State v. Cahill

• Decision Date: 23 October 1973
• Citation: 311 A.2d 760,125 N.J.Super. 492
• Parties: STATE of New Jersey, Plaintiff, v. William CAHILL, Defendant.
• Court: New Jersey Superior Court

Page 492

125 N.J.Super. 492

311 A.2d 760

STATE of New Jersey, Plaintiff, v. William CAHILL, Defendant.

Superior Court of New Jersey, Law Division,

Criminal.

Oct. 23, 1973.

Richard Pizzi, Asst. Prosecutor, for plaintiff.

McGlynn, Ruprecht & Graham, Newark, for defendant (Louis A. Ruprecht, Newark, of counsel and on the brief).

TRIARSI, J.S.C.

This is a Motion for a new trial pursuant to R.3:20--1 on the grounds that the verdict was against the weight of the evidence and that there was a manifest denial of justice under the law. Defendant was charged in a four-count Indictment with:

1. Assault with an offensive weapon--2A:90--3

2. Illegal possession of a weapon--2A:151--41

3. Extortion--2A:105--4

4. Extortion while armed--2A:151--5

The case was tried in the Superior Court, Union County and resulted in a jury verdict of guilty as to simple assault and extortion. Count 2, illegal possession of a weapon, was dismissed on motion of the prosecutor and was not considered by the jury. The defendant was found not guilty on the other counts.

The principal thrust of defendant's argument is that the State knowingly failed to correct false statements made by one of its witnesses by neglecting to bring to the attention of the jury a prior inconsistent and exculpatory statement by said witness, and further, by failing to correct certain statements made by the said witness on cross-examination that were known to the prosecutor to be false.

This is not the typical use of perjured testimony type case where a prosecutor actively or negligently fails to disclose information or prior dealings to defense counsel in an attempt to obtain a conviction. In fact, the record discloses that the prosecutor had made every disclosure required of the State in a criminal case as soon as the information became known to him. This discovery was provided despite the fact that no discovery motion was made pursuant to R. 3:13--3(a), (b) and (c) by defense counsel and no order of discovery was in effect at any time during these proceedings.

A brief review of the pertinent facts discloses that defendant and one Battifarano were originally codefendants however, on the second day of trial Battifarano pled guilty to an assault with an offensive weapon charge. The prosecutor and defense counsel stipulated that sometime immediately prior to this plea, Battifarano, his attorney Mr. Deer, and the prosecutor engaged in plea bargaining at which time Battifarano gave the prosecutor a statement that 'Mr. Cahill did not have a gun while perpetrating the alleged offense.' Subsequently, Deer met with defendant and defense counsel and informed them of Battifarano's statement concerning the absence of a gun during the perpetration of the alleged incident. It was during this recess that the prosecutor decided to withdraw the plea bargain offer, stating that he did not believe Battifarano's story, and he so informed not only Deer, Battifarano's attorney, but also defense counsel herein. The plea offer was subsequently reinstated without its being contingent upon Battifarano testifying in the case as previously stipulated, and Battifarano entered a plea of guilty to the assault with an offensive weapon charge.

On July 2, 1973 Battifarano testified on behalf of the State and on direct examination stated that defendant had used a gun in perpetrating the alleged offense. The prosecutor permitted this statement to rest unchallenged before the jury and did not attempt to correct, dilute or effect the same. He did not attempt or bring to the attention of the witness before the jury the prior inconsistent exculpatory statement. Additionally, certain testimony in the same vein elicited during cross-examination of the witness that is hereafter set forth, was permitted to rest unmolested, thus giving rise to the crucial question on this motion.

The pertinent facts of the Battifarano cross-examination above referred to are:

Q. After you decided to enter your plea of guilty to assault with an offensive weapon, did you have a discussion with your attorney as to whether or not you were going to be testifying in this case?

A. Yes.

Q. In that discussion with your attorney, was the subject of whether or not there was a gun on the premises mentioned?

A. No.

Q. Never?

A. No.

Q. Before your testimony today, have you ever told anybody that there was no gun on the premises that evening?

A. I didn't tell anybody there was no gun on the premises.

Q. Before your testimony today, have you ever told anybody that it was your intention to testify that there was no gun on the premises?

A. No.

Q. You've never said that?

A. No.

The issue herein is whether the prosecutor is under an affirmative duty to disclose to the court and jury any prior inconsistent and exculpatory statement of his own witness, and further, whether the prosecutor is under an affirmative duty to correct false statements made by his own witness before a jury where both counsel are aware of the falsity.

It is uncontrovertedly the law in New Jersey and all the states that the suppression of exculpatory evidence or use of perjured testimony by the State, whether willful or merely negligent, deprives the defendant of a fair trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

This principle--that the State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction--implicit in any concept of ordered liberty, does not cease to apply, merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); State v. Taylor, 49 N.J. 440, 453, 231 A.2d 212 (1967).

In order to be entitled to relief on the ground that false or perjured testimony was used in obtaining a conviction, a defendant must establish that (1) the testimony was false or perjured; (2) it was material to the conviction, and (3) the prosecutor either participated in or had knowledge of the falsity. Jackson v. United States, 338 F.Supp. 7 (D.C.N.J.1971).

There can be no denial of the fact that the witness, prior to his damaging testimony, gave the prosecutor an exculpatory statement; further, there can be no denial that during his cross-examination the witness testified falsely to a highly material fact; and still further, there can be no denial that the prosecutor did not attempt to correct these matters before the jury. This action or inaction was highly prejudicial to the defendant for it not only pertained directly to the credibility of the witness but also to...