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State v. Brown

Supreme Court of New Jersey

February 4, 2019

State of New Jersey, Plaintiff-Respondent,
v.
William D. Brown, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent,
v.
Nigil J. Dawson, Defendant-Appellant.

          Argued October 10, 2018

          On certification to the Superior Court, Appellate Division.

          Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant William D. Brown (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, and David A. Gies, Designated Counsel, of counsel and on the briefs).

          Michele A. Adubato, Designated Counsel, argued the cause for appellant Nigil J. Dawson (Joseph E. Krakora, Public Defender, attorney; Michele A. Adubato, on the briefs).

          Amanda Nini, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Laura Sunyak, Assistant Prosecutor, of counsel and on the briefs).

          SOLOMON, J., writing for the Court.

         The Court considers whether the State's failure to produce nineteen discovery items until one week after the start of the trial of defendants William Brown and Nigil Dawson for the murder of Tracy Crews violated defendants' due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The Court's Brady analysis requires review of two evidentiary rulings, made after the withheld evidence was provided to defendants, because those rulings circumscribed the evidence on which the State and defense were able to rely. Also at issue is the appropriate remedy for a Brady violation under the circumstances of this case.

         In 2008, Crews was shot in his home. His wife, Sheena Robinson-Crews, asked him, "Who did this to you?" She claimed that her dying husband incriminated defendants. Police arrived, and Robinson-Crews made two phone calls within earshot of Detective Bolognini, who reported what he overheard to Detective Norton. Norton, in turn, swore in an affidavit (the Norton Affidavit) that Bolognini heard Robinson-Crews apparently call "who[m]ever shot the victim" and say, "You got what you came for, you did not need to shoot him," and then make a second call, in which she said, "Those boys did not have to shoot him. They got what they came for . . . ." Robinson-Crews later called Crews's mother, Barbara Portis, and told her that Crews said "Paperboy and Youngin" had shot him. Robinson-Crews identified "Youngin" as Dawson and "Paperboy" as Brown. About two months after Crews's death, Robinson-Crews filed a false police report against Brown saying he pointed a gun at her.

         The case went cold for approximately three years, at which time Robinson-Crews admitted in an interview at Muncy State Correctional Institution in Pennsylvania, where she was incarcerated for drug offenses, that her husband "only uttered Paperboy" in his dying declaration and that she "added on Youngin."

         Defendants were charged with Crews's murder, arrested, and incarcerated. Isaiah Franklin and Terrell Black were in the Mercer County Correctional Center where they met and spoke to Brown and Dawson. According to Franklin and Black, Brown and Dawson made admissions to them regarding Crews's murder. After notifying prosecutors of defendants' admissions, Franklin and Black arrived at favorable plea agreements in exchange for their testimony against Brown and Dawson. Almost a year later, a detective received a letter representing that Robinson-Crews admitted to inmates at the Muncy Correctional Institution that she had conspired to kill her husband (the Muncy Report).

         Pretrial motions were heard in 2014. The motion judge ruled that Crews's alleged statement of who shot him was inadmissible because Robinson-Crews was not credible.

         One week after the trial started, after counsel made opening statements and examined four State witnesses, the prosecutor turned over eighteen reports that concerned facts discussed in the testimony of the investigating officers who had already testified. The records included the Norton Affidavit. Defense counsel obtained the cell-phone records of defendants, which showed they did not receive phone calls from Robinson-Crews on the night of the murder. The following Monday, the State disclosed discovery item nineteen, the Muncy Report. The trial court conducted an N.J.R.E. 104 hearing and ruled that the defense could challenge the Muncy report by calling a witness and through cross-examination.

         At trial, the prosecutor called Robinson-Crews to testify. The State argued that a question asked by defense counsel on cross-examination opened the door to testimony about Crews's dying declaration. After an N.J.R.E. 104 hearing, the trial judge reversed the motion judge's holding and allowed Robinson-Crews to testify to the jury about the dying declaration. The judge also ruled that Portis could testify regarding what Robinson-Crews claimed to her Crews said as he was dying -- that Paperboy and Youngin shot Crews. Defense counsel sought to introduce as a past recollection recorded the Norton Affidavit to impeach Robinson-Crews's credibility. The court ruled it inadmissible, in part because of the "remarkable" inability of Detective Bolognini to recall any of the conversations.

