State v. Julius Smith(073059)

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 Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Julius Smith (A-62-13) (073059)
Argued April 27, 2015 -- Decided January 13, 2016
RABNER, C.J., writing for a unanimous Court.
The Court considers the circumstances under which a trial court should grant a mistrial or continuance to
allow defendant the opportunity to investigate newly discovered evidence revealed during trial.
At 11:30 p.m. on July 2, 2009, as Jayne Gourgiotis was walking home, a car with two men inside pulled up
near her. The passenger got out of the car, approached her, and spoke to her. She looked at the man, whom she later
described as black and heavyset, with short hair, thick eyebrows, a small nose, and some facial hair. He tapped
Gourgiotis’s hip with a gun and asked for her phone. She gave him her purse, which contained a cell phone, iPod,
keys, wallet, identification, and about fifty dollars. The assailant immediately returned to the passenger seat of the
car, and the car drove off.
Gourgiotis ran to a police station to report the crime. She described the robber and the car to a detective
who then relayed the information to patrol units. While still at the station, Gourgiotis canceled her cell phone
service. A patrol unit stopped a car that matched the description she had given. The detective drove her to the scene
to look at the car and two suspects. She said that neither was the robber. A few hours after the robbery, two officers
spotted a black Oldsmobile Aurora, which matched the description of a car involved in multiple robberies in Jersey
City that night. The car was parked at a gas station. The officers saw two African-American men get into the car.
One of the men, later identified as defendant, was about six feet tall, heavyset, had short hair, had some facial hair,
and wore a white t-shirt. The other man, Jerry Martin, was a little taller, stocky, and had cornrows. The officers
stopped the car as it started to pull away and saw a third man, Derrick McCrae, in the back seat. The officers spoke
with the men, who gave conflicting stories, and then brought them to the police station where they were
photographed and questioned further. The officers also searched the car but did not find any weapons or stolen
items. Since Martin did not have the car’s registration form, the police impounded the vehicle.
Three days after the robbery, Detective Angel Pastrana asked Gourgiotis to come to the police station to try
to identify her assailant by reviewing photobooks. Detective Pastrana arranged for photos of defendant, Martin, and
McCrae to be added to the photobooks before Gourgiotis saw them. She picked out defendant’s photograph and
said she was “pretty positive” that he had robbed her. Detective Pastrana then brought Gourgiotis to the impound lot
to see if she could identify the car. Gourgiotis picked the Oldsmobile Aurora in which defendant had been stopped
and said it “looked like” the car from the robbery. Based on her identification, the police obtained and executed an
arrest warrant for defendant. At the time of his arrest, defendant had heroin in his possession. About six weeks after
the robbery, the State Police arrested Stebbin Drew in a stolen black Infiniti and found Gourgiotis’s cell phone in his
possession. Drew is an African-American male, about six feet tall, and he weighed 175 pounds at the time. In
August, a State Trooper called Gourgiotis and relayed the news to her. She told the assistant prosecutor about the
call on the afternoon of jury selection in defendant’s trial, more than one year later.
The trial began on November 1, 2010 and lasted four days. Defendant first learned about the new evidence
on the morning of the second day of trial when the assistant prosecutor told defense counsel about Gourgiotis’s call
from the State Police. The State called Gourgiotis as its first witness. During cross-examination, defense counsel
asked Gourgiotis some questions about the Trooper’s call. Counsel then moved for a mistrial at sidebar, arguing
that he had been denied what could be important exculpatory information. The trial judge denied the motion. The
parties and the court later discussed a State Police report that the prosecutor’s office had tracked down. The report
confirmed Drew’s arrest in August 2009 and noted that he had a bag of several stolen items including Gourgiotis’s
cell phone. Defense counsel renewed his request for a mistrial, arguing that the information should have been given
to him in advance of trial and that he needed to investigate it. The State explained that it was in the midst of
conducting an investigation and was searching for a photo of Drew. The court denied defendant’s motion.
