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State v. Wilson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 1, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN WILSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-11-2454.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2009

Before Judges Carchman, R. B. Coleman and Simonelli.

In this appeal involving the 1984 murder of Zebedee Newmones, a 2004 trial that resulted in a hung jury, a second trial that terminated in a mistrial and a 2006 third trial that resulted in a conviction for the murder, N.J.S.A. 2C:11-3a(1)(2), and a prison sentence of sixty-five years with a thirty-year parole disqualifier, defendant Brian Wilson, a/k/a "B" a/k/a Paul McKnight, raises significant issues regarding the withholding of discovery. The sealed discovery was withheld under a protective order, at the State's request. After a careful review of the record including the discovery, we conclude that certain withheld documents were relevant and probative, and the failure to provide such discovery requires a reversal and remand for a new trial. We also conclude that the trial judge erred by failing to instruct the jury as to lesser-included offenses.

We set forth both the procedural history and the relevant facts as adduced at trial to place our determination in appropriate context. In the early morning hours of September 14, 1984, Richard Barber and brothers Jeffrey*fn1 and Robert Simpson were at the Atlantic City home of the grandmother of their friend Lamont Parker a/k/a "Mussa." Parker was there as were some unidentified girls and another man named "Phons." Parker lived in New York but often stayed at his grandmother's home in the area.

At approximately 3:00 or 4:00 a.m., Barber, Parker and Jeffrey Simpson (Simpson) left to go "get something to drink." Barber was driving his girlfriend's silver Renault. As they drove past the Kenyon Inn, Parker saw the victim, Newmones. Parker "wanted to get" Newmones and asked Barber to drive him back to the house so he could get a gun and his bicycle. Barber drove Parker and Simpson to the Lincoln Motel where they picked up defendant, nicknamed "B." Defendant also lived in New York. As the four men drove back to where they had seen Newmones, Barber heard "Mussa sa[y] he was going to do this nigger and B said he would do it for him." Barber understood this to mean "[t]aking a pistol and shooting him."

They saw Newmones standing in front of the School House Apartments on Arctic Avenue "with another guy." Defendant did not know Newmones, so Simpson and Parker "told him they would point the guy out."

After Barber parked the car, defendant and Simpson went through a park and an alley onto Illinois Avenue and then Arctic Avenue. Defendant crossed Arctic Avenue and began "[u]nloading on Zeb." After the shooting, Simpson, defendant and Parker ran back up the alley to Barber's car and drove off to a bar.

Barber observed that when Parker, Simpson and defendant came running back to the car, defendant had a weapon in his hand. Barber said,

When they got back to the car, [defendant] said to Mussa, Did he get up? And Mussa had said, No, he didn't get up. And Simpson said, I think he got up. And then [defendant] said I unloaded the gun in that nigger --

....

And then Mussa said that, Yeah, that's good I can tell my [sic] cousin Boz (sic) we got one of them niggers....

Either defendant, Parker and Simpson, or just defendant and Simpson, got out of the car at Red Clots bar, a block from the Lincoln Motel. Defendant wanted a change of clothes from his motel room. Barber parked the car and returned to Parker's house where the mood there was "happy, celebrating." Simpson also returned to Parker's. Barber, Parker and Phons were there, and Parker said "we gave it to him."

Shortly after 4:00 a.m. on September 14, 1984, Atlantic City police officers Gregory Farmer and Charles Sutton were on patrol in the west side of Atlantic City, when Rodney McNair ran up to their vehicle and indicated that his friend had been shot at the intersection of Indiana and Arctic Avenues, a half-block away. The officers, who knew McNair, followed him, while another man blocked the intersection to keep traffic away. The officers found the victim lying face-down on Arctic Avenue with blood on his back and face, and they called for an ambulance. Pamela Lamb identified the victim to police as Newmones, whom she knew because he was the father of two of her sister's children. Lamb had seen Newmones earlier in the evening with McNair and others who she could not identify.

Newmones was pronounced dead at the hospital at 4:35 a.m. He sustained five bullet wounds and died from bleeding from the various wounds. The wounds were consistent with suffering a shot to the face, and then while turning, a shot to the shoulder and, finally, a shot in the back after falling.

Five.38 shells from a.38 caliber gun were found on Disston Avenue, a one-way street perpendicular to Arctic Avenue. Ballistics tests could not confirm whether all the shells had been fired from the same gun, but they did confirm that three bullet fragments from the body were fired from the same.38 caliber revolver.

Two weeks after the murder, on October 1, 1984, the police arrested Simpson for the accidental shooting death of his girlfriend, a woman known as "Peaches." Simpson was remorseful and cooperated with the investigation of Peaches's death. The police also questioned Simpson regarding the Newmones shooting. Simpson provided the names of various individuals and the circumstances surrounding that murder, but he refused to sign a waiver of rights form and couched all his information in terms of "rumor has it."

Based on information obtained from Simpson, over the next few weeks, the police interviewed Simpson's brother, Robert, Barber and Barber's girlfriend, Reba Tompkins. They examined the registration records of the Lincoln Motel and visited the residence of Parker's grandmother.

On October 12, 1984, Simpson provided the police with a statement that described the circumstances of the killing and his role in it. Simpson knew defendant as "B." He told police that defendant's first name was Brian and that he lived in New York on 143rd Street between Broadway and Amsterdam.