         A jury found defendants guilty of murder, robbery, and a weapons offense. The trial judge denied their motions for a judgment of acquittal notwithstanding the verdict or a new trial, and the Appellate Division affirmed their convictions and sentences. The Court granted defendants' petitions for certification. 231 N.J. 526 (2017); 231 N.J. 533 (2017).

         HELD: The State's failure to produce nineteen discovery items until one week after the beginning of defendants' murder trial did violate defendants' due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants' convictions and remands for a new trial because defendants were deprived of a fair trial.

         1. Three essential elements must be considered to determine whether a Brady violation has occurred: (1) the evidence at issue must be favorable to the accused, either as exculpatory or impeachment evidence; (2) the State must have suppressed the evidence, either purposely or inadvertently; and (3) the evidence must be material to the defendant's case. The first Brady element is clearly satisfied here. Withholding the Norton Affidavit and the Muncy Report deprived defense counsel of the opportunity to cite the evidence of third-party guilt in their openings and to cross-examine the four officers who had already testified against defendants about evidence acquired at the crime scene and referred to in the withheld documents. The second Brady element is also satisfied. The State acknowledges that the withheld reports were in a file in the State's office for a significant time before trial. (pp. 26-29)

         2. The third Brady element requires that the suppressed evidence be material to defendants' case. Evidence is material if there is a reasonable probability that timely production of the withheld evidence would have led to a different result at trial. Here, the State's case relied, in part, on Robinson-Crews's testimony, but Robinson-Crews gave inconsistent statements to police, erroneously implicated Dawson in Crews's dying declaration, and filed a false police report against Brown. The circumstantial evidence upon which the State relied was, likewise, assailable. Because counter-arguments were available to challenge a great deal of the evidence on which the State relied at trial, the materiality inquiry is influenced by the following two evidentiary rulings made after the withheld evidence was provided to defendants: (1) overturning a pretrial determination that excluded Crews's dying declaration; and (2) excluding the Norton Affidavit as unreliable. (pp. 29-32)

         3. Crews's statement qualifies as a dying declaration under N.J.R.E. 804(b)(2) and it has substantial probative value, see N.J.R.E. 403; the trial judge did not abuse his discretion by overturning a pretrial ruling excluding Crews's dying declaration. However, the trial court abused its discretion by excluding the Norton Affidavit, which was used in four separate search warrant applications. Surveillance video footage of the crime scene showing Detective Bolognini near Robinson-Crews supports that she was on the phone and that the detective was within earshot of her. The records of defendants' known cell phones show they did not receive these phone calls, and Detective Norton swore before a judge to the veracity of the information hours after the murder took place. N.J.R.E. 803(c)(5) specifically allows that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence. As to the third Brady element, materiality, the Court stresses that the trial court admitted the dying declaration one week after trial began. Although it was proper to admit the declaration, the timing of its admission was highly prejudicial to the defense. That prejudice was compounded by the trial court's later exclusion of the Norton Affidavit and was not substantially lessened by allowing defendants to challenge the Muncy Report. Because there is a reasonable likelihood that the State's Brady violation, in light of the trial court's evidentiary rulings, affected the judgment of the jury, the third Brady element is satisfied. (pp. 32-40)

         4. The remedy of dismissal of an indictment with prejudice is not available here because there is no allegation that the State intentionally withheld Brady information and no evidence of prosecutorial misconduct. However, because the State's Brady violation, in the circumstance of the trial court's evidentiary rulings, undermines confidence in the jury's verdict, a new trial is required. On retrial, Portis's statement can be offered to rebut a charge of recent fabrication under N.J.R.E. 803(a)(2), but only as to Brown. And the trial court should review, pretrial, offered testimony of jailhouse informants Franklin and Black to resolve any issues under Bruton v. United States, 391 U.S. 123 (1968). (pp. 40-43)

         The judgment of the Appellate Division is REVERSED, defendants' convictions are VACATED, and the matter is REMANDED for a new trial.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion.