The State obtained Drew’s 2009 arrest photo in time for the start of the next trial day. Gourgiotis returned
to the witness stand and, when shown Drew’s recent arrest photo, testified that she was confident that he was not the
robber. The next day, the jury convicted defendant of armed robbery and possession of a firearm for an unlawful
purpose, but acquitted him of unlawful possession of a handgun. At sentencing, the judge imposed a twenty-year
term of imprisonment for the robbery offense, subject to an eighty-five percent period of parole ineligibility. The
1
court imposed a concurrent three-year sentence for defendant’s possession of heroin at the time of his arrest.
On appeal, defendant claimed that the trial court erred in denying his motion for a mistrial. Defendant
argued, in the alternative, that the court should have granted a continuance to allow him to investigate the newly
discovered evidence about Gourgiotis’s cell phone. The Appellate Division affirmed in an unpublished decision,
holding that the trial court did not abuse its discretion. The Court granted certification limited to whether the trial
court should have granted defendant’s motion for a mistrial or a continuance to allow him to investigate the newly
discovered evidence revealed during trial. 217 N.J. 282 (2014).
HELD: The trial court abused its discretion in declining to grant a mistrial, particularly in light of the materiality of
the evidence that surfaced midtrial, defendant’s inability to investigate it while the trial proceeded, and the nature
and strength of the evidence against defendant.
1. Defendant claims that the delay in the disclosure of key evidence until trial warranted a mistrial and that the trial
court’s denial of his motion compromised his right to a fair trial. A mistrial should only be granted to prevent an
obvious failure of justice. Whether an event at trial justifies a mistrial is a decision entrusted to the sound discretion
of the trial court. Appellate courts will not disturb a trial court’s ruling on a motion for a mistrial, absent an abuse of
discretion that results in a manifest injustice. When addressing a motion for a mistrial, trial courts must consider the
unique circumstances of the case. If there is an appropriate alternative course of action, a mistrial is not a proper
exercise of discretion. (pp. 14-15)
2. The Federal and State Constitutions guarantee criminal defendants a meaningful opportunity to present a
complete defense. Basic elements of due process enable defendants to face and challenge the State’s evidence.
These rights are not absolute and may be limited by other legitimate public interests. The Court Rules also assist
defendants in mounting a complete defense and place a continuing duty on the State to provide discovery. Late
discovery can cause unfair surprise and raise due process concerns. When a party fails to comply with its
obligations, the discovery rule expressly states that the court may grant a continuance or delay during trial or enter
such other order as it deems appropriate. (pp. 15-16)
3. Here, the State asserts that defendant waived the argument he advances on appeal. There is no support in the
record for this assertion as defendant made two motions for a mistrial and did not withdraw or waive either request.
Further, defendant’s request for a new trial relies in part on case law about newly discovered evidence, discussed in
State v. Carter, 85 N.J. 300, 314 (1981), and other decisions of the Court. To obtain a new trial under that standard,
a defendant must show that the new evidence is (1) material to the issue and not merely cumulative or impeaching or
contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the
sort that would probably change the jury’s verdict if a new trial were granted. The test does not control in this case
for two reasons. First, the settled body of law on newly discovered evidence addresses how to assess evidence
acquired by the defense after trial. Here, defendant focuses on evidence that was disclosed late, but not after trial.
Second, the test asks whether evidence that the jury did not hear would probably change its verdict. In this case, the
jury heard about the discovery of Gourgiotis’s cell phone. Counsel sought a mistrial to investigate that new
information further, rather than be forced to rely on the State’s rapid investigation in the middle of trial. (pp. 16-17)
4. Defendant was entitled to timely discovery of the evidence in question as it went to the heart of the defense. The
trial court took steps to try to remedy the late disclosure. Once the court denied the request for a mistrial and
directed that the trial continue, defendant did not have the ability to investigate the new material. A trial court, in its
discretion, has wide latitude to order a brief continuance and give defendant time to investigate key evidence that
surfaces during trial. To determine whether a mistrial was needed to prevent an obvious failure of justice, the courts
should also considers the nature and strength of the evidence presented. The evidence in this case was not
overwhelming and rested on Gourgiotis’s identification of defendant. Certain undisputed facts raise questions about
that identification. Gourgiotis saw her assailant only for a brief amount of time. The opportunity of the witness to
view the criminal at the time of the crime affects the reliability of an identification. Further, the victim and
defendant are of different races. For many years, this Court has recognized that witnesses may have a more difficult
time when they identify a person of a different race and that cross-racial identifications require careful scrutiny.