In a statement provided to the police on October 17, 1984, Barber's sister Tracy Williams, previously known as Tracy Vance, said that at 10:00 or 11:00 a.m. on September 14, 1984, she was looking outside her door when she saw defendant "riding around the corner on a bike." Williams knew Parker, and she recognized defendant as Parker's friend from New York. Defendant asked Williams if she "could... hold a piece for him and he'd be right back to get it." Williams allowed him to "leave it here for a second, for a few minutes." Williams described it as a "big gun with black tape wrapped around it, it was brown with black tape wrapped around it, the firing piece." Shortly thereafter, Williams learned that Newmones had been shot. She went looking for her brother, Barber, who told her that he would come get the gun if defendant did not pick it up. Barber went to Williams' house later that night, retrieved the.38 Smith and Wesson and threw it in the bay off Maryland Avenue.

Barber agreed to provide a taped statement to the police. He had been charged with hindering the apprehension of the people responsible for shooting Newmones and was under arrest for drug charges. On October 17, 1984, he took police to the body of water where he said he had thrown the handgun. However, a search of the water revealed nothing.

In October 1984, William McIntyre and other investigators from the Atlantic County Prosecutor's Office, went to New York City in several unsuccessful attempts to locate Parker and defendant. In November 1984, Barber and Simpson identified defendant to the police from a series of photos. Simpson identified defendant as the person who shot Newmones.

On December 11, 1984, an arrest warrant was issued for defendant as "Brian Doe." But on September 26, 1985, New York City police contacted McIntyre with a last name, date of birth social security number and names of relatives for Brian Wilson. They issued a new arrest warrant for defendant, and on January 13, 1986, his name was added to the New Jersey State Police most wanted list. Defendant was not arrested in New York until October 22, 2002, under a warrant with the name "Paul McKnight." He was cooperative, waived extradition and never denied that he was Brian Wilson.

Defendant told the police he wanted to speak with them but was not comfortable checking either "yes" or "no" on the waiver form, so he "just drew a line across it." He told police that he had been using the name of Paul McKnight since the 1980s and that he had had a girlfriend by the name of Sharon McKnight. He met Parker when he was nineteen-years-old and lived in Manhattan. They had lived together in Manhattan and traveled to Atlantic City. Defendant told police that he did not know the victim personally, but that Parker did. He claimed that Parker and Newmones had a problem.

The detective asked if defendant shot the victim. Defendant answered "no." When asked "if he did it at the request of Mr. Parker," defendant responded that "he did not want to point the finger at anyone." When asked if Parker had provided the gun, defendant again "stated he did not want to point the finger at anyone." Defendant told police that he had tried on three occasions to turn himself in to police through an attorney and through the prosecutor's office, but he had never done so.

Barber was the primary witness against defendant at the third trial. Barber was incarcerated in Camden County at the time and had charges pending against him. He said he hoped his testimony would "further get[] [him] out of the position that [he is] in as far as this case as far as redeeming [himself] for something that [he] was involved in that [he] shouldn't even have been nowhere near."

Barber admitted that during the first trial (when Parker and defendant were tried together) he had recanted his statement to the police and claimed a lack of memory regarding the events surrounding Newmones's death.*fn2 He also admitted that he did not have any charges pending against him at the time he recanted his statement. But he said he was in state prison at the time and being "directly and indirectly threat[ened]... on a daily basis."

Simpson also was a witness at the third trial. Prior to his testifying, the prosecutor sought to question Simpson outside the jury's presence on whether he intended to invoke his rights under the Fifth Amendment. She noted that Simpson had been granted immunity, which precluded him from relying on the Fifth Amendment. The judge asked Simpson: "Are you going [to] assert the Fifth Amendment, or are you going to testify especially in light of the fact that you've been given an immunity?" Simpson said he would testify, but he intended to "contest the coercion of the statement itself."

Although Simpson had been provided with immunity from prosecution for his testimony, as with Barber, the jury was never told that. Simpson admitted to the jury that he was never charged with any crime related to Newmones's killing. At the time of trial, Simpson had pending charges in Atlantic County.

Simpson affirmed his knowledge of the individuals involved in Newmones' murder and that he had provided a statement to the police on October 12, 1984, regarding that murder, while he was under arrest for killing his girlfriend. But he disavowed much of the statement's contents, even while he did not deny giving it. He said that at the time he was only eighteen years old, traumatized, on medication and suicidal about the death of his girlfriend. He asserted that the police had shown him photographs of Peaches autopsy, that he was afraid and intimidated by the number of police in the room and felt that he "had no choice in the matter" but to agree with their statements to him. He said that the police told him that providing information on Newmones's death would "be beneficial [in] the case of [hIs] girlfriend." Simpson was charged with involuntary manslaughter in his girlfriend's death.

The prosecutor reviewed a twelve-page transcript of the statement sentence by sentence with Simpson, paraphrasing certain questions and responses and asking Simpson whether he recalled them. Simpson admitted at trial that he was present when Newmones was shot. He disavowed that portion of his 1984 statement that said defendant was with them. He asserted that the "majority" of his answers "had to be supplied" by the police because "B was never with us, not at anytime." He also suggested his brother, Robert, had "inserted" defendant into the scenario because "[he knew] for a fact that he wasn't there that night." Simpson claimed that defendant did not kill Newmones, but when asked who did, Simpson paused and said, "I can't recall." When asked if Parker had killed him, Simpson again paused and said, "I don't recall."

