October 10, 2018
certification to the Superior Court, Appellate Division.
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).
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.
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
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.
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."
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
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.
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.
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.
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).
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
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.
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)
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)
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)
judgment of the Appellate Division is REVERSED,
defendants' convictions are VACATED, and the matter is
REMANDED for a new trial.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S
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
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.
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.
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.
Facts & Procedural History
The Murder of Tracy Crews & the Initial
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
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.
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.
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.
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.
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.
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.
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."
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
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
records later revealed that neither of these calls were made
to defendants' known cell phones.
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).
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
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."
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.
Reopening the Investigation & Indictment of
three years passed before Trenton Police reopened the case.
Detective Gary Britton became the lead
investigator 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."
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."
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 ...