New Jersey v. Brown

Annotate this Case
Justia Opinion Summary

One week after defendants’ murder trial began, after counsel made opening statements and examined four of the State’s witnesses, the prosecutor turned over to defense counsel nineteen reports that were in the State’s possession but had not previously been provided to defendants. Defendants moved to dismiss the indictment with prejudice. The trial court did not resolve the dismissal motion, and the case continued. At trial, the court made several significant evidentiary rulings. One ruling reversed the pretrial holding of another judge by admitting the murder victim’s dying declaration heard by the victim’s wife. Another ruling excluded as unreliable a police officer’s affidavit used in four separate search warrant applications. The excluded affidavit was offered by defendants as evidence to impeach the victim’s wife and was relevant to a defense of third-party guilt. At the conclusion of the trial, a jury convicted defendants of murder. The New Jersey Supreme Court concluded that the State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial violated defendants’ due process rights under Brady. Though there was no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless reversed the judgment of the Appellate Division, vacated defendants’ convictions, and remanded for a new trial because defendants were deprived of a fair trial.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                 State v. William D. Brown (A-23/24-17) (079553/079556)

Argued October 10, 2018 -- Decided February 4, 2019

SOLOMON, J., writing for the Court.

        The Court considers whether the State’s failure to produce nineteen discovery items
until one week after the start of the trial of defendants William Brown and Nigil Dawson for
the murder of Tracy Crews violated defendants’ due process rights under Brady v. Maryland,
 373 U.S. 83 (1963). The Court’s Brady analysis requires review of two evidentiary rulings,
made after the withheld evidence was provided to defendants, because those rulings
circumscribed the evidence on which the State and defense were able to rely. Also at issue is
the appropriate remedy for a Brady violation under the circumstances of this case.

       In 2008, Crews was shot in his home. His wife, Sheena Robinson-Crews, asked him,
“Who did this to you?” She claimed that her dying husband incriminated defendants. Police
arrived, and Robinson-Crews made two phone calls within earshot of Detective Bolognini,
who reported what he overheard to Detective Norton. Norton, in turn, swore in an affidavit
(the Norton Affidavit) that Bolognini heard Robinson-Crews apparently call “who[m]ever
shot the victim” and say, “You got what you came for, you did not need to shoot him,” and
then make a second call, in which she said, “Those boys did not have to shoot him. They got
what they came for . . . .” Robinson-Crews later called Crews’s mother, Barbara Portis, and
told her that Crews said “Paperboy and Youngin” had shot him. Robinson-Crews identified
“Youngin” as Dawson and “Paperboy” as Brown. About two months after Crews’s death,
Robinson-Crews filed a false police report against Brown saying he pointed a gun at her.

       The case went cold for approximately three years, at which time Robinson-Crews
admitted in an interview at Muncy State Correctional Institution in Pennsylvania, where she
was incarcerated for drug offenses, that her husband “only uttered Paperboy” in his dying
declaration and that she “added on Youngin.”

         Defendants were charged with Crews’s murder, arrested, and incarcerated. Isaiah
Franklin and Terrell Black were in the Mercer County Correctional Center where they met
and spoke to Brown and Dawson. According to Franklin and Black, Brown and Dawson
made admissions to them regarding Crews’s murder. After notifying prosecutors of
defendants’ admissions, Franklin and Black arrived at favorable plea agreements in exchange
for their testimony against Brown and Dawson. Almost a year later, a detective received a
letter representing that Robinson-Crews admitted to inmates at the Muncy Correctional
Institution that she had conspired to kill her husband (the Muncy Report).
                                               1
       Pretrial motions were heard in 2014. The motion judge ruled that Crews’s alleged
statement of who shot him was inadmissible because Robinson-Crews was not credible.

       One week after the trial started, after counsel made opening statements and examined
four State witnesses, the prosecutor turned over eighteen reports that concerned facts
discussed in the testimony of the investigating officers who had already testified. The
records included the Norton Affidavit. Defense counsel obtained the cell-phone records of
defendants, which showed they did not receive phone calls from Robinson-Crews on the
night of the murder. The following Monday, the State disclosed discovery item nineteen, the
Muncy Report. The trial court conducted an N.J.R.E. 104 hearing and ruled that the defense
could challenge the Muncy report by calling a witness and through cross-examination.

       At trial, the prosecutor called Robinson-Crews to testify. The State argued that a
question asked by defense counsel on cross-examination opened the door to testimony about
Crews’s dying declaration. After an N.J.R.E. 104 hearing, the trial judge reversed the motion
judge’s holding and allowed Robinson-Crews to testify to the jury about the dying
declaration. The judge also ruled that Portis could testify regarding what Robinson-Crews
claimed to her Crews said as he was dying -- that Paperboy and Youngin shot Crews.
Defense counsel sought to introduce as a past recollection recorded the Norton Affidavit to
impeach Robinson-Crews’s credibility. The court ruled it inadmissible, in part because of
the “remarkable” inability of Detective Bolognini to recall any of the conversations.

         A jury found defendants guilty of murder, robbery, and a weapons offense. The trial
judge denied their motions for a judgment of acquittal notwithstanding the verdict or a new
trial, and the Appellate Division affirmed their convictions and sentences. The Court granted
defendants’ petitions for certification.  231 N.J. 526 (2017);  231 N.J. 533 (2017).

HELD: The State’s failure to produce nineteen discovery items until one week after the
beginning of defendants’ murder trial did violate defendants’ due process rights under Brady.
The Court reaches this conclusion, in part, because the trial court abused its discretion by
excluding admissible impeachment and exculpatory evidence withheld by the State. Though
there is no evidence or allegation that the State acted in bad faith or intentionally in failing to
timely produce the discoverable material, the Court nonetheless vacates defendants’
convictions and remands for a new trial because defendants were deprived of a fair trial.

1. Three essential elements must be considered to determine whether a Brady violation has
occurred: (1) the evidence at issue must be favorable to the accused, either as exculpatory or
impeachment evidence; (2) the State must have suppressed the evidence, either purposely or
inadvertently; and (3) the evidence must be material to the defendant’s case. The first Brady
element is clearly satisfied here. Withholding the Norton Affidavit and the Muncy Report
deprived defense counsel of the opportunity to cite the evidence of third-party guilt in their
openings and to cross-examine the four officers who had already testified against defendants
about evidence acquired at the crime scene and referred to in the withheld documents. The
second Brady element is also satisfied. The State acknowledges that the withheld reports
were in a file in the State’s office for a significant time before trial. (pp. 26-29)
                                                2
2. The third Brady element requires that the suppressed evidence be material to defendants’
case. Evidence is material if there is a reasonable probability that timely production of the
withheld evidence would have led to a different result at trial. Here, the State’s case relied,
in part, on Robinson-Crews’s testimony, but Robinson-Crews gave inconsistent statements to
police, erroneously implicated Dawson in Crews’s dying declaration, and filed a false police
report against Brown. The circumstantial evidence upon which the State relied was,
likewise, assailable. Because counter-arguments were available to challenge a great deal of
the evidence on which the State relied at trial, the materiality inquiry is influenced by the
following two evidentiary rulings made after the withheld evidence was provided to
defendants: (1) overturning a pretrial determination that excluded Crews’s dying
declaration; and (2) excluding the Norton Affidavit as unreliable. (pp. 29-32)

