STATE OF NEW JERSEY v. FORLANG SPENCER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6327-06T46327-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FORLANG SPENCER,

Defendant-Appellant.

___________________________________________________

 

Submitted March 30, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1636.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, of counsel and on the brief).

The opinion of this court was delivered by

R. B. COLEMAN, J.A.D.

Defendant, Forlang Spencer, appeals from a final order denying his motion for new trial, entered on May 25, 2007. Defendant argues solely that the State failed to disclose material evidence beneficial to his defense that a State witness was employed by a law firm where a partner was married to a Middlesex County Assistant Prosecutor and that he is entitled to a new trial under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d at 215, 218 (1963). It is clear to us that this information is not material evidence, and for the following reasons, we affirm.

Around 5:15 p.m., on November 3, 2003, a uniformed Perth Amboy patrol officer, Officer Crescencio Fuentes, was in his patrol vehicle in a residential area near the intersection of Chamberlain and Sofield Avenues. Officer Fuentes noticed a green Ford Explorer with Virginia license plates parked on the right side of the road. The officer exited his vehicle and approached the parked Explorer on foot. The windows of the Explorer were rolled down. He noticed that the Explorer had two occupants: a black male driver and black female passenger. The officer saw the driver, defendant, looking in his direction. At this point, another patrol car was behind the Explorer, and when Officer Fuentes saw defendant beginning to shift gears, he ordered him to stop.

Defendant ignored the command and began driving west on Chamberlain Avenue. Officer Fuentes re-entered his patrol car and pursued the Explorer, activating his lights and siren. Still in a residential area, defendant drove west on Hamilton Avenue, speeding up to sixty miles per hour, sometimes on the wrong side of the road. Ignoring a stop sign, defendant turned left onto Florida Grove Road with Officer Fuentes still in pursuit. The officer briefly lost sight of the Explorer during the chase, but then regained it and continued to chase defendant until he stopped the Explorer at the intersection of Florida Grove Road and New Brunswick Avenue. At that point, several officers were present. Officer Fuentes then learned that the occupants of the car were defendant and Tamika Green, a co-defendant not party to this appeal.

The entire chase lasted less than two minutes and covered approximately one point six (1.6) miles. A police audiotape recorded the communications of Officer Fuentes, Officer Vasquez, and Lieutenant Pajack throughout the chase of defendant.

Barbara Wittke resided on Florida Grove Road along the route of the chase. When she arrived home on November 3, 2003, she claims that she saw the Explorer being pursued by a patrol vehicle running its sirens and an object was thrown from the passenger side window of the Explorer. A member of her household called the police. The police officers, including Officer Fuentes, questioned Wittke about the incident.

On December 23, 2003, in Indictment No. 03-12-1636, a Middlesex County Grand Jury charged defendant with second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count four).

Defendant pled not guilty. A trial before Judge Jane B. Cantor and a jury was held over the course of three days November 3, 4 and 8, 2004. At trial, Officer Fuentes testified consistently with the facts stated above. Officer Fuentes' supervisor, Officer Steven Verdi, who arrived on the scene after the chase was over, testified predominantly regarding the recovery of a weapon allegedly thrown from the Explorer during the chase. Green, the second occupant of the Explorer, testified on behalf of the State. Relevant to the issues now before us, Green testified that she was in the car with defendant on the date in question, and that they were chased by the police through a residential area in Perth Amboy. Detective Joseph Breyta, the State's final witness, testified with respect to the interview of Green after she was transported to police headquarters. The defense presented no witnesses at trial.

On November 8, 2004, the jury returned a verdict of guilty as to count one, second-degree eluding, and not guilty as to the weapons offense charges, counts two, three and four.

After denying defendant's motion for a new trial and the State's motion for an extended term sentence, Judge Cantor sentenced defendant on charges arising from two separate indictments on February 25, 2005. As to the present case, under Indictment No. 03-12-1636, the judge sentenced defendant to seven years imprisonment on the single count of second-degree eluding, plus fines, and a jail credit of 111 days. With respect to the charges contained in Indictment No. 04-01-0042, defendant was sentenced to five years imprisonment, with thirty months parole ineligibility. Hence, defendant's aggregate sentence was twelve years imprisonment, with thirty months parole ineligibility, plus fines, and jail credit of 111 days.

On May 16, 2005, defendant filed his notice of appeal from the final judgment of conviction with respect to Indictment 03-12-1636.

On January 5, 2007, defendant filed a motion for a temporary remand to address his current claim of newly- discovered Brady material. This court granted the motion for temporary remand on March 6, 2007, and a remand hearing was conducted before Judge Cantor on May 10 and 11, 2007. The judge found that even though the State did not inform defendant of Wittke's relationship to the Middlesex County Assistant Prosecutor through her employment, defendant was not entitled to any further relief. Judge Cantor memorialized her decision in an order filed on May 25, 2007.

On June 29, 2007, defendant filed a motion to stay the appellate proceedings, extend time to file an amended notice of appeal, and file a supplemental brief in order to consolidate an appeal of the remand motion and the already-pending appeal of the judgment of conviction. This court denied that motion, but alternatively allowed defendant to file a separate appeal. Defendant filed the separate notice of appeal on this matter.

