State v. Johnson

• Decision Date: 26 July 1985
• Citation: 495 A.2d 1367,203 N.J.Super. 127
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Randall JOHNSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 127

203 N.J.Super. 127

495 A.2d 1367

STATE of New Jersey, Plaintiff-Respondent, v. Randall JOHNSON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 12, 1985.

Decided July 26, 1985.

Audrey Bomse, Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Acting Public Defender, attorney).

Mildred Vallerini Spiller, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney).

Before Judges MATTHEWS, FURMAN and HAVEY.

PER CURIAM.

Defendant was tried before a jury on charges of aggravated assault ( N.J.S.A. 2C:12-1 b(1), count one); possession of a handgun without a permit ( N.J.S.A. 2C:39-5 b, count two); possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4, count three), and aggravated assault with a deadly weapon ( N.J.S.A. 2C:12-1 b(2), count four). The jury returned a verdict of guilty on all counts, and defendant was sentenced to a custodial term of ten years on count one, a custodial term of five years on count two, and a custodial term of ten years with a five year period of parole ineligibility on count three. The conviction on count four was vacated as it merged into count one. All sentences were ordered to run concurrently with each other and to a sentence defendant was already serving.

Defendant contends that the police did not adequately investigate and gather evidence in this case, and as a result, he was deprived of a fair trial. We are asked to extend the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), so as to impose upon the police a duty to investigate "vigorously" every criminal case.

In Brady v. Maryland, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused violates due process whether the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. "Materiality" has been held to be more than the mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial. United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).

Defendant, basing his argument on notions of due process, argues that the rule of Brady should be extended to require the police to investigate and gather evidence thoroughly. Since a trial is a truth-finding proceeding and all relevant facts must be presented, he asserts that the police must investigate every conceivable aspect of a case to a defendant's satisfaction.

We agree that the objective of a trial is to ascertain the truth. Every conceivable fact relating to the case, however, need not be introduced. Under our system, counsel for each side is at liberty to decide what evidence to adduce at trial. Defendants themselves often do not testify or present certain witnesses if they feel it would be detrimental, although such testimony undoubtedly would be helpful in reaching the truth.

Brady cannot be read to be so broad as to impose upon the police a duty to investigate. The rule expressed is limited to those instances where the prosecution has information in its possession.

In United States v. Weisz, 718 F.2d 413 (D.C.Cir.1983), a somewhat analogous argument was raised. There the government, during its Abscam investigation, recorded some conversations with the Abscam targets but not others. Defendant argued that the government's failure to record or in some manner memorialize all conversations during the investigation deprived him of a fair trial and violated principles of due process. Weiz argued that the government had a duty to gather and maintain all the evidence that it could. It was held that the government was under no duty to create evidence. 718 F.2d at 436. See also United States v. Muzychka, 725 F.2d 1061 (3 Cir.1984). Similarly, in United States v. Butler, 499 F.2d 1006 (D.C.Cir.1974), the defendant sought to discover the results of a blood alcohol test claimed to have been performed on a sample of his urine taken by the police. Although the government acknowledged that the urine sample had been taken, it was unable to find any record indicating that the blood alcohol test had been performed. The case was remanded for an evidentiary hearing to determine whether the test had been performed. The Court held that if a test was performed, the government was required to preserve the results but if no test was made, that would end the matter. 725 F.2d at 1007-1008. The Court clearly concluded that the government was under no obligation to perform a blood alcohol test and create the evidence sought by the defendant.

In this case, defendant contends that the police investigation was inadequate because the police failed to gather the names and statements of supposed witnesses and also failed to lift fingerprints from the gun that was found and later determined to be defendant's weapon. The first allegation is completely contrary to fact, and the second, without merit. Before the gun was turned over to police, a third party had handled it. Therefore, a test for inculpatory fingerprints would have been futile. In addition, no test could be performed to match the weapon with the bullet fired since the bullet is lodged in the victim's chest and cannot be removed. In any event, the evidence presented at trial overwhelmingly proved defendant's guilt beyond a reasonable doubt.

Defendant also contends that the jury verdict was against the weight of the evidence and therefore should be set aside. Defendant is precluded from raising this issue on appeal since he failed to make a motion for a new trial in the trial court on these grounds. R. 2:10-1; State v. McNair, 60 N.J. 8, 9, 285 A.2d 553 (1972); State v. Kyles, 132 N.J.Super. 397, 401, 334 A.2d 44 (App.Div.1975).

Notwithstanding his failure to comply with R. 2:10-1, defendant contends that although he did not move for a new trial, he preserved the issue by moving for a judgment of acquittal under R. 3:18-1 at the close of the State's case. A motion made at the close of the State's case is controlled by a different standard than a motion for a new trial. On a motion for a judgment of acquittal, the standard is whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-459, 236 A.2d 385 (1967); State v.Kluber, 130 N.J.Super. 336, 341-342, 327 A.2d 232 (App.Div.1974). The test on a motion for a new trial is whether there was a manifest denial of justice. See State v. Rodriguez, 141 N.J.Super. 7, 357 A.2d 59 (App.Div.1976), certif. den. 71 N.J. 495, 366 A.2d 651 (1976). Simply put, the trial court was not presented with the opportunity to decide the new trial issue.

In any event, a jury verdict will not be set aside unless it clearly and convincingly appears that there was a miscarriage of justice under the law. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-374, 322 A.2d 809 (1974); Dolson v. Anastasia, 55 N.J. 2, 7, 258 A.2d 706 (1969). The responsibility for determining whether the guilt of the accused has been proved beyond a reasonable doubt rests with the jury. State v. Haines, 18 N.J. 550, 565, 115 A.2d 24 (1955). Appellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function. State v. Butler, 32 N.J. 166, 195, 160 A.2d 8 (1960). A reviewing court should not disturb the findings of a jury merely because it might have found otherwise upon the same evidence. State v. Hodgson, 44 N.J. 151, 162-163, 207 A.2d 542 (1965), cert. den. 384 U.S. 1021 86 S.Ct. 1929, 16 L.Ed.2d 1022 (1966); State v. Welsch, 29 N.J. 152, 155-156, 148 A.2d 313 (1959).

Here, the evidence overwhelmingly supports a finding of guilt. The victim of the crime positively identified defendant as the person who shot him. Moreover, Brian Walker, an eyewitness to the shooting, also positively identified defendant as the person who fired the gun. Further, the victim testified that defendant called him while he was in the hospital and admitted his guilt. We are satisfied that the record contains overwhelming evidence of defendant's guilt.

Defendant further contends that his convictions for counts two and three, possession of a handgun without a permit and possession of a weapon for an unlawful purpose should have merged with his conviction for count one, aggravated assault.

The required judicial analysis in merger issues has been codified in N.J.S.A. 2C:1-8 which provides that a defendant may not be convicted of two offenses if one is a lesser included offense of the other. N.J.S.A. 2C:1-8 a(1). See State v. Mirault, 92 N.J. 492, 502 n. 10, 457 A.2d 455 (1983). The focus under this analysis is on the statutory elements. Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If each sta...