          OPINION

          SOLOMON JUSTICE

         I. Introduction

         One week after defendants' murder trial began, after counsel made opening statements and examined four of the State's witnesses, the prosecutor turned over to defense counsel nineteen reports that were in the State's possession but had not previously been provided to defendants. Defendants then moved to dismiss the indictment with prejudice, relying on Brady v. Maryland, 373 U.S. 83 (1963). The trial court did not resolve the dismissal motion, and the case continued.

         During the ensuing days of trial, the court made several significant evidentiary rulings. One ruling reversed the pretrial holding of another judge by admitting the murder victim's dying declaration heard by the victim's wife. Another ruling excluded as unreliable a police officer's affidavit used in four separate search warrant applications. The excluded affidavit was offered by defendants as evidence to impeach the victim's wife and was relevant to a defense of third-party guilt. At the conclusion of the trial, a jury convicted defendants of murder.

         We are called upon, initially, to determine whether the State's failure to produce nineteen discovery items until one week after the trial began violated defendants' due process rights under Brady v. Maryland. If we conclude that the State's failure to produce timely the discovery items violated defendants' due process rights, we must then decide whether the violation warrants dismissal of the indictment or, alternatively, reversal of their convictions and a new trial.

         We first conclude that the State's failure to produce nineteen discovery items until one week after the beginning of defendants' murder trial did violate defendants' due process rights under Brady. We reach this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, we nonetheless reverse the judgment of the Appellate Division, vacate defendants' convictions, and remand for a new trial because defendants were deprived of a fair trial.

         II. Facts & Procedural History

         A. The Murder of Tracy Crews & the Initial Investigation

         Our discussion of the facts and procedural history is derived from the trial record, which reveals that on a September night in 2008, Tracy Crews was shot three times while on the first floor of the Trenton home he shared with his wife, Sheena Robinson-Crews, and their daughter. After being shot, Crews exited the front door of the home and collapsed in the street.

         Meanwhile, Robinson-Crews was sitting in her car nearby speaking with a friend on her cell phone when she heard gunshots and observed a person "half naked [] standing in front of [her] home." The person stumbled and, as he came into the light from a nearby liquor store and bar, Robinson-Crews recognized the person as her husband and went to his aid.

         At the same time, William Rodriguez-Rivera left the liquor store and bar, after having consumed several beers and whiskies, and heard the screen door of Crews's home slam. Rodriguez-Rivera turned to see Crews "running around and all bloodied and stuff." Crews fell in the street as Rodriguez-Rivera reached him, and from about eighteen inches away, Rodriguez-Rivera asked Crews what happened but received no audible response.

         After exiting her vehicle, Robinson-Crews approached and cradled her husband as Rodriguez-Rivera stepped away to call 9-1-1. Robinson-Crews asked Crews repeatedly, "Who did this to you?" Robinson-Crews claims that her dying husband then made a statement that incriminated defendants, William Brown and Nigil Dawson.

         Crews was conscious but unresponsive when officers from the Trenton Police Department arrived on the scene. Robinson-Crews told the officers that her husband was shot in their home and that her toddler was still inside.

         Officer Maurice Crosby looked through the front door of the home and saw a large amount of blood. Officer Crosby, along with other officers who arrived on scene, went through the house next door, exited into the rear yard, and observed fresh footprints in the mud leading from the victim's house to the fence enclosing the rear yard. The officers entered the victim's home through the open rear door and, while in the kitchen, saw "one or two shell casings laying on the floor," "some blood to the left where the doorway led to the rest of the apartment," and a trail of blood leading from the kitchen to the front door. Officer Crosby located the child, took her outside, and turned her over to another officer as additional Trenton Police officers arrived to help search for the shooter.

         The officers examined the area around the victim's home. In a nearby construction yard, they saw freshly disturbed gravel and footprints, which they preserved. Officers located a cell phone, a non-matching charger, and a ski mask on the ground in the passageway between two houses on a nearby street. On the roof of a neighboring garage, another officer recovered a 9-millimeter handgun that matched the shell casings from the victim's home. Police also recovered surveillance video from the liquor store and bar and a nearby home.

         An ambulance took Crews to the hospital, where he died as a result of his gunshot wounds. Meanwhile, Robinson-Crews stayed at the scene and made a number of cell-phone calls including several calls to Crews's mother, Barbara Portis. Robinson-Crews told Portis that Crews had been shot and that Portis would "have to bury another son."

