The opinion of the Court was delivered by SCHREIBER, J.
This is another episode arising out of the murder convictions of Rubin Carter and John Artis. The matter first came before us in 1969 following their convictions for the murders of a bartender and two patrons in the Lafayette Bar and Grill in the City of Paterson. Three life sentences were imposed on each defendant. Two consecutive life sentences were imposed upon Carter, with the third to be concurrent with the second life term. As to Artis, the three life terms were concurrent. We affirmed the convictions. 54 N.J. 436 (1969). The United States Supreme Court denied their petitions for certiorari. 397 U.S. 948, 90 S.Ct. 969, 25 L.Ed.2d 130 (1970).
The retrial commenced on October 12, 1976 and concluded on December 21, 1976 when the jury again returned verdicts of guilty of murder in the first degree. The Appellate Division affirmed in an extensive unreported opinion. We granted the defendants' petitions for certification, 84 N.J. 384 (1980). After oral argument, we remanded the cause to the trial court to hold hearings and make factual findings to determine whether the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), had been violated and whether the violation warranted vacation of the judgments of conviction. Further, if the trial court found no Brady violation, it was to determine whether a new trial should be granted based on newly discovered evidence. State v. Carter, 85 N.J. 300 (1981). We retained jurisdiction. We intimated no view on the ultimate merits of these issues or of defendants' numerous other claims of error.
The trial court held extensive hearings and submitted detailed findings. It found that there was no Brady violation, and that a new trial was not warranted on the basis of newly discovered evidence. We held further oral argument and now affirm.
Weight of the Evidence
Both defendants argue that the jury verdicts were contrary to the weight of the evidence and that the trial court erred in not granting their motions for a new trial. Our obligation in this respect is to determine whether "it clearly and convincingly appears that there was a manifest denial of justice under the law." See State v. Sims, 65 N.J. 359, 373-74 (1974); R. 2:10-1. Indeed, in reviewing a trial court's action on a motion for a new trial following a jury verdict, the appellate court must weigh heavily the trial court's "views of credibility of witnesses, their demeanor, and [its] general `feel of the case.'" Id. at 373. The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present. See Jackson v. Concord Co., 54 N.J. 113 (1969). Tested by these standards, the verdict is sustainable.
A brief summary of the evidence introduced in the second trial is in order. The tragedy occurred at the Lafayette Bar and Grill on June 17, 1966. William Marins was seated at the bar with his friend, Fred Nauyaks. Hazel Tanis was also there and the bartender, James Oliver, was behind the bar. At about 2:30 a.m., two armed black men entered and began shooting. Oliver and Nauyaks were killed immediately. Tanis suffered multiple gunshot wounds and died four weeks later. Marins was shot in the temple.
Patricia Valentine lived above the tavern. Awakened by gunshots at about 2:30 a.m., she ran to the window and saw two black men run to an automobile and drive away. The car was white and had taillights shaped like triangles, wider at the outside and tapering toward the center. The rear lights did not extend across the whole back of the car. It had out-of-state license plates with yellow or gold numbers on a dark blue background. Mrs. Valentine saw the car leave the corner of Lafayette and East 18th Streets, where the tavern was located,
Bello testified that Arthur Bradley and he were in the process of breaking into the Ace Metal Company offices located near the Lafayette Bar and Grill. Bello, who was acting as a lookout, walked down Lafayette Street toward the tavern to purchase some cigarettes. He testified at the trial that he heard some shots and saw two black males come around the corner, one carrying a shotgun and the other a pistol. Bello ran into a nearby alleyway. When he heard the screeching of a car, he came out and saw a white vehicle drive away. He noticed that the rear lights were triangular in shape and that the car had New York or Pennsylvania license plates. Bello went into the bar, took some money from the cash register and telephoned the police.
Bello told Officer Greenough of the white car with the blue and yellow license plates and the two black males. When Carter and Artis were brought to the bar in the 1966 Dodge automobile, Bello identified it as the same vehicle he had previously seen. Bello did not tell the police that Carter and Artis were the same individuals he had previously seen with the weapons. A month later, Bello met Paterson Police Officer Donald LaConte and explained why Bradley and he had been in the vicinity. In October, Bello told LaConte that Carter and Artis were the two
Subsequently, while in jail in 1974, Bello signed a statement at the behest of Fred Hogan of the Monmouth County Public Defender's Office in which he recanted his 1967 trial testimony. In that statement he said that he could not positively identify Carter and Artis. On October 30, 1975, Bello met with Assemblyman Eldridge Hawkins who, at Governor Byrne's request, was investigating the case. His affidavit obtained by Hawkins stated he was in the bar when the shooting occurred. He did not recall seeing Carter and Artis in the bar, but did remember seeing them when he ran outside the bar. Bello also gave a second affidavit to Hawkins in which he related that two black men came in the side door and started shooting.
In December 1975, Bello testified before an Essex County Grand Jury. He said then that as he entered the tavern, he noticed a white Dodge at the side of the building. Two black males entered by the side door and began shooting. He went out the front door and, as he turned left, he ran into a white man. He then turned in the other direction and saw Carter and Artis. At the 1976 trial Bello returned to his original story. He testified that Carter and Artis were the two men he had seen outside the Lafayette Bar and Grill carrying a shotgun and pistol, respectively.
Officers Greenough and John Unger were the first police to reach the scene in response to a radio report of the shooting. They were flagged down by Bello who was standing by the curb. Sergeant Robert Tanis and Officer John Nativo were on patrol when they received a radio alert at about 2:34 a.m. They had been traveling west on Broadway. They turned around and went east on Broadway to East 18th Street and then headed north toward the tavern. While traveling on East 18th Street near Hamilton Street, they observed a white car turn into 12th
Sergeant Theodore Capter and Officer Angelo DeChellis were on patrol on 17th Avenue near East 24th Street, when they received the same radio alert. While driving up East 24th Street toward the tavern, they saw a white car with out-of-state plates cross the intersection of East 24th Street and 12th Avenue traveling east on 12th Avenue. Immediately thereafter, Capter and DeChellis were told that the getaway car was white and was occupied by two black males. Surmising that the car would be headed to New York, they proceeded down 10th Avenue. This route would allow them to reach the bridge over the Passaic River more rapidly than a vehicle going down 12th Avenue, which ends several blocks west of the River. When the officers reached the bridge and Route 4, they did not see the white car. They turned around and returned on Broadway, which is an extension of Route 4. As they approached East 28th Street, a white car crossed in front of them. They stopped it at the corner of East 28th Street and 14th Avenue. It was 2:40 a.m., six minutes after the initial radio alert.
