STATE OF NEW JERSEY v. JORGE ITURRALDE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2345-05T12345-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE ITURRALDE,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 30, 2007 - Decided June 14, 2007

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 785-06-83.

Jorge Iturralde, appellant pro se.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Monalisa A. Captan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted in 1983 of felony murder, N.J.S.A. 2C:11-3a(3), and other offenses. He was sentenced on November 18, 1983 to an aggregate term of life imprisonment with a twenty-five-year parole disqualifier. We affirmed his conviction, State v. Jorge Rodriguez (now known as Jorge Iturralde), A-1996-83T4 (June 25, 1985), and the Supreme Court denied defendant's petition for certification, State v. Jorge Rodriguez (now known as Jorge Iturralde), 102 N.J. 323 (1985). Defendant also applied for habeas corpus relief in Federal court, which was denied.

On July 18, 2005, defendant filed a motion for a new trial on the grounds that the prosecutor withheld at the time of trial potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The evidence allegedly withheld consisted of a one-page report issued by the State Police Laboratory on March 11, 1983, bearing Laboratory Number 89624 LF, which set forth the results of an examination at the laboratory as follows:

The hair and hair fragments recovered from the black tape found in the bag with the stocking (Specimen #6) do not compare with the suspect's hair controls (Specimens #7A thru E and #8A thru E).

The State argued that the report was indeed furnished to defendant's trial counsel prior to trial. Alternatively, the State argued that the report was readily discoverable by the exercise of reasonable diligence at the time of trial and that it is not the sort of evidence that would probably change the jury's verdict if a new trial were granted. The trial judge agreed with both of the State's arguments and denied defendant's motion. This appeal followed.

Defendant argues:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ASSESSING THE "REPORT OF THE LAB RESULTS OF THE HAIR SAMPLES" TOGETHER WITH ALL OTHER RELEVANT AND MATERIAL EVIDENCE AT TRIAL TO MAKE A PROPER FINDING WHETHER THE PROSECUTION SUPPRESSED INFORMATION FAVORABLE TO THE DEFENDANT.

POINT II

THE LAW DIVISION WAS REQUIRED BY LAW TO GRANT THE MOTION FOR A NEW TRIAL BASED ON BOTH "BRADY" AND "GIGLIO" VIOLATIONS.

POINT III

THE LAW DIVISION FAILED TO APPLY THE LEGAL STANDARD OF MATERIALITY AND MADE INCORRECT FINDINGS OF FACTS WHEN IT DENIED APPELLANT'S MOTION FOR A NEW TRIAL BASED UPON "BRADY" AND "GIGLIO" VIOLATIONS.

We reject these arguments and affirm.

The underlying crime consisted of a robbery of the Harrison Lounge in Harrison on July 29, 1982. Defendant and another perpetrator entered the bar wearing stocking masks over their faces. During the course of the robbery, defendant shot and killed the bar owner. The two perpetrators ran out of the bar and entered a waiting car, driven by a third individual, and fled. The getaway driver admitted his role in the crime and identified the two men who entered the bar, including defendant. This witness testified to that effect at trial. A bar patron also identified defendant at trial.

Two days after the crime, on July 31, 1982, the owner of a commercial establishment located about two-and-one-half to three blocks from the Harrison Lounge found in the gutter near his place of business a stocking and tape. He called the police, who collected the items and placed them in a plastic bag.

On February 2, 1983, hair samples were taken from defendant for analysis and comparison with hair and hair fragments recovered from the black tape found in the evidence bag with the stocking.

The record before us contains a one-page "REQUEST FOR EXAMINATION OF EVIDENCE," bearing Lab. No. 89624, and stamped "RECEIVED" at the State Police Laboratory on February 3, 1983. The request sought comparison of two sets of hair samples, one set from defendant and the other from another suspect (presumably the co-perpetrator) with the hair and hair fragments found adhered to the black tape. As we have stated, the report of that examination was issued on March 11, 1983.

