STATE OF NEW JERSEY v. MORRIS PAGE

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4213-09T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MORRIS PAGE, a/k/a

MORRIS PAIGE,

Defendant-Respondent.

__________________________

December 3, 2010

 

Submitted November 15, 2010 - Decided

 

Before Judges Lisa and Reisner.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-03264.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for appellant (LeeAnn Cunningham, Special Deputy Attorney General/ Assistant County Prosecutor, of counsel and on the brief).

 

Yvonne Smith Segars, Public Defender, attorney respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

 

PER CURIAM

The State appeals from a May 7, 2010 order dismissing Indictment No. 08-11-03264 and related summonses against defendant Morris Page. We affirm.

I

This appeal arises from an April 16, 2008 incident in which defendant allegedly fled from an attempted traffic stop, and allegedly rammed several police vehicles with his car during the ensuing chase. Based on defendant's alleged ramming of the police cars, the State charged defendant with nine counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); one count of fourth-degree possessing the car he was driving as a "weapon," N.J.S.A. 2C:39-5d; one count of third-degree possessing the car "with a purpose to use it unlawfully" as a weapon, N.J.S.A. 2C:39-4d; and one count of third-degree resisting arrest "by using or threatening the use of physical force or violence" against a police officer, N.J.S.A. 2C:29-2a(3)a.1 The Grand Jury returned an indictment on November 5, 2008.

Before describing the motion to dismiss the indictment, we comment on the record presented to us. In its appeal, the State has not provided us with copies of the motion papers or exhibits filed in the trial court, other than the State s motion for reconsideration, several summonses, two sketches of the accident scene, and a decommissioning report as to one police vehicle. We therefore rely on the undisputed descriptions of the papers filed, as set forth by both attorneys at the hearings before the trial court, and as set forth in the trial court s findings.

To summarize, soon after the indictment defendant s counsel made repeated requests for discovery, which the State failed to turn over. The defense was seeking evidence to support defendant s version of the incident, which was that the police rammed the car he was driving, rather than the other way around. Defense counsel wanted to retain an accident reconstruction expert, but the State did not provide the discovery the expert would have needed to produce a report.

The car defendant was driving belonged to his mother, who made repeated requests that it be released to her but was told it was not available for release. Defendant s counsel made a request to inspect the car, to no avail. Eventually, the prosecutor s office advised defense counsel that someone in the prosecutor s office had directed that the car be destroyed.

The prosecution took seven months to produce any medical records concerning the injured police officers. Crime scene sketches and photographs of the allegedly damaged police cars, although demanded by defense counsel, were never produced. Defense demands for repair reports for any of the police vehicles were met with similar apparent stonewalling. After months of delay, the State produced several sketches of the collision scene prepared on the eve of the scheduled trial by one of the officers. No contemporaneous documentation of the collision scene was produced. Defense counsel requested audiotapes of the police radio communications made during the incident, because she had received "reports that say that for that time, for those cars, there is tape recording." The tapes were never provided to her.

Despite several trial adjournments, the State repeatedly failed to produce discovery. At the motion hearing, the prosecutor s explanation for the failure to turn over most of the materials was that the police department did not provide them to the prosecutor s office. The State produced no testimony from police officers, or from anyone else, to establish the State s good faith, i.e., to explain the lack of reports, photographs or other discovery material, or the failure to produce those materials if they existed.

In a comprehensive oral opinion placed on the record on October 26, 2009, Judge Cifelli held that the State had either destroyed or withheld evidence that the defense needed to prepare its case, and that the State had not produced evidence of its good faith in the loss or destruction of the evidence:

Since the defense initial request for the subject information, the Court has made various requests on the State to provide additional information and/or evidence with reference to the circumstances surrounding the loss and/or destruction of the subject evidence. The Court has also requested and/or provided the State with the opportunity to bring in or provide testimony from the police officers involved in the incident, and/or involved in the circumstances surrounding the loss and/or destruction of the subject property. Notwithstanding the passage of approximately 18 or 19 months since the date of the indictment in this matter, and approximately 13 or 14 months since the date of the defendant's initial request to the State for the subject evidence, nothing has been provided. And again, more importantly no information whatsoever has been provided either to the court or to the defense as to the circumstances surrounding the loss and/or destruction of defendant's car, the loss and/ or destruction of the four police vehicles involved in the incident. No information with regards to any repairs, bills and/or invoices for the police vehicles, no photographs, sketches, and/or diagrams of the accident site, or the incident site, et cetera, et cetera, et cetera.

 

And again since the court's determination as to good faith or the lack thereof is crucial [in] determining whether or not the defendant has been prejudiced by the failure of the State to provide such evidence. The court is unable to make any determination whatsoever based on the State's failure to provide such evidence and/or testimony.