Defendant moved for a mistrial when the evidence came to light in the midst of a fast-paced, short trial. Under these
unusual facts, it was an abuse of discretion for the trial court to deny the motion. (pp. 18-21)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for a new trial. Defendant’s conviction for possession of a controlled dangerous substance remains intact.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON join in CHIEF JUSTICE
RABNER’S opinion. JUSTICE FERNANDEZ-VINA and JUDGE CUFF (temporarily assigned) did not
participate.
2
SUPREME COURT OF NEW JERSEY
A-62 September Term 2013
073059
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIUS SMITH,
Defendant-Appellant.
Argued April 27, 2015 – Decided January 13, 2016
On certification to the Superior Court,
Appellate Division.
Kevin W. Roe argued the cause for appellant.
Jenny M. Hsu, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
During an encounter that lasted ten seconds, a woman was
robbed at gunpoint. She surrendered her purse with her cell
phone inside it, and the robber drove away in a car. She later
identified defendant Julius Smith as her assailant.
Six weeks after the robbery, the State Police recovered the
victim’s cell phone when they arrested a third person. Law
enforcement officers contacted the victim, but the prosecutor
1
and local police did not learn about the discovery of the phone
until the middle of defendant’s trial -- fifteen months later.
Defense counsel twice moved for a mistrial to investigate
this critical information. The trial court took alternate
measures to try to remedy the belated disclosure but denied
defendant’s motion. Under the circumstances, we find that it
was an abuse of discretion not to grant a mistrial, particularly
in light of the materiality of the evidence that surfaced mid-
trial, defendant’s inability to investigate it while the short
trial proceeded, and the nature and strength of the evidence
against defendant. To avoid a manifest injustice, see State v.
Jackson, 211 N.J. 394, 407 (2012) (citations omitted), we remand
for a new trial. We therefore reverse the judgment of the
Appellate Division, which affirmed defendant’s conviction.
I.
At about 11:30 p.m. on July 2, 2009, Jayne Gourgiotis was
walking to her home in Jersey City after having had a few drinks
with friends. She wore earphones while she walked.
Gourgiotis testified that a “long boaty type dark car” with
two men inside pulled up near her. The passenger stepped out of
the car and approached her. He said something that she could
not hear because of the earphones, so she removed them and then
looked at the individual. She described him as “a black man,
short hair, heavyset a little bit and he was wearing a black t-
2
shirt” and jeans. She added that he had thick eyebrows, a small
nose, and some facial hair.
The man tapped Gourgiotis’s hip with a handgun and asked
for her phone; she handed over her purse, which contained a cell
phone, iPod, keys, a wallet, identification, and about fifty
dollars. The man immediately returned to the passenger seat of
the car, and the car drove off. The entire incident lasted
about ten seconds. Of that time, Gourgiotis looked at her
assailant for about four seconds.
Gourgiotis then ran to a nearby police station to report
the crime. She described the robber and the car to a detective
who relayed the information to patrol units. While at the
station, within ten to twenty minutes of the robbery, Gourgiotis
canceled the service to her cell phone.
Soon after, a patrol unit stopped a car that matched the
description Gourgiotis had given. The detective drove
Gourgiotis to the scene to look at the car and two suspects.
She said that neither man was the robber and that the car was
not used in the robbery. Later that night, the police recovered
Gourgiotis’s empty purse on a street in the area and returned it
to her. They did not test it for fingerprints based on expert
advice that the leather purse could not “hold prints.”
A few hours after the robbery, two officers spotted a black
Oldsmobile Aurora, which matched the description of a car
3
involved in multiple robberies in Jersey City that night. The
car was parked at a gas station. The officers saw two African-
American men leave the mini-mart at the station and get into the
car. One of the men, later identified as defendant, was about
six feet tall, heavyset, had short hair and some facial hair,
and wore a white t-shirt; he got into the front passenger seat.
The other man, Jerry Martin, was a little taller, stocky, and
had cornrows; he entered on the driver’s side. The officers
stopped the car as it started to pull away and saw a third man,
Derrick McCrae, in the back seat.