3. Crews’s statement qualifies as a dying declaration under N.J.R.E. 804(b)(2) and it has
substantial probative value, see N.J.R.E. 403; the trial judge did not abuse his discretion by
overturning a pretrial ruling excluding Crews’s dying declaration. However, the trial court
abused its discretion by excluding the Norton Affidavit, which was used in four separate
search warrant applications. Surveillance video footage of the crime scene showing
Detective Bolognini near Robinson-Crews supports that she was on the phone and that the
detective was within earshot of her. The records of defendants’ known cell phones show
they did not receive these phone calls, and Detective Norton swore before a judge to the
veracity of the information hours after the murder took place. N.J.R.E. 803(c)(5) specifically
allows that when the witness does not remember part or all of the contents of a writing, the
portion the witness does not remember may be read into evidence. As to the third Brady
element, materiality, the Court stresses that the trial court admitted the dying declaration one
week after trial began. Although it was proper to admit the declaration, the timing of its
admission was highly prejudicial to the defense. That prejudice was compounded by the trial
court’s later exclusion of the Norton Affidavit and was not substantially lessened by allowing
defendants to challenge the Muncy Report. Because there is a reasonable likelihood that the
State’s Brady violation, in light of the trial court’s evidentiary rulings, affected the judgment
of the jury, the third Brady element is satisfied. (pp. 32-40)

4. The remedy of dismissal of an indictment with prejudice is not available here because
there is no allegation that the State intentionally withheld Brady information and no evidence
of prosecutorial misconduct. However, because the State’s Brady violation, in the
circumstance of the trial court’s evidentiary rulings, undermines confidence in the jury’s
verdict, a new trial is required. On retrial, Portis’s statement can be offered to rebut a charge
of recent fabrication under N.J.R.E. 803(a)(2), but only as to Brown. And the trial court
should review, pretrial, offered testimony of jailhouse informants Franklin and Black to
resolve any issues under Bruton v. United States,  391 U.S. 123 (1968). (pp. 40-43)

      The judgment of the Appellate Division is REVERSED, defendants’ convictions
are VACATED, and the matter is REMANDED for a new trial.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.
                                               3
       SUPREME COURT OF NEW JERSEY
          A-23/
24 September Term 2017
                 079553/079556

                State of New Jersey,

               Plaintiff-Respondent,

                         v.

                William D. Brown,

               Defendant-Appellant.


                State of New Jersey,

               Plaintiff-Respondent,

                         v.

                  Nigil J. Dawson,

               Defendant-Appellant.

        On certification to the Superior Court,
                  Appellate Division.

       Argued                       Decided
   October 10, 2018             February 4, 2019


Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant William D. Brown
(Joseph E. Krakora, Public Defender, attorney; Tamar
Y. Lerer, and David A. Gies, Designated Counsel, of
counsel and on the briefs).



                          1
            Michele A. Adubato, Designated Counsel, argued the
            cause for appellant Nigil J. Dawson (Joseph E.
            Krakora, Public Defender, attorney; Michele A.
            Adubato, on the briefs).

            Amanda Nini, Assistant Prosecutor, argued the cause
            for respondent (Angelo J. Onofri, Mercer County
            Prosecutor, attorney; Laura Sunyak, Assistant
            Prosecutor, of counsel and on the briefs).


           JUSTICE SOLOMON delivered the opinion of the Court.




                                I. Introduction

      One week after defendants’ murder trial began, after counsel made

opening statements and examined four of the State’s witnesses, the prosecutor

turned over to defense counsel nineteen reports that were in the State’s

possession but had not previously been provided to defendants. Defendants

then moved to dismiss the indictment with prejudice, relying on Brady v.

Maryland,  373 U.S. 83 (1963). The trial court did not resolve the dismissal

motion, and the case continued.

      During the ensuing days of trial, the court made several significant

evidentiary rulings. One ruling reversed the pretrial holding of another judge

by admitting the murder victim’s dying declaration heard by the victim’s wife.

Another ruling excluded as unreliable a police officer’s affidavit used in four


                                        2
separate search warrant applications. The excluded affidavit was offered by

defendants as evidence to impeach the victim’s wife and was relevant to a

defense of third-party guilt. At the conclusion of the trial, a jury convicted

defendants of murder.

      We are called upon, initially, to determine whether the State’s failure to

produce nineteen discovery items until one week after the trial began violated

defendants’ due process rights under Brady v. Maryland. If we conclude that

the State’s failure to produce timely the discovery items violated defendants’

due process rights, we must then decide whether the violation warrants

dismissal of the indictment or, alternatively, reversal of their convictions and a

new trial.

      We first conclude that the State’s failure to produce nineteen discovery

items until one week after the beginning of defendants’ murder trial did violate

defendants’ due process rights under Brady. We reach this conclusion, in part,

because the trial court abused its discretion by excluding admissible

impeachment and exculpatory evidence withheld by the State. Though there is

no evidence or allegation that the State acted in bad faith or intentionally in

failing to timely produce the discoverable material, we nonetheless reverse the

judgment of the Appellate Division, vacate defendants’ convictions, and

remand for a new trial because defendants were deprived of a fair trial.


                                        3
                       II. Facts & Procedural History

        A. The Murder of Tracy Crews & the Initial Investigation

      Our discussion of the facts and procedural history is derived from the

trial record, which reveals that on a September night in 2008, Tracy Crews was

shot three times while on the first floor of the Trenton home he shared with his

wife, Sheena Robinson-Crews, and their daughter. After being shot, Crews

exited the front door of the home and collapsed in the street.

      Meanwhile, Robinson-Crews was sitting in her car nearby speaking with

a friend on her cell phone when she heard gunshots and observed a person

“half naked [] standing in front of [her] home.” The person stumbled and, as

he came into the light from a nearby liquor store and bar, Robinson-Crews

recognized the person as her husband and went to his aid.

      At the same time, William Rodriguez-Rivera left the liquor store and

bar, after having consumed several beers and whiskies, and heard the screen

door of Crews’s home slam. Rodriguez-Rivera turned to see Crews “running

around and all bloodied and stuff.” Crews fell in the street as Rodriguez -

Rivera reached him, and from about eighteen inches away, Rodriguez-Rivera

asked Crews what happened but received no audible response.

      After exiting her vehicle, Robinson-Crews approached and cradled her

husband as Rodriguez-Rivera stepped away to call 9-1-1. Robinson-Crews


                                        4
asked Crews repeatedly, “Who did this to you?” Robinson-Crews claims that

her dying husband then made a statement that incriminated defendants,

William Brown and Nigil Dawson.

      Crews was conscious but unresponsive when officers from the Trenton

Police Department arrived on the scene. Robinson-Crews told the officers that

her husband was shot in their home and that her toddler was still inside.

      Officer Maurice Crosby looked through the front door of the home and

saw a large amount of blood. Officer Crosby, along with other officers who

arrived on scene, went through the house next door, exited into the rear yard,

and observed fresh footprints in the mud leading from the victim’s house to the

fence enclosing the rear yard. The officers entered the victim’s home through

the open rear door and, while in the kitchen, saw “one or two shell casings

laying on the floor,” “some blood to the left where the doorway led to the rest

of the apartment,” and a trail of blood leading from the kitchen to the front

door. Officer Crosby located the child, took her outside, and turned her over

to another officer as additional Trenton Police officers arrived to help search

for the shooter.

      The officers examined the area around the victim’s home. In a nearby

construction yard, they saw freshly disturbed gravel and footprints, which they

preserved. Officers located a cell phone, a non-matching charger, and a ski


                                        5
mask on the ground in the passageway between two houses on a nearby street.

On the roof of a neighboring garage, another officer recovered a 9-millimeter

handgun that matched the shell casings from the victim’s home. Police also

recovered surveillance video from the liquor store and bar and a nearby home.

      An ambulance took Crews to the hospital, where he died as a result of

his gunshot wounds. Meanwhile, Robinson-Crews stayed at the scene and

made a number of cell-phone calls including several calls to Crews’s mother,

Barbara Portis. Robinson-Crews told Portis that Crews had been shot and that

Portis would “have to bury another son.”

