State v. Carter

Decision Date03 March 1981
Citation85 N.J. 300,426 A.2d 501
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Rubin CARTER, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. John ARTIS, Defendant-Appellant.
CourtNew Jersey Supreme Court

Myron Beldock and Leon Friedman, New York City, members of the New York Bar, for defendant-appellant Carter (Ronald J. Busch, New Brunswick, Myron Beldock, Leon Friedman, Charles E. Carter and James I. Meyerson, New York City, members of the New York bar, attorneys).

Lewis M. Steel, New York City, a member of the New York Bar, for defendant-appellant Artis (Louis S. Raveson, Jeffrey E. Fogel, Leon Friedman, Charles E. Carter and James I. Meyerson, New York City, attorneys).

John P. Goceljak and Ronald G. Marmo, Asst. Prosecutors, for plaintiff-respondent (Joseph A. Falcone, Passaic County Prosecutor, attorney).

PER CURIAM.

In challenging their murder convictions defendants present numerous claims of error. The one that presently engages the Court's attention focuses on the interpretation and use of a polygraph examination report concerning a prosecution witness. In order that we may have a more complete record presented for our considered deliberation of this issue, we remand the cause to the trial court for further proceedings, to be conducted on an expedited basis. We retain jurisdiction to the end that our final decision may be made upon receipt of the trial court's determination on the questions discussed below.

I

The protracted history of this case need be recited only briefly. Defendants, Rubin Carter and John Artis, were charged with homicide of three people in the Lafayette Bar and Grill in Paterson on June 17, 1966. They were convicted in May 1967 on three counts of first degree murder and sentenced to life terms. The judgments of conviction were affirmed by this Court, State v. Carter, 54 N.J. 436, 255 A.2d 746 (1969), and the United States Supreme Court denied certiorari, Carter v. New Jersey, 397 U.S. 948, 90 S.Ct. 969, 25 L.Ed.2d 130 (1969).

In 1974 defendants sought a new trial based on the recantation of trial testimony by the State's two key identification witnesses, Alfred Bello and Arthur Bradley. In addition defendants argued that the prosecution had withheld evidence of promises of leniency made to Bello. At the hearing on defendant's motion (recantation hearing) both witnesses repudiated their identification testimony given at trial.

The trial court, after conducting an evidentiary hearing, denied both the motion for a new trial, State v. Carter, 136 N.J.Super. 271, 345 A.2d 808 (Cty.Ct. 1974), and subsequent motions for reconsideration, State v. Carter, 136 N.J.Super. 596, 347 A.2d 383 (Cty.Ct. 1975). After certifying the case directly this Court vacated the judgments of conviction and ordered a new trial. State v. Carter, 69 N.J. 420, 354 A.2d 627 (1976). Although we refused to interfere with the trial court's findings that the recantation testimony was "patently untrue" and "unbelievable," id. at 428, 354 A.2d 627, we nevertheless concluded that the State had improperly withheld from defendants exculpatory evidence consisting of proof that promises of protection and favorable treatment had been made to both Bello and Bradley in 1966. Id. at 430-33, 354 A.2d 627.

Several months before the second trial in November and December 1976, Bello returned to his 1967 trial testimony, in effect recanting his recantation of the circumstances surrounding which, particularly the role of polygraphic testing, more below. At the retrial Bello testified consistently with the version he had given at the first trial and again furnished critical identification evidence. Neither the State nor the defense called Bradley as a witness. The jury again convicted defendants of first degree murder and judgments were entered in February 1977. The court sentenced Carter to two consecutive life sentences and one concurrent life sentence. Artis was sentenced to life, with two concurrent life sentences. The Appellate Division, in an unreported opinion, affirmed the judgments of conviction. We granted certification, 84 N.J. 384, 420 A.2d 314 (1980).