The officers spoke with the men, who gave conflicting
stories, and brought them to the police station where they were
photographed and questioned further. The officers also searched
the car but did not find any weapons or stolen items. Because
Martin did not have the car’s registration form, the police
impounded the vehicle.
Three days after the robbery, on July 6, 2009, Jersey City
Detective Angel Pastrana asked Gourgiotis to come to the police
station to try to identify her assailant. She reviewed some
photobooks the department maintains. The books are organized by
gender, race, and height and are updated regularly. Each binder
contains about 200 photos, with four to a page.
Detective Pastrana arranged for photos of defendant,
Martin, and McCrae to be added to the photobooks before
4
Gourgiotis saw them. The detective got their names from a
police report about the July 3 incident. Other than that, he
knew nothing about the men. Gourgiotis picked out defendant’s
photograph and said she was “pretty positive” that he had robbed
her. She recognized him from his “buzzed cut” hair, eyebrows,
nose, and face.
Detective Pastrana then brought Gourgiotis to the impound
lot to see if she could identify the car involved in the
robbery. Gourgiotis picked the Oldsmobile Aurora that defendant
was stopped in on July 3. She said the car “looked like” the
one from the robbery but did not identify it as the actual car.
Based on Gourgiotis’s identification of defendant’s photograph
and the car, the police obtained and executed an arrest warrant
for defendant.
About six weeks after the robbery, on August 10, 2009, the
State Police arrested Stebbin Drew in a stolen black Infiniti.
They found Gourgiotis’s cell phone in his possession. Drew is
an African-American male, about six feet tall, and he weighed
175 pounds at the time. In late August, a State Trooper called
Gourgiotis and relayed the news to her. She first told the
assistant prosecutor about the call on the afternoon of jury
selection in defendant’s trial, more than one year later.
Detective Pastrana testified that he was not contacted about the
matter before trial.
5
A grand jury in Hudson County indicted defendant on
September 22, 2009. The first three counts of the indictment
relate to the robbery on July 3, 2009. Those counts charge
defendant with first-degree armed robbery, N.J.S.A. 2C:15-1
(count one); second-degree possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)
(count three).1
The short trial began on November 1, 2010. It lasted four
days including jury selection and time for deliberation. The
court selected the jury on Monday, November 1. It conducted a
Wade2 hearing at the start of the second day, Wednesday, November
3, and the jury then heard opening statements and the testimony
of three witnesses. The jury heard the remainder of the
1 The indictment contains nine additional counts relating to
defendant’s arrest on July 6, 2009. Those charges include
third-degree possession of a controlled dangerous substance,
heroin, N.J.S.A. 2C:35-10(a)(1) (count four), other related drug
charges (counts five to eleven), and a weapons offense (count
twelve).
The jury only heard evidence about the first three counts.
It appears that the additional counts were resolved by an
agreement of the parties. Defendant was convicted and sentenced
on count four, and the remaining counts were dismissed.
Defendant’s conviction for count four is not challenged in this
appeal.
2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967) (governing admissibility of identification
evidence).
6
testimony, summations, and the jury charge on the third day,
Thursday, November 4, and returned a verdict the next day.
Because the sequence of events is relevant, we recount the
proceedings in greater detail.
Defendant first learned about the new evidence on the
morning of the second day of trial, when the assistant
prosecutor told defense counsel about Gourgiotis’s call from the
State Police. After the court conducted the Wade hearing and
ruled that the identification evidence would be admitted, the
parties gave opening statements. The State next called
Gourgiotis as its first witness.
During cross-examination, defense counsel asked Gourgiotis
some questions about the Trooper’s call. Counsel then moved for
a mistrial at sidebar. He did not blame the prosecutor’s office
for the late disclosure but argued that he had “been denied what
could be very important exculpatory information.”
The trial judge denied the mistrial motion. The court
explained that it was unlikely any calls had been made on the
phone because service was turned off within minutes of the
robbery. In addition, the court noted that the State had not
yet been able to confirm the call with the State Police.
