                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1113-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARVIN WORTHY,

     Defendant-Appellant.
_________________________

                    Submitted November 4, 2019 – Decided March 12, 2020

                    Before Judges Vernoia and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 02-09-1247.

                    Marvin Worthy, appellant pro se.

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel and on the brief).


PER CURIAM
       In 2004, defendant, Marvin Worthy, was convicted by a jury of first -

degree murder, conspiracy to commit murder, and possession of a firearm for an

unlawful purpose. The circumstances of the murder plot are chilling. The

victim, Rashon Roy, was driven to a predetermined location where he was

ambushed and executed at the behest of codefendant Gregory Maples.

       Defendant now appeals from the denial of his motion for a new trial based

on an alleged Brady1 violation. He claims the State violated his due process

rights by suppressing the report of a muzzle-to-garment forensic examination 2

of the victim's clothing. The New Jersey State Police performed the examination

before the 2004 trial, but the report was not disclosed to defendant until 2018

after he requested the report pursuant to the Open Public Records Act (OPRA),

N.J.S.A. 47:1A-1 to -13. Defendant contends that the test results contradict the




1
    Brady v. Maryland, 373 U.S. 83, 87 (1963).
2
   A muzzle-to-garment distance test examines clothing or other objects to see if
smoke or partially burned or unburned gunpowder has been deposited. Muzzle
to    Garment     Distance    Determination,     Vt.   Forensic     Laboratory,
https://vfl.vermont.gov/content/muzzle-target-distance-determination        (last
visited Feb. 25, 2020). If any gunshot residue is detected on the garment, the
examiner looks for the pattern of residue to estimate the distance between the
muzzle of a firearm and the garment. Ibid. The more constricted the pattern of
gunshot residue, the closer the muzzle was at the moment the weapon was
discharged. Ibid.
                                                                         A-1113-18T2
                                       2
State's trial theory that the victim had been shot at close range while inside a

car.

        We have reviewed the record and the parties' contentions in light of the

applicable legal standards and affirm the court's denial of defendant's motion for

a new trial. We agree with the court that defendant has not shown that it is

reasonably probable that the verdict would have been different had the forensic

test results been disclosed before trial. Having thus failed to establish all of the

required elements of a Brady violation, defendant's motion for a new trial was

properly denied.

                                         I.

        This murder prosecution has a long procedural history, and this is not the

first time we have reviewed defendant's murder conviction.           A grand jury

indicted defendant on three counts: (1) second-degree conspiracy to commit

murder, in violation of N.J.S.A. 2C:11-3(a) or (b) and N.J.S.A. 2C:5-2; (2) first-

degree murder, in violation of N.J.S.A. 2C:11-3(a) or (b); and (3) second-degree

possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39 -

4(a).

        A jury convicted defendant of all the charged offenses. The trial judge

initially sentenced defendant to an aggregate of thirty years in prison with a


                                                                            A-1113-18T2
                                         3
thirty-year period of parole ineligibility on the murder and conspiracy

convictions, and ten years in prison with a five-year period of parole ineligibility

on the firearm possession conviction. The court later amended the judgment of

conviction to clarify that all of the offenses merged into the murder conviction.

      On direct appeal, we affirmed defendant's conviction. State v. Worthy,

No. A-1846-04 (App. Div. Dec. 22, 2006). The New Jersey Supreme Court

denied his petition for certification. State v. Worthy, 190 N.J. 396 (2007).

      Defendant then filed his first petition for post-conviction relief (PCR),

which the PCR judge denied. Defendant appealed the denial of the PCR.

However, while that appeal was pending, defendant filed a second PCR petition.

The PCR judge dismissed that second petition pursuant to Rule 3:22-3 because

the first petition's appeal was still pending before the Appellate Division.

Several months later, we affirmed the denial of defendant's first PCR petition.

State v. Worthy, No. A-2346-09 (App. Div. Mar. 30, 2011). Defendant refiled

his second PCR petition.

      The PCR court denied defendant's second petition because it was time-

barred pursuant to Rule 3:22-12(a)(2). On appeal, we denied the second petition

on the merits. State v. Worthy, No. A-1136-11 (App. Div. May 28, 2013). The




                                                                            A-1113-18T2
                                         4
New Jersey Supreme Court denied defendant's petition for certification. State

v. Worthy, 217 N.J. 52 (2014).

