Justice Solomon continued in relevant part: Crews’s statement qualifies as a dying declaration under N.J.R.E. 804(b)(2) and it has substantial probative value, see N.J.R.E. 403; the trial judge did not abuse his discretion by overturning a pretrial ruling excluding Crews’s dying declaration. However, the trial court abused its discretion by excluding the Norton Affidavit, which was used in four separate search warrant applications. Surveillance video footage of the crime scene showing Detective Bolognini near Robinson-Crews supports that she was on the phone and that the detective was within earshot of her. The records of defendants’ known cell phones show they did not receive these phone calls, and Detective Norton swore before a judge to the veracity of the information hours after the murder took place. N.J.R.E. 803(c)(5) specifically allows that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence. As to the third Brady element, materiality, the Court stresses that the trial court admitted the dying declaration one week after trial began. Although it was proper to admit the declaration, the timing of its admission was highly prejudicial to the defense. That prejudice was compounded by the trial court’s later exclusion of the Norton Affidavit and was not substantially lessened by allowing defendants to challenge the Muncy Report. Because there is a reasonable likelihood that the State’s Brady violation, in light of the trial court’s evidentiary rulings, affected the judgment of the jury, the third Brady element is satisfied.
The remedy of dismissal of an indictment with prejudice is not available here because there is no allegation that the State intentionally withheld Brady information and no evidence of prosecutorial misconduct. However, because the State’s Brady violation, in the circumstance of the trial court’s evidentiary rulings, undermines confidence in the jury’s verdict, a new trial is required. On retrial, Portis’s statement can be offered to rebut a charge of recent fabrication under N.J.R.E. 803(a)(2), but only as to Brown. And the trial court should review, pretrial, offered testimony of jailhouse informants Franklin and Black to resolve any issues under Bruton v. United States, 391 U.S. 123 (1968). The judgment of the Appellate Division is reversed, defendants’ convictions are vacated, and the matter is remanded for a new trial.
The failure of the defense to allege an intentional Brady violation is probably due to the fact that any related dismissal of the indictment would be “without prejudice.” That means that the prosecution could still get a new indictment after dismissal.
