STATE OF NEW JERSEY v. MARVIN S. THOMPSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2844-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN S. THOMPSON,

Defendant-Appellant.

_______________________________________

May 8, 2013

Submitted November 8, 2012 - Decided

Before Judges Fuentes, Ashrafi and Hayden.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

07-12-1507.

Breslin and Breslin, P.A., attorneys for

appellant (Kevin C. Corriston, on the

brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, formerly a corrections officer at the Passaic County Jail, appeals his conviction by a jury on charges of official misconduct, possession of heroin, and filing a false report. The charges arose out of a peculiar attempt by defendant to win favor as a Sheriff's Department employee by planting contraband in the jail and then "discovering" it and reporting the discovery to his superiors. On appeal, defendant contends that the prosecutor violated his due process rights by failing to disclose in pretrial discovery certain exculpatory information and also that the trial court erroneously admitted prior consistent statements of a prosecution witness. We reject these contentions and affirm the conviction.

In 2003, defendant was hired by the Passaic County Sheriff's Department as a per diem corrections officer at the county jail. His per diem status meant that he did not have the same rights and privileges as permanent employees. In 2005, defendant was terminated from his position after he was charged with and indicted for forgery. The indictment was later dismissed. When the Sheriff's Department did not rehire defendant, he filed a complaint with the federal Equal Employment Opportunity Commission (EEOC). Subsequently, in June 2006, the Sheriff's Department rehired defendant and restored him to his position as a per diem corrections officer.

Defendant was dissatisfied with that status and allegedly made covert threats to injure a former deputy warden at the jail and his family. The Special Investigations Unit of the Sheriff's Department opened an investigation into the threats in March 2007. A jailhouse informant wore a concealed recording device and made tape recordings of conversations with defendant.

In the midst of that investigation, however, the informant revealed to the investigators that defendant had hatched a different plot to demonstrate his worth as a corrections officer. He planned to bring illegal drugs and makeshift weapons into the jail, hide them together with evidence suggesting that they belonged to inmate members of the Bloods street gang, and then "discover" and report the find to jail authorities. The investigators recorded conversations they had with the informant on July 5 and 6, 2007, regarding defendant's alleged plot.

On July 7, 2007, the investigators searched the area where defendant intended to conceal the contraband, a small room in the jail where an ice machine was located. They confirmed that no contraband was present. A few minutes later, defendant reported that he had discovered a bundle of heroin and "shanks" (jailhouse weapons made from heavy gauge wire) in "the ice room."

At defendant's trial, an acquaintance of defendant testified that defendant had asked him to purchase a bundle of heroin for him, which the acquaintance did and gave to defendant. The same witness also testified that defendant borrowed a wire cutter for the purpose of cutting pieces from a metal fence at a nearby schoolyard. Presumably, defendant used the pieces as shanks to "discover" in the ice room.

Defendant was charged on July 18, 2007, and indicted in December 2007 on charges of: (Count One) second-degree official misconduct, N.J.S.A. 2C:30-2; (Count Two) second-degree possession of implements of escape, N.J.S.A. 2C:29-6; (Count Three) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); and (Count Four) fourth-degree making a false report to law enforcement authorities, N.J.S.A. 2C:28-4.1

Defendant was tried before a jury in May and June 2010. The jury found defendant guilty of Counts One, Three, and Four and not guilty of Count Two. On October 15, 2010, the trial judge sentenced defendant to five years imprisonment on the second-degree charge of official misconduct, with all five years to be served without parole in accordance with N.J.S.A. 2C:43-6.5. The sentences on the other two counts were made to run concurrently with the sentence on the first count.

On appeal, defendant argues:

POINT I

THE STATE COMMITTED NUMEROUS BRADY VIOLATIONS IN ITS FAILURE TO PROVIDE THE DEFENDANT WITH DISCOVERABLE MATERIALS.

POINT II

THE COURT ERRED WHEN IT PERMITTED THE STATE TO PLAY AUDIO-TAPED CONVERSATIONS BETWEEN THE CI AND SID OFFICERS.

With respect to the first point, defendant argues that the prosecution failed to provide timely discovery of certain reports and evidence that it was required to disclose pursuant to the holding of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Under Brady, and numerous subsequent cases that have interpreted and applied its constitutional holding, the prosecution has a duty under the due process clause of the Fourteenth Amendment to disclose to a defendant evidence that is exculpatory. State v. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009). To establish a Brady violation, defendant must demonstrate that: "(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." Ibid. (citing Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)).

Evidence is considered material for Brady purposes "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome" of the trial.

[State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (citation omitted) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).]