After the prosecutor completed her questioning based on the statement transcript, the actual tape of Simpson's statement was played for the jury over defendant's objection. The judge admitted the tape under N.J.R.E. 803(a)(1) because it was "a sworn statement." The jury was told that the tape was being played to demonstrate how [Simpson] sounded back then and how he responded to questioning back then in view of his responses today which raised issues of coercion: being under medication, being supplied with most of the answers given. So with that understanding I'm permitting the prosecutor to play the tape... in order that you may hear the manner in which that statement was given, any inflections, the pattern of speech, etcetera, okay? [sic]

Derrick Ingram, whose status as a confidential informant triggered the second mistrial, testified at the third trial. Ingram was Parker's cousin and also knew Newmones. In September 1984, Ingram was hospitalized at the Atlantic City Medical Center after being shot and paralyzed from the neck down.

On September 13, 1984, Parker, Simpson and defendant visited Ingram's hospital room. Parker was angry with Newmones because "fake drugs" had been sold to his mother. They asked Ingram if Newmones was present when Ingram was shot. When he told them "[n]o," "the conversation struck that anyway he did such in [sic] such to Lamont's mother, and this is why, you know." In his statement to the police, Ingram had said that Simpson was supposed to do the shooting.

On September 14, 1984, Ingram became aware that Newmones's body had been brought to the hospital. The same day he received a second visit from Parker and defendant. Parker said "that they had killed him, that they had shot him, they was leaving, going back to New York; for me to keep an eye on two other individuals." Defendant told Ingram, "I tried to blow his fucking head off." Parker said that Simpson "was supposed to get rid of the gun... and pay the other individual for driving the car." Ingram understood that Barber was the driver. Ingram was to inform Parker if Simpson or Barber went to the police.

Ingram said he first provided a statement to the police in 1987 because he had been shot by Newmones's partner, and he was concerned that people believed that Newmones had been shot in retaliation. The detective who took Ingram's statement in 1987 noted that he did not assist Ingram with any criminal charges at the time. When he testified at the third trial, Ingram was incarcerated in the Camden County jail and facing charges. He admitted that he "hope[d]" his testimony would be considered when he was sentenced. At first, Ingram said he had no charges pending in "Camden County" when he spoke to the police in 1987, but later admitted he was out on bail for drug possession charges in Atlantic City. He said that he "went to jail" for those charges and "received nothing." Ingram also admitted that he had assisted several law enforcement agencies. He had been compensated by the Atlantic City Police Department as a confidential informant many times.

Chantley Smith, another witness, indicated that in 1984, he was friendly with Newmones and he knew defendant, Parker and Simpson. On September 14 or 15, 1984, he was at a friend's house in Pleasantville when Parker, Simpson and defendant drove up and got out of their car. Parker told Smith, "we killed your man." Smith testified that defendant "might have said something slick, too.... Like, Dude tried to get away and I got him, something like that."

At the time he testified, Smith was imprisoned for a four-year term, but he said he had been promised nothing for his testimony. He had first provided a statement to police in 2004, twenty years after the murder, when he was facing a second degree robbery charge. In return for his cooperation, Smith's 2004 robbery charge was downgraded to a third degree offense of theft from a person.

Timothy Bunch testified that several days after Newmones' murder, Parker drove defendant to where Bunch was playing basketball, at a court on Bacharach Boulevard. Defendant got out of the car and told Bunch "that he had shot Zeb." In his waistband, defendant had a dark, black gun with electrical tape around the handle.

Bunch had been convicted in May 1993 of receiving stolen property, in December 1993 of robbery, in August 1994 of theft, in 1997 for possession of a firearm and of drug possession in 2002. Bunch denied that he had ever told one of his cousins that he was the one who had shot Newmones. In her direct examination, the prosecutor questioned Bunch, "[T]he first time you went to the police [with this information] was... 2002, is that correct... ?" Bunch noted that the police "came to me and asked me about it" at that time when he was in federal custody.

Sabrina Stevens first met defendant once or twice in 1984, and she had gone with him to the Lincoln Motel. She could not recall how much time they spent there. While incarcerated in 2002, she provided the police with a statement that defendant had left the room for thirty minutes, but at trial Stevens said she could not recall what she told the police.

Critical to the appeal were events that transpired pre-trial. On May 3, 2004, prior to defendant's first trial, the State requested that various documents be sealed and protected from defendants' discovery requests on the basis that it did not intend to call as witnesses any of the individuals who were the sources of the sealed information and that they should be protected from harm or threats of intimidation. The court granted the motion on July 9, 2004.

In its response to a motion by defendant for disclosure of any previously undisclosed information relevant to the credibility of any witnesses, including materials that had been sealed as "intelligence" under the protective order, on September 24, 2004, the State and the court reaffirmed that the materials pertained only to the efforts to locate defendant.

After the first trial ended in a hung jury, on September 14, 2005, the second trial was terminated at defendant's request because the State had failed to disclose that Ingram, who had testified for the State at the first trial, was a paid informant. During the third trial, defendant again requested that the State disclose any material related to witnesses who had acted as confidential informants, and the State confirmed that neither Bunch nor any other witness had done so.