Cross-examination resumed, and after defense counsel posed
more questions about the cell phone and the State Trooper, the
judge called the parties back to sidebar. The court observed
7
that “after the months, a phone call like this is a collateral
issue.” As a result, the court did not allow defense counsel to
pursue the line of questioning. After some additional
questions, the trial broke for lunch.
Following the break, the parties and the court discussed a
State Police report that the prosecutor’s office had tracked
down. The report confirmed Drew’s arrest on August 10, 2009,
noted that he had a bag of at least six stolen items including
Gourgiotis’s cell phone, and contained a description of Drew.
Defense counsel again asked for a mistrial. He argued that
the information “should have been given to [him] well in advance
of . . . trial” and that he needed to investigate and follow up
on the very important development. In response, the State
explained that it was in the midst of conducting an
investigation, was searching for a photo of Drew, and was open
to a possible stipulation. Defense counsel noted, it “may be
possible to save this case and not have a mistrial” with a
stipulation, “[b]ut I think we should wait.”
The court again denied defendant’s mistrial motion. The
judge reasoned that the new evidence was consistent with
defendant’s strategy -- that another person committed the
robbery. Afterward, the judge addressed the jury and explained
that neither attorney knew about the recovery of the cell phone,
“and they’re . . . looking for some quick information to see if
8
it in fact could affect this case at all.” The judge also
confirmed that the jurors could sit the following Monday, if
necessary.
The trial then continued with testimony from a detective.
Later in the afternoon, outside the jury’s presence, the State
produced two photos of Drew from 2007 and 2008, along with his
criminal record. Defense counsel argued that the photos were
dated, and he highlighted different descriptions in the
materials provided. According to the rap sheet, Drew was 5’8”
tall and 140 pounds; the State Police report described him as 6’
tall and 175 pounds. The assistant prosecutor added that he was
trying to get a photo from Drew’s arrest on August 10, 2009.
The court proposed that the trial continue and that
Gourgiotis be recalled the following morning. After the
discussion, another police officer testified until the trial
adjourned for the day.
The State obtained Drew’s 2009 arrest photo in time for the
start of the next trial day, Thursday, November 4. Gourgiotis
returned to the witness stand and, when shown Drew’s recent
arrest photo, she testified that she was very confident that he
was not the person who robbed her. Defense counsel, in turn,
cross-examined Gourgiotis on the issue.
Detective Pastrana testified next, after which defense
counsel read a joint stipulation to the jury:
9
That the victim’s phone was found in the
possession of an individual arrested by the
State Police on August 10, 2009 in his vehicle
at the time of the arrest.
Two, the man arrested is a black male age
twenty five, weight a hundred and seventy five
pounds wearing a white T-shirt at the time of
his arrest.
Three, that person at that time had an
outstanding warrant from the Jersey City
police.
Both attorneys presented closing arguments after a break.
In his summation, defense counsel relied on the stipulation and
the discovery of the cell phone to argue that someone else
committed the robbery.
The jury reached a verdict the next day, November 5. The
jurors found defendant guilty of armed robbery and possession of
a firearm for an unlawful purpose, and acquitted him of the
third charge, unlawful possession of a handgun. At sentencing,
the judge merged the robbery and firearm counts and imposed a
twenty-year term of imprisonment for the robbery offense,
subject to an eighty-five percent period of parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2. Pursuant to
the parties’ agreement, the court imposed a concurrent three-
year sentence for defendant’s possession of heroin at the time
of his arrest.
Defendant appealed. He raised seven arguments, only one of
which is relevant to this appeal: whether the trial court erred
10
in denying defendant’s motion for a mistrial. Defendant argued,
in the alternative, that the court should have granted a
continuance to allow him to investigate the newly discovered
evidence about Gourgiotis’s cell phone.
The Appellate Division affirmed the conviction. In an
unpublished decision, the panel held that the trial court did
not abuse its discretion when it refused to grant a mistrial.
The panel concluded that the ruling did not lead to an obvious
failure of justice. The Appellate Division explained that a
trial court should not grant a mistrial when there is an
appropriate, alternate course.
