State v. Landano

• Decision Date: 25 February 1994
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Vincent James LANDANO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

271 N.J.Super. 1

637 A.2d 1270

STATE of New Jersey, Plaintiff-Respondent, v. Vincent James LANDANO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 18, 1994.

Decided Feb. 25, 1994.

Neil Mullin, West Orange, argued the cause for appellant (Smith, Mullin & Kiernan, attorneys; Mr. Mullin, of counsel and on the brief).

Donald L. Gardner, Assistant Prosecutor, argued the cause for respondent (Carmen Messano, Hudson County Prosecutor, attorney Mr. Gardner and Jeffrey S. Ziegelheim, Assistant Prosecutor, on the brief).

Before Judges BAIME, CONLEY and VILLANUEVA.

The opinion of the court was delivered by

BAIME, J.A.D.

On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearny, New Jersey. One of the robbers shot and killed a Newark police officer, John Snow. Defendant Vincent James Landano and three other individuals were subsequently arrested. Tried alone, defendant was convicted of murder and other related offenses. Over the next sixteen years, defendant repeatedly challenged his convictions in both the State and Federal courts. In these proceedings, defendant contended that his convictions were tainted by prosecutorial misconduct. This appeal is from the latest denial of defendant's petition for post-conviction relief.

We find that the prosecutor violated defendant's constitutional rights by withholding exculpatory evidence. Although we will examine this evidence in greater detail later in our opinion, we briefly describe it here. First, the State suppressed evidence that its principal identification witness was under investigation for having ties with organized crime and was suspected of having engaged in loansharking and money laundering, and further, that on the very day his earlier tentative identification of defendant became positive, he was questioned about the possibility he had paid illegal gratuities to Officer Snow. Second, the State suppressed evidence that its chief witness, who pleaded non vult and testified against defendant, had been involved in a longstanding criminal venture with others and that they had committed numerous armed robberies similar to the Hi-Way Check Cashing Service robbery. Newly discovered evidence, including fingerprints and ballistics tests, disclosed that the witness and his closest associate had committed an earlier armed robbery in which the gun used to kill Officer Snow had been fired. Third, the State suppressed evidence that the only eyewitness to the shooting rejected defendant's photograph because the perpetrator had "curlier" hair than Landano. And fourth, another witness who had possibly seen the suspects before the robbery and killing also rejected defendant's photograph because the individual she had met was "younger" than Landano.

We conclude that there is a reasonable probability the outcome of the trial would have been different had this evidence been disclosed to the defense. This constitutional violation undermines our confidence in the jury's verdict and warrants a reversal of defendant's convictions.

I.

At the outset, we note the tortuous path this case has taken. In order to understand the issues raised here, it is necessary to distinguish the evidence presented at trial from that developed in various post-conviction proceedings.

A. THE TRIAL

The Hudson County grand jury returned a multi-count indictment, charging defendant, Allen Roller, Victor Forni and Bruce Reen with felony murder, armed robbery, breaking and entering with intent to steal, receiving a stolen motor vehicle, possession of a firearm and conspiracy. David Lee Clyburn was named as an unindicted co-conspirator. The trial of Forni and Reen was severed from that of defendant and Roller. ¹ Roller pleaded non vult to felony murder. He testified at defendant's trial, as did Clyburn. The State's theory was that Roller and Forni planned the robbery and the killing of John Snow, and recruited defendant for this purpose. The prosecutor contended that only defendant and Roller actually participated in the robbery, and that defendant fired the fatal shots.

At trial, Clyburn testified that he, Roller and Forni had a long history of engaging in armed robberies. Roller generally supplied the weapons, while Forni usually served as the "get-away driver" and "back-up." Roller often recruited African-Americans to assist in these crimes. According to Clyburn, defendant and Forni had a very close relationship. Clyburn testified that they were very "tight" and each had a great deal of "respect" for the other.