But in his motion for a new trial after his conviction, defendant argued that the State had continued to withhold relevant information regarding witnesses. The State again asserted that the sealed documents pertained only to its efforts to locate defendant and contained no information relevant to the issues at trial. Defendant raises that issue once again on appeal, and our review of the record convinces us that his argument is meritorious.

On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED A CLEAR ERROR IN JUDGMENT IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF A FIFTH AMENDMENT DUE PROCESS VIOLATION CAUSED BY THE 18 YEAR DELAY IN PRESENTING THIS MATTER TO THE GRAND JURY

(A)

THE TRIAL COURT APPLIED AN ERRONEOUS SIXTH AMENDMENT SPEEDY TRIAL STANDARD INSTEAD OF A FIFTH AMENDMENT DUE PROCESS ANALYSIS IN DENYING THE DEFENDANT'S MOTION

(B)

THE TRIAL COURT ABUSED ITS DISCRETION IN APPLYING THE EQUITABLE DOCTRINE OF "CLEAN HANDS"

(C)

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION BECAUSE BOTH PRONGS OF A FIFTH AMENDMENT DUE PROCESS VIOLATION WERE ESTABLISHED

POINT II

THE MOTION COURT ABUSED ITS DISCRETION AND COMMITTED A CLEAR ERROR IN JUDGMENT BY DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE THE PROSECUTOR'S ABUSE OF THE STATE'S LAWFUL POWER TO OBTAIN A PROTECTIVE ORDER LIMITING PRETRIAL DISCOVERY VIOLATED DUE PROCESS UNDER THE FIFTH AMENDMENT AND THE RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT

POINT III

THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE JURY INSTRUCTIONS WERE INADEQUATE AND MISLEADING

(A)

SINCE THE TRIAL COURT DID NOT CHARGE THE JURY ON CONSPIRACY AND ACCOMPLICE LIABILITY, THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY FAILING TO INSTRUCT THE JURY THAT IN ORDER TO FIND THE DEFENDANT GUILTY IT MUST FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ACTUALLY FIRED THE HANDGUN

(B)

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY INSTRUCTING THE JURY ONLY ON KNOWING AND PURPOSEFUL MURDER

POINT IV

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN DERRICK INGRAM, RICHARD BARBER, AND JEFFREY SIMPSON TESTIFIED AS STATE'S WITNESSES WHILE DRESSED IN ORANGE PRISON GARB (NOT RAISED BELOW)

POINT V

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN THE OPENING STATEMENT AND IN SUMMATION

POINT VI

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO PRECLUDE THE STATE FROM REFERRING TO THE DEFENDANT BY THE STREET NAME "CRAZY"

POINT VII

THE 65 YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION BECAUSE IT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS

POINT VIII

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT THE FACT THAT CO-DEFENDANT PARKER'S CASE HAD BEEN "RESOLVED" CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW)

Defendant then filed a pro se supplemental brief and raised a number of arguments that duplicated the earlier submission but also raised, among other claims, an issue as to whether he was denied a fair trial because the State withheld relevant information that should have been provided during discovery. We requested the State respond to defendant's pro se filing, and it filed a responsive brief addressing these issues.

A number of defendant's claims can be disposed of easily. We have carefully reviewed the record and conclude that as to defendant's Points I, III (A), V, VI, VII and VIII, the arguments raised are without merit and require no further discussion. R. 2:11-3(e)(2).

Since we are remanding for a new trial, we first comment on Points III (B) and IV.

As to Point III (B), defendant argues that he is entitled to reversal of his conviction because the court denied his request for jury instructions on the lesser-included charges of manslaughter and instead instructed the jury only on knowing and purposeful murder. Although defendant's request was equivocal, the judge should have instructed the jury on the lesser-included charges.

At the beginning of the charge conference held prior to the closing arguments, the judge announced that it had found no rational basis for lesser-included charges of accomplice liability, conspiracy or manslaughter, whether based on passion/provocation, recklessness or aggravated manslaughter. He believed that "it's an all or nothing in this case" in that defendant is "either the murderer, the shooter or he's not." The judge did not intend to charge accomplice liability "because the State's theory is he's the actual doer here." As to conspiracy, the judge found that conspiracy was inapplicable because there was no evidence that defendant had renounced his role or tried to thwart the crime.

As to whether the jury should be instructed on manslaughter, the judge said the case was a classic State v. Abdullah*fn3 case wherein it's either murder or it's none of those.

This was... a cruel and vicious, purposeful, knowing, intentional act of trying, not only to kill somebody, but to obliterate them from the face of the earth with a close in range shot with a.38 at close range of the face, followed by a shot towards the heart, which happen [sic] to be off a little bit and hit the shoulder, followed by the three into the back as the victim is laying there gasping with his last breath.

The court found that it stretches the bounds of credulity and interpretation of common English parlance and language to suggests [sic] it's anything but a brutal, cowardly assassination, murder in this case and who did it is the question, but whoever did it, whether it was Brian Wilson, whether it was Dennis Wilson, whether it was Aljar Dean (ph), whether it was Mike Glove, whoever did it, is a killer and purposeful murderer. It is not a question that is even remotely close I think to, was it passion/prov [sic] or was it reckless or was it aggravated reckless? Was it extreme indifference to human life?