The white car with its New York license plates and butterfly taillights was occupied by Artis, Carter and a third man, John Royster. Capter checked Artis's driver's license and the registration and let the car go. Capter and his partner proceeded to the Lafayette Bar. When they arrived, Bello described the car he had seen. Capter testified that upon hearing this description, "I looked at my partner and he looked at me and we took off looking for the car again." They proceeded down East 18th Street and saw the same car at the intersection of Broadway and East 18th Street. They pulled the car over. Only Carter and Artis were in it. After the patrol car of Sergeant Tanis and Officer Nativo arrived, they escorted Carter's vehicle to the Lafayette Bar.
The Carter-Artis vehicle was then driven to police headquarters and was searched. The police found a 12-gauge shotgun
The automobile search did not uncover any pistol or shotgun. Bello had testified that Carter had a shotgun and Artis a pistol but no weapon was found in the car or on their persons when apprehended. Moreover, the attire of Carter and Artis was not the same as described by the witnesses. Valentine testified that one of the two men wore a hat and both wore sports jackets. Officer Capter said that Carter was wearing a hat and sports jacket and Artis was not wearing a sports jacket when first stopped by the police.
The State contended that the jury could reasonably infer that after leaving the bar, the Carter vehicle stopped at Eddie Rawls' home at the corner of East 28th Street and 12th Avenue and deposited the weapons and some clothing there. Rawls, the bartender at the Nite Spot, was well acquainted with Carter and was a close friend of Artis. He was the stepson of Leroy Holloway, a black bartender who had been shot to death by a white man in a dispute over a business matter several hours before the Lafayette Bar murders.
The movement of the car and the fact that several minutes had elapsed between the time the car was first spotted and when it was stopped by Sergeant Capter could justify this inference. Sergeant Capter saw the white car speeding across 12th Avenue at 24th Street and he stopped the car at 14th Avenue and East 28th Street. Carter and Artis could have stopped briefly at Rawls' house before proceeding to the point where Capter pulled the car over. See Appendix I.
Catherine McGuire also testified at the 1967 trial. At that time she indicated that Carter brought her home at about 2:15 on the morning of June 17, 1966 and that he left around 2:30. At the 1976 trial she testified that this was not true and that she was aware of this in 1967. Catherine McGuire also testified that she had received a letter from Carter while he was in the Bergen County Jail in which he asked her to remember that he had brought her home at 2:30 a.m. on June 17. Anna Brown, Catherine McGuire's mother, offered similar alibi testimony in 1967, but stated at the 1976 trial that it was untrue.
Although William Hardney did not testify in 1967, he did appear at the second trial. He related a conversation that he had had with Carter in which the latter asked him to support his story that he left the Nite Spot around 2:30 a.m. on June 17, 1966 with two girls. In fact, Hardney had not seen Carter at that time.
The trial court's conclusion that the verdict was not contrary to the weight of the evidence is well-founded. It is highly unlikely that more than one white 1966 Dodge with New York license plates was roaming around this area in Paterson about 2:30 on a Friday morning. The identification of the car by Valentine and Bello, related to the police at the time, was strong evidence that the killers drove away in that car after committing the murders. Carter and Artis were picked up in that car within thirty minutes after the shooting, and Carter
Evidence of Racial Motive
At the pretrial conference held a month prior to the retrial, the State advised that it would offer evidence to show that the motive for the murder was revenge for the killing earlier that evening of a black bar owner, Leroy Holloway. At the first trial, the defense had argued that the State had not established any reason for Carter and Artis to have committed the murders. Now, the prosecution was prepared to advance evidence to demonstrate their motive.
It is well established that the prosecution may introduce evidence of motive. See 1 Wigmore, Evidence § 118, at 558-59 (3d ed. 1940); 1 Wharton, Criminal Evidence § 170, at 314-15 (13th ed. 1972). Its purpose is to aid the jury, particularly in a case resting upon circumstantial evidence, in determining who the person was who committed the crime.
A wide range is permitted with respect to the nature of the evidence that may be introduced. Wharton expressed this thought:
We have adhered to this doctrine. In State v. Rogers, 19 N.J. 218 (1955), the prosecution's introduction of evidence to show that the defendant had been indebted to the murder victim and
Our courts have continued to follow Rogers. See State v. Baldwin, 47 N.J. 379, 391 (1966) (evidence that defendant killed victim to silence him as a prospective witness held proper); State v. Royster, 57 N.J. 472, 484-85 (1971) (evidence that defendant threatened victim several weeks before murder permitted). This is the majority rule throughout the country. See 22A C.J.S. Criminal Law § 614 (1961 & Supp. 1982); 29 Am.Jur.2d, Evidence § 363 (1967).
State v. Mathis, 47 N.J. 455 (1966), relied upon by the defendants, is not to the contrary. The prosecutor cross-examined the defendant with respect to how much money he had at the time of the murder and when he had last worked. The trial court ruled that it would not permit proof of financial need unless the State would also show that things of value were stolen and that thereafter defendant was affluent. In approving this ruling, Chief Justice Weintraub agreed that evidence of lack of money alone is not sufficient to prove motive because "it would prove too much against too many." Id. at 471. Citing Rogers approvingly, he stated that "there must be something more than poverty to tie a defendant into a criminal milieu." Id. at 472. By analogy the defendants argue that proof they are black and members of a class is not sufficient justification to tie them into the murders. However, the flaw in this position is their failure to acknowledge all the pieces in the pattern of this heinous crime. Defendants' membership in the class was not their only tie to the motive.