Clyburn recounted that in July 1976 Roller and Forni conceived the plan of robbing "a check cashing place in [New] Jersey." Clyburn testified that Forni was the "chief coordinator" in this endeavor. They discussed the plan at a meeting early in the summer in Staten Island at the clubhouse of "the Breed," a motorcycle gang to which Roller and Bruce Reen belonged. Roller and Forni told Clyburn his role was to "take care" of a police officer who generally delivered large amounts of cash, and that an unnamed "white guy" would accompany him and "hit" a security guard located inside the check cashing trailer. Forni then drove Roller and Clyburn to Jacobus Avenue in South Kearny to view the site. According to Clyburn, they returned to the area the following week in order to make a "dry run" and to determine the police officer's schedule in delivering the money. The three men waited in the parking lot of a nearby tavern until the police car arrived. They observed the officer deliver the money and then departed. A third visit apparently occurred toward the end of July for the same purpose. Clyburn ultimately decided to withdraw from the scheme because he did not want to kill a police officer and feared that his confederates might "turn on" him because he was the only black involved.

Roller's version of the events preceding the robbery deviated from that of Clyburn in various particulars. He denied engaging in other robberies with Clyburn or Forni. Roller conceded that he had lent Clyburn a gun and had received a share of the proceeds, but claimed he did not directly participate in these robberies. Roller's testimony regarding the planning of the robbery of the Hi-Way Check Cashing Service also conflicted with that of Clyburn. Roller denied telling Clyburn he would supply a "white guy" to assist him with the robbery. He also claimed that the three men visited the scene on only one occasion. According to Roller, he asked Forni if he would be interested in participating in the robbery. Roller testified that Forni wanted "no part in it," but offered to recruit a person named "Jimmy." According to Roller, two days before the robbery, he, Forni and Reen went to defendant's apartment in Staten Island to discuss the plan. Defendant allegedly agreed to participate. On the next day, Forni allegedly drove Roller and defendant to South Kearny to inspect the area of the proposed robbery.

Roller recounted that he met defendant at Forni's house at approximately 7:45 a.m. on the day of the robbery. Neither Roller nor defendant had an operable automobile. Roller thus requested Forni to drive them to Kearny. According to Roller, Forni became upset and reiterated that he would not participate in the robbery. Roller testified that despite his protestations, Forni ultimately agreed to drive him and defendant to New Jersey. En route, the three men stopped at a parking lot where Roller, using a "dent puller," stole a 1968 green Chevrolet. At Roller's request, Forni purchased containers of coffee for him and defendant. He then departed. Roller testified that he and defendant waited in the parking lot of the nearby tavern for the owner of the check cashing service to arrive.

Jacob Roth, the owner of the Hi-Way Check Cashing Service, had arrived earlier in the morning, having driven his son's automobile. Jacob's son, Jonathan, had taken his father's white Cadillac for servicing. Both Roller and defendant were unaware of this fact and continued to await the arrival of Roth's Cadillac, which Roller had seen in the course of one of his surveillances. Jonathan arrived in the Cadillac at approximately 9:20 a.m. and entered the trailer. Also present in the trailer was a customer, John De Maritz. Another customer, Colin McCormick, had just cashed a check and was seated in his van.

Roller testified that upon seeing the Cadillac, he and defendant approached the trailer. Roller recounted that he told defendant to grab McCormick and place him underneath the van. According to McCormick, a tall thin man with broad shoulders and dark hair approached him with a gun and told him to lie on the floor of the van. As McCormick complied, he observed a bearded man with red hair, whom he later identified as Roller, holding a gun. McCormick testified that Roller went first to the check cashing window and then moved to the trailer door. At trial, McCormick claimed that defendant was the dark haired perpetrator. However, he admitted that he did not observe the man's face and that his pretrial photographic identification of defendant was based upon his recollection of the perpetrator's build. McCormick indicated that defendant's photograph was the "closest" of those shown to him, but he couldn't "say for sure." McCormick's in-court identification was barred following an Evid.R. 8 hearing (now N.J.R.E. 104(a) and (c)). The trial judge characterized McCormick's attempt to identify defendant as "unreliable."

Both Jacob and Jonathan Roth testified at trial. Viewing their testimony in its entirety, the chronology of events is somewhat murky. According to Jacob Roth, a man came to the trailer window, placed a gun on the ledge and ordered him to open the door. Jacob testified that there was a "bullet proof" glass partition with a small aperture used for check cashing transactions. The man was unable to place the gun "under the window." Jacob described the man as being five feet, ten...