      While still at the crime scene, Robinson-Crews also made two phone

calls within earshot of Detective Nathan Bolognini, one of the investigating

officers. A surveillance video showed Detective Bolognini standing close to

Robinson-Crews on the night of the murder as she made the calls. Detective

Bolognini reported what he overheard to Detective Matthew Norton, who

swore to the following in an affidavit (the Norton Affidavit) used in four

separate search warrant applications:

            Trenton Police Detective Bolognini was with
            Robinson-Crews after the shooting. During the time
            that Bolognini was approximately [five] feet from
            Robinson-Crews and heard her make several telephone
            calls using her cellular [] telephone. The first call
            Bolognini heard her make appeared to be to
            who[m]ever shot the victim. Bolognini heard Mrs.
            Robinson-Crews tell the person on the telephone, “You
                                        6
            didn’t have to shoot him. You got what you came for,
            you did not need to shoot him.” During this telephone
            call, Mrs. Robinson-Crews was speaking in a loud
            voice and seemed frantic. After ending that call, Mrs.
            Robinson-Crews called another person and told that
            person, “Those boys did not have to shoot him. They
            got what they came for, they didn’t have to shoot my
            baby.” During this conversation, Robinson-Crews was
            crying and upset to the point that she had to end the
            conversation.

            [(emphases added).]

Cell-phone records later revealed that neither of these calls were made to

defendants’ known cell phones.

      At some point during the night, Robinson-Crews called Portis and told

her that Crews said “Paperboy and Youngin” had shot him. Robinson-Crews

identified “Youngin” as defendant Nigil Dawson (Dawson or Youngin), and

stated that her husband knew him through defendant William Brown, who was

also known as Paperboy (Brown or Paperboy).

      Robinson-Crews refused to speak to the police for approximately six

hours after the murder but finally went to the police station and made a

statement. In that statement, Robinson-Crews claimed that Crews asked her to

go to the liquor store to purchase apple juice for their daughter. Robinson-

Crews alleged that when she returned to the house the front door was unlocked

and she heard a struggle inside. She then heard four or five gunshots, after

which two African-American males dressed in black ran out the back door.
                                       7
Robinson-Crews also told police, “As Tracy was choking on his own blood, he

told me that Paperboy and Youngin did this to him.” Because police had

access to the liquor store’s surveillance camera, they knew that Robinson -

Crews had not reentered the home before Crews was shot. That same morning,

Robinson-Crews went to Portis’s home, where she again claimed to Portis that

Crews told her, as he was dying, that Paperboy and Youngin shot him.

      The next day, Robinson-Crews returned to the police station and gave a

second conflicting statement, in which she again maintained that she reentered

the home before Crews was shot. She also repeated that, as she held Crews, he

stated, “Paperboy” killed him and “Paperboy and Youngin” killed him, and

that he told her, “I love you and my daughter, take care of my baby.”

      A forensic scientist with the New Jersey State Police DNA Laboratory

examined the ski mask found on the ground between two houses. The scientist

determined that, although not a match, Brown could not be excluded as a

contributor to DNA samples taken from the ski mask. The case went cold after

the initial investigation. In November 2008, about two months after Crews’s

death, Robinson-Crews filed a false police report against Brown accusing him

of pointing a gun at her.




                                       8
       B. Reopening the Investigation & Indictment of Defendants

      Approximately three years passed before Trenton Police reopened the

case. Detective Gary Britton became the lead investigator 1 and interviewed

Portis. During the interview, Detective Britton asked Portis if she could

identify a photograph derived from a frame of the nearby neighbor’s

surveillance video. Portis identified the person in the photograph as Dawson

because she believed that person stood “the same way [Dawson] was standing

in [her son’s] wedding pictures.”

      Detective Britton then interviewed Robinson-Crews at Muncy State

Correctional Institution in Pennsylvania where she was incarcerated for drug-

related offenses. Robinson-Crews admitted that her husband “only uttered

Paperboy” in his dying declaration and that she “added on Youngin because

[she] knew they did a lot of involvement with each other on things.”

      On June 6, 2011, defendants were charged with Crews’s murder. After

their arrest, they were incarcerated at the Mercer County Correctional Center.

In May 2012, a Mercer County grand jury returned an indictment charging

Brown and Dawson with first-degree murder,  N.J.S.A. 2C:11-3(a)(2) and

 N.J.S.A. 2C:2-6 (count one); first-degree felony murder,  N.J.S.A. 2C:11-


1
  Initially, the investigation was led by Trenton Police Detective Michael
Terman, whose only role in the trial was to establish where the nineteen
discovery items were held until their disclosure.
                                       9
3(a)(3) and  N.J.S.A. 2C:2-6 (count two); first-degree robbery,  N.J.S.A.

2C:15-1 and  N.J.S.A. 2C:2-6 (count three); and second-degree possession of a

weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(b) and  N.J.S.A. 2C:2-6

(count four).

      In the summer of 2012, Isaiah Franklin and Terrell Black were in the

Mercer County Correctional Center where they met and spoke to Brown and

Dawson. Franklin had been charged in five armed robberies, and Black in two

armed robberies. According to Franklin and Black, Brown and Dawson made

admissions to them regarding Crews’s murder. After notifying prosecutors of

defendants’ admissions, Franklin and Black arrived at favorable plea

agreements in exchange for their testimony against Brown and Dawson.

      In May 2013, Detective Britton received a letter from the Pennsylvania

Department of Corrections representing that Robinson-Crews admitted to

inmates at the Muncy Correctional Institution that she had conspired to kill her

husband (the Muncy Report). The prison’s Internal Affairs Department

generated the Muncy Report, which disclosed that “Inmate Cappelli said

Inmate Robinson said she had given the keys to . . . her and her husband’s

house to the killers and provided the killers with an approximate time.” After

the investigation, Detective Britton decided that Marie Cappelli, the only

inmate interviewed by Detective Britton whose name was recorded, was not


                                       10
credible. Detective Britton made no notes, recordings, or reports of his

interview with Cappelli. Cappelli did not receive any benefit for providing the

information.

                       C. Pretrial Motions & Rulings

      Pretrial motions were heard in 2014. The motion judge conducted an

N.J.R.E. 104 hearing to resolve several pretrial evidentiary issues, including

whether Crews’s alleged statement that Brown and Dawson shot him was

admissible under N.J.R.E. 804(b)(2) as a dying declaration. At the hearing, the

judge concluded that Robinson-Crews was not credible and made the

following findings:

            [H]er statements, by her own admission, were lies. The
            statements she gave the police in the two days
            following the murder of her husband she freely
            admitted were lies. She was motivated, for whatever
            reason, to believe that both defendants were the ones
            who shot and killed her husband. Therefore, she
            tailored her testimony to tell the police that these
            defendants were the ones who killed her husband, and
            made things up where she was not in a position to see
            her husband being shot and killed, or shot inside the
            home, because she was outside in her automobile.

            ....

            Therefore, the Court finds overall she’s not a credible
            witness, and clearly, the State has not proved by clear
            and convincing evidence that through this single
            witness, Sheena Robinson-Crews, that, in fact, the
            defendants, in particular, Mr. Brown, had a motive to
            shoot and kill the deceased.
                                       11
      At the same hearing, the motion judge excluded Crews’s dying

declaration, stating:

               [T]he late Mr. Crews may very well have known he was
               dying, and in fact, he was apparently choking on his
               own blood, the case law indicates the admissibility of
               such statements will depend [on] the totality of the
               relevant circumstances surrounding the articulation of
               the dying declaration.

