March 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS GREEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-01-0024.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 18, 2010 - Decided Before Judges Grall and LeWinn.
Defendant Thomas Green appeals from the denial of a motion for a new trial. He sought that relief to redress the Essex County Prosecutor's failure to disclose criminal charges that were pending against Taalib Muhammad for crimes committed in Newark when he testified at defendant's trial. Muhammad was the "prosecution's chief witness," and he implicated defendant and his co-defendants, Jon Brett Hemby and Milton Adams, in the kidnapping and fatal shooting of Larry Williams on August 24, 1989. State v. Green, 274 N.J. Super. 15, 20 (App. Div.), certif. denied, 137 N.J. 312 (1994). The State's theory of the case was that defendant, Hemby and Adams accosted Muhammad and kidnapped and shot Williams because those men interfered with their drug runners. Ibid.
Defendant was tried alone, and the jury found him guilty of felony murder, N.J.S.A. 2C:11-3(a)(3); kidnapping, N.J.S.A. 2C:13-1b(1); possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a.*fn1 The judge sentenced defendant to an aggregate thirty-year term of imprisonment with no possibility of parole for felony murder and possession of a handgun without a permit; the other convictions were merged with the felony murder. On direct appeal, defendant's convictions were affirmed and certification was denied. Green, supra, 274 N.J. Super. at 37. This court also affirmed the subsequent denials of defendant's first petition for PCR, his motion for correction of an illegal sentence and his second petition for PCR. State v. Green, No. A-3559-96 (App. Div. Feb. 17, 1999), certif. denied, 160 N.J. 475 (1999); State v. Green, No. A-0110-03 (App. Div. Dec. 28, 2004); State v. Green, No. A-6611-06 (App. Div. July 28, 2008).
Defendant's trial commenced on December 5, 1990. Prior to trial, defense counsel asked about charges pending against Muhammad. The lawyer noted that the State had given him a "printout" of Muhammad's criminal record reflecting a pending charge for a robbery committed on July 7, 1989 in Essex County.
The prosecutor questioned the accuracy of that record and objected to defense counsel's request to question Muhammad about the charge or any favorable treatment he had received or anticipated until she confirmed that there actually was a charge. She told the judge she was "looking into it."
Before the first witness testified, the prosecutor advised that "they" had "checked down with the computer on Taalib and the aliases that he has and there is no pending charge in Essex County. So the rap sheet is in error. Everything has been disposed of." The judge gave the prosecutor this instruction, "What you should do is check what he has on his rap sheet and how it has been disposed of and if it is at all traceable," but the prosecutor changed the subject. The prosecutor gave no indication that there was another pending charge.
When defense counsel cross-examined Muhammad at trial, he asked about a three-year sentence Muhammad was serving for drug crimes committed in Union County. Muhammad had pled guilty to those charges and received the minimum sentence. Defense counsel also elicited from Muhammad an admission that he first reported what he knew about Williams' homicide to an investigator from the Union County Prosecutor's office while incarcerated on those pending drug charges. Muhammad denied receiving any favorable treatment in return for the information he provided, but he admitted the investigators told him they would make his cooperation known.
Although Muhammad was also questioned about several other prior convictions that were disclosed, the assistant prosecutor asked Muhammad if he had any charges pending, and Muhammad said he did not. In her summation, the prosecutor argued: "[R]emember that Taalib has nothing to gain at this point. Taalib testified I have nothing pending. I'm in jail. This is what happened."
In February 2009, defendant received information suggesting that there had been charges pending against Muhammad when he testified on December 5, 1990. At trial, Muhammad had acknowledged that he had several aliases and that one of them was the name given to him at birth - Harold Judge. J&K Investigative Services, Inc. sent defendant documents it retrieved from a records search. Among them was an indictment returned by the grand jurors for Essex County on April 23, 1991, charging that on August 20, 1989, in the City of Newark, Harold Judge committed first-degree robbery and possessed a handgun without a permit and with the purpose of using it unlawfully against the person of another. That indictment was dismissed on the prosecutor's motion by order of January 21, 1992. J&K also found records of complaints filed on September 26, 1989 with the same case number as that indictment. One complaint charged possession of a firearm with an unlawful purpose and one charged possession of a machine gun.
Upon receipt of this information, defendant promptly sought relief. Because defendant's appeal from the denial of his second petition for post-conviction relief was pending in this court, he moved for a remand to address the new evidence. We denied that motion by order of March 18, 2008.
On April 7, 2009, defendant filed the pro se motion for a new trial in the Law Division that is the subject of this appeal. He argued that the State's failure to provide information about charges pending against the prosecution's chief witness violated his right to due process. He retained an attorney who filed a motion to obtain access to the prosecutor's file on Muhammad's dismissed indictment and a complete criminal history of Taalib Muhammad, a/k/a Harold Judge.
An understanding of the significance of Muhammad's pending charge requires a summary of the evidence adduced at trial, which we have drawn from the opinion issued by this court on direct appeal.
Muhammad testified about the incident and defendant's motive. According to Muhammad, several weeks before the August 24, 1989 crime, Muhammad and Williams took drugs from dealers in the area of Dayton Street in Newark. On August 24, 1989, as Muhammad and Williams walked along Dayton Street, Hemby and Adams drove up. The men got out of the car and accused Muhammad and Williams of "'beating [their] runner.'" Id. at 20.
By Muhammad's account, a struggle ensued. Muhammad, as was his habit, was armed with a knife. As he held defendant in a chokehold, Hemby and Adams, who were brandishing handguns, shoved Williams into the car. Ibid. Defendant managed to break away from Muhammad and run toward the car. Ibid. As defendant ran he yelled for his compatriots to kill Muhammad and Williams. Ibid. Muhammad heard gunshots and took off on foot. Ibid.