Holloway was the bartender and owner of the Waltz Inn, a bar frequented by black patrons and located in a predominantly black neighborhood. The tavern was situated a few blocks away from the Lafayette Bar. About 8:15 p.m. on June 16, 1966, a white man entered the Waltz Inn and killed Holloway with a blast from a shotgun. A little more than six hours later, two black men entered the Lafayette Bar located at the border between black and white areas and, using a shotgun, killed the white bartender and several patrons. This bartender had been known to refuse to serve blacks. There was also evidence that neither the bartender nor the patrons were robbed. There was money on the bar and those killed had money in their wallets when the police arrived.
A series of events between these two crimes lend further support to the relationship between the murder and racial revenge. After Holloway's shooting, part of the local black community became enraged. A crowd gathered outside the Waltz Inn. News of the upset spread. Artis heard about it while on the street. Carter also knew there was going to be "some trouble." Neither of them knew what had provoked the slaying. While in the Nite Spot Carter heard talk of a "shaking" (retaliatory action). Carter and Artis had more than a passing interest because of Eddie Rawls. Rawls, Holloway's stepson, was the bartender at the Nite Spot. Carter, a professional prizefighter, frequented the Nite Spot almost every day and had a special reserved table there known as the "Champ's Corner." Carter and Rawls were "pretty good friends." Artis was very friendly with Rawls.
Rawls was seen in the group that gathered at the Lafayette Bar after the shootings at about 3:00 a.m. After Carter and Artis were charged with the murder, Rawls assisted in bringing "alibi" witnesses to defense counsel to be interviewed. Several of these witnesses later testified at the retrial that their alibi testimony in 1967 had been fabricated.
Defendants contend that the evidence introduced in support of the racial revenge theory was not probative of defendants' guilt and, secondly, even if it were found to be probative, it was too prejudicial to be admitted. Moreover, in their petition to this Court, defendants stress that the State's summation improperly injected racial prejudice into the jury's consideration. For the reasons that follow, we reject each of these claims.
Defense counsel err when they insist that the State's theory impermissibly casts all blacks as being motivated to seek retribution when a black person is murdered by a white person. There is no place in the courtroom for any such group labelling. The evidence offered by the State against Carter and Artis was
The defendants claim that irrespective of the relevance of the motive evidence, its impact was so inflammatory that the jury was improperly swayed in its deliberations. However, "evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." 1 Wharton, Criminal Evidence, supra, § 170, at 316. There is nothing inherently wrong with advancing a theory of revenge as a motive for murder, if the facts bear out the theory.
Whether the probative value of the evidence is outweighed by the potential prejudice is a decision left to the discretion of the trial judge. See Evid.R. 4, Comment 1. The party seeking to preclude the admission of evidence must convince the court that the factors favoring exclusion substantially outweigh the probative value of the contested evidence. Cf. State v. Sands, 76 N.J. 127 (1978) (whether prior convictions may be excluded as too prejudicial). On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted. See State v. Rogers, 19 N.J. at 229; Evid.R. 4, Comment 2.
Related to the evidentiary argument is the defendants' claim that the State's summation was an unacceptable appeal to racial prejudice, and, as such, violated the defendants' due process rights to a fair trial. The summation must be considered as a whole. The prosecutor's argument tied in the racial aspect of the revenge motive and constituted proper comment. Moreover, we note that defendants' objection to this part of the summation was not directed to the comment concerning motive, but to the analogy of the antipathy between citizens of different countries as "things outside this courtroom." Defendants have not established a case of plain error, the applicable standard under these circumstances. State v. Thornton, 38 N.J. 380, 396 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed.2d 1039 (1963).
The defendants rely on a number of cases to show that the prosecutor's argument constituted an improper appeal to racial prejudice. We find those cases inapposite. In McFarland v. Smith, 611 F.2d 414 (2d Cir.1979), the prosecutor urged the jury to credit a police officer's testimony because the probability of truthfulness was increased when one black person testified against another. The court held the remarks improper. As Judge Newman explained in that opinion, this notion, in the absence of any support in the evidence for the underlying assumption, is illogical because it is not probative of the likelihood that accusing testimony by someone within the same group is more credible than accusing testimony between people of different groups. See id. at 418. Here, the prosecutor's argument is logical; it attempts to make the racial revenge theory
In Withers v. United States, 602 F.2d 124, 126 (6th Cir.1979), the court found that a prosecutor's argument that not one white person had supported the defendant's story was improper. Similarly, in United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 155, 160 (2d Cir.1973), the court found that repeated, derogatory group references to blacks — "their" intelligence, "their" sexual promiscuity, "their" manner of dress — constituted a violation of defendant's right under the due process clause to a fair trial.
Here, despite the defendants' repeated protestations in their briefs and appellate oral arguments to the contrary, the prosecutor's advocacy attributed no qualities to a generalized class of blacks. The prosecutor did not ask the jury to believe that blacks in general possess an instinct to commit senseless violence that would lead any one of them to murder whites. Rather, he urged them to find that these two particular black men, Carter and Artis, committed the Lafayette Bar murders in retaliation for the slaying of a friend's stepfather. His remarks were not tangential asides to the jury designed to arouse latent racial hostility, see Kelly v. Stone, 514 F.2d 18, 19 (9th Cir.1975), but were directed to one element of the State's case. "When a prosecutor's summation includes remarks in an effort to persuade a jury to return a guilty verdict, the resulting conviction is constitutionally unfair unless the remarks are abundantly justified." McFarland v. Smith, 611 F.2d at 416-17 (emphasis added). We find that the argument set out in this case is justifiable because it was relevant to the issue of motive, there being evidence in the record to support that proposition.
Defendants claim that they are entitled to a new trial because the prosecution withheld material evidence favorable to
At issue on remand was the prosecution's alleged suppression of information concerning an August 7, 1976 polygraph examination of Alfred Bello. The test was arranged by Passaic County Prosecutor Burrell Ives Humphreys, who wanted to evaluate, prior to the retrial, the credibility of Bello's 1967 trial testimony. He arranged for examinations by two polygraphers, Richard Arther and Leonard Harrelson. Arther concluded that Bello was truthful when he said that he believed that Carter was in the bar when the shootings took place; that Bello was on the street just after the shootings and saw Carter there; and that Bello was the first person to go inside the bar after the shootings.