At trial, witnesses described the mask worn by defendant, and the mask recovered from the gutter two days later was placed into evidence and identified by witnesses as the mask worn by defendant. Although we have not been furnished trial transcripts, it appears undisputed that neither the State nor defendant introduced any evidence of the results of the laboratory examination as reflected in the March 11, 1983 report. Defendant contends he never received that report prior to trial, or at any time until shortly before he filed his new trial motion. Defendant argues that if he had that information he would have used it at trial and it would have undermined the credibility of the State's witnesses who testified that defendant was the person wearing the mask and who shot the bar owner.

In support of its argument that the March 11, 1983 report was turned over to defendant's trial counsel prior to trial, the State relies upon a discovery receipt document, signed by defense counsel on July 12, 1983. This document lists two lab reports. One of them is identified as Item No. 89624, dated October 19, 1982, consisting of seven pages. The State contends that included in those seven pages were the request for examination of evidence logged in on February 3, 1983, which bore a handwritten entry above Lab No. 89624, "ADDT'L," as well as the March 11, 1983 report of the results of the examination, designated Laboratory Number 89624 LF.

Defendant has furnished a copy of a letter he wrote at the time of his new trial motion to his trial counsel inquiring whether she had any recollection of receiving the March 11, 1983 report as part of the discovery materials she "signed for from the State on July 12,[]1983." Although not certified or otherwise established by competent evidence, defendant contends that his letter went unanswered.

It may well be, as the State argues, that the seven pages of discovery materials, described in the discovery receipt as Item No. 89624, dated October 19, 1982, included the March 11, 1983 report. It is possible that Lab No. 89624 was initially set up on October 19, 1982, and, as additional requests were made and reports issued under this lab number, with different prefixes or suffixes, they totaled seven pages by July 12, 1983 when the discovery materials were delivered to defense counsel. Indeed, defendant acknowledges that he received in discovery the February 3, 1983 request for examination of evidence, which was marked as "ADDT'L" Lab No. 89624.

The record is inconclusive on this subject. If we deemed failure to deliver the document at the time of trial dispositive of our decision in this appeal, we would be inclined to remand for further factfinding on the subject. However, as we will explain, we find such a remand unnecessary.

Under Brady, the State has an obligation to provide a defendant with potentially exculpatory evidence in its possession, but the obligation is circumscribed by a materiality test, namely that the evidence falls within the scope of the State's Brady obligation "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Marshall, 148 N.J. 89, 156 (1997) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985) (plurality opinion of Blackmun, J.); Id. at 685, 105 S. Ct. at 3385, 87 L. Ed. 2d at 496 (White, J. concurring)).

Similarly, the New Jersey Supreme Court has adopted a three-prong test for determination of whether newly discovered evidence warrants a new trial. State v. Carter, 85 N.J. 300, 314 (1981). A new trial motion will be granted only if the newly discovered evidence is (1) material to the issue and not merely cumulative, impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of a sort that would probably change the jury's verdict if a new trial were granted. Ibid. All three prongs must be satisfied. Ibid.

Assuming defendant did not receive prior to trial the March 11, 1983 report, it was plainly discoverable in the exercise of reasonable diligence. Defendant and his attorney knew that hair samples were taken from defendant for laboratory comparison purposes. And, defendant acknowledges that at the time of trial he and his attorney had the request for examination of evidence logged into the State Police Lab on February 3, 1983, one day after defendant's hair samples were taken. Thus, defendant and his attorney were fully on notice that this hair analysis was being conducted and, in the exercise of reasonable diligence, would have inquired about the results. Thus, the second Carter prong was not satisfied.

We also find a deficiency in the first and third prongs. The mask and some tape were found in the gutter two-and-one-half to three blocks away from the crime scene two days after the crime. Some hair fragments were found adhered to the black tape. The potential for contamination was extremely high, and a negative comparison would have had very low probative value. Obviously, the negative comparison would not have been clearly exculpatory. Its only purpose would have been to challenge the credibility of eyewitnesses who positively identified defendant as the wearer of the mask. Although a positive hair comparison would have been extremely probative, the negative results would have been much less significant. Weighed against the strong evidence of defendant's guilt, the value of this evidence to defendant for impeachment of the State's witnesses would have been minimal at best, and the evidence is not the sort that would probably have changed the jury's verdict.

We therefore affirm the order denying defendant's new trial motion.

 

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A-2345-05T1

June 14, 2007