               So the Court has to take into consideration the Court’s
               finding that Sheena Robinson-Crews is not a credible
               witness. She admitted repeatedly on the witness stand
               before me she either lied or when she was confronted
               with a prior statement, she said I don’t recall.
               Therefore, I don’t find she’s a credible witness. So I
               can’t give any -- very little, if any, credibility to her
               statement as to what she repeated allegedly made by her
               late husband.

In reaching that conclusion, the motion judge also cited the testimony of

Rodriguez-Rivera:

               And obviously, I now have a statement from an eye
               witness who is apparently independent, William
               Rodriguez[-]Rivera, who when he was interviewed on
               February 11th, 2009, some five or so months after the
               incident, he said he was present when Sheena
               Robinson-Crews asked the man, “Baby, who did this?”
               over and over. He, the deceased, couldn’t talk to
               answer her. He couldn’t say anything. So that seems
               to confirm from the independent witness that perhaps
               the dying victim never even said the word Paperboy.

Thus, the defense prepared for a trial that would not include Crews’s dying

declaration.


                                          12
           D. Defendants’ Trial; Disclosure of Withheld Evidence

      The trial began in mid-January 2015, more than six years after Crews’s

murder, before a judge who was new to the case. One week after the trial

started, after counsel made opening statements and examined four of the

investigating Trenton police officers called as State witnesses, the prosecutor

turned over eighteen reports not previously given to defense counsel that

“were in a file that was actually in [the State’s] office in homicide.” The

reports concerned facts discussed in the testimony of the investigating office rs

who had already testified. For example, the records turned over included a

report by Detective Terman that contained information about a canine search

on the night of the murder that tracked footprints in many directions, not just

the one path the State believed, and which the officers testified to at trial, the

shooters had followed. Defense counsel argued that the evidence contradicted

the witnesses’ testimony, stating:

            Judge, this thing about the dogs that were called out,
            they lead the officers in a completely different direction
            and they are all going in different places and we would
            have opened on that. . . . There are so many
            inconsistencies. And, in fact, [another police officer]
            and Officer Crosby, their testimony is, essentially, in
            some respects contradicted by the reports we now
            have.2

2
  Defense counsel argues that the canine search led officers in directions other
than where the ski mask which the State tested for DNA was found. However,

                                        13
      The records also included the Norton Affidavit detailing statements

made by Robinson-Crews on her cell phone the night of Crews’s murder that

Detective Bolognini overheard. Defense counsel obtained the cell-phone

records of defendants, which showed they did not receive phone calls from

Robinson-Crews on the night of the murder.

      The following Monday, the State disclosed that over the weekend it

found discovery item nineteen, the Muncy Report, identifying two inmates that

claimed Robinson-Crews admitted her role in the murder of her husband. The

trial court conducted an N.J.R.E. 104 hearing on the State’s discovery

violations. Counsel elicited testimony from Detectives Terman, Britton, and

Bolognini. Detectives Terman and Britton testified that eighteen reports were

in the State’s possession since their creation. Detective Britton also testified

that he received the Muncy Report more than a year and a half before the trial

began and that he recalled speaking with Cappelli and another inmate whose

name he did not remember regarding conversations with Robinson-Crews.

Additionally, Detective Bolognini testified that when the evidence was

located, he remembered speaking to Detective Norton in the early morning




the record before the Court states only that the dogs led officers in multiple
directions.
                                        14
hours shortly after the murder, though he did not remember the details of the

conversation.

      At the close of the hearing, defendants moved to dismiss the indictment

with prejudice. Defense counsel specifically chose to move for a dismissal

with prejudice rather than a mistrial because they did not “want to give the

State a second bite at the apple.”

      The trial judge stated that he was “not in a position” to rule on the

defense motion for dismissal of the charges and never specifically denied the

motion on the record. The trial judge did say that the women named in the

Muncy Report were likely not credible, and had “to be looked at very

skeptically.” The court allowed defense counsel to call Cappelli as a witness

at trial by videoconference, cross-examine Robinson-Crews on her statements

to Cappelli, and cross-examine Detective Britton on his undocumented

meeting with Cappelli.

E. Evidentiary Rulings: Withheld Evidence & Crews’s Dying Declaration

      The trial proceeded, and the prosecutor called Robinson-Crews to testify

as to events on the day of the murder. Robinson-Crews explained that Brown

lived with her and Crews for a time and that she had seen Dawson only with

Brown. On cross-examination, Dawson’s attorney elicited from Robinson-

Crews that after her husband’s death, she had taken over his lucrative drug-


                                       15
dealing operation; that there were significant discrepancies between her trial

testimony and her previous statements to police; and that she filed a false

police report against Brown. Dawson’s attorney also asked Robinson-Crews if

she lied to the police in her initial statements to protect Crews’s drug operation

or because she was involved in his murder. Robinson-Crews responded that

she lied because she “wanted them in jail.”

      The prosecutor then argued to the court that this cross-examination of

Robinson-Crews by defense counsel opened the door to testimony about

Crews’s dying declaration. The trial judge initially disagreed, stating, “She

indicates she lied, she lied, she lied. I don’t see that as the door having been

opened.” Nevertheless, the next day the judge held an N.J.R.E. 104 hearing to

reconsider the admissibility of Crews’s purported dying declaration. In

making this decision, the judge said, “The question now is whether or not

something was done that changed the lay of the land and it should allow the

State to go into that issue, at least, insofar as having the Court explore it

again.”

      After Robinson-Crews and Rivera-Rodriguez testified at the N.J.R.E.

104 hearing, the trial judge reversed the motion judge’s holding and allowed

Robinson-Crews to testify to the jury about the dying declaration. In reaching

his conclusion, the trial judge first discounted the testimony of Rivera-


                                         16
Rodriguez, who acknowledged that “if the man did say something to the

woman, [he] would not have heard it.”

      Moreover, the trial judge doubted Rivera-Rodriguez due to his

consumption of alcohol that night, stating, “There’s no question about it.

William Rivera had a six pack. He had a couple of shots as well . . . . [H]e

certainly was impaired somewhat under any standard.” As to Robinson-

Crews, the judge said, “I think a jury could fairly accept the testimony of

Robinson-Crews in an evaluation of what she heard at the time.”

      The judge also ruled that Portis could testify regarding what Robinson-

Crews claimed to her Crews said as he was dying -- that Paperboy and

Youngin shot Crews. Defendants objected to admission of Portis’s testimony

as evidence to rebut a charge of recent fabrication under N.J.R.E. 803(a)(2).

Defendants claimed at trial, and claim here, that mentioning Youngin

(Dawson) as part of the dying declaration was a recent fabrication.

      On cross-examination, Portis testified that when she looked at the still

photograph from a surveillance video of the night of the murder she identified

Dawson because she “knew it wasn’t Paperboy [(Brown)], so it had to be

Youngin [(Dawson)],” even though she had only seen Dawson five times in

her life. Portis also stated that she believed Robinson-Crews was involved in

the murder of her son.


                                        17
      The trial continued with the testimony of Franklin and Black, the two

jailhouse informants, who stated that both Brown and Dawson admitted that

they had attempted to rob Crews of $40,000 but that the robbery went awry

when Robinson-Crews and her child “showed up.” Franklin and Black each

testified that Dawson said he was the shooter. Finally, Black testified, without

objection, that Dawson said that Crews stated, after Dawson shot him, “I can’t

believe Paper and Youngin would do this to me.”

         F. Evidentiary Ruling: Exclusion of the Norton Affidavit

      Following the testimony of Franklin and Black, the two jailhouse

informants, defense counsel sought to introduce into evidence the Norton

Affidavit to impeach Robinson-Crews’s credibility and, specifically, her

testimony about Crews’s dying declaration. The court conducted an N.J.R.E.

