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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...