The panel rejected defendant’s claim of prejudice on
several grounds. It observed that the newly discovered evidence
“did not create a new theory for the defense to pursue; it
merely bolstered defendant’s third party liability theory.” In
addition, the panel noted that Gourgiotis had canceled her cell-
phone service soon after the robbery and, in any event,
defendant could have subpoenaed the phone records pretrial. The
panel also observed that defendant received relevant documents
about Drew’s arrest, secured a stipulation, cross-examined
Gourgiotis about the discovery of the phone and Drew’s photo,
and argued those issues in summation.
We granted defendant’s petition for certification limited
to “whether the trial court should have granted defendant’s
11
motion for a mistrial” or “granted a continuance to allow
defendant to investigate the newly discovered evidence revealed
during trial.” 217 N.J. 282 (2014).
II.
Defendant maintains he is innocent. He argues that his
conviction is based on a “weak identification” that is not
supported by physical evidence. In the middle of trial, he
received new evidence that he claims is highly relevant and
legitimizes his defense. Rather than have a meaningful
opportunity to investigate the evidence, he submits that he
faced the unenviable task of having to fit it into a trial
already underway. Defendant argues that he was entitled to a
mistrial to prepare a proper third-party liability defense or,
at the very least, a continuance to investigate the new
information further.3
Defendant relies partly on the standard outlined in State
v. Carter, 85 N.J. 300, 314 (1981), in support of his argument
that the newly discovered evidence in this case warrants a new
trial. He insists that the alternative remedies afforded him
3 In a supplemental brief to this Court, defendant states that
he hired a private investigator. He now claims for the first
time that Drew is prepared to exculpate defendant. Defendant
offers no further information on the point, and we do not rely
on his unsupported claim. See, e.g., State v. Nash, 212 N.J.
518, 526-27 (2013) (assessing newly discovered evidence in the
form of sworn or certified statements presented to trial court).
12
during trial were inadequate and that the denial of his motion
for a mistrial resulted in a manifest injustice. He contends
that he has been denied a fair trial and that his right to due
process has been violated. Defendant also firmly disputes that
he waived his request for a mistrial.
The State, represented by the Attorney General, argues that
defendant is not entitled to a new trial. The State claims this
case does not involve “newly discovered evidence” under the case
law because the third-party evidence was investigated during
trial, presented to the jury, and discussed in summation.
The State also contends that defendant’s rights of
confrontation and compulsory process were carefully safeguarded
by the investigation that occurred mid-trial and the curative
actions the trial court took to address the new evidence. In
addition, the State contends that the third-party evidence was
collateral and not sufficiently material to affect the jury’s
verdict. The State also submits that defense counsel waived his
claim of error by acceding to the court’s curative actions; the
State points in particular to counsel’s statement that a
stipulation might avoid a mistrial. For all those reasons, the
State maintains that the extraordinary remedy of a mistrial
should not have been granted, and that the trial court did not
abuse its discretion when it denied the request.
13
III.
A mistrial should only be granted “to prevent an obvious
failure of justice.” State v. Harvey, 151 N.J. 117, 205 (1997),
cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683(2000). Whether an event at trial justifies a mistrial is a
decision “entrusted to the sound discretion of the trial court.”
Ibid. (citing State v. DiRienzo, 53 N.J. 360, 383 (1969)).
Appellate courts “will not disturb a trial court’s ruling on a
motion for a mistrial, absent an abuse of discretion that
results in a manifest injustice.” Jackson, supra, 211 N.J. at
407 (quoting Harvey, supra, 151 N.J. at 205).
To address a motion for a mistrial, trial courts must
consider the unique circumstances of the case. State v. Allah,
170 N.J. 269, 280 (2002); State v. Loyal, 164 N.J. 418, 435-36
(2000). If there is “an appropriate alternative course of
action,” a mistrial is not a proper exercise of discretion.
Allah, supra, 170 N.J. at 281. For example, a curative
instruction, a short adjournment or continuance, or some other
remedy, may provide a viable alternative to a mistrial,
depending on the facts of the case. See State v. Clark, 347
N.J. Super. 497, 509 (App. Div. 2002).
Defendant claims that the delayed disclosure of key
evidence until trial warranted a mistrial. He asserts that the
14
trial court’s denial of his motion compromised his right to a
fair trial.