According to Professor Harrelson's written report of the test, which was furnished to defense counsel, it was his opinion that Bello's testimony at the 1967 trial was true, and that the statement recanting his original statement was not true. The defense was unaware, however, that after the test, but before he submitted his written report, Professor Harrelson told Chief DeSimone that Bello was truthful when he said he was inside the Lafayette Bar prior to and at the time of the shootings. Since the 1967 trial testimony put Bello outside the Lafayette Bar at the time of the shootings, there was a serious discrepancy between Harrelson's written report, which affirmed that testimony, and his oral comments, which contradicted it.
On the remand the trial court was instructed to make a threshold finding regarding the prosecution's knowledge of the ambiguity contained in Harrelson's report. The court was further to assess the suppressed information in the light of the requirements for finding a Brady violation. Finally, the court was to determine whether, even in the absence of a Brady violation, the information acquired by the defense since trial qualified as newly discovered evidence entitling the defendants to a new trial.
A hearing was held before Judge Leopizzi from May 18, 1981 to June 8, 1981. The court heard the testimony of Bello, Harrelson, Humphreys, Assistant Prosecutors Martin Kayne and Ronald Marmo, other employees in the Passaic County Prosecutor's Office during the period in question, and defense attorneys Myron Beldock and Lewis Steel. In an 80 page opinion Judge Leopizzi made detailed findings of fact, and concluded that although the prosecution "technically" failed to turn over information regarding Harrelson's oral report, that failure was justified in the circumstances. The court further found that the suppressed information was not material evidence favorable to the defense, within the meaning of Brady v. Maryland, nor did it meet the test established to determine if newly discovered evidence warrants a new trial. Although we consider that Harrelson's oral report of the polygraph test should have been revealed to the defense, we agree that a new trial is not warranted under either Brady or the newly discovered evidence test.
The rule established in Brady v. Maryland, supra, and its progeny provides that
It is undisputed that Harrelson's oral report was known to the prosecution but unknown to the defense. Chief Assistant Prosecutor Kayne testified that after the test, Harrelson told Chief DeSimone that Bello had been in the bar at the time of the shootings. Prosecutor Humphreys was informed by his staff of Harrelson's conclusion and he discussed the matter with Harrelson in a lengthy telephone conversation. Although the prosecution claims that Harrelson's oral report was so preliminary and tentative as to be beyond the scope of discovery, Harrelson himself testified that he did not at any time indicate that his oral report was preliminary or that he was unsure of the accuracy of the results. The prosecution nevertheless contends that the written report was accepted in good faith as accurate, complete and definite, and that it was justified in thinking that the written report superseded any oral comments.
Nondisclosure of evidence favorable to the accused violates the constitutional right of due process only "where the evidence is material to guilt or punishment." Id. at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218. In making the often difficult determination of what is "material" we look to the factual circumstances of the particular case. Where the prosecution has knowingly used perjured testimony, the undisclosed information is material if "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. at 103-04, 96 S.Ct. at 2397, 49 L.Ed.2d at 349-50. Where the defendant has made a specific request for information and the prosecution has failed to reveal the requested information, the standard of materiality is whether "the suppressed evidence might have affected the outcome of the trial." Id. at 104, 96 S.Ct. at 2398, 49 L.Ed.2d at 350. Finally, when no request is made by the defendant or only a general request is made, information not revealed by the prosecutor will be considered material only if "the omitted evidence creates a reasonable doubt that did not otherwise exist...." Id. at 112, 96 S.Ct. at 2401, 49 L.Ed.2d at 355.
In this case it is undisputed that the defense requested all information concerning Bello's polygraph. The test of materiality, then, is whether knowledge of the suppressed oral report might have affected the outcome of the trial.
Some federal courts have held that the "might have affected the outcome" test is synonymous with harmless error. United States v. Goldberg, 582 F.2d 483, 489 (9th Cir.1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979). See also Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir.1980). The harmless error test explicated by the federal courts is whether the error was harmless beyond a reasonable doubt, namely, whether there was a "reasonable possibility" that the error would have affected the result. See United States v. Goldberg, 582 F.2d at 489, holding that the standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), of
Evidence that is merely cumulative does not create a reasonable possibility that the verdict would have been affected. In Goldberg the government's case consisted primarily of the testimony of Newman, a fellow employee. The prosecutor had failed to respond to a specific request for production of Newman's notes, which could have been used to illustrate Newman's cooperation with the government in the hope of receiving lenient treatment. The court held that this evidence was merely cumulative and not material to the issue of guilt. Therefore, there was "no reasonable possibility that ... use [of the notes]
In DeMartino v. Weidenburner, 616 F.2d 708 (3d Cir.1980), the defendant had been found guilty of accepting a $3,000 bribe as chairman of the municipal Alcoholic Beverage Commission. The defense was that the tavern owner paid the money to the defendant who was to use the funds to obtain a lawyer to represent the owner on a gambling charge, it being alleged that the gambling occurred at the tavern. Despite non-compliance with a specific request for certain documents, Judge Higginbotham pointed out that some of the documents were not material because the evidence was cumulative. He quoted from United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 735 (3d Cir.1978):
In Zeigler v. Callahan, 659 F.2d 254 (1st Cir.1981), the alleged Brady violation concerned evidence that could have been used to impeach the credibility of a government witness. The court held that the evidence was cumulative and not material, the witness's credibility having been fully explored on cross-examination by competent counsel. The court wrote:
The defense claims it could have used knowledge of the polygraph results not only to directly impeach Bello's testimony, but to show that the return to his 1967 trial testimony was prompted by the State's misrepresentation of the polygraph results. Thus, Bello would have been shown to be an extremely malleable witness whose testimony was manipulated by the State.