Here, defendant contends the prosecution failed to disclose before his trial the following documents:

The laboratory certificate for the testing of the drug evidence;

Documents pertaining to defendant's taking an oath of office when he was rehired in 2006;

An investigative report dated January 17, 2008, pertaining to the original investigation of alleged threats against the deputy warden; and

An investigative report pertaining to a 2008 indictment of a sergeant employed by the Prosecutor's Office who was in charge of maintaining evidence but had stolen drug evidence.

Defendant has not shown that he was prejudiced by the prosecutor's failure to disclose these documents before his trial. Most important, he has not shown that any of the listed items contained exculpatory material. Nothing in defendant's brief on appeal, or in the trial record, indicates that the content of these documents tended to show defendant did not commit the crimes with which he was charged, or to undermine the testimony of the witnesses against him.

As to the prosecutor's failure to provide pretrial discovery of the laboratory certificate, see N.J.S.A. 2C:35-19(c), identifying as heroin the contraband that defendant "discovered" in the ice room, the consequence of that failure was that the prosecutor could not rely on the certificate to prove the drug evidence was in fact heroin. See State v. Simbara, 175 N.J. 37, 43 (2002); State v. Miller, 170 N.J. 417, 428-431 (2002). Instead, the chemist had to testify at trial about her testing of the evidence. The prosecution also produced the chemist's report and contemporaneous notes. See N.J.S.A. 2C:35-19(c). Nothing in defendant's argument on appeal suggests any exculpatory information in any of the laboratory documents that could have been developed as evidence favorable to the defense had the documents been disclosed before the trial. Although the prosecution did not provide timely discovery of the laboratory documents, defendant was not prejudiced at trial.

With respect to an oath of office, defendant has not denied that he was employed as a corrections officer. Whether or not he took an official oath of office upon being rehired in 2006 is not material to the charge of misconduct in office.

As to the January 17, 2008 investigative report pertaining to allegations that defendant had threatened to harm the deputy warden and his family, the prosecution claims it turned over before trial its entire file on the earlier investigation, although no charges were brought based on that investigation and the prosecution did not intend to present evidence before the jury about the alleged threats. In fact, the prosecution did not reveal information at defendant's trial about the prior investigation and threats against the deputy warden. Defense counsel first elicited evidence about the threats and the informant's role in the earlier investigation, apparently as a strategy of attempting to show that the Passaic County Sheriff's Department was retaliating against defendant because he had filed an EEOC complaint.

During the trial, defense counsel claimed he had not seen the January 17, 2008 report of the investigating officer. The prosecutor provided a copy of the report. Not only has defendant failed to show any exculpatory information in that report but he has also failed to show that the information was not available to him before the trial.

Finally, concerning the indictment of the prosecutor's sergeant on charges of stealing drug evidence, defendant has not shown that the sergeant's mere signing of one document in the chain of custody of the drug exhibit in this case was affected by the sergeant's criminal conduct as to drug evidence in other cases. He has not shown that the sergeant was charged with or convicted of actually tampering with evidence that might have affected any active prosecution. The State contends that the sergeant stole drug evidence that was slated to be destroyed after a case was completed, substituting sugar for the real drugs. There was never any allegation that the sergeant substituted real drug evidence for non-existent evidence or otherwise mishandled evidence to be used in any active prosecution. Defendant's claim that he had a right to the investigative report about the rogue sergeant is not related factually to the evidence in this case.

Moreover, the discovery and public reporting of the sergeant's criminal conduct occurred two years before defendant's trial, thus giving defense counsel sufficient notice to make a formal demand for discovery of the investigation related to those charges or to make a motion before the court as to that discovery. He made no such demand or motion. The investigation and charges against the sergeant were not material to the charges against defendant in this case.

Furthermore, with the testimony of defendant's acquaintance that he bought heroin at defendant's request and gave it to him, the chain of custody of the drug evidence in this case was merely a collateral matter. There was no "reasonable probability" that, if the investigative report about the sergeant had been disclosed to the defense in this case, "the result of the proceeding would have been different." Parsons, supra, 341 N.J. Super. at 455.

We conclude that defendant has not shown a Brady violation entitling him to a new trial.

Addressing defendant's second argument point, the confidential informant testified at defendant's trial. Defendant contends the trial court erred in admitting, over his objection, recordings that investigators had made with the confidential informant that revealed the nature and particulars of his plot to plant and report contraband in the jail. The trial court heard argument and admitted the recordings under N.J.R.E. 607 and 803(a)(2) as prior consistent statements of the informant. The trial court's ruling was not an abuse of its discretion in ruling on an evidentiary issue. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (citing cases applying abuse of discretion standard of review to evidentiary rulings of the trial court).

Affirmed.

1 A separate indictment was issued against defendant at about the same time on unrelated charges of insurance fraud and state tax violations. That indictment pertained to an insurance claim defendant made on the theft of a used car. Those charges are not the subject of this appeal, and we have not been informed of their disposition.