 

Based on that failure, I find and/or conclude that clearly the State has failed to meet its burden to establish good faith with reference to the loss and/or destruction of subject evidence. I also find and/or conclude that the destruction and/or loss of the subject evidence has made defendant['s] discovery difficult, if not impossible that the requested information and/or discovery cannot be obtained anywhere else, and [has] severely impacted [the ability] to prepare an adequate defense to the charges contained in the indictment. I find that the State's actions can amount to a suppression, resulting in manifest and harmful prejudice to the defendant.

 

And therefore I have no alternative but to dismiss the indictment. An order will be entered dismissing the indictment in this matter.

 

The State moved for reconsideration, but in an oral opinion issued May 10, 2010, the judge denied the motion, because the State still had not provided "the necessary evidence and/or testimony to enable the Court to make a determination as to the facts and circumstances relative to the loss and/or destroyed evidence." In other words, in the face of defendant's circumstantial evidence of bad faith, the State still had not produced legally competent evidence of its good faith. He also considered that the State s motion was filed out of time, and that the defendant had been "compelled to attempt to defend himself against these charges for a substantial period of time." The judge therefore declined the State s request that he dismiss the indictment without prejudice, instead of with prejudice.

II

We review the trial judge s decision to dismiss an indictment for abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). On this appeal, the State contends that the trial court abused its discretion in dismissing the indictment with prejudice and in denying its reconsideration motion. We disagree.

To justify the dismissal of an indictment, where the State has lost or destroyed evidence which is potentially but not clearly exculpatory, a defendant must show that the State acted with bad faith or inexcusable gross negligence. That is different from the standard applicable when the State withholds clearly exculpatory evidence.

[W]hen the State suppresses or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such evidence is withheld. . . . [T]he Due Process Clause "requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." . . . [T]he failure to preserve this "potentially useful evidence" does not violate due process "unless a criminal defendant can show bad faith on the part of the police."

 

[Illinois v. Fisher, 540 U.S. 544, 547, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004) (citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)).]

 

Our State's courts have articulated the standard in a similar fashion.

Generally, when there has been a loss or destruction of physical evidence in a criminal trial, the court must determine whether defendant has thereby been denied due process and a fair trial. To do so, the court must determine (1) whether there was bad faith or connivance on the part of the government and (2) whether defendant was prejudiced by the loss or destruction of the evidence.

 

[State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979).]

 

Where the State loses or misplaces evidence, the defendant must show that State actors had an intent to suppress evidence or acted with gross negligence, or that the loss of the evidence would clearly prejudice the defense:

Before a dismissal of an indictment is warranted in such circumstances, we believe there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions, the right of the public to its day in court in the prosecution of properly found indictments should be forfeited only if otherwise there would be manifest and harmful prejudice to defendant.

 

[State v. Langanella, 144 N.J. Super. 268, 282-83 (App. Div.), appeal dismissed, 74 N.J. 256 (1976).]

 

In applying this test, courts must hold the prosecutor's office responsible for the consequences of the actions or inactions of the police. As persuasively stated in State v. Lewis, 137 N.J. Super. 167 (Law Div. 1975):

In a criminal proceeding the State of New Jersey is the prosecutorial party; it cannot atomize itself into hundreds of totally independent agencies. Responsibility in such matters must be interrelated. Hence, regardless of which agency within the State has been negligent . . . [T]he State, not defendant, must suffer the consequences. . . . [T]he fact that the prosecutor himself has not been negligent is no comfort to an accused deprived of a vital defense through no fault of his own.

 

[Id. at 172 (citation omitted).]

 

Based on the record presented to us, we conclude that Judge Cifelli properly applied the law to the facts before him. Here, the State destroyed the car defendant had been driving, thereby preventing the defense from having an accident reconstruction expert examine it. And the State had the police cars repainted, and destroyed or failed to produce repair records. The State also either destroyed or failed to produce additional discovery to which defense counsel was entitled, including photographs, crime scene sketches, and audiotapes. The State produced no evidence to rebut defendant's prima facie showing of bad faith.

Further, any evidence of the State's good faith would have been in the hands of the State and not the defendant. However, the prosecution failed to produce a shred of legally competent evidence in the form of testimony or certifications from police officers or assistant prosecutors to explain the failure to produce discovery and the admitted destruction of some of the evidence. In light of this record, Judge Cifelli was unable to conclude that the State acted in good faith. Further, he concluded that the State had destroyed material evidence (the alleged "weapon" - defendant's car - and all evidence as to the rammed police vehicles) which was not otherwise available to the defendant from another source.

We find no abuse of discretion in the judge's decision to dismiss the indictment with prejudice. We affirm for the reasons stated here and those stated in his cogent opinions.

Affirmed.

 

1 The State did not argue to the trial court, and has not argued on this appeal, that the twelfth count, resisting arrest, could survive dismissal if the other counts could not. We do not address issues not presented to us.