Had the defense used its knowledge of the Harrelson polygraph test to impeach Bello, however, the results of the test would surely have come to the attention of the jury. Both attorneys for defendants testified at the hearing on remand that had the oral report been disclosed, they would have brought out the polygraph examination and its results at trial. Although polygraph evidence is ordinarily not admissible in criminal cases, an exception occurs when the State and the defendant enter into a stipulation to introduce the results in evidence. See State v. McDavitt, 62 N.J. 36 (1972); State v. Christopher, 149 N.J.Super. 269 (App.Div. 1977). The State would presumably have entered into such a stipulation, since it contends that evidence associated with Harrelson's examination of Bello would have added great strength to the State's case.
The Harrelson test results, if laid before the jury, would have established that an eminent polygrapher entertained "no doubt at all" that Bello was truthful when he identified the defendants as the murderers. Harrelson testified at the remand hearing that it was his opinion, based on the Bello polygraph examination, that Carter and Artis alone were responsible for the shootings at the Lafayette Bar. Harrelson explicitly asked
In deciding whether the Harrelson test results might have affected the outcome of the case, we must weigh the value of further impeaching Bello against the strongly inculpatory nature of the test results and Harrelson testimony. Bello's credibility had been subject to exhaustive attack during the trial and he was questioned at length regarding his various conflicting stories. The defense's cross-examination of Bello occupied the better part of five days and covers 600 transcript pages. The trial court observed: "His credibility was severely and repeatedly assailed from every conceivable angle through the lengthy and extensive cross-examination over a period of several days." He was questioned closely about discrepancies between his trial testimony and previous narrations. He was examined extensively on pressures and coercion by the prosecution to induce him to return to his 1967 trial testimony. His criminal record and his history of blackouts and alcoholism were fully explored. The trial court found:
Given the length and scope of the defense's attack on Bello's testimony, there is no reasonable likelihood that further impeaching evidence would have affected the outcome of the trial. The added inconsistency that Bello told Harrelson that he was in the bar was merely cumulative.
This is particularly so in view of the wealth of other evidence amassed against the defendants. Bello's testimony that he saw Carter and Artis outside the bar immediately after the shootings did not stand alone. A substantial portion of his testimony was strongly supported by Mrs. Valentine. It is undisputed that Bello was at the Lafayette Bar immediately after the shootings. Immediately after the gunshots, Mrs. Valentine had paused only to look out the window before throwing on a raincoat and running downstairs to the tavern. Bello was at the door when she arrived. It was Bello who flagged down a police car. Bello's testimony that he saw a white car with out-of-state license plates and distinctive triangular tail-lights was likewise corroborated by Mrs. Valentine's independent testimony. Mrs. Valentine also saw two black men run to a car of that description and drive away. Both Bello and Mrs. Valentine gave comparable descriptions of the car to the police. When Carter's car was brought to the Lafayette Bar shortly afterward, both Bello and Mrs. Valentine identified it as the car they had seen leaving the scene.
In addition to this eyewitness testimony, defendants were implicated by considerable circumstantial evidence. The Carter-Artis car was seen in the vicinity of the Lafayette Bar within minutes of the shootings. In the car were found a shotgun shell and a .32 caliber shell, both of the same kind as the spent shells found at the murder scene. A motive for the killings — revenge for the murder of Leroy Holloway — was adequately established.
Although we hold that the prosecution's failure to disclose the Harrelson oral report was not constitutional error, it is the better practice, where the materiality of the requested information is in issue, either to furnish the information or to submit the matter to the trial court. In discussing the prosecutor's duty to voluntarily submit information, the Supreme Court in Agurs counseled prosecutors to err on the side of disclosure.
That advice has equal application here. The prosecutor could not have known, prior to the development of the complete record at trial, what significance the oral report might have. Since the oral report certainly fell within the scope of requested information, it should have been disclosed to the defense along with Harrelson's written report.
We had also directed the trial court on remand to explore "precisely what use the prosecution made of Harrelson's report in confronting Bello" prior to the second trial. 85 N.J. at 315. The trial court made the following findings:
Those findings are supported fully by the record. See State v. Johnson, 42 N.J. 146, 162-64 (1964). Kayne and DeSimone were the first persons who interviewed Bello after receipt of the Harrelson report. At that time Bello had already disclosed to
The dissent contends that the trial court erred in finding that the Harrelson report was not used to get Bello to go back to his 1967 trial testimony. It bases this contention on Assistant Prosecutor Marmo's testimony and the letter written by Prosecutor Humphreys to Attorney General Hyland. Marmo's testimony and the prosecutor's letter indicate that Bello, when faced with the Harrelson report, admitted that the Essex County story was untrue. The part of the Harrelson polygraph report used for this purpose, contrary to the position expressed by the dissent, was true and accurate. In the Essex County in-the-bar version, Bello saw two men, not Carter and Artis, enter the tavern and start shooting, and he saw Carter and Artis in the vicinity of the bar. In the Harrelson version Bello was inside, but did not witness the shooting; he did, however, see Carter and Artis outside the bar with weapons immediately after the shooting. No reference was made to any other persons. The significance of the Essex County in-the-bar version was that two other persons had committed the murders. The Harrelson report and the 1967 trial testimony, on the other hand, agreed that only Carter and Artis were on the scene. Marmo's testimony and the Humphreys letter do not undercut the trial court's finding that the State did not misrepresent the results of the polygraph test to get Bello to return to the 1967 trial testimony. Thus, the dissent's reliance on Marmo's testimony and the Humphreys letter is misplaced. Moreover, there was no inconsistency, as the dissent claims, between the reports of the polygraphers Harrelson and Arther; both concluded that Bello saw Carter and Artis outside the bar after the shootings.
Newly Discovered Evidence
Defendants contend that they are entitled to a new trial because the information that has come to light concerning Harrelson's oral report constitutes newly discovered evidence. Before a defendant is entitled to a new trial on this ground, it must be established that the new evidence is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. at 314. See R. 4:50-1(b). All three tests must be met before the evidence can justify a new trial. State v. Johnson, 34 N.J. 212, 223 (1961). Defendants have failed to satisfy any of these tests.