Yeah, it was extreme indifference to human life. It wasn't reckless. It was intentional.

....

I believe, and no other alternative, that this was a brutal, purposeful killing. This was an intent to obliterate the individual, to destroy his face.

Defense counsel was opposed to any instruction on accomplice liability and said he would forego any conspiracy charge to avoid the accomplice liability instruction. But his position regarding the manslaughter charges was equivocal at best. He recognized that those crimes were "often charged routinely" pursuant to State v. Jenkins, 178 N.J. 347, 361 (2004), but said he was "not vehemently arguing it should be charged." The defense mentioned that defendant "hasn't shot anyone in this case," and counsel said that he was "not in any way suggesting that this is a manslaughter." Defendant "indicate[d] that we were not involved to the point where we shot anyone in this case and that's essentially been the defense from day one."

The prosecutor argued that no rational basis supported any lesser-included charge and the judge said he would instruct the jury only on purposeful or knowing murder. Thereafter, in his closing argument defense counsel repeatedly acknowledged defendant's presence at the scene, as evidenced by his statement to Santiago. Counsel told the jury:

[O]bviously there's other people there [sic]. One of whom, the evidence indicates, is Mr. Wilson. That evidence comes in essentially from Lieutenant Santiago. Lieutenant Santiago has contact with Mr. Wilson. Mr. Wilson is cooperative with the lieutenant. He read him the Miranda card.

Goes through the statements with him.

Indicates he didn't know Zeb Newmones.

Indicates that he didn't shoot Zeb Newmones. There's the second statement from someone who was there, as to who shot or didn't shoot Zeb Newmones.

Defense counsel then argued "that two people that actually are there, Mr. Wilson, through the statements of Lieutenant Santiago, as well as Mr. Abdullah [Simpson], indicate that Mr. Wilson didn't pull the trigger." Counsel argued that the witnesses who claimed defendant had done the actual shooting were not credible. At no point did defense counsel assert that his client was absent from the scene of the shooting.

At the end of the first day of deliberations, the jury indicted it was deadlocked. On the second day of deliberations the jury asked the court: "Please explain purposely and knowingly cause and purposely, knowingly inflict in the charge." In response, the judge reread to the jury the instruction on murder.

Afterwards counsel said he was "somewhat concerned" that the jury was considering "some sort of conspiracy or accomplice liability type theory that he went there and this event happen [sic]." He saw no "other reason for this particular question" given that "the individual was shot five times" including "[o]nce in the face, the rest in the torso, [and once] towards the heart." The judge responded:

[T]heoretically, under the law, since there is no evidence of renunciation or effort at renunciation, under our law... if he and Mr. Parker agreed to eliminate Zebedee Newmones from the face of the earth and they went to do it and let's say Jeffery Simpson took the gun and does it. Wouldn't [defendant] be equally culpable as accomplice to that?

Defense counsel responded that "the way" the State had indicted and "presented" the case "is that Mr. Wilson actually pulled the trigger," and the jury was being asked to deliberate that fact, "[n]ot to factor something in" that had not been presented. The judge again reiterated that the State had never argued any theory of accomplice liability and "only argued that it was [defendant] who fired those shots."

Counsel asked the judge to "consider[]" advising the jury that the "theory in this case" was "that my client was the shooter. That's what is being asked." The judge refused to do so because he already indicated to them that that is the State's theory that he pulled the trigger and I indicated very forcefully in equal magnitude that your position is it's not proven, beyond a reasonable doubt, that he is and oh, by the way, it's not he at all. He had nothing to do with it.

The jury returned with a guilty verdict twenty minutes after they received the reinstruction on purposeful and knowing murder.

On appeal, defendant argues that the trial judge abused his discretion in denying his "non-vehement" motion for a jury instruction on the lesser included manslaughter offense, because there was no "conclusive testimony as to how Mr. Newmones was shot" and because the judge's "ruling was based on its personal perception of the evidence," rather than viewing the evidence in the light most favorable to defendant.

When a defendant requests that the jury be instructed on a lesser-included offense, the court must examine the record to determine if the evidence presents a rational basis for the jury to acquit defendant of the greater offense and convict on the lesser. State v. Brent, 137 N.J. 107, 113-19 (1994); State v. Harris, 357 N.J. Super. 532, 538-39 (App. Div. 2003). Even where no such charge has been requested by a defendant, the court must determine independently whether the evidence "clearly indicate[s]" that it is appropriate to instruct the jury on the lesser charge. State v. Thomas, 187 N.J. 119, 132 (2006); State v. Choice, 98 N.J. 295, 298-300 (1985). The Supreme Court recently reiterated the Thomas standard in State v. Cassady, 198 N.J. 165, 177-78 (2009).

On such review, the court's duty as a representative of the law and the citizens of the State compels the instruction of the jury on the lesser-included charge, even when that approach conflicts with the preferred strategy of the prosecutor or defense counsel. State v. Powell, 84 N.J. 305, 318-19 (1980). A trial court's primary obligation is to ensure that justice is served by the proper instruction to the jury "on the law and on all clearly indicated lesser-included offenses, even if at odds with the strategic considerations of counsel." State v. Garron, 177 N.J. 147, 150 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004).

