STATE OF NEW JERSEY v. FARAD M. TUTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4162-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FARAD M. TUTT, a/k/a FARAD

MALIK TUFF,

Defendant-Appellant.

________________________________________

July 7, 2014

Submitted May 19, 2014 Decided

Before Judges Yannotti and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-09-01454.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Farad M. Tutt (defendant) appeals from a conviction of certain weapons charges. Defendant argues that the prosecutor failed to timely provide a statement from a key witness, and as a result, defendant was denied a fair trial. For the reasons that follow, we affirm the convictions.

Defendant was charged with second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(2); third-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(2); second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b).

Defendant was tried before a jury on various dates from June 9 to June 24, 2010. On June 24, 2010, the jury returned a verdict finding defendant guilty of fourth-degree aggravated assault by pointing a firearm at another, second-degree possession of a weapon for an unlawful purpose, and third-degree unlawful possession of a weapon.

On November 28, 2011, the trial court denied defendant's motion for a new trial. Defendant was sentenced to eighteen months on the fourth-degree aggravated assault, six years with a three-year period of parole ineligibility for second-degree possession of a weapon for an unlawful purpose, and three years for third-degree unlawful possession of a weapon. All charges were to run concurrent to each other.

On appeal, defendant argues:

POINT I

PROSECUTORIAL MISCONDUCT, IN THE FORM OF AN EGREGIOUS DISCOVERY VIOLATION, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL, AND REQUIRES REVERSAL OF THE CONVICTIONS.

POINT II

THE DISCOVERY VIOLATION WAS ALSO A BRADY VIOLATION, LIKEWISE REQUIRING REVERSAL OF THE CONVICTIONS.

We discern the following from the record. Mr. Fortune1 became romantically involved with Ms. Hall in 2005. In March 2006, Fortune moved into Hall's residence in Middlesex County, where she lived with her child. Fortune did not contribute to the expenses of the household and the relationship grew strained. In January 2007, Hall asked Fortune to move out of her apartment, which he did.

Thereafter, Fortune attempted to rekindle the relationship by arranging chance encounters and sending correspondence professing his devotion. Hall secured a temporary restraining order against Fortune. However, Fortune was not served with the restraining order. Fortune continued attempts to meet with Hall by walking around her neighborhood and by going to places that Hall frequented.

On March 10, 2007 at 3 a.m., Fortune rang the doorbell of Hall's apartment. Fortune saw Hall through a window and asked her to come to the door. Defendant, Hall's current boyfriend, opened the door holding a gun and addressed Fortune with coarse and life-threatening words. A struggle ensued. Fortune grabbed defendant's wrist and forced the gun away from his head. One shot was fired but did not strike anyone. Fortune attempted to pull defendant outside Hall's apartment. The gun was fired again. The shot struck Fortune in the leg. Defendant retreated to Hall's apartment, re-emerged, and then fled in his car. Fortune knocked on the apartment door of Hall's neighbor, Mr. Rhodes, seeking assistance.

Rhodes spoke to police that night and provided a statement. In his statement, Rhodes said he did not see anything in defendant's hands at the time of the altercation. Rhodes was awakened by the sound of a gunshot and screams. He witnessed a portion of the altercation between defendant and Fortune through his downstairs window. Rhodes did not observe the second gunshot and its aftermath as he left his vantage point to tell his wife to dial 911.

On June 4, 2010 and June 14, 2010, the prosecutor and an investigator from the Prosecutor's Office met with Rhodes. Rhodes was provided with a copy of his March 10, 2007 statement for review. Rhodes advised that he now recalled defendant was holding a gun in his hand and described the gun as a .38 silver revolver. Rhodes stated he was unsure why he did not tell the police during the first interview that he observed defendant with a gun. Rhodes's statement was memorialized in a report.

On June 15, 2010, the jury was sworn and counsel opened. Fortune testified on direct and cross-examination. Other witnesses, including the responding police officer and a detective, also testified. Cross-examination of Fortune began on June 15 and continued until June 17.

On the afternoon of June 17 at 3:30 p.m., the prosecutor's investigator faxed the report from the interview of Rhodes to defense counsel's office. Neither the prosecutor nor the investigator personally informed counsel that the report was faxed to his office or informed him of the contents of the report.

On June 18, 2010, Rhodes testified. On direct examination, he recounted the events of the shooting and stated that he observed a gun in defendant's hand. Defense counsel objected, claiming that he had not received notice of Rhodes's change in recollection. The prosecutor advised counsel and the court that a copy of the report detailing the interview of Rhodes was faxed to counsel's office the preceding day. Defense represented that he did not receive the fax as he was in court and did not return to his office that evening.

Defendant moved for a mistrial or, in the alternative, to strike the testimony of Rhodes for failure to provide Brady material in accordance with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963). The court conducted a brief N.J.R.E. 104 hearing outside the presence of the jury. The prosecutor represented that she did not turn over the report for two days because she was so busy with trial preparation she forgot to send it to defense counsel. The trial court concluded that the prosecution, despite the late provision of this report, had not willfully withheld discovery. The judge stated, "[A] request is made for a mistrial, and I'm not inclined to give a mistrial." The judge did not provide additional reasons for his disinclination.2

After the judge's ruling, cross-examination of Rhodes proceeded. The cross-examination took place over two trial days during which defense counsel questioned Rhodes at length on the discrepancies in his account of events.

Defendant first argues that prosecutorial misconduct based upon an "egregious discovery violation" warrants reversal. A prosecutor has the obligation to "turn over material, exculpatory evidence to the defendant[,]" including impeachment evidence. See State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); see also United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985). A breach of this duty violates a defendant's due process rights. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218.

