State v. Hogan

Citation676 A.2d 533,144 N.J. 216
Parties, 64 USLW 2770, 49 A.L.R.5th 863 STATE of New Jersey, Plaintiff-Appellant, v. Benny HOGAN, Jr., Defendant-Respondent.
Decision Date23 May 1996
CourtUnited States State Supreme Court (New Jersey)

Timothy J. Moriarty, Assistant County Prosecutor, for appellant (Carmen Messano, Prosecutor of Hudson County, attorney).

Ruth Bove Carlucci, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney).

Marcy H. Geraci, Deputy Attorney General, for amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

The opinion of the Court was delivered by


This case presents issues concerning the existence and scope of a prosecutor's duty to present exculpatory evidence to a grand jury. After a jury trial, defendant was convicted of armed robbery, robbery, armed burglary, burglary, and possession of a weapon for an unlawful purpose. The Appellate Division reversed defendant's convictions, concluding that the trial court should have dismissed the indictment because the prosecutor had failed to present to the grand jury evidence that the State's principal witness had retracted her complaint against defendant. State v. Hogan, 281 N.J.Super. 285, 299, 657 A.2d 462 (1995). We granted the State's petition for certification, 142 N.J. 458, 663 A.2d 1364 (1995), and now reverse.


On the night of August 29, 1989, Elnora Daye was the victim of a robbery. At trial, the State contended that defendant, Benny Hogan, Jr., was one of the two men who had broken into Daye's Jersey City house and had stolen Daye's credit cards and $290 in cash.

Daye's eyewitness testimony was the foundation of the State's case. She testified that at 11:30 on the night in question, she and her four-year-old daughter were asleep in their upstairs bedrooms when Daye was awakened by noise coming from the first floor. Daye ignored the noise at first, but when she heard someone shatter the glass of a window pane, she went into her daughter's room and woke up her daughter. Daye and her daughter then sat on the top step of the stairs that separated the two stories in the house and listened to the noises made by intruders who had entered the house and were walking around in the darkness of the first floor.

Eventually, one of the perpetrators turned on the first-floor lights, and Daye saw two men standing at the bottom of the stairs. One of the men walked up the stairs while the second perpetrator, identified at trial as defendant, instructed Daye to make it easier on herself by handing over her valuables. When Daye responded that she had no valuables, defendant repeated his demand. At that point, defendant's accomplice, who had reached the top of the stairs, pulled out a gun and placed it to the head of Daye's daughter. Daye told the men that whatever she had of value was in her pocketbook in her bedroom. Defendant walked up the stairs and entered the bedroom. He emerged moments later, and the two perpetrators left the house. As they walked out, Daye warned them that she would remember their faces.

Daye went to the window to watch the perpetrators leave her property. Defendant drove off in a car that was parked to the rear of Daye's driveway. Because of street lights in the area, Daye was able to discern the license-plate number of the car. She wrote the number on a piece of paper but subsequently lost the paper. Defendant's accomplice did not enter the car with defendant, electing instead to leave the area on foot.

Overcome with fear, Daye returned with her daughter to their seat on the top step of the stairs. They remained there awake all night, Daye clutching a knife in her hands. Daye subsequently went through her belongings and determined that defendant had stolen credit cards and approximately $290 from her pocketbook.

The day after the robbery, Daye was standing in front of her house talking to a friend when she saw defendant's car across the street. Defendant was sitting in the car. Daye asked her friend if he knew the man in the car and he answered that he had met the man in prison, and that his name was Benny Hogan. Daye's friend then approached defendant and began talking to him. Daye accompanied her friend and stared at defendant while defendant and Daye's friend spoke. Defendant soon interrupted the conversation and asked Daye why she was staring at him. When Daye accused defendant of having robbed her the previous night, defendant denied the allegation. Daye told defendant that she remembered his car and had recorded its license-plate number on a piece of paper. In response, defendant claimed that he had loaned his car to his cousin the previous night, and that he would not have done so if he had known that his cousin was planning on robbing someone. However, Daye, who recognized a distinctive scar on the side of defendant's face, remained convinced that defendant was one of the men who had robbed her.