When murder is the indicted offense, the court should consider aggravated and reckless manslaughter as the two lesser-included offenses. Jenkins, supra, 178 N.J. at 361. Under the Code, [C]riminal homicide constitutes murder when:

(1) The actor purposely causes death or serious bodily injury resulting in death; or

(2) The actor knowingly causes death or serious bodily injury resulting in death[.] [N.J.S.A. 2C:11-3a.]

In relevant part, the Code defines "manslaughter" as follows:

a. Criminal homicide constitutes aggravated manslaughter when:

(1) The actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]

....

b. Criminal homicide constitutes manslaughter when:

(1) It is committed recklessly; or

(2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation. [N.J.S.A. 2C:11-4.]

In determining whether a defendant indicted for murder is entitled to have the jury instructed on manslaughter, the inquiry must consider evidence of the "defendant's state of mind as to the risk of death." Jenkins, supra, 178 N.J. at 363. It is improper for the court to focus solely on either the action that caused the death, id. at 362, or the injury sustained by the victim, State v. Jackmon, 305 N.J. Super. 274, 294 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998).

In this case, the trial judge erroneously focused on the victim's injuries in refusing to instruct the jury on aggravated or reckless manslaughter. Although the victim's injuries provided some evidence of the purposeful nature of the crime, they did not establish who shot him or the state of mind of the other participants in the shooting.

The court also erred when it focused solely on the State's view of the case with no consideration of the evidence that had been introduced at trial. The jury here was never instructed on accomplice liability because the State insisted that defendant was the principal and not an accomplice, and defense counsel's trial strategy sought an "all or nothing" verdict. But the evidence nevertheless established that this was a crime carried out by several accomplices. According to Simpson's statement, he, Parker and defendant all chased the victim down the street. Barber said he dropped those three off together. Ingram testified that Parker, Simpson and defendant discussed shooting Newmones the day before. Defendant conceded his presence at the crime but insisted he was not the shooter.

This was not a case where the defendant claimed that he was not present and had no involvement in the crime.*fn4 Under those circumstances, the evidence of the nature of the victim's injuries might have supported the trial court's conclusion that no lesser-included charges were required because no jury could find that the actual shooting was done without a knowing and purposeful state of mind. Given defendant's concession and his defense, his degree of culpability necessarily was at issue. There was evidence in the record from which a jury could conclude that there was a plan to harm, but not necessarily kill, Newmones in retaliation for the sale of fake drugs to Parker's mother. There were numerous references to a plan to "get" Newmones, but no conclusive testimony that the men understood that to mean he would be killed. Barber, who heard the conversation in the car immediately before the shooting, said that when he dropped the three men off he had not expected that Newmones would be killed.

Although defendant's involvement in the crime was indisputable based on his concession, both the extent of his involvement and his state of mind were at issue. Given that defendant admitted his presence at the scene, the absence of the lesser-included charges, especially without an instruction on accomplice liability, left the jury with no way to consider a result clearly indicated by this evidence: that defendant was involved in the shooting but had a less culpable state of mind than the actual shooter. The jury also should have been allowed to consider whether defendant had shot Newmones but without the intent to kill.

The failure to instruct the jury on "clearly indicated" lesser offenses was error. Harris, supra, 357 N.J. Super. at 541-43.

As to Point IV, defendant argues that his conviction should be reversed because Barber, Ingram and Simpson testified while wearing prison garb. Defendant did not raise this issue below.

The issue of whether the appearance of the State's witnesses in prison garb constitutes reversible error was recently addressed by the Supreme Court in State v. Kuchera, 198 N.J. 482, 486 (2009), where the Court concluded that as a general rule, witnesses for either the State or defense, should not testify in prison garb. The general rule, however, is tempered by the Court's recognition that such garb may be "affirmatively permitted by the trial court in the exercise of its discretion...." Ibid. See also State v. Artwell, 177 N.J. 526, 530 (2003) (holding that it was reversible error for a trial court to require incarcerated defense witnesses to appear and testify in restraints and prison garb). "[A]bsent compelling reasons" of courtroom security, a defense witness cannot be required to wear restraints while testifying. Id. at 534. Requiring a witness to testify in prison clothes "'further[s] no vital State interest,'" id. at 539 (quoting State v. Maisonet, 166 N.J. 9, 17 (2001)), and it similarly prejudices the defendant in terms of his witness's credibility and the suggestion of "guilt by association." Ibid.; State v. Russell, 384 N.J. Super. 586, 599 (App. Div. 2006) (extending the holding in Artwell to any State witness).

Here, the cause of the witnesses testifying in prison garb arose as a result of a prison error. At retrial, the dictates of Kuchera should be recognized and if the State intends to present the witnesses in prison garb, it will bear the burden of establishing a sufficient basis for such action.

We now address the issue of discovery. In his pro se brief at Point II and through defense counsel's brief at Point II, defendant asserts that the State failed to notify the defense that "Derrich [sic] Ingram, a C.I., Chantley Smith, Timothy Bunch, and Richard Barber" were informants. He argues that withholding this information under the protective order constituted prosecutorial and judicial misconduct and violated his due process rights and his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). At our request, the State filed a supplemental brief in response to defendant's pro se filing.

