILED TO FOLLOW THE EXPLICIT DIRECTIONS OF THE SUPREME COURT IN STATE V. SUTTON, 175 N.J. 73 (2002) FOR A POST-CONVICTION RELIEF HEARING ON THE [THIRTY-FOUR] ITEMS IN THE BOSWELL CERTIFICATION.
II. THE TRIAL COURT'S MAY 23, 2007 [DECISION] MUST BE REVERSED BECAUSE THE DOCUMENTS A(1) THROUGH K6 CONSTITUTED MATERIAL PROOFS THAT UNDERMINED THE CONFIDENCE IN THE 1979 TRIAL VERDICT, VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS, AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION.
We affirm the denial of post-conviction relief substantially for the reasons stated by Judges DeStefano and Giovine. The discussion that follows addresses the arguments presented on appeal.
The ultimate question is whether the defendant received a fair trial in the absence of undisclosed evidence that would have been favorable to the defense, either because of its exculpatory or impeachment value. State v. Nelson, 155 N.J. 487, 500 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed. 2d 788 (1999). The significance of the evidence withheld is viewed cumulatively and in the context of the trial. Thus, when multiple documents have been withheld the cumulative impact of the information suppressed is considered. Knight, supra, 145 N.J. at 246. Conversely, a conviction is not set aside when the information in the documents withheld was provided in another form. State v. Carter, 91 N.J. 86, 114 (1982).
The documents identified by Boswell detail the State's quest to gather information about the identity of the perpetrators through interview and investigation of persons who were named by Sparrow, defendant and jail-house informants and mentioned in rumors circulating in the community. The State's investigation included efforts to confirm or dispel suspicion that the victim's husband had commissioned the homicide, as defendant alleged, or had a motive based on his involvement in illegal activity. The State also inquired about the victim's history of psychological counseling and the possibility of a connection between this crime and a series of crimes under investigation by a law enforcement agency in Texas. And, the State investigated a complaint by the victim's daughter about being followed the day before the crime by tracing the partial license plate number the victim's daughter provided. In addition, the investigators spoke to a psychic, moved prisoners to foster further disclosures and cooperated with law enforcement officers in California to learn more about a visit to San Diego made by one of the initial suspects soon after the crime was committed.
Judge DeStefano's decision addresses the limited significance of the information gathered in the course of the State's unproductive investigation of the foregoing leads. As Judge DeStefano found, nothing withheld tends to exculpate defendant, including the statements given by persons who defendant named as alibi witnesses and information gathered about the victim, her husband or one-time suspects.
The question at this point is not whether the State violated the discovery rule by failing to provide notes, police reports and statements in its possession but whether the cumulative impact of the withholding of favorable evidence undermines confidence in the verdict. See Nelson, supra, 155 N.J. at 500; State v. Long, 119 N.J. 439, 490 (1990) (discussing disclosure of statements of a person excluded as a suspect). We agree with Judge DeStefano's assessment of the relevance of this evidence and are not persuaded by defendant's argument that his trial attorney could have used the nature and scope of the investigation to suggest that the investigators were desperate to secure adequate evidence and thereby bolster defendant's testimony about coercion and fabrication of his confessions.
Defendant also claims that Judge DeStefano underestimated the value of impeachment evidence that was not given to defendant's trial attorney. The significance of Sparrow's inconsistent statements that could have been used to impeach his testimony was evaluated by Judges Giovine and DeStefano, and we agree with their assessment. Defendant also contends that reports prepared by Investigator Mohel could have been used to impeach that investigator's testimony about the number of reports he prepared and the date on which his involvement in the investigation of the Atkinson murder ended. Because the information included in Mohel's subsequent and undisclosed reports was not useful or relevant to the evidence presented at trial, we concur with Judge DeStefano's conclusion that the impact of impeachment pointing out the error in his testimony about subsequent reports would have been minimal; Mohel's testimony was substantially limited to a description of the crime scene.