After her conversation with defendant, Daye went back into her house and telephoned the police. When the police arrived, Daye told them of the robbery and of her recent discussion with defendant. Daye then accompanied the officers to the police station, where she picked defendant's picture out of a book of photographs. Jersey City police officers arrested defendant the following day. Defendant's accomplice was never apprehended.

On January 12, 1990, defendant was indicted on one count of robbery and one count of burglary. Because defendant was on parole after having recently been released from prison, the Parole Board began taking steps to revoke defendant's parole and to require him to finish the sentence he had been serving for armed robbery, robbery, and possession of controlled dangerous substances.

Shortly after defendant was indicted, Daye communicated with the prosecutor's office and told an investigator that she had been threatened and harassed by defendant and his family. Then, on May 10, 1990, defendant's wife escorted Daye to the Public Defender's Office, where Daye recanted her complaint against defendant. In a taped statement, Daye denied seeing defendant in her house on the night she was robbed. When the assistant deputy public defender asked her why she originally had accused defendant, Daye explained, "Because everybody was telling me about Benny, saying the type of person he was, what he was capable of doing so it made me scared." Daye stated that she now believed defendant's claim that he had not robbed Daye and that he had loaned his car to someone else on the night of the robbery. Daye signed a largely pre-printed affidavit that stated that Daye would not object to the dismissal of the criminal charges against defendant. On the bottom of the affidavit Daye wrote, "Reason: I realize now that Mr. Hogan is not the person who committed the crimes against me."

Following Daye's recantation, two investigators from the Hudson County Prosecutor's Office met with Daye to ascertain why she had changed her story. Under oath, Daye stated that after she had filed her complaint against defendant, defendant's daughter contacted Daye and warned her, "If something happen[s] to my father then you and your daughter will get killed." Daye also had been contacted by defendant's mother, who left three notes for Daye under her door requesting to speak with her. When Daye called Mrs. Hogan, she asked Daye if she was going to proceed with the prosecution of her son, and offered Daye money to retract her complaint.

Daye explained to the investigators that on the day of the recantation, defendant's wife came to Daye's house and asked Daye to go with her to talk to a lawyer about defendant's case. Daye agreed because she was afraid of what defendant and his family might do to her. She feared that if she did not cooperate she would become "dead meat." In her statement to the investigators Daye insisted that her recantation was a lie, and that she had told defendant's wife and lawyer what they wanted to hear because Daye was afraid for herself and her child.

Daye later testified at a hearing held to determine whether defendant's parole should be revoked on the basis of the pending burglary and robbery indictment. At that hearing Daye re-affirmed her original allegations against defendant and stated that she had recanted those allegations only because of her fear of defendant and his family. She explained that she was "very worried about testifying in court and fear[ed] that someone else w[ould] come after her." The hearing officer found Daye's testimony to be credible. He noted that Daye "appeared to be outwardly frightened and began to sob and cry when reminded that she would have to testify in the presence of [defendant] in court." (This Court previously granted the State's motion to supplement the record with, among other items, the transcripts of the parole revocation hearing and Daye's post-recantation statement to the investigators from the prosecutor's office.)

A new assistant prosecutor, assigned to the case in mid-1990, decided to re-present the case to the grand jury to secure additional charges against defendant relating to the alleged robbery. On learning that the case would be returning to the grand jury, defense counsel asked the prosecutor to inform the grand jury of Daye's recantation of her original complaint. The prosecutor rejected that request and secured a second indictment against defendant on August 15, 1990. That indictment charged defendant with armed robbery, contrary to N.J.S.A. 2C:15-1 (Count 1); robbery, contrary to N.J.S.A. 2C:15-1 (Count 2); armed burglary, contrary to N.J.S.A. 2C:18-2 (Count 3); burglary, contrary to N.J.S.A. 2C:18-2 (Count 4); aggravated assault, contrary to N.J.S.A. 2C:12-1b (Count 5); unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (Count 6); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count 7). The only witness to appear before...

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