         While still at the crime scene, Robinson-Crews also made two phone calls within earshot of Detective Nathan Bolognini, one of the investigating officers. A surveillance video showed Detective Bolognini standing close to Robinson-Crews on the night of the murder as she made the calls. Detective Bolognini reported what he overheard to Detective Matthew Norton, who swore to the following in an affidavit (the Norton Affidavit) used in four separate search warrant applications:

Trenton Police Detective Bolognini was with Robinson-Crews after the shooting. During the time that Bolognini was approximately [five] feet from Robinson-Crews and heard her make several telephone calls using her cellular [] telephone. The first call Bolognini heard her make appeared to be to who[m]ever shot the victim. Bolognini heard Mrs. Robinson-Crews tell the person on the telephone, "You didn't have to shoot him. You got what you came for, you did not need to shoot him." During this telephone call, Mrs. Robinson-Crews was speaking in a loud voice and seemed frantic. After ending that call, Mrs. Robinson-Crews called another person and told that person, "Those boys did not have to shoot him. They got what they came for, they didn't have to shoot my baby." During this conversation, Robinson-Crews was crying and upset to the point that she had to end the conversation.

[(emphases added).]

         Cell-phone records later revealed that neither of these calls were made to defendants' known cell phones.

         At some point during the night, Robinson-Crews called Portis and told her that Crews said "Paperboy and Youngin" had shot him. Robinson-Crews identified "Youngin" as defendant Nigil Dawson (Dawson or Youngin), and stated that her husband knew him through defendant William Brown, who was also known as Paperboy (Brown or Paperboy).

         Robinson-Crews refused to speak to the police for approximately six hours after the murder but finally went to the police station and made a statement. In that statement, Robinson-Crews claimed that Crews asked her to go to the liquor store to purchase apple juice for their daughter. Robinson-Crews alleged that when she returned to the house the front door was unlocked and she heard a struggle inside. She then heard four or five gunshots, after which two African-American males dressed in black ran out the back door. Robinson-Crews also told police, "As Tracy was choking on his own blood, he told me that Paperboy and Youngin did this to him." Because police had access to the liquor store's surveillance camera, they knew that Robinson-Crews had not reentered the home before Crews was shot. That same morning, Robinson-Crews went to Portis's home, where she again claimed to Portis that Crews told her, as he was dying, that Paperboy and Youngin shot him.

         The next day, Robinson-Crews returned to the police station and gave a second conflicting statement, in which she again maintained that she reentered the home before Crews was shot. She also repeated that, as she held Crews, he stated, "Paperboy" killed him and "Paperboy and Youngin" killed him, and that he told her, "I love you and my daughter, take care of my baby."

         A forensic scientist with the New Jersey State Police DNA Laboratory examined the ski mask found on the ground between two houses. The scientist determined that, although not a match, Brown could not be excluded as a contributor to DNA samples taken from the ski mask. The case went cold after the initial investigation. In November 2008, about two months after Crews's death, Robinson-Crews filed a false police report against Brown accusing him of pointing a gun at her.

         B. Reopening the Investigation & Indictment of Defendants

         Approximately three years passed before Trenton Police reopened the case. Detective Gary Britton became the lead investigator[1] and interviewed Portis. During the interview, Detective Britton asked Portis if she could identify a photograph derived from a frame of the nearby neighbor's surveillance video. Portis identified the person in the photograph as Dawson because she believed that person stood "the same way [Dawson] was standing in [her son's] wedding pictures."

         Detective Britton then interviewed Robinson-Crews at Muncy State Correctional Institution in Pennsylvania where she was incarcerated for drug-related offenses. Robinson-Crews admitted that her husband "only uttered Paperboy" in his dying declaration and that she "added on Youngin because [she] knew they did a lot of involvement with each other on things."

         On June 6, 2011, defendants were charged with Crews's murder. After their arrest, they were incarcerated at the Mercer County Correctional Center. In May 2012, a Mercer County grand jury returned an indictment charging Brown and Dawson with first-degree murder, N.J.S.A. 2C:11-3(a)(2) and N.J.S.A. 2C:2-6 (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6 (count two); first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count ...


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