The Federal and State Constitutions “guarantee criminal
defendants ‘a meaningful opportunity to present a complete
defense.’” State v. Garron, 177 N.J. 147, 168 (2003) (quoting
Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90
L. Ed. 2d 636, 645 (1986); State v. Budis, 125 N.J. 519, 531
(1991)). A defendant has the right “to be confronted with the
witnesses against him” and “to have compulsory process for
obtaining witnesses in his favor.” U.S. Const. amend. VI; N.J.
Const. art. I, ¶ 10. Those basic elements of due process enable
defendants to face and challenge the State’s evidence. See
Budis, supra, 125 N.J. at 531; Garron, supra, 177 N.J. at 169.
The constitutional rights to compulsory process and
confrontation are not absolute, though. State v. Garcia, 195
N.J. 192, 202-03 (2008); Garron, supra, 177 N.J. at 169. They
may be limited by other legitimate public interests, including
“the fair and efficient administration of justice.” Taylor v.
Illinois, 484 U.S. 400, 414-15, 108 S. Ct. 646, 656, 98 L. Ed.
2d 798, 814 (1988); see also Garcia, supra, 195 N.J. at 203.
The Court Rules also assist defendants to mount a complete
defense. Rule 3:13-3 entitles defendants to broad discovery and
imposes an affirmative duty on the State to make timely
disclosure of relevant information. R. 3:13-3(b)(1). The rule
15
also places a continuing duty on the State to provide discovery.
R. 3:13-3(f).
Late discovery can cause unfair surprise and raise due
process concerns. See State v. Zola, 112 N.J. 384, 418 (1988).
When a party fails to comply with its obligations, the discovery
rule expressly states that the court may “grant a continuance or
delay during trial” or “enter such other order as it deems
appropriate.” R. 3:13-3(f). A court’s failure to take
appropriate action to remedy a discovery violation can implicate
the defendant’s right to a fair trial. Clark, supra, 347 N.J.
Super. at 507, 510.
IV.
A.
We turn to two preliminary issues. First, the State
contends that defendant waived the argument he advances on
appeal. We do not find support for that in the record. Defense
counsel twice asked for a mistrial. He did not withdraw or
waive his request by working on a stipulation with the
prosecutor. Counsel instead abided by the court’s rulings and
proceeded accordingly.
Second, defendant’s request for a new trial relies in part
on case law about “newly discovered evidence,” discussed in
Carter, supra, and other decisions of the Court. To obtain a
new trial under that standard, a defendant must show that the
16
new evidence is “(1) material to the issue and not merely
cumulative or impeaching or contradictory; (2) discovered since
the trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably change the
jury’s verdict if a new trial were granted.” Nash, supra, 212
N.J. at 549 (quoting Carter, supra, 85 N.J. at 314).
The test does not control in this case for two reasons.
First, the settled body of law on newly discovered evidence
addresses how to assess evidence acquired by the defense after
trial. Here, defendant focuses on evidence that was disclosed
late but not after trial. Second, the test asks whether
evidence that the jury did not hear would probably change its
verdict. Ibid. In this case, the jury heard about the
discovery of Gourgiotis’s cell phone. Counsel sought a mistrial
to investigate that new information further, rather than be
forced to rely on the State’s rapid investigation in the middle
of trial.
We, therefore, evaluate defendant’s claim of error under
the more traditional framework outlined earlier. We examine
whether it was an abuse of discretion, which resulted in a
manifest injustice, for the trial court to deny defendant’s
mistrial motion. Jackson, supra, 211 N.J. at 407. We assess
the unique facts of the case to make that determination. Allah,
supra, 170 N.J. at 280.
17
B.
Defendant was plainly entitled to timely discovery of the
evidence in question -- law enforcement’s recovery of the
victim’s cell phone in the hands of a third party. The State
concedes that it was required to disclose that information
before trial. See R. 3:13-3(b)(1). Defendant does not allege
that the prosecution team acted in bad faith, and nothing in the
record suggests otherwise. The assistant prosecutor disclosed
the evidence shortly after he learned about it.
The evidence went to the heart of the defense. Defendant
maintained at trial that someone else committed the robbery.
The fact that law enforcement found the victim’s stolen cell
phone when they arrested someone other than defendant is
directly related to the defense of third-party guilt.