Based on the contentions in defendant's pro se brief, we requested copies of the protective order and copies of the file that had been sealed pursuant to the July 9, 2004, protective order (sealed documents file).

We have reviewed the sealed documents file. It is not possible to determine from this file whether Smith, Bunch or Barber were paid informants. However, an examination of that file shows that, contrary to the State's representations that none of the sealed information pertained to any trial witness, the file contains numerous pages of documents regarding Bunch and Simpson. Those include the report of an interview that Bunch provided to police in 1993 and Simpson's juvenile record. These documents, in particular, were directly relevant to the credibility of the statements that Bunch and Simpson provided to the police implicating defendant in this crime. Moreover, the file of sealed documents includes many other pages related to defendant's role in this crime, for example, the complaint against him.

The withholding of this information was error. Defendant is entitled to disclosure and a new trial. Prior to a new trial, the court should review the file once again and order the release of documents that do not solely and exclusively pertain to the State's attempts to locate defendant in the years after the shooting. We have prepared a listing of documents (identified by Folder Number and Item attached to this opinion as Appendix A), which in our view should be unsealed and made available to defendant. Before doing so, the prosecutor may show cause why such materials should not be revealed.

Generally under Rule 3:13-3(c)(6) and (7), the prosecutor must permit the defendant to inspect and copy or photograph "record[s] of statements, signed or unsigned" and "any relevant record of prior conviction" of any person that "the prosecutor knows [has] "relevant evidence or information." However the rule also permits the prosecutor to obtain a protective order for otherwise discoverable materials as follows:

(1) Grounds. Upon motion and for good cause shown the court may at any time order that the discovery or inspection sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; any other relevant considerations.

(2) Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal.

[R. 3:13-3(f)(1) -(2).]

On May 3, 2004, the prosecutor sent the following letter to the judge:

Attached is a list of intelligence reports and other documents that the State seeks to have protected from the discovery requests by the above-named defendants. The State has no intention of calling as witnesses any of the individuals who were the source of information contained in these reports. The grounds that the State advances in requesting an in-camera view of these materials and ultimately a protective order for them is not only the protection from harm, threats or intimidation for these informants but also the need for secrecy regarding informants as is required for effective investigation of criminal activity as well as the protection of confidential relationships and privileges recognized by law.

The court's July 9, 2004 order generally granted the motion but also ordered the release of specified documents.

At argument on September 24, 2004, regarding several motions, the prosecutor asked that two investigative reports of interviews be released from the protective order on the basis that the interviews were now "discoverable because we have located those people and spoken to those people" and "the defense is entitled to get anything they had said in the past, even though it is not related to the guilt of the crime but their conversations with us regarding these defendants." Defendant's counsel argued that he was entitled to any information regarding the credibility of a witness even if it had been protected as "intelligence." The judge responded: "I don't recall even a lot of close calls with regard to the protective order, and I'm a little surprised to hear of this now.... I'm even surprised to hear that these are deemed discoverable at this point in time. I think at best they're borderline discoverable...."

In response to defendant's motion, argued that day, to dismiss the indictment because of the delay between the crime and the indictment, the prosecutor said:

We couldn't find him. Most of the papers that are within that protective order... involve intelligence reports trying to locate Brian Wilson.

....

I said I was going to file a motion for a protective order because it was by and large intelligence reports trying to locate this defendant had nothing to do with guilt or innocence, had nothing to do with eyewitnesses to the crime, only where is he now, how can we find him, who is he associated with, you know that sort of thing.

In the middle of the third trial, after Ingram testified, defense counsel requested to be informed whether "any potential witnesses were confidential informants," especially Bunch. The prosecutor said that she would have her investigator confirm that Smith, Stevens and Bunch had not been used by her office. The prosecutor later said that her investigator had confirmed with her office and the Atlantic City Police Department that "none of the other witnesses were ever used by either offices [sic] as an informant; that includes [Smith] and Sabrina Stevens and Tim Bunch."

During defendant's motion for a new trial on March 30, 2006, defense counsel presented the argument in defendant's pro se brief that material with respect to informants still had not been provided to defendant and that its non-disclosure violated his rights under Brady and constituted prosecutorial misconduct. The prosecutor responded:

As to the informant type information, it keeps being brought up that the matters that were part of the protective order somehow deprived them of I guess Brady material. Your Honor painstakingly reviewed all of those materials. I believe there was one report in there that you disagreed with the State that had to be turned over and it was turned over.

....

- and that was prior to the first trial. And all of that information had nothing to do with guilt or innocence of the charge of murder. All of that information had to do with people who had been interviewed over a period of 15 to 20 years in trying to locate Mr. Wilson; not whether they knew anything about the murder but where is he; who are his associates; how can we find him, etcetera [sic]; that's what that information was. And since that had nothing to do with the issues of the trial, it was requested by the State that that be part of a protective order so that those individuals who at least gave information to the State regarding where they thought Mr.

Wilson was all those years would not have their names out there for the defense to try to interview or for the defendant or his associates to intimidate in anyway [sic]. I think that was appropriate. And it had nothing to do with the murder itself. So I just want to make that crystal clear....