For the reasons outlined in our discussion of the Brady violation, we hold that the evidence of Harrelson's oral report is neither material nor of the sort that would lead to a change in the jury's verdict. Further, we agree with the trial court that the evidence could have been discovered before or during trial through the exercise of reasonable diligence. On September 14, 1976, 27 days prior to trial, Harrelson's written report was turned over to the defense. The report included a long narrative, the product of the pre-test interview, in which Bello described what happened inside the bar at the time of the shootings. The test report also included the specific test questions that Harrelson asked, and Bello's responses. To the questions, "Were you inside the Lafayette Lounge as you say?", "Were you inside the lounge when you heard the shots?" and "Were you inside the bar when you heard the shots?", Bello answered yes. In view of Harrelson's conclusion that Bello's 1967 testimony was true, Bello's narration and the answers to the test questions should have alerted a careful defense attorney to the need to investigate the Harrelson report further.
Improperly Admitted Evidence
Carter, while incarcerated, had written letters to two prospective alibi witnesses. The trial court ruled these letters were inadmissible when the State could not establish how or when it obtained them. Though it found the letters were obtained in violation of the Fourth Amendment, the trial court permitted the State to use these letters to refresh the recollection of the witnesses. Defendants claim that testimony predicated on this recollection violated the exclusionary rule since the prosecution obtained "use" of the evidence despite the constitutional violation. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
This rationale ignores the established distinction between a document that is evidential and one used to refresh a witness's recollection. Once a proper foundation has been laid, a witness may examine any document to refresh his memory. The oft-quoted statement of Lord Ellenborough in Henry v. Lee, 2 Chitty 124, 124 (1814), sets forth the general rule:
The admissible evidence is the recollection of the witness, and not the extrinsic paper. See Marti v. Standard Fire Insurance Co., 127 N.J.L. 591 (E. & A. 1942); 3 Wigmore, Evidence (Chadbourn rev. ed. 1970), § 758, at 125-28. The test is whether the witness puts before the court his independent recollection and knowledge. Zimmer v. Westinghouse Electric Corp., 26 N.J. 339, 351 (1958). This test was met here.
Defendants also argue that the testimony of William Hardney, a friend of Carter, was unreliable because it was the product of illegal conduct by the prosecution and its admission violated their due process rights. William Hardney originally told detectives that he was with Carter at the Nite Spot at the time of the killings. In October 1976 he was questioned by five police officers who came to his house at 1:00 a.m. He could not reach his lawyer, but the police remained and told him they wanted to hear his version of what occurred. Hardney repeated the Carter alibi story.
Thereafter, the police advised Hardney that his wife and he were to be arrested and charged with obstruction of justice. When Hardney was told by his lawyer to tell the truth, he admitted that he had been lying about the Nite Spot story and that he had not been there with Carter on the morning of June 17. Less than a week later, at his lawyer's office, he reiterated the truth to the police. The prosecution's conduct is not to be condoned, but the pressure did not affect the witness's competency. The matter was brought out on cross-examination to challenge the reliability of Hardney's testimony. We find defendants' charge of a due process violation to be wanting.
Bello as a Witness
Defendants argue that the State should not have been permitted to use Bello as a witness. The contention is based on several factors. First, Bello was unreliable. He had made seven sworn statements, some of which were inconsistent with each other, he had committed other crimes, and he had received promises of favorable treatment from the State. Second, the prosecutors had
Bello's version of events." The argument is without merit.
Evidence Rule 7 provides that "every person is qualified to be a witness" except as otherwise provided in the Rules or by other law of this State. The declared policy is that generally everyone is qualified to be a witness and give relevant evidence. German v. Matriss, 55 N.J. 193, 216 (1970). Witness disqualification is an exception. State v. Briley, 53 N.J. 498, 506 (1969). In the absence of a specific rule of exclusion, a witness should be permitted to testify. Cf. State in Interest of R.R., Jr., 79 N.J. 97 (1979) (age per se does not render a proposed witness incompetent; rather, under Evid. R. 17, a court should decide whether a person is incapable of expressing himself or understanding the duty to tell the truth).
Defendants do not point to Bello's conviction of any crimes, but even convictions would not preclude the State from presenting him as a witness. See State v. Fox, 12 N.J.Super. 132, 139 (App.Div. 1951). Moreover, promises from the State and inconsistent statements were properly matters for the jury's consideration. Lastly, the prosecution had acted in good faith to verify before trial Bello's expected testimony. As discussed supra, at 118-119 there was substantial verification of much of Bello's version. The extent to which his testimony was to be believed was for the jury.
Defendants claim that the prosecutor overstepped the bounds of propriety when he attempted to explain to the jury the apparent discrepancy between the time elapsed and distance traveled by the white car on the first two occasions it was observed by the police. The prosecutor argued:
Defendants claim that the prosecutor presented the above underlined statement as a fact. However, these conclusions were inferences that the jury could draw from proven facts.
A prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence. State v. Farrell, 61 N.J. 99, 102 (1972); State v. Johnson, 31 N.J. 489 (1960); State v. Bogen, 13 N.J. 137 (1953). There is no error so long as he confines himself in that fashion. Ultimately it was for the jury to decide whether to draw the inferences the prosecutor urged.
The defense counsel also allege that the prosecution intentionally misled them as to the theory under which Carter and Artis would be tried. The defense claims that the State represented in March 1976 that it would argue that four persons were involved in the shootings: two, not Carter and Artis, did
However, the State never amended the 1966 indictment or its responses to the bill of particulars. By late September 1976, the defense knew that Bello had reverted to his 1967 story and that the 1966 bill of particulars would stand. On September 27, 1976, Judge Marchese had clarified the bill of particulars to reflect the State's position that Carter and Artis fired the shots that killed the victims and that no other persons fired any shots in the bar.
An intentional, misleading misrepresentation as to the factual theory upon which the State proposes to rely may constitute a basic unfairness where the defendant has relied upon such misrepresentation in preparation of the defense. The Appellate Division in State v. Laganella, 144 N.J.Super. 268 (App.Div. 1976), appeal dismissed, 74 N.J. 256 (1976), after emphasizing the absence of evidence of misrepresentation in that case, commented:
In this case there is no evidence of misrepresentation with respect to the theory upon which the State intended to proceed.