104 hearing to determine the admissibility of the Norton Affidavit, which

referred to two phone calls made by Robinson-Crews that were overheard by

Detective Bolognini. At the hearing, Detective Bolognini testified he

remembered standing close to Robinson-Crews in the hours following the

murder and, while he remembered that she was frantic and loud and made

multiple phone calls, Detective Bolognini did not remember the substance of

the conversations since they happened more than six years before. However,




                                       18
he stated “because it’s in the search warrant, it obviously did happen and I did

report it, yes.”

      Detective Norton testified at the N.J.R.E. 104 hearing that he did not

remember the details of his conversation with Detective Bolognini, but it was

very important for him to be accurate and thorough when preparing a search

warrant affidavit. Detective Norton also explained that Robinson-Crews’s

statements in the affidavit were “in quotes so I’m not 100 percent, but I’m

pretty certain that Detective Bolognini gave me this information directly.” He

further testified that he believed the information contained in the Affidavit was

trustworthy or he would not have presented it to the judge as part of a search

warrant application.

      Defense counsel argued that the Norton Affidavit should be admitted

under N.J.R.E. 803(c)(5) as past recollection recorded. However, the trial

court ruled that the Norton Affidavit was inadmissible as untrustworthy based

upon the “remarkable” inability of Detective Bolognini to recall any of the

conversations; the absence of any reference to the statements in any formal

reports authored by any officers regarding the incident; and Detective Norton’s

inability to point, with any certainty, to his source of the information.




                                        19
                 G. Verdict, Sentence, & Post-Trial Motions

      At the conclusion of the trial, a jury found both defendants guilty of

counts one, three, and four. The trial court sentenced each defendant to a fifty-

year term of imprisonment for Crews’s murder with eighty-five percent

periods of parole ineligibility pursuant to the No Early Release Act,  N.J.S.A.

2C:43-7.2; a concurrent twenty-year term for robbery; and a concurrent ten-

year term for the weapon charge.

      Defendants each moved for a judgment of acquittal notwithstanding the

verdict, pursuant to Rule 3:18-2 or, in the alternative, for a new trial, pursuant

to Rule 3:20-1. Although Dawson did not state specifics in his motion, Brown

detailed these points:

            [D]efendant’s right to due process and a fair trial was
            irreparably impaired by the Court’s

                a. Decision after the trial commenced, to reverse a
                   pretrial evidentiary ruling of Judge Billmeier
                   which had the effect of admitting into evidence
                   previously barred testimony of an alleged dying
                   declaration by the decedent which Judge
                   Billmeier found unreliable;

                b. Decision to bar the past recollection recorded
                   testimony of Officer Bolognini, who had reported
                   to the other officers at the crime scene that he
                   overheard the decedent’s wife, Sheena
                   Robinson[-]Crews, speaking to someone who
                   could reasonably be inferred to be the actual
                   murderer of the decedent, Tracy Crews, thereby


                                        20
                   eviscerating the defendant’s third party guilt
                   defense;

               c. Refusal to dismiss the State’s case after the jury
                  was empaneled and it came to light that the State
                  had failed to turn over numerous reports in
                  pretrial discovery including reports containing
                  potentially exculpatory evidence and evidence of
                  third party guilt . . . .

The judge denied both motions, and defendants appealed.

                       H. Appellate Division Judgment

      The Appellate Division affirmed both defendants’ convictions and

sentences. In deciding whether the State’s delayed disclosure of nineteen

police reports was a Brady violation, the Appellate Division focused on the

Muncy Report and Norton Affidavit. The panel, citing Giglio v. United States,

 405 U.S. 150, 154 (1972), found that, although the State should have disclosed

the evidence, the trial “judge did not err by failing to dismiss the charges

against defendant[s].” In doing so, the Appellate Division reasoned that

defendants failed to show any undue prejudice, as the trial court took

reasonable measures to ensure a fair trial by allowing the defense time to

review the documents and by allowing Cappelli to testify.

      As to the trial court’s admission of Crews’s dying declaration, the panel

was satisfied that Robinson-Crews’s testimony was “sufficiently credible to

allow it to be presented to the jury.” Citing N.J.R.E. 803(a)(2), the panel next


                                        21
found that the trial court did not err by admitting Portis’s testimony because

“defense counsel essentially charged Robinson-Crews with a recent fabrication

and an attempt to cover up her own involvement with the charged offense . . . .

[Portis’s] testimony . . . was admissible . . . to rebut these allegations.”

Recognizing that the decision to admit Crews’s dying declaration was a

reversal of the trial court’s pretrial holding, the panel noted that application of

the “law of the case” doctrine is discretionary and is to be “flexibly applied in

the interests of justice.”

      The Appellate Division also found that defendants’ unwitting statements

to Franklin and Black, two jailhouse informants, did not implicate the

Confrontation Clause, and that the trial court properly denied defendants’

motions for a new trial since the verdicts were not against the weight of the

evidence.

      We granted defendants’ petitions for certification.  231 N.J. 526 (2017);

 231 N.J. 533 (2017).

                             III. Parties’ Arguments

                                  A. Defendants

      Brown and Dawson seek reversal of their convictions and dismissal of

their indictment, or alternatively, a retrial. They raise five issues before this

Court.


                                         22
      First, citing Brady v. Maryland, defendants claim that the State’s failure

timely to turn over nineteen discovery items that were in its possession for

years, including investigative reports, search warrant applications, and the

Norton Affidavit, violated defendants’ right to a fair trial. Defendants note

that those discovery items were not received until after defense counsel made

their opening remarks and four State’s witnesses, to whom the items were

relevant, had testified. That due process violation requires dismissal of the

indictment, and retrial would violate the Double Jeopardy Clause of the New

Jersey State Constitution, defendants claim.

      Second, citing the law of the case doctrine, defendants argue that the

trial court should not have reversed the motion judge’s decision and admitted

Robinson-Crews’s testimony about the dying declaration of her husband.

Defendants contend that counsel’s questions did not “open the door” to the

dying declaration and that, if they did, the trial court’s response was extreme

and unduly prejudicial. Defendants acknowledge that the trial judge was

entitled to arrive at his own credibility findings but argue that the impact of the

late admission of the evidence changed the tenor of the case and unfairly

prejudiced defendants, necessitating reversal.

      Defendants’ final three arguments relate to the Norton Affidavit, Portis’s

testimony, and the testimony of jailhouse informant Black. Specifically,


                                        23
defendants assert that the trial court abused its discretion by barring the Norton

Affidavit, which they argue was admissible as Detective Bolognini’s past

recollection recorded under N.J.R.E. 803(c)(5), an exception to the rule against

hearsay. Dawson adds that, because he was not mentioned in the dying

declaration, the trial court erred in admitting Portis’s testimony, under the

N.J.R.E. 803(a)(2) hearsay exception, to rebut an express charge of recent

fabrication. As a final point, Dawson also claims that Black’s testimony --

that, while in prison, Brown informed Black that the two wore ski masks

during the robbery of Crews and that once Crews recognized them, Dawson

shot him -- violated his Sixth Amendment Confrontation Clause rights because

Brown did not testify and was not subject to cross-examination.

                                  B. The State

      The State contends that, because there is no evidence in the record that

the delayed disclosure of evidence was intentional, and the late production did

not prejudice defendants, there was no Brady violation. The State maintains

that if this Court concludes that defendants were prejudiced, it would be

improper to dismiss the indictment.

