On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-11-2454.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
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
THE TRIAL COURT APPLIED AN ERRONEOUS SIXTH AMENDMENT SPEEDY TRIAL STANDARD INSTEAD OF A FIFTH AMENDMENT DUE PROCESS ANALYSIS ...