Defendants further contend that the prosecutor's remarks in summation about Carter's grand jury testimony violated the right to remain silent. The prosecutor made the following argument about Carter's grand jury testimony:
Here Carter's grand jury testimony had been read to the jury and the prosecutor's comment was a fair evaluation of that testimony. No objection was made at trial that this comment violated defendant's right to remain silent and we fail to discern how this comment violated any such right. The prosecutor also referred to the failure to produce evidence that an insurance claim had been made by Carter for some stolen guns. However, production of that evidence would not have required calling Carter, and therefore there was no violation of his right to remain silent.
The defendants also assert that the prosecutor's comments on the defendants' failure to produce certain witnesses — Rawls, Richard Solomon and Stanley Van Ness — was improper. State v. Clawans, 38 N.J. 162 (1962), sets forth the guidelines concerning inferences that may be drawn from failure to produce a witness. It must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved. Id. at 171. It has been said that failure to call a witness available to both parties precludes raising an inference against either. O'Neil v. Bilotta, 18 N.J.Super. 82, 86 (App.Div.), aff'd, 10 N.J. 308 (1952). However, that statement may not necessarily be true. Where one party has superior knowledge of
Each of the witnesses not produced here could have provided testimony superior to that adduced on the particular matter. Generally the material referred to was of a minor character. The reference to Van Ness arose during the testimony of Fred Hogan, an investigator in the Public Defender's office. He had played a part in obtaining Bello's recantation statement. There was conflicting evidence concerning Hogan's motivation, it appearing that he was to share in the proceeds of a book to be written. Hogan testified that Van Ness, the Public Defender, knew some facts that would support his version. The prosecutor said:
Referring to the same subject, the prosecutor also argued:
The defense did not object to either of these suggested adverse inferences advanced by the prosecutor. If they had objected and stated their reasons, the trial court would have been in a position to judge whether the objections were sound. We do not find that the failure to have explored the defendants' explanation
The third comment about which the defendants complain was the prosecutor's charge that the defendants did not produce Rawls. Defense counsel's objection was sustained and the jury immediately instructed to disregard the statement. Any error was cured by the trial court's limiting instruction.
The defendants contend that a number of jurors were biased or had been exposed to racially prejudicial remarks during the retrial. Defendants also claimed that some jurors had been informed of negative results of lie detector tests taken by the defendants. The trial court held extensive hearings on these charges and made detailed findings leading to the conclusion that the defendants' charges were unfounded. We agree with the Appellate Division that the trial court's findings of fact and conclusions of law dismissing defendants' claims are fully supportable.
In-Court Identification of Artis
Artis claims that the identification evidence linking him to the crime was impermissibly suggestive and inadmissible. "[R]eliability is the linchpin in determining the admissibility of identification testimony...." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). That entails a measurement of the "totality of the circumstances" and consideration of factors such as "the opportunity of the witness to view the criminal at the time of the crime, the witness'
Here, Artis objects to his police escort to the scene shortly after the crime. Far from being conducive to misidentification, confrontation immediately after a crime promotes fairness to the accused by allowing a viewing while the witness's mental image of the perpetrator is still fresh. Stewart v. United States, 418 F.2d 1110, 1113 (D.C. Cir.1969). See also State v. Wilkerson, 60 N.J. 452, 461-62 (1972); United States ex rel. Gomes v. New Jersey, 464 F.2d 686, 688 (3d Cir.1972). Artis also questions the interview that Bello had with then Lieutenant DeSimone on October 11, 1966 at which time Bello was shown a photograph of Artis. This objection ignores the fact that Bello never made an identification on the basis of any photographs of the defendants. In fact, Bello said that the photographs did not resemble the defendants. Rather, his identification was based on the opportunity he had to view them at the scene.
Even if bringing the car to the scene was suggestive, the totality of the circumstances indicates that the identification was reliable. Bello had time to view the killers as they walked toward him on a well-lit street. It is likely that he was attentive since he thought the two were detectives and he himself was involved in a crime being committed down the block. His description did not exactly match Artis's appearance. However, Bello maintained that although he could not indicate any particular features, the two men brought to the scene were the same ones he had seen walking down the street. Less than half an hour had elapsed between the time Bello saw the murderers on the street and the time Carter and Artis were brought to the Lafayette Bar.
Artis further contends that it was error for the trial court to refuse his requested identification charge. We disagree. Although the court failed to instruct the jury specifically as to the witness's state of mind and opportunity to observe, the charge did include the essential requirements:
If the subject matter is adequately covered in the text and purport of the whole charge, there is no prejudicial error. State v. Thompson, 59 N.J. 396, 411 (1971). Such is the case here.
We have reviewed the numerous other alleged errors and find no merit in them.
The judgments of conviction are affirmed.
A more egregious Brady
As our earlier opinion indicates, by the time the 1976 trial approached, the prosecution was understandably anxious about the credibility of Alfred Bello, the key identification witness. State v. Carter, 85 N.J. 300, 307 (1981). Bello had offered so many variations of his original "on-the-street" theme that that theme had receded into the background and the "in-the-bar" variations had become predominant. 85 N.J. at 305-07. Therefore, the State arranged for Bello to be subjected on August 7, 1976 to a polygraph examination by Leonard H. Harrelson. The purpose of the examination was to evaluate Bello's credibility, including, as the former prosecutor testified at the remand hearing, "whether he was telling the truth or lying when he said he was in the bar at the time of the shootings."