On the direct appeal of defendant's judgment of conviction, this court affirmed the conviction on October 5, 2007. State v. Spencer, No. A-5044-04T4 (App. Div. October 5, 2007) (slip op.), certif. denied, 194 N.J. 272 (2008). On February 5, 2008, the Supreme Court of New Jersey denied defendant's petition for certification.

The defendant raises a single issue on appeal:

THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE STATE FAILED TO COMPLY WITH ITS CONTINUING DISCOVERY OBLIGATION TO INFORM THE DEFENSE OF THE RELATIONSHIP BETWEEN THE STATE'S WITNESS AND THE PROSECUTOR'S OFFICE. THE TRIAL COURT ERRED WHEN IT FAILED TO RECOGNIZE THE SIGNIFICANCE OF THIS DISCOVERY VIOLATION AT THE REMAND HEARING.

"It is well-settled that the suppression by the prosecution of evidence favorable to a defendant violates due process of law where the evidence is favorable to the defense, and is material." State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000) (citing Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L. Ed. 2d at 218). The defendant must establish three elements to succeed on a Brady violation claim: (1) "[t]he evidence must be favorable to the accused; [(2)] it must be suppressed by the prosecution; and[, (3)] it must be material." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). "Exculpatory evidence includes not only material that is directly exculpatory of a defendant, but also evidence that may impeach the credibility of a State witness." Russo, supra, 333 N.J. Super. at 134. "[E]vidence is 'material' 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. Martini, 160 N.J. 248, 269 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)). See also State v. Knight, 145 N.J. 233, 245 (1996). Moreover, "[a] 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.'" Ibid. (quoting Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494). However, "[i]f the undisclosed evidence was merely cumulative or repetitious as to the purpose for which it could have been used, the conviction should not be set aside." Russo, supra, 333 N.J. Super. at 134 (citing State v. Marshall, 123 N.J. 1, 206 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Carter, 91 N.J. 86, 114 (1982); State v. Conway, 193 N.J. Super. 133, 175 (App. Div.), certif. denied, 97 N.J. 650 (1984)).

We shall not reverse a ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Accordingly, in determining whether such a miscarriage occurred, we defer to the trial court as to "intangibles" not transmitted by the record credibility, demeanor, "feel of the case" but otherwise make an independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 n. 2 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). "In addition, the issue of materiality is a mixed question of law and fact. Therefore, the Law Division judge's conclusion regarding whether defendant sustained his burden of proof is not entitled to the same deference as his factual findings." Russo, supra, 333 N.J. Super. at 135.

It is undisputed that the State did not disclose that Wittke worked at a law firm where one of the partners was married to a Middlesex County Assistant Prosecutor, and the State does not deny knowledge of that information. There is also no dispute that the information in question was favorable to the defense. In turn, the only issue before us is whether there is a reasonable probability that the disclosure of Wittke's relationship to the Middlesex County Assistant Prosecutor would have resulted in a more favorable result for defendant on count one of the indictment, second-degree eluding in violation of N.J.S.A. 2C:29-2(b). See Martini, supra, 160 N.J. at 269; Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490, 506 (1995). First, we note that most of Wittke's testimony focused on the item thrown out of the Explorer's window and the report she gave to the police. The only testimony Wittke offered regarding the police chase that touched upon the eluding charge was that upon arriving home on November 3, 2003, she heard sirens and saw "a [green] truck, an Explorer, . . . going quite fast for the speed limit followed by several cops chasing it[.]"

Regardless of whether the disclosure of Wittke's relationship to a Middlesex County Assistant Prosecutor might have prompted the defense to conduct additional investigation and subsequently attack Wittke's credibility at trial, it is clear that her testimony was cumulative and largely superfluous to the State's case on the charge of eluding. Officer Fuentes testified at length as to the details and course of the chase. His testimony was corroborated by a police audiotape of the communications between Officer Vasquez, Lieutenant Pajack and himself throughout the chase of defendant. Beyond this, Green testified that she was in the car with defendant on the date in question, and that they were chased by the police through a residential area in Perth Amboy.

In light of the evidence provided by witnesses and sources, other than Wittke, supporting the jury's verdict of guilty on the charge of second-degree eluding, we find that the State's failure to disclose Wittke's relationship to a Middlesex County Assistant Prosecutor to be immaterial and insufficient to disturb our confidence in the outcome at trial. Martini, supra, 160 N.J. at 269 (quoting Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494). See also Kyles v. Whitley, supra, 514 U.S. at 434, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506. Defendant has failed to meet the three elements of the Brady test. Russo, supra, 333 N.J. Super. at 134; Nelson, supra, 155 N.J. at 497.

Affirmed.

 

We do not consider whether this information would have changed the outcome in defendant's favor on the other charges third-degree unlawful possession of an assault firearm (count two), second-degree possession of a weapon for an unlawful purpose (count three), and unlawful possession of a large capacity ammunition magazine (count four) because defendant was found not guilty on those charges.

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11

A-6327-06T4

May 4, 2010