An eyewitness who could not identify any of the participants described what she saw and heard. Id. at 20-21. On August 28, 1989, Williams' body, with a single bullet wound in the chest, was found on Frelinghuysen Avenue in Newark. Id. at 20.
Defendant testified and gave a quite different version of the events than Muhammad's narrative. He admitted being on Dayton Street on August 24, 1989, but, according to defendant, he, Demby and Adams went there with Muhammad and Williams in his car so that defendant could purchase an Uzi machine gun. Id. at 21-22. When defendant turned over the money, Muhammad grabbed him, put a gun to his head and threatened to kill him. Id. at
22. In response to Muhammad's holding defendant, Hemby took hold of Williams and pushed him into defendant's car. Ibid.
Defendant managed to break away from Muhammad and ran to his car; he heard gunshots. Ibid. When he got into the car, Adams was in the hatchback area and Hemby had Williams in the back seat. Ibid. Defendant drove off before Williams moaned. Ibid. Hemby told defendant that he had shot Williams in the leg. Ibid. Defendant immediately stopped the car, and Hemby and Adams pushed Williams out. Ibid. Defendant denied that he had any role in kidnapping or shooting Williams. Ibid.
Defendant's trial testimony was generally, but not fully consistent with a statement he gave the police following his arrest in October 1989. Ibid. At that time, he denied hearing shots in the area of Dayton Street and said Williams was shot on Frelinghuysen Avenue. Ibid. There was, however, evidence tending to corroborate portions of defendant's story about the machine gun sale. See id. at 22-23
We turn to consider the judge's denial of defendant's post-judgment motion for a new trial based on the prosecutor's failure to disclose Muhammad's pending charges. Despite a request from defense counsel, the judge reached the merits before ruling on defendant's motion for access to the prosecutor's file on the indictment against Muhammad. And, in assessing the merits of the alleged Brady*fn2 violation, the judge applied the standard governing the award of a new trial based on newly discovered evidence. State v. Ways, 180 N.J. 171, 187 (2004).
The judge found that defendant could and should have discovered the pending charges sooner than nineteen years after his trial. Noting that the evidence of Muhammad's pending charges was merely impeaching and cumulative of other evidence presented to the jurors, the judge concluded that if the State disclosed the pending charges, the verdict would probably not have been different.
The first difficulty with the judge's decision is that he applied the wrong legal standard. A defendant seeking a new trial based on new evidence must show that "the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" Ways, supra, 180 N.J. at 187 (citing State v. Carter, 85 N.J. 300, 314 (1981)).
The burden placed on a defendant is quite different when a new trial is sought to redress a violation of the State's obligation to provide exculpatory evidence. The defendant need not demonstrate that he acted with diligence to discover what the prosecutor should have disclosed and evidence useful to impeach a State's witness is not discounted.
The Due Process Clause obligates prosecutors to disclose evidence favorable to the defense of which they have actual or constructive knowledge. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). The obligation extends to evidence relevant to guilt or to punishment, ibid., and to evidence that can be used to impeach the State's witnesses, United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985). See State v. Knight, 145 N.J. 233, 245-46 (1996) (discussing both types of evidence).
To obtain relief for a Brady violation, the defendant need only show that: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268-69 (1999); see Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972). Evidence - whether relevant to guilt, punishment or impeachment of a witness for the prosecution - is "material" for Brady purposes "if there is a 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Martini, supra, 160 N.J. at 269 (quoting Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494). "A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.'" Ibid.
It is not necessary for the defendant to prove that the prosecutor trying the case acted in bad faith. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. Even when that prosecutor is ignorant of the facts, if they are known to the police, then knowledge is imputed to the prosecutor.
Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68, 131 L. Ed. 2d 490, 508-09 (1995).*fn3
This defendant's application was supported by adequate evidence of a Brady violation to require additional discovery. Defendant presented official records that indicate that there were serious charges pending against Muhammad on complaints of crimes committed in Newark when the prosecutor told the judge there were none. It is noteworthy that the judge directed the prosecutor to investigate further, but despite that direction, the State never uncovered or disclosed these charges.
We must reverse, because the judge did not apply the governing law. We cannot exercise our original jurisdiction pursuant to Rule 2:10-5, because the record does not permit it.
We also reverse the denial of defendant's discovery motion. In our view defendant's showing was unquestionably adequate to require disclosure of the prosecutor's file on Muhammad's indictment and the State's full record of open complaints against him during the pertinent time period. Indeed, this is not a case where defendant's claim is so speculative and clearly immaterial that no discovery is required. State v. Marshall, 148 N.J. 89, 163 (1997). The State's delay between the alleged crimes and the return of the indictment and its subsequent dismissal will likely confirm or dispel suspicion that Muhammad had a motive to cooperate with the State by helping the State by testifying against defendant. Moreover, the State must disclose the records sought if it hopes to defeat what, on this record, is a well-warranted basis for imputing knowledge of Muhammad's pending charges to the prosecutor. Finally, discovery is likely to inform the essential task of assessing the probable impact of Muhammad's pending charges on the verdict. Indeed, information about Muhammad's possession of a machine gun shortly after Williams' death may provide extrinsic evidence with value beyond its relevance to Muhammad's motive for testifying against defendant.
For the foregoing reasons, we reverse the denial of defendant's discovery motion and his motion for a new trial and remand for discovery and further proceedings in conformity with this opinion. We do not retain jurisdiction.