      The State agrees with the Appellate Division that the trial court did not

violate the law of the case doctrine by admitting Crews’s dying declaration. In

doing so, it notes that the trial court’s ruling is afforded substantial deference


                                        24
because the law of the case doctrine is a non-binding, discretionary rule. To

the State, the additional testimony of Rodriguez-Rivera and Robinson-Crews

during the N.J.R.E. 104 hearing provided the trial court with a more complete

picture of what occurred on the night of the shooting. The State therefore

claims that the trial court was well within its discretionary authority not to

apply the doctrine. The State adds that Portis’s testimony, which recounted

the conversations she had with Robinson-Crews, were properly admitted under

N.J.R.E. 803(a)(2) to rebut the assertion that Robinson-Crews, to shift the

blame from herself, fabricated her trial testimony regarding the dying

declaration.

      The State also asserts that the Appellate Division properly affirmed the

trial court’s exclusion of the Norton Affidavit, which referred to Robinson-

Crews’s cell-phone calls to unknown recipients. The State argues that after

hearing from the witnesses and observing their demeanor, the trial court

properly decided that the circumstances surrounding the recording of the

statements did not demonstrate trustworthiness. Moreover, the State claims

that the exclusion of these statements did not cast a reasonable doubt upon the

verdicts.




                                        25
         Finally, the State asserts that defendants were not prejudiced by

cumulative error and that, although they did not receive a perfect trial, they

received a fair trial.

                                   IV. Discussion

         A. Withheld Evidence & Due Process under Brady v. Maryland

         We begin our discussion by reviewing Brady v. Maryland and its

application. In Brady, the defendant sought pretrial discovery of statements

made by his codefendant.  373 U.S.  at 84. The State provided to the

defendant, Brady, all but one such statement. Ibid. After the jury convicted

Brady and his codefendant of murder in the course of a robbery, Brady

discovered that the State suppressed a pretrial statement made by his

codefendant, in which the codefendant confessed to strangling the victim.

Ibid. Although the United States Supreme Court found that the codefendant’s

confession would not have affected the jury’s guilty finding as to Brady, since

he admitted to the robbery, the Court held that the statement might have

affected Brady’s punishment. Id. at 90-91. The Court ruled that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution. ” Id.

at 87.


                                          26
      Three essential elements must be considered to determine whether a

Brady violation has occurred: (1) the evidence at issue must be favorable to

the accused, either as exculpatory or impeachment evidence; (2) the State must

have suppressed the evidence, either purposely or inadvertently; and (3) the

evidence must be material to the defendant’s case. See State v. Nelson,  155 N.J. 487, 497 (1998). The existence of those three elements evidences the

deprivation of a defendant’s constitutional right to a fair trial under the due

process clause. See Brady,  373 U.S.  at 87; see also State v. Carter,  91 N.J. 86,

111-12 (1982).

      Determining whether the first two Brady elements have been satisfied is

a straightforward analysis. In most settings, however, the principles of Brady

are invoked when the suppressed evidence is discovered post-trial. Because

that is not the case here, determining the third element -- whether the

suppressed evidence is material -- is far more arduous. In deciding materiality,

“we examine the circumstances under which the nondisclosure arose” and

“[t]he significance of a nondisclosure in the context of the entire record.”

State v. Marshall,  123 N.J. 1, 199-200 (1991) (citing United States v. Agurs,

 427 U.S. 97, 112 (1976)). In determining the effect of the withheld evidence

“in the context of the entire record,” id. at 200, we consider the strength of the




                                        27
State’s case, the timing of disclosure of the withheld evidence, the relevance of

the suppressed evidence, and the withheld evidence’s admissibility.

                   B. The First & Second Brady Elements

      The first Brady element -- whether the State withheld evidence favorable

to defendants, either as exculpatory or impeachment evidence -- is clearly

satisfied here. The Norton Affidavit included statements from an officer who

overheard Robinson-Crews make inculpatory remarks on her cell phone hours

after the shooting. The affidavit evidences that Robinson-Crews may have

known who the murderers were or even had some part in the crime.

      The Norton Affidavit, produced well into the trial, was the first

evidential support defendants received for a theory of third-party guilt. The

defendants’ cell-phone records, which show no calls from Robinson-Crews on

the night of Crews’s murder and which were obtained by defense counsel only

after they received the Norton Affidavit and the Muncy Report, further support

the defense of third-party guilt. The withheld evidence also contained a report

of a canine search completed the night of the murder. The report of the canine

search detailed a path followed by the dogs that contradicted testimony already

given by State witnesses.

      Withholding the above reports deprived defense counsel of the

opportunity to cite the evidence of third-party guilt in their openings and to


                                       28
cross-examine the four officers who had already testified against defendants

about evidence acquired at the crime scene and referred to in the withheld

documents.

      The second Brady element -- whether the State suppressed the evidence

either purposely or inadvertently -- is also satisfied here. The State

acknowledges that the withheld reports “were in a file that was actually in [the

State’s] office in homicide” for a significant time before trial, and the State did

not provide the evidence to defendants until well into their murder trial . See

Carter,  91 N.J. at 111. The second Brady element is satisfied since “[t]he

prosecutor is charged with knowledge of evidence in his file.” Ibid. (quoting

Agurs,  427 U.S. at 110).

     C. The Third Brady Element, in Light of the Evidentiary Rulings

      The third Brady element requires that the suppressed evidence be

material to defendants’ case. Establishing materiality “does not require

demonstration by a preponderance that disclosure of the suppressed evidence

would have resulted ultimately in the defendant’s acquittal.” Kyles v. Whitley,

 514 U.S. 419, 434 (1995). Instead, the inquiry is “whether in the absence of

the undisclosed evidence the defendant received a fair trial, 'understood as a

trial resulting in a verdict worthy of confidence.’” Nelson,  155 N.J. at 500

(quoting Kyles,  514 U.S. at 434). The significance of the nondisclosure


                                        29
“depends primarily on the importance of the [evidence] and the strength of the

State’s case against [a] defendant as a whole.” Marshall,  123 N.J. at 200. Said

another way, evidence is material if there is a “reasonable probability” that

timely production of the withheld evidence would have led to a different result

at trial. United States v. Bagley,  473 U.S. 667, 682 (1985).

      Here, the State’s case against defendants relied, in part, upon Robinson-

Crews’s testimony that her husband, as he lay dying, implicated defendants.

However, Robinson-Crews gave inconsistent statements to police, erroneously

implicated Dawson in Crews’s dying declaration, and filed a false police report

against Brown after the murder.

      The State also relied upon the following circumstantial evidence: Brown

could not be excluded as a contributor to the DNA from a ski mask found near

the crime scene; testimony from jailhouse informants Franklin and Black;

testimony from Robinson-Crews; and testimony from Portis regarding the

dying declaration and Dawson’s identification. This circumstantial evidence

of defendants’ guilt was, likewise, assailable. Brown’s DNA was not a

conclusive match to the DNA from the ski mask; jailhouse informants Franklin

and Black received very favorable plea deals 3 from the State after revealing


3
  Franklin was charged in five armed robberies and, in exchange for his
testimony at trial, pleaded guilty to aggravated assault and received an

                                       30
that defendants made incriminating statements while in the Mercer County

Correctional Center; and Portis identified Dawson from a surveillance video-

still, even though she had seen him only five times previously.

      Because counter-arguments were available to challenge a great deal of

the evidence on which the State relied at trial, our materiality inquiry is

influenced by the following two evidentiary rulings made after the withheld

evidence was provided to defendants: (1) overturning a pretrial determination

that excluded Crews’s dying declaration; and (2) excluding the Norton

Affidavit as unreliable. Those determinations affected what the State and

defense were able to rely on, and no consideration of whether the trial could

have ended differently had the exculpatory evidence been timely disclosed

would be complete without consideration of whether those evidentiary rulings

properly circumscribed the admissible evidence.