For reasons that can charitably be described as unfortunate, in his later written report of his test the polygraphist summarized his findings with the opinion that Bello's 1967 trial testimony (which contained the "on-the-street" version) was "true": unfortunate, because Harrelson had never read Bello's 1967 testimony and no representative of the prosecution had enlightened him as to that testimony and hence he was plainly — and grievously — mistaken as to the location from which Bello said, in 1967, that he had witnessed the events before and after the slayings; doubly unfortunate, because although the State continued to promote the notion that Harrelson's "in-the-bar" conclusion was only tentative,
Although the trial court on our remand determined that the prosecution was under no obligation to disclose to the defense the contents of Harrelson's oral report, the Court wisely has rejected that conclusion, ante at 119. I agree with the majority in that regard and further in its apparent acknowledgement, ante at 112, that the undisclosed information was favorable to
Whether Harrelson's undisclosed certitude that Bello was in the bar before and at the time of the shootings is "material" in the Brady sense turns on whether that evidence "might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 350 (1976), quoted in State v. Carter, supra, 85 N.J. at 313. That determination in turn rests in this case on two related factors: first, what use the prosecution made of the ostensible, but unintended, conclusion in Harrelson's written report — that the polygraph indicated Bello was on the street during the shootings; and second, what use the defense would have made of the intended, but undisclosed, Harrelson oral opinion — that the polygraph confirmed that Bello was in the bar both before and during the shootings.
Our earlier opinion adverts to the prosecution's use of the Harrelson document:
In some respects the evidentiary hearing on remand was not particularly helpful in establishing precisely how the polygraph test had been used. Chief DeSimone had died before the hearing, Messrs. Humphreys and Kayne were vague, and Bello was useless. Mr. Kayne "assumed" that when he and DeSimone went to see Bello in September 1976, they had with them a copy of Harrelson's report and they "very well may have" discussed the test results with Bello, but Kayne had no "specific recollection of what [he and DeSimone] may have told Bello."
One exception to this otherwise universal failure of recollection is found in Assistant Prosecutor Marmo's testimony concerning what Bello had revealed to him:
This, coupled with the acknowledgement by both prosecutor Humphreys and Assistant Prosecutor Marmo during the 1976 trial, as noted in our earlier opinion, that "the lie detector tests were instrumental in getting Bello back to the `on-the-street' version," 85 N.J. at 315, makes it abundantly clear that sometime after he had been subjected to the polygraph technique, Bello was confronted with the unintended "on-the-street" result of Harrelson's report, and that this confrontation caused him to return to his 1967 "on-the-street" version. That this is so is confirmed by documentary proof that surfaced at the evidentiary hearing on remand: a draft of a November 22, 1976 letter (coinciding with the conclusion of Bello's trial testimony) from Prosecutor Humphreys to Attorney General Hyland:
The conclusion is thus inescapable that not only did the prosecution know that Harrelson's written report contradicted his findings regarding the vantage point from which Bello had supposedly made his pivotal observations, but they concealed the fact that the "wrong" test result was fed to Bello to "break" him.
This determination is in no way undermined by the trial court's finding, apparently adopted by the majority, ante at 119, that "Bello recanted the recantation when he told Harrelson during the polygraph pre-test interview that Raab, Hogan and Levinson pressured him into recanting the 1967 trial testimony * * *." What bearing that can have on the present inquiry is unclear at best, given the fact that after Bello recited those pressures, he thereupon turned around and told Harrelson, directly contrary to his 1967 testimony, that he was in the bar when the significant events occurred. And Harrelson said the polygraph confirmed that version. And he still says that.
There can be little doubt that the defendants could have used Harrelson's undisclosed opinion had they but known of it.
First, the defense could have attacked Bello's credibility in a more devastating fashion than any other evidence in the case allowed for. The polygraph report itself would have been admissible by what the Court correctly perceives, ante at 116, as the functional equivalent of a stipulation, see State v. McDavitt, 62 N.J. 36 (1972). Whether its admissibility would be limited to the use made of the report as distinguished from the substance — the scientific verification of the "truth" — is open to question. But for purposes of this case I submit it makes no difference to the result.
Second, the defense would have been able to attack DeSimone (on the not unreasonable assumption that it was DeSimone who, with Kayne, confronted Bello with the report and thereby "turned him around") for concealing the polygraphist's conclusion that Bello was in fact in the bar.
Third, if the report were deemed to be admissible for its substance, defense counsel could have confronted Bello with Harrelson's "true" opinion — a dicey maneuver, to be sure, inasmuch as Harrelson was equally firm in his conclusion that Bello had in fact identified Carter as having been at the scene. But the ultimate answer to this has to be that that strategem was well worth the risk, for the culmination of all this wholly unnecessary confusion (so the argument would go) is that no one can believe anything that Bello says: he can confound two polygraphists, Harrelson and Arther, on the very same issue — whether he was in the bar or on the street — by getting results 180° removed from each other in tests given just weeks apart. Bear in mind that although, as the Court observes, ante at 116, the "Harrelson test results, if laid before the jury, would have established that an eminent polygrapher entertained `no doubt at all' that Bello was truthful when he identified the defendants" as having been at the scene, this same "eminent polygrapher" likewise entertained "no doubt at all" that Bello was
Finally, to view the "added inconsistency that Bello told Harrelson that he was in the bar" as "merely cumulative," as the Court asserts, ante at 118, is to gloss over the essential nature of that inconsistency and misgauge its potential impact.
The inconsistency these proceedings have focused on goes to more than a witness's inconsistency in describing the physical characteristics of a defendant or the color socks he was wearing. It goes to the opportunity and ability Bello had to identify defendants and to describe their movements. Chances are that what one sees from a vantage point within a tavern as all hell breaks loose is not going to be the same as what one sees as one strolls up the sidewalk after the carnage. The defense attacks on Bello's "on-the-street" story would have proceeded from a wholly different perspective and in an entirely different framework.
Might all of this have affected the outcome of the trial? How can we say it might not have, given the real capacity for the additional information to bring about the utter destruction of by far the most important witness in the State's arsenal, with the fallout levelling the vaunted polygraphists and casting doubt on the tactics of the prosecution? Never before could defendants argue so persuasively that Bello was in all respects a complete, unvarnished liar, utterly incapable of speaking the truth. When, as here, a key witness's reliability might well have been determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within the general rule that suppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution. See Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Brady v.
I would reverse and remand for a new trial.
Chief Justice WILENTZ and Justice SULLIVAN authorize me to record their concurrence in this opinion.
For affirmance — Justice PASHMAN, SCHREIBER, HANDLER and POLLOCK-4.
For reversal — Chief Justice WILENTZ and Justices SULLIVAN and CLIFFORD — 3.