Upon our review of the record, we find no basis to second-guess the credibility finding of the trial court that the prosecutor did not intentionally withhold the report within her knowledge or possession. The judge's determination is well supported.

Notwithstanding that the prosecutorial conduct was unintentional, the State clearly did not provide discovery in a timely manner in accord with Rule 3:13-3(f). In this vein, defendant argues that the late discovery precluded counsel from addressing the report in the opening and denied defendant a meaningful opportunity to impeach Rhodes. As such, defendant argues he was denied a fair trial. We disagree.

"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2141, 2146, 90 L. Ed. 2d 636, 645 (1986) (internal citations omitted). The withholding of material evidence favorable to a defendant is a denial of due process and the right to a fair trial, regardless of the good faith or bad faith of the prosecution. Brady, supra, 373 U.S.at 87-88, 83 S. Ct.at 1196-97, 10 L. Ed. 2d. at 218-19. Accordingly, the prosecutor is constitutionally required to disclose information within the custody or control of the prosecutor that is exculpatory and material to the issue of guilt or punishment. Ibid.

Such evidence 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." Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 301 (1999) (citing Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. at 494); see also N.J.R.E. 401 (defining "relevant" evidence as "[e]vidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action"). A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. at 494.

Thus, in order to establish a Brady violation, the defendant must show: the prosecutor failed to disclose the evidence, the evidence was of a favorable character to the defendant, and the evidence was material. State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001) (internal citations omitted). A Brady violation therefore occurs even where the evidence is not directly exculpatory, but rather "upon the suppression of evidence which is reasonably calculated to lead to evidence impugning the credibility of the State's witnesses." State v. Laganella, 144 N.J. Super. 268, 282 (App. Div. 1976) (citing State v. Taylor, 49 N.J. 440, 447-48 (1967); State v. Blue, 124 N.J. Super. 276 (App. Div. 1973)).

A defendant has both a Sixth Amendment right to confront witnesses on cross-examination, and a due process right to present evidence which contradicts a witness's statement. Crane, supra, 476 U.S.at 690-91, 106 S. Ct.at 2146-47, 90 L. Ed. 2d at 645. The Court has "disavowed any difference between exculpatory and impeachment evidence for Bradypurposes." Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citing Bagley, supra, 473 U.S.at 667, 87 L. Ed. 2d at 481, 105 S. Ct.at 3375). A prior inconsistent statement may be used for impeachment N.J.R.E.607. Therefore, we find the statement at issue is subject to Brady.

Defense counsel opened to the jury without knowledge of Rhodes's inconsistent statement. From our review of the record, it is reasonably debatable that counsel would have altered his opening statement had he known of Rhodes's statement, especially due to the inculpatory nature of the statement. Regardless, we find nothing in the defense opening that required explanation, alteration or retraction at any point in the proceedings thereafter or resulted in any prejudice.

"No denial of due process occurs if Brady material is disclosed to appellees in time for its effective use at trial." United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983), cert. denied, 464 U.S. 1048 (1984). Defendant had ample opportunity to confront Rhodes subsequent to receiving the report. As noted, defense counsel cross-examined Rhodes at length. Counsel also commented on the discrepancies in Rhodes's account of events during his summation.

Further, the charge provided detailed instruction to the jurors how they should consider Rhodes's statement. The judge instructed:

[E]vidence including a witness's statement or testimony prior to the trial showing that at a prior time a witness had said something which is inconsistent with the witness's testimony at the trial may be considered by you for the purpose of judging the witness's credibility. It may also be considered by you as substantive evidence. That is, as proof of the truth of what is stated in the prior contradictory statement.

Now, evidence has been presented showing that at a prior time a witness had said something or had failed to say something which is inconsistent with the witness's testimony at the trial. This evidence may be considered by you as substantive evidence or proof of the truth of the prior contradictory statement or omitted statement.

However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement or failure to disclose occurred. You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility. You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefore.

In regard to the testimony of Mr. Rhodes, on cross-examination inconsistencies were shown, admitted between the prior statements and those given on the stand or between the witness's prior silence and statements on the stand. And the witness gave reasons therefore and saying that those prior statements were untrue, and he gave you reasons as you recall.

The extent to which such inconsistencies or omission reflect the truth is for you to determine. Consider their materiality and relationship to his entire testimony and all the evidence in the case; when, where, and the circumstances under which they were said or omitted; and whether the reasons given appear to you to be believable and logical. In short, consider all that I told you before about prior inconsistent statements or omissions. You will, of course, listen, consider other evidence and inferences from other evidence including statements of other witnesses or acts of the witnesses and others disclosing other motives that the witness may have had to testify as they did. That is, reasons other than what they gave you.3

On this record, we are convinced that there is no reasonable probability that the result of the trial would have been different had the report been timely provided. See Strickler, supra, 527, U.S. at 280, 119 S. Ct. at 1948, 144 L. Ed. 2d at 301. The timing of the disclosure did not negatively impact the defense. Defendant was neither foreclosed, nor limited, from his right to confront Rhodes with the inconsistent statements. Defense counsel addressed the inconsistencies in summation. The judge properly charged the jury.

Affirmed.

1 To provide some privacy to the victim and witnesses, the court has elected to use only their last names.

2 On appeal, defendant has neither raised the issue of the denial of the mistrial nor briefed the issue. An issue not briefed on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). To the extent that defendant's brief might be construed as arguing that the mistrial motion was denied in error, for the reasons later-cited, we find the argument without merit.

3 Although the defendant does not allege error in the jury charge on appeal, we are satisfied that the judge explained "the controlling legal principles and the questions the jury [was] to decide." State v. Martin, 119 N.J. 2, 15 (1990).