      In evaluating the trial court’s evidentiary rulings, we first acknowledge

that appellate courts “'generally defer to a trial court’s disposition of discovery

matters unless the court has abused its discretion or its determination is based

on a mistaken understanding of the applicable law.’” Pomerantz Paper Corp.


eighteen-month sentence. Franklin was released from jail the day he gave the
police an initial statement implicating defendants. Black was charged in two
armed robberies. In exchange for his testimony, Black pleaded guilty to theft
and received a sentence of five years’ probation conditioned upon serving 365
days in county jail.
                                        31
v. New Cmty. Corp.,  207 N.J. 344, 371 (2011) (quoting Rivers v. LSC P’Ship,

 378 N.J. Super. 68, 80 (App. Div. 2005)). The abuse of discretion standard

instructs us to “generously sustain [the trial court’s] decision, provided it is

supported by credible evidence in the record.” Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co.,  202 N.J. 369, 384 (2010).

      Our determination of whether the trial court abused its discretion by

reversing the motion judge’s ruling and admitting Crews’s dying declaration

implicates the “law of the case doctrine” and N.J.R.E. 804(b)(2), the dying

declaration exception to the rule against hearsay. The trial court’s exclusion of

the Norton Affidavit implicates N.J.R.E. 803(c)(5), the hearsay exception for

past recollection recorded.

                    1. Admission of the Dying Declaration

      We first assess whether the trial court erred by overturning a pretrial

determination that excluded Robinson-Crews’s hearsay testimony that, as

Crews lay dying, he accused Paperboy of his murder. In doing so, the trial

court did not follow the “law of the case doctrine.” State v. Ruffin,  371 N.J.

Super. 371, 390 (App. Div. 2004). The doctrine, whose application is

discretionary, “is designed to avoid re-litigation of the same issue in the same

controversy.” Ibid.




                                        32
        N.J.R.E. 801(c) defines hearsay as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Hearsay is generally inadmissible, but

there are exceptions. See N.J.R.E. 802. The dying declaration exception

allows a “[s]tatement under belief of imminent death” to be “admissible if it

was made voluntarily and in good faith and while the declarant believed in the

imminence of declarant’s impending death.” N.J.R.E. 804(b)(2).

        Here, the motion judge excluded Crews’s dying declaration as unreliable

hearsay at the pretrial phase. The trial judge reversed his colleague’s ruling

because he found that defense counsel “opened the door” by challenging

Robinson-Crews’s credibility during cross-examination about her admitted

lies.

        “Opening the door” is a tenet that prevents a party from excluding

certain evidence from the opposing party’s case-in-chief by pretrial motion,

and later introducing evidence that would be undermined by the previously

excluded evidence. State v. Prall,  231 N.J. 567, 582-83 (2018). The trial court

here believed that it was illogical that Robinson-Crews would lie to police by

filing a false police report against Brown without a motive, and that the motive

was her husband’s dying declaration. We do not find that the trial court




                                        33
abused its discretion in this regard by disregarding the law of the case doctrine

for the following reasons.

      The parties agree that Crews would have known he was dying when he

made the purported statement. Additionally, although a “dying declaration

may be excluded if the declarant did not have direct personal knowledge of the

statement’s basis,” id. at 585, the circumstances as presented suggest, and the

parties do not dispute, that Crews presumably saw who killed him. Therefore,

the statement qualifies as a dying declaration under N.J.R.E. 804(b)(2). Still,

the trial court must weigh, under N.J.R.E. 403, probative value of the dying

declaration against the prejudice to defendants of its admission.

      N.J.R.E. 403 instructs that “relevant evidence may be excluded if its

probative value is substantially outweighed by the risk of . . . undue

prejudice.” Unquestionably, Crews’s dying declaration had substantial

probative value; it is the most impactful evidence the State could offer in this

case to establish defendants’ guilt. Indeed, evidentially, admission of “a dying

declaration is often terrible in its consequence and well nigh impossible to

counter. It has been described as 'devastating’ in its impact.” State v. Hegel,

 113 N.J. Super. 193, 202 (App. Div. 1971) (quoting State v. Yough,  49 N.J.
 587, 598 (1967)).




                                       34
         The trial judge concluded that the dying declaration should be admitted

and the jury should determine the statement’s reliability and Robinson-Crews’s

credibility. In doing so, the trial court did not specifically consider that his

decision to admit the dying declaration occurred well into defendants’ murder

trial.

         All the same, we do not find that the trial judge abused his discretion by

overturning a pretrial ruling excluding Crews’s dying declaration. Crews’s

dying declaration was admissible through Robinson-Crews under the N.J.R.E.

804(b)(2) hearsay exception. We repeat, however, that the decision to admit

Crews’s dying declaration occurred after counsel gave opening statements and

four State witnesses had testified. Admission of the dying declaration also

preceded exclusion of the Norton Affidavit. It is in this setting that we assess

the trial court’s decision to exclude the Norton Affidavit.

                       2. Exclusion of the Norton Affidavit

         The Norton Affidavit is evidence that could have reduced the impact of

Robinson-Crews’s testimony as to Crews’s dying declaration. The Affidavit

contains statements by Detective Bolognini describing a phone conversation

that he overheard the night of the murder in which Robinson-Crews said,

“Those boys did not have to shoot him.” This evidence undermines the

credibility of the testifying witness, Robinson-Crews, raises the specter of her


                                          35
involvement in Crews’s murder, and is evidence of third-party guilt. We must

consider the affidavit’s admissibility under N.J.R.E. 803(c)(5), the hearsay

exception for a recorded recollection.

      Under N.J.R.E. 803(c)(5), a hearsay statement is admissible “to refresh

one’s recollection.” State v. Gore,  205 N.J. 363, 375 (2011). N.J.R.E.

803(c)(5) provides that the statement is admissible as a recorded recollection if

            (A) [it] was made at a time when the fact recorded
            actually occurred or was fresh in the memory of the
            witness, and

            (B) [it] was made by the witness or under the witness’
            direction or by some other person for the purpose of
            recording the statement at the time it was made, and

            (C) the statement concerns a matter of which the
            witness had knowledge when it was made, unless the
            circumstances indicate that the statement is not
            trustworthy; provided that when the witness does not
            remember part or all of the contents of a writing, the
            portion the witness does not remember may be read into
            evidence but shall not be introduced as an exhibit over
            objection.

            [N.J.R.E. 803(c)(5).]

      At an N.J.R.E. 104 hearing conducted by the trial court, Detective

Norton testified it was important for him to be accurate and thorough when

preparing a warrant affidavit. He further testified that he believed the

information contained in the affidavit was trustworthy or he would not have

presented it to the judge. Nevertheless, the trial court excluded the affidavit as
                                         36
unreliable, relying on Detective Bolognini’s inability at the N.J.R.E. 104

hearing to remember the precise statements made by Robinson-Crews on the

night of the murder over six years before and absence of corroboration of these

statements. After considering the record of the trial court’s N.J.R.E. 104

hearing, we reach a different conclusion.

      Here, the Norton Affidavit was used in four separate search warrant

applications. It reports that Detective Bolognini overheard Robinson-Crews

make inculpatory statements while speaking on her cell phone at the crime

scene. Nearby surveillance video footage of the crime scene showing

Detective Bolognini near Robinson-Crews supports that she was on the phone

and that the detective was within earshot of her. The records of defendants’

known cell phones show they did not receive these phone calls. Additionally,

Detective Norton spoke to Detective Bolognini the night of Crews’s murder,

recorded their conversation, and presented and swore before a judge to the

veracity of the information hours after the murder took place.4 While the

decision to admit or exclude evidence is “firmly entrusted to the trial court’s

discretion,” we find that the trial court abused its discretion by excluding this


4
  Crews was shot late on the night of September 12, 2008 and died at the
hospital in the early morning hours of September 13, 2008. The investigation
at the crime scene continued through the early morning hours of September 13,
2008. The Norton Affidavit was presented to a trial judge by Detective Norton
on September 13, 2008.
                                        37
affidavit. Estates of Hanges,  202 N.J. at 383-84 (citing Green v. N.J. Mfrs.

