State v. Smith – NJ Supreme Court Decision Sets Some Parameters for Declaring Mistrial or Granting Continuance Because of Newly Discovered Evidence that the Prosecutor Failed to Disclose to Defense Counsel Until After Commencement of Trial

On July 2, 2009, at 11:30 pm, a car pulled up next to a woman who was walking to her home in Jersey City.  The passenger got out, approached her, tapped her hip with a gun, and asked for her phone.  The woman surrendered her purse which contained her phone and other valuable items.  She ran to a police station to report the crime.  While there, a patrol unit had stopped a car matching the description she gave police.  She was driven to the scene to view the car and the two occupants, but said that neither was the robber.  A few hours later, officers spotted another car matching the description of a car involved in several robberies in Jersey City that night.  The police stopped the car and discovered three individuals inside.  The occupants gave conflicting stories when questioned, and were taken to the police station and photographed.

Three days later, a detective asked the victim to come to the station to attempt to try to identify the robber from photobooks.  The photos of two of the three individuals removed from the second car, including that of the defendant, were placed in the photobooks before the victim saw them.  The victim selected defendant’s photo, saying that she was “pretty positive” he had robbed her.  The victim also viewed the vehicle, and said that it “looked like” the car from the robbery.  Based on this, defendant was arrested.

Six weeks after the robbery, the police arrested Stebbin Drew, who resembled the defendant, and found the victim’s cell phone in his possession.  A State Trooper called the victim in August to tell her this.  The victim told the assistant prosecutor about this call more than one year later during jury selection in defendant’s trial.  The assistant prosecutor told defense counsel about the call on the morning of the second day of trial.  The State called the victim as its first witness and, during cross-examination, defense counsel asked the victim about the Trooper’s call.  Counsel then moved for a mistrial, asserting that he had been denied exculpatory information.  The trial judge denied the motion.  During a subsequent discussion about a State Police report that the prosecutor’s office had located which noted that Drew possessed the victim’s cell phone when he was arrested, defense counsel renewed his motion for a mistrial.  The trial court again denied the motion.  The victim viewed Drew’s arrest photo during further testimony, and stated that he was not the robber.  The jury convicted defendant of, among other things, armed robbery, and the trial court imposed a 20-year term with an 85% parole disqualifier subject to the No-Early-Release Act.Defendant appealed, arguing that the trial court erred in denying counsel’s motion for a mistrial or continuance.  The Appellate Division affirmed, concluding that the trial court did not abuse its discretion in denying the motion.  The Supreme Court granted certification as to the issue of whether the trial court should have granted the mistrial motion or a continuance to allow counsel to investigate the newly discovered evidence revealed during trial.

The Supreme Court found that defendant was entitled to timely discovery of the evidence at issue since it went to the very heart of his defense, which was the victim’s ability to identify him as the robber.  Further, as a result of the trial court’s denial of the motion (particularly in light of the fact that trial lasted only four days), defendant was deprived of the ability to investigate the evidence relating to Drew.  As to this particular issue, the Court observed that a trial court has considerable latitude to order a continuance to allow defense counsel to investigate evidence discovered during trial.  The nature and strength of the evidence is also relevant to a proper determination of this issue.  Here, the State’s case rested almost entirely on the victim’s ability to identify the robber, and her ability to view her assailant during the robbery was based on, among other things, a nighttime encounter that lasted for about 10 seconds.  Moreover, the victim and defendant are of different races, and it has been long-recognized that members of one race may have difficulty identifying a member of another race.  That the subject evidence went directly to the identification issue – which was the State’s case – was of primary importance.

Against this backdrop, the Supreme Court found that the trial court abused its discretion in denying the motion of defense counsel, reversed the Appellate Division, and ordered a new trial on the robbery and weapons convictions.

I have seen only the reported Supreme Court decision.  I have not seen the trial or appellate records generated during earlier proceedings.  One important issue is glaringly absent from the Court’s decision.  As noted above, the facts reveal that the assistant prosecutor learned of the State Police call to the victim during jury selection, and did not disclose it to defense counsel until the second day of a four-day trial.  It would be both interesting and beneficial to see a complete discussion and ruling on whether this course of action qualifies as prosecutorial misconduct.

James S. Friedman LLC represents defendants who seek to appeal convictions from the New Jersey State trial courts to the New Jersey Appellate Division, and from the United States District Court in New Jersey to the United States Court of Appeals for the Third Circuit.  If you or a member of your family want to discuss appealing a criminal conviction, contact the firm today.


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