The trial court took steps to try to remedy the late
disclosure. Of particular note, it allowed defense counsel a
second opportunity to cross-examine the victim after the State
obtained photographs of Drew. The parties also reached
agreement on a stipulation about the new evidence, which
defendant stressed in summation. That said, once the court
denied the request for a mistrial and directed that the trial
continue, defendant did not have the ability to investigate the
important, new material. Instead, he had to rely on piecemeal
information the State uncovered as the trial unfolded.
18
That information left several unanswered questions. How
did Drew acquire the phone? Who gave it to him? Was it used in
the minutes after the robbery to place calls? Was it used in
some other way? Answers to those questions could have bolstered
the defense, but it was not possible to investigate them in the
middle of a short trial without granting an adjournment -- or a
mistrial. Although defendant knew early on that the victim’s
phone had been stolen, he had no basis to know of Drew’s
involvement before trial began and no ability to examine the
actual phone.
Defendant asked only for a mistrial. A trial court, in its
discretion, has wide latitude to order a brief continuance and
give defendant time to investigate key evidence that surfaces
during trial. See, e.g., R. 3:13-3(f).
To determine whether a mistrial was needed “to prevent an
obvious failure of justice,” Harvey, supra, 151 N.J. at 205, we
also consider the nature and strength of the evidence presented.
The evidence in this case was not overwhelming. It rested on
Gourgiotis’s testimony, in particular, her identification of
defendant.
Certain undisputed facts raise questions about that
identification. First, Gourgiotis saw her assailant only for a
brief amount of time. She testified that the entire incident
lasted ten seconds and that she looked at the assailant for only
19
about four seconds. Both case law and common sense tell us that
“the opportunity of the witness to view the criminal at the time
of the crime” affects the reliability of an identification.
State v. Madison, 109 N.J. 223, 239-40 (1988) (quoting Manson v.
Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d
140, 154 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199-200,
93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972))). Second, the
victim and defendant are of different races. For many years,
this Court has recognized that witnesses may have a more
difficult time when they identify a person of a different race,
see State v. Cromedy, 158 N.J. 112, 120-23 (1999), and that
cross-racial identifications require careful scrutiny, id. at
131; see also State v. Henderson, 208 N.J. 208, 240, 267 (2011).
Gourgiotis offered some evidence to corroborate the
identification: her testimony that the black Oldsmobile Aurora
-- in which defendant was a passenger on July 3 -- “looked like”
the car involved in the robbery. But defendant possessed none
of the stolen items when the police stopped him. Aside from
Gourgiotis’s purse, found empty on the street, the most
important piece of physical evidence stolen from the victim --
her cell phone -- inculpated someone other than defendant. The
State Police recovered it from Drew.
Defendant moved for a mistrial when the evidence came to
light in the midst of a fast-paced, short trial. Under the
20
unusual facts before us, we find it was an abuse of discretion
for the trial court to deny the motion. To prevent a manifest
injustice, we reverse the part of defendant’s conviction that is
based on the jury’s verdict and order a new trial. Defendant’s
conviction for possession of a controlled dangerous substance is
not affected by this ruling.
We appreciate the challenges that trial court judges face
as they attempt to manage a crowded docket. We do not lightly
question their discretionary authority to determine the pace of
a trial and decide when a brief adjournment is warranted. Our
decision instead turns on the specific facts of this case: the
materiality of the evidence that first surfaced in the middle of
the short trial, defendant’s inability to investigate it without
additional time, and the strength of the evidence against
defendant.
V.
For the reasons set forth above, we reverse the judgment of
the Appellate Division and order a new trial for the charges of
armed robbery (count one) and possession of a firearm for an
unlawful purpose (count two). Defendant’s conviction for
possession of a controlled dangerous substance (count four)
remains intact.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON join in
CHIEF JUSTICE RABNER’S opinion. JUSTICE FERNANDEZ-VINA and
JUDGE CUFF (temporarily assigned) did not participate.
21
SUPREME COURT OF NEW JERSEY
NO. A-62 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIUS SMITH,
Defendant-Appellant.
DECIDED January 13, 2016
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) --------------------
TOTALS 5