Ins. Co.,  160 N.J. 480, 492 (1999)).

      The trial judge concluded that the Norton Affidavit was unreliable

because of the “remarkable” inability of Detective Bolognini to recall any of

the conversations, the absence of any reference to the statements in any formal

reports authored by any officers regarding the incident, and Detective Norton’s

inability to point, with any certainty, to his source of the information. These

findings are inconsistent with the testimony of Detectives Bolognini and

Norton about the affidavit’s creation, accuracy, and trustworthiness. The

surveillance video confirmed that Detective Bolognini was in a position to

hear what is set forth in the Norton Affidavit. Most importantly, the trial

judge’s conclusions ignore that N.J.R.E. 803(c)(5) requires trustworthiness,

not corroboration, and specifically allows “that when the witness does not

remember,” as was the case here, “part or all of the contents of a writing, the

portion the witness does not remember may be read into evidence.” Ibid.

(emphasis added). Therefore, we find Detective Norton should have been

permitted to read to the jury the contents of his affidavit.

         3. Due Process & the Third Brady Element (Materiality)

      Having considered the trial court’s evidentiary rulings, we now consider

their effect upon our Brady analysis. As to the third Brady element,


                                        38
materiality, we repeat that the trial court admitted the dying declaration one

week after the trial began. Defense counsel had already made opening

statements revealing their trial strategy. Four Trenton police officers had

testified about the night of the murder and the gathered evidence. Although it

was proper to admit the dying declaration, the timing of the decision to admit

it was highly prejudicial to the defense.

      That prejudice was compounded by the trial court’s later exclusion of

the Norton Affidavit. It was error to exclude the affidavit, and that error

deprived defendants of evidence of third-party guilt, as well as an opportunity

to use the Norton Affidavit to challenge Robinson-Crews’s credibility and her

testimony about the dying declaration. We cannot conclude, in light of the

timing of the State’s disclosure of withheld evidence and the trial court’s

relevant evidentiary rulings, that allowing defendants to call Cappelli as a

witness, or allowing defendants to cross-examine Detective Britton about the

Muncy Report, substantially lessened the impact of Crews’s dying declaration

and ameliorated the court’s error.

      Consequently, the State’s Brady violation, in the context of the trial

court’s evidentiary rulings, undermines our confidence in the jury’s guilty

verdict against the defendants. See Kyles,  514 U.S.  at 434. Because we find

there is a “reasonable likelihood” that the State’s Brady violation, in light of


                                        39
the trial court’s evidentiary rulings, affected the judgment of the jury, Giglio,

 405 U.S.  at 154, we find that the third Brady element is satisfied.

                                   V. Remedy

        A. Dismissal of the Indictment with Prejudice vs. New Trial

      Having resolved that the State infringed upon defendants’ due process

rights by violating the commands of Brady, we must determine the appropriate

remedy. Defendants did not ask for a mistrial after discovery of the withheld

evidence. Instead, defendants moved for dismissal of defendants’ indictmen t

with prejudice. Defendants claim that they moved for dismissal with

prejudice, instead of a mistrial, to preserve their right to invoke the bar of

double jeopardy.

      Double jeopardy, under Article 1, Paragraph 11 of the New Jersey

Constitution, is “[t]he principle that no person is to be placed in jeopardy

'more than once for the same offense.’” State v. Allah,  170 N.J. 269, 278

(2002) (citing, among other sources, United States v. Wilson,  420 U.S. 332,

339-42 (1975)). However, in this setting the bar of double jeopardy is limited

to “those cases in which the conduct giving rise to the successful motion for a

mistrial was intended to provoke the defendant into moving for a mistrial.”

Oregon v. Kennedy,  456 U.S. 667, 679 (1982). Similarly, in the context of a

Brady violation, the remedy of dismissal of an indictment with prejudice is


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utilized when “the conduct of law enforcement agents is so outrageous that due

process principles would absolutely bar the government from invoking judicial

processes to obtain a conviction.” United States v. Russell,  411 U.S. 423, 431-

32 (1973). We say again that defendants do not claim that the State acted

willfully in withholding evidence. As there is no evidence or allegation that

the State intentionally withheld Brady information, and no evidence of

prosecutorial provocation or other willful misconduct, the bar of double

jeopardy does not apply here.

      Still, under Brady, a new trial is required if suppression of evidence

prejudices defendant and “could . . . in any reasonable likelihood have affected

the judgment of the jury.” Giglio,  405 U.S.  at 154 (ellipsis in original)

(quoting Napue v. Illinois,  360 U.S. 264, 271 (1959)). Because we conclude

that the State’s Brady violation, in the circumstance of the trial court’s

evidentiary rulings, undermines our confidence in the jury’s verdict of guilty

against the defendants, see Kyles,  514 U.S.  at 434, a new trial is required.

              B. Guidance as to Evidentiary Issues on Retrial

      The court on retrial will face evidentiary issues raised in this appeal.

The first such issue is whether Portis may testify that Robinson-Crews said

“Paperboy and Youngin” murdered Crews. Second, the court must determine

whether the testimony of Black, a jailhouse informant, contained statements


                                        41
that violated defendant Dawson’s Sixth Amendment Confrontation Clause

rights. We provide the following for guidance.

      The State offered Portis’s testimony to rebut an express charge against

Robinson-Crews of recent fabrication. In that regard, N.J.R.E. 803(a)(2)

excludes from the hearsay rule

             [a] statement previously made by a person who is a
             witness at a trial or hearing, provided it would have
             been admissible if made by the declarant while
             testifying and the statement: . . . is consistent with the
             witness’ testimony and is offered to rebut an express or
             implied charge against the witness of recent fabrication
             or improper influence or motive.

Under this hearsay exception, the evidence is subject to an N.J.R.E. 403

analysis to determine if its probative value is substantially outweighed by its

prejudicial effect.

      The trial record before us shows that Portis testified that Robinson-

Crews called her several times on the night of Crews’s murder. During one

call, Robinson-Crews told Portis that “Youngin and Paperboy had shot Tracy.”

As to the portion of the statement inculpating Brown, it qualifies as admissible

hearsay under N.J.R.E. 803(a)(2). However, Robinson-Crews admitted before

trial that she fabricated Dawson’s part in the dying declaration. Thus, Portis’s

reference to Dawson has little if any probative value but is highly prejudicial

as to Dawson. Therefore, Portis’s statement can be offered as a statement to


                                        42
rebut a charge of recent fabrication under N.J.R.E. 803(a)(2), but only as to

Brown.

         Regarding Dawson’s claim that testimony of jailhouse informant Black

referred to statements by Brown implicating Dawson, we recognize that

admission of hearsay statements of a defendant implicating a co-defendant are

inadmissible when the defendants are tried together. Bruton v. United States,

 391 U.S. 123, 135-36 (1968). Here, a careful review of the trial record shows

that the informant’s challenged testimony reveals only what Brown said about

his own actions, not the actions of his co-defendant. Nevertheless, while the

testimony in the record before us did not implicate a Bruton issue, on remand

the trial court should review, pretrial, offered testimony of jailhouse

informants Black and Franklin to determine and resolve any Bruton issues.

                                   VI. Judgment

         For the reasons set forth above, we reverse the judgment of the

Appellate Division, vacate defendants’ convictions, and remand for a new

trial.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.




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