On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-03264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010 - Decided Before Judges Lisa and Reisner.
The State appeals from a May 7, 2010 order dismissing Indictment No. 08-11-03264 and related summonses against defendant Morris Page. We affirm.
This appeal arises from an April 16, 2008 incident in which
defendant allegedly fled from an attempted traffic stop, and allegedly
rammed several police vehicles with his car during the ensuing chase.
Based on defendant's alleged ramming of the police cars, the State
charged defendant with nine counts of third-degree aggravated assault,
N.J.S.A. 2C:12-1b(5)(a); one count of fourth-degree possessing the car
he was driving as a "weapon," N.J.S.A. 2C:39-5d; one count of
third-degree possessing the car "with a purpose to use it unlawfully"
as a weapon, N.J.S.A. 2C:39-4d; and one count of third-degree
resisting arrest "by using or threatening the use of physical force or
violence" against a police officer, N.J.S.A. 2C:29-2a(3)a.*fn1
The Grand Jury returned an indictment on November 5, 2008.
Before describing the motion to dismiss the indictment, we comment on the record presented to us. In its appeal, the State has not provided us with copies of the motion papers or exhibits filed in the trial court, other than the State's motion for reconsideration, several summonses, two sketches of the accident scene, and a decommissioning report as to one police vehicle. We therefore rely on the undisputed descriptions of the papers filed, as set forth by both attorneys at the hearings before the trial court, and as set forth in the trial court's findings.
To summarize, soon after the indictment defendant's counsel made repeated requests for discovery, which the State failed to turn over. The defense was seeking evidence to support defendant's version of the incident, which was that the police rammed the car he was driving, rather than the other way around. Defense counsel wanted to retain an accident reconstruction expert, but the State did not provide the discovery the expert would have needed to produce a report.
The car defendant was driving belonged to his mother, who made repeated requests that it be released to her but was told it was not available for release. Defendant's counsel made a request to inspect the car, to no avail. Eventually, the prosecutor's office advised defense counsel that someone in the prosecutor's office had directed that the car be destroyed.
The prosecution took seven months to produce any medical records concerning the injured police officers. Crime scene sketches and photographs of the allegedly damaged police cars, although demanded by defense counsel, were never produced. Defense demands for repair reports for any of the police vehicles were met with similar apparent stonewalling. After months of delay, the State produced several sketches of the collision scene prepared on the eve of the scheduled trial by one of the officers. No contemporaneous documentation of the collision scene was produced. Defense counsel requested audiotapes of the police radio communications made during the incident, because she had received "reports that say that for that time, for those cars, there is tape recording." The tapes were never provided to her.
Despite several trial adjournments, the State repeatedly failed to produce discovery. At the motion hearing, the prosecutor's explanation for the failure to turn over most of the materials was that the police department did not provide them to the prosecutor's office. The State produced no testimony from police officers, or from anyone else, to establish the State's good faith, i.e., to explain the lack of reports, photographs or other discovery material, or the failure to produce those materials if they existed.
In a comprehensive oral opinion placed on the record on October 26, 2009, Judge Cifelli held that the State had either destroyed or withheld evidence that the defense needed to prepare its case, and that the State had not produced evidence of its good faith in the loss or destruction of the evidence:
Since the defense initial request for the subject information, the Court has made various requests on the State to provide additional information and/or evidence with reference to the circumstances surrounding the loss and/or destruction of the subject evidence. The Court has also requested and/or provided the State with the opportunity to bring in or provide testimony from the police officers involved in the incident, and/or involved in the circumstances surrounding the loss and/or destruction of the subject property. Notwithstanding the passage of approximately 18 or 19 months since the date of the indictment in this matter, and approximately 13 or 14 months since the date of the defendant's initial request to the State for the subject evidence, nothing has been provided. And again, more importantly no information whatsoever has been provided either to the court or to the defense as to the circumstances surrounding the loss and/or destruction of defendant's car, the loss and/ or destruction of the four police vehicles involved in the incident. No information with regards to any repairs, bills and/or invoices for the police vehicles, no photographs, sketches, and/or diagrams of the accident site, or the incident site, et cetera, et cetera, et cetera.
And again since the court's determination as to good faith or the lack thereof is crucial [in] determining whether or not the defendant has been prejudiced by the failure of the State to provide such evidence. The court is unable to make any determination whatsoever ...