We turn to consider defendant's objections to Judge DeStefano's discretionary determinations about the need for additional discovery and an evidentiary hearing.
New Jersey courts addressing petitions for post-conviction relief have "'the inherent power to order discovery when justice so requires,'" Marshall, supra, 148 N.J. at 269 (quoting State ex rel. W.C. v. Walls, 85 N.J. 218, 221 (1981)), but a proceeding for post-conviction relief "is not a device for investigating possible claims, but a means for vindicating actual claims," id. at 270 (internal quotation omitted). Discovery should be ordered when there is good cause to believe it will yield evidence that is relevant. Ibid.
Defendant's claim that additional discovery was appropriate must be considered in context. In 1994, an assistant prosecutor gave the defense access to the State's complete file on defendant's case. Boswell prepared the thirty-seven paragraph certification he submitted to Judge Giovine after he had an opportunity to review the entire file. Nonetheless, before Judge DeStefano, Boswell and Konzelman asserted that the prosecutor's file included additional documents not referenced in the certifications submitted to Judge Giovine because the lawyers intended to utilize those documents to impeach witnesses at an evidentiary hearing they expected to secure.
Assuming additional important information was considered but not referenced in Boswell's initial certification, it was not identified in certifications submitted to Judge DeStefano. The State complied with the direction to provide the documents identified by Boswell.*fn3 And, the information Boswell and Konzelman submitted to regain access to the prosecutor's entire file was not sufficient to require further discovery. By way of illustration, the request for additional discovery was supported by descriptions typified by the following:
The reports [not included in the thirty-seven paragraph certification] concerned reports that raised serious ethical questions about the conduct of the Prosecutor's office. These reports detailed 1) claims of witnesses who were threatened or promised payments for cooperation; 2) conversations between defense attorneys and the prosecutor revealing privileged communications and 3) critical comments from the Manchester police chief concerning the conduct of the prosecutor's office specifically in the Sutton matter.*fn4
Bank Records - A1 through A11 - There are missing checks based on my recollection of the checks I saw when reviewing the State's file [on its investigation of the husband of the victim and his business, the Waterfront Inn].
Murphy Memoranda - Investigator Murphy drafted memoranda nearly immediately following the date of [the] incident 4.24.78, which memoranda I had in my homicide file. I will refer to the file that I had amassed and organized for the Brown trial as the "homicide file[.]" These were not all marked for the Judge Giovine PCR hearing and are now missing. These include missing initial interviews at the scene of the crime and interviews at the victim's funeral. These include preliminary interviews with Mr. Atkinson which led the police to subsequent investigations at the Waterfront Inn.
These descriptions do not present any information about the relevance of the information in the "missing" documents to an actual claim. Accordingly, we cannot conclude that the denial of additional discovery was an abuse of discretion. See id. at 271-72.*fn5
With respect to the claim that Judge DeStefano erred in concluding that an evidentiary hearing was unnecessary, defense counsel fails to identify a factual dispute warranting testimony. The only factual question was whether the State gave defendant's trial attorney the documents. But, Judge DeStefano resolved that dispute in defendant's favor and assumed that the State did not give any documents to the defendant's trial attorney other than those expressly referenced in the trial record. Accordingly, an evidentiary hearing on what the State had or had not produced was not required.
Defendant does not point to any other disputed fact. Instead, he reiterates arguments based on an interpretation of the Supreme Court's order and the purpose of evidentiary hearings in post-conviction-relief proceedings that we discussed and rejected in our prior decision. Sutton, No. A-2682-03, supra, slip op. at 13-16; see Marshall, supra, 148 N.J. at 158.
Resolution of the issues before Judge DeStefano required an assessment of the fairness of defendant's trial in light of the evidence not produced and the evidence presented at trial. After full consideration of defendant's arguments, we are convinced that an evidentiary hearing would not have informed that inquiry.