II

In the second trial, as in the first, Bello's identification testimony constituted a prominent part of the State's case. The version he gave in both proceedings came to be known as the "on-the-street" story. According to this account Bello and Bradley were in the vicinity of the Lafayette Bar and Grill, Paterson, at about 2:30 A.M. on June 17, 1966 bent on effecting a breaking and entry at the Ace Sheet Metal Company, located at the other end of the block from the tavern. While Bradley was attempting to gain entrance into the building, Bello maintained a lookout. As related in our earlier opinions in the case,

Bello ran out of cigarettes and was walking to the tavern to buy some when he heard the shots. As he neared the tavern, two men, Negroes, came toward him, one with a shotgun and the other with a pistol. They were talking loudly and laughing. When Bello realized they were not detectives, he took off and ducked into an alleyway. Presently a white car passed by. Bello recognized it as a 1966 Dodge and noted it had New York license plates. Bello entered the tavern, and seeing the dead and the dying, he went to the cash register to obtain a dime to call the police. The sight of money was too much for Bello who, explaining he was a thief, admitted he scooped some bills from the register. He left the tavern and handed the money to Bradley who, having heard the shots, had started toward the scene. Bello returned to the tavern. He called, or had already called, the police, and when they arrived, he flagged them down.

Both Carter and Artis were questioned early that morning. Both denied involvement. A detective was permitted to testify to each defendant's account of where he had been that night. * * * Both defendants were released that morning. On June 29, twelve days later, both Artis and Carter testified voluntarily before the Grand Jury after signing appropriate waivers.

Defendants were not arrested again until October, when Bello (,) * * * involved in other criminal charges, provided evidence directly incriminating the defendants. Bello said it was Carter who carried the shotgun and Artis who held the pistol; that he recognized both at once when he was confronted by them outside the tavern, and that he had withheld this information because of his own criminal activities that night and his fear of retaliation. (69 N.J. at 425-26, 354 A.2d 627 (quoting 54 N.J. at 440-41, 255 A.2d 746).)

Between 1974 and 1976 Bello offered at least three new versions of this account of the critical events of June 17, 1966. His first recorded deviation came in 1974, some seven years after the first trial, when he gave a statement to an investigator for the Office of the Public Defender. That statement formed the basis for the recantation proceedings, at which Bello repudiated his identification of defendants made at the trial. He testified that although he was indeed "present outside the Lafayette Grill when the shooting took place" and "saw two black men flee the scene," he did not see their faces and "could not identify them." State v. Carter, supra, 69 N.J. at 426-27, 354 A.2d 627. He admitted having "lied at the trial when he identified the defendants as the two men." Id. at 427, 354 A.2d 627.

Thereafter, two additional variants of Bello's previous renditions surfaced, so at odds with his earlier "on-the-street" versions as to attract the distinguishing label of the "in-the-bar" story. These versions came to light in two statements given in the latter part of 1975 to Assemblyman Hawkins, who was investigating the case on behalf of Governor Byrne in connection with an application for pardon, and in testimony before an Essex County Grand Jury in December 1975. A common ingredient of the "in-the-bar" narrative was that Bello was inside the tavern when two black men not Carter and Artis entered through the side door and began shooting; Bello was able to get out of the bar by being "shielded" by a woman who was shot; and as he ran around the corner, he saw Carter and Artis on the sidewalk. In his first statement to Hawkins, Bello insisted that Carter and Artis were unarmed when he saw them on the street. In a second statement to Hawkins and in testimony before the Essex County Grand Jury he modified this account to explain that although defendants were not the triggermen, they were in fact armed. In June 1976 Bello was interviewed by two prosecutor's detectives and repeated essentially the same set of facts he had conveyed to the Grand Jury.

III

Thus it was that as the second trial approached, the State found itself with its key identification witness hardly a model of rectitude to begin with in a condition of disarray. It therefore sought to evaluate the credibility of Bello's testimony by subjecting him to a polygraph examination on August 7, 1976. The test was conducted by Leonard H. Harrelson of Leonarde Keeler, Inc., a polygraph institute in Chicago. In arranging for the examination Prosecutor Humphreys wrote to Professor Harrelson, emphasizing that the State's interest was only in "ascertaining the truth and prosecuting the guilty, not the innocent," and assuring the polygraphist that the prosecution had "absolutely no interest or bias in the outcome of these tests, or this case, other than to see that the truth is revealed, justice is done and the chips fall where they may."

Professor Harrelson submitted a written report dated August 24, 1976. A copy was furnished to defense counsel on September 14, 1976. The report summarizes the examination and concludes:

After careful analysis of this subject's polygrams, it is the opinion of the examiner that his 1966 (sic: 1967) testimony at trial was true, and that the statement recanting his original statement is not true.

However, this conclusion is...

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