However, a review of the file indicates that the prosecutor incorrectly asserted that all of the protected documents were irrelevant and unrelated to any of the trial witnesses. For example, folder #7, document 14*fn5 is an October 28, 1993 report of the Atlantic County Prosecutor's Office interview with Timothy Bunch. At trial Bunch testified that defendant had admitted to Bunch just days after the murder "that he had shot Zeb." In his 1993 statement, Bunch provided the police with extensive information on defendant's acquaintances. Nowhere does he claim to have heard defendant make the admission to which Bunch testified at the 2006 trial.

Defense counsel's cross-examination clearly demonstrated that he was unaware that Bunch had spoken to the police in 1993, rather than for the first time in 2002. This was suggested by defense counsel's question to Bunch about 2002 being the first time he spoke to the police about the shooting. Bunch had made no claim regarding an admission by defendant, even while he provided other detailed information to the police. That omission directly pertained to Bunch's credibility in coming forward with such a claim ten years later, while facing charges himself. Most significantly, this was the issue raised by the jury in its question to the judge that asked when Bunch first spoke to the police and if he was facing charges at the time. The read back of Bunch's trial testimony clearly provided an incorrect, misleading answer.

Folder #12 pertains to an April 1983 shooting for which Jeffrey Simpson was arrested. The shooting occurred one-and-a-half years before this one. Simpson was sixteen years old. The circumstances of the shooting were quite similar to the shooting of Newmones. Three individuals said they were riding in a car when Simpson, an individual identified as Eric Toulson and another person ran down the street shooting at them. Simpson held one of the guns. Two innocent bystanders were hit. Six criminal complaints were filed against Simpson in juvenile court charging him with attempted aggravated assault, aggravated assault and weapons violations. The folder also contains a January 1983 report from the Boardwalk Regency that Simpson was ejected for attempted theft and an April 1984 police report that Simpson and Ingram were wanted for an aggravated assault in a hotel room.

The resolution of the 1983 charges against Simpson is unclear. But whether they were still pending or had been resolved, they were relevant to the credibility of Simpson's 1984 police statement that implicated defendant in this crime. His arrest as the shooter in a similar crime not long before this one provided a motive, in addition to the charges he faced for Peaches's killing, for him to tell the police that defendant wielded the gun this time.

Moreover, Simpson's status as a juvenile did not entitle the State to withhold this impeachment information. State v. Brown, 132 N.J. Super. 584, 585-88 (Law Div. 1975). Its existence directly contradicts the prosecutor's claims that none of the sealed documents pertained to trial witnesses.

As a further example of information that was improperly sealed, Folder #13 contains a card entitled "Name File" and dated October 10, 1995, identifying an individual and the notation that she was interviewed regarding "being present at [unintelligible] Lamont Parker's after shooting of victim, when individuals discussed incident Jeffrey and Robt. Simpson, Richard Barber, Brian 'B' Wilson." Contrary to the prosecutor's representations regarding the withheld evidence, this card provided evidence directly relevant to the circumstances of the murder. The files contain numerous other documents, such as complaints against defendant and his rap sheet, which there was no reason to withhold.

The repeated assertions regarding the unqualified irrelevance of the information in the files are inexplicable. Though the file contains phone records and other materials that clearly pertain only to the efforts to locate defendant, the withholding of significant impeachment evidence requires a new trial.

Defendant's conviction is reversed, and the material presently under seal pertaining to Simpson, including Simpson's juvenile records, and Bunch shall be released to defendant. The judge shall conduct a hearing, in camera, to address the other documents presently under seal. We discern no reason why the materials related to the individual identified in Folder #13 should not be released as part of the discovery, and we deem it of no moment that she did not previously testify; however, at the hearing the prosecutor may present any reasons it deems appropriate as to any of the remaining sealed documents.

Reversed and remanded for a new trial. We do not retain jurisdiction.

APPENDIX A

EVIDENCE TO BE RELEASED FROM SEAL FOLDER #1

Item #2: "6/15/94 eight page report by Burke signed 7/1/94" -at minimum, page 7 should be released.

Item #3: "6/21/04 eight page report by Burke signed 7/1/94" -at minimum, pages 3, 4 and 6 should be released.

Item #6: "1/19/88 two page report by Tullio" -at minimum, first page should be released

Item #13: "Handwritten notes by unknown dated 6/27/94" -first page entitled "Loen's preliminary report states"

FOLDER #6

Item #4: "1/4/88 one page report by DeFebbo"

FOLDER #7

Item #14: "10/28/93 Pullan report (pages 4, 5, 6)

Item #23: "10/28/93 original hand-written notes (5 pages)"*fn6

FOLDER #9

The item numbers are mislabeled. But all writs for J.G., R.S., and J.S. should be released.

FOLDER #10

Item #1 "1/6/86 report by Muller (4 pages)" FOLDER #11

All items in folder.

FOLDER #12

All items in folder.

FOLDER #13

Item #1: "11/1/94 signed supplemental report by Burke (page one and top half of page two only)" -bottom half of page two should be released if it has not been already.

Item #6: "ACPO card and Promis/Gavel printout on A.B. (7 pages)"

Item #7: "Writ and Body Receipt for A.B."

FOLDER # 15

-item #11: "unsigned supplemental report with beginning date of 10/28/93 (4 pages)"


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