      Defendant next filed a Writ of Habeas Corpus, seeking relief in the

Federal courts. The United States District Court denied his petition and declined

to issue a certificate of appealability. Worthy v. Nogan, No. 14-3056-BRM,

2016 WL 5403090, at *11 (D.N.J. Sept. 27, 2016). The Third Circuit thereafter

also denied defendant's application for a certificate of appealability. Worthy v.

N.J. Dep't of Corr., No. 16-3951, 2017 WL 5197396, at *1 (3d Cir. Feb. 13,

2017).

      In 2017, defendant filed a motion for a new trial alleging the State

committed a Brady violation by failing to disclose the results of the muzzle-to-

garment examination of Roy's clothing. That motion was filed, heard, and

decided before defendant received the report memorializing the test results. The

court denied defendant's motion in part because it was speculative as to the

exculpatory nature of the forensic evidence since the results were not known.

After defendant obtained the test results pursuant to an OPRA request, he

renewed his motion for a new trial. The court denied defendant's second Brady

motion, incorporating reasons set forth in its written opinion denying the first

motion and supplementing that initial opinion with additional findings set forth


                                                                         A-1113-18T2
                                       5
in the order denying the second Brady motion. We now address defendant's

appeal from the denial of the second motion.

                                      II.

      We have previously recounted in detail the circumstances of the murder

in our opinion affirming defendant's conviction on direct appeal. We presume

the parties are familiar with that opinion. For purposes of the present appeal,

therefore, we need only briefly summarize the circumstances surrounding the

murder. In doing so, we draw from the court's factual findings as presented in

its initial written opinion and the ensuing order denying defendant's second

motion for a new trial.

      As explained by the court, the evidence adduced by the State at trial

showed that three days before the murder, codefendant Maples confronted the

victim, Roy, and accused him of trying to run Maples over with a car in

Philadelphia. Maples threatened to kill Roy and his two brothers, Hakim and

Halim, if Maples found out that Roy had tried to kill him.

      Later that evening, Roy and Halim met with Maples, defendant, and

Renato Santos. They travelled together in a van headed to Yonkers, New York.

At one point they stopped for a comfort break. Before they all got back into the

van, defendant pointed a gun at Roy's face while Santos pointed a gun at Halim.


                                                                        A-1113-18T2
                                       6
Halim pleaded for their lives and Maples spared them. Defendant and Santos

both stated they were prepared to kill Halim and Roy.

      Three days later, Maples and defendant discussed their belief that Roy

tried to have Maples killed in Philadelphia. Later that day, defendant, Ernesto

Barber, James Irwin, and Steven Bennet drove to an apartment complex in Toms

River. Defendant went into an apartment and returned to the car with a gun

inside a sock.     They dropped Bennet off in Jackson and proceeded to an

apartment complex in Lakewood where the murder would soon take place.

      Bennet rendezvoused with the others at the Lakewood apartment complex.

Maples then arrived at the apartment complex in a Jeep. Roy was in the front

passenger seat of the Jeep. Santos was seated in the rear. Defendant entered the

Jeep and sat behind Roy.      Maples, meanwhile, exited the Jeep and sat in

defendant's car.

      Santos got out of the rear seat of the Jeep and walked to the front passenger

door, blocking the door, and preventing Roy from leaving. Shots were fired at

Roy, who managed to flee from the Jeep via the driver's side door. However,

Santos chased him down while shooting at him. After Roy fell, Santos stood

over him and fired once more.




                                                                           A-1113-18T2
                                        7
      Santos threw a gun and gloves into the woods. Irwin and Barber drove

the Jeep to Jackson, where they crashed it into a tree and attempted to "torch"

it.

                                      III.

      Defendant, appearing pro se, presents the following contention for our

consideration:

            TRIAL    COURT'S      DECISION    DENYING
            DEFENDANT'S MOTION FOR A NEW TRIAL DUE
            TO THE FACT THAT THE PROVISIONS SET
            FORTH IN [RULE 3:20]. ALSO, THE DEFENDANT
            STATES HIS DUE PROCESS RIGHTS TO HAVE A
            FAIR TRIAL WERE VIOLATED WHEN THE
            PROSECUTION    WITHHELD      EXCULPATORY
            EVIDENCE    FROM      THE   DEFENSE,   THE
            DEFENDANT'S     5TH,    6TH    AND    14TH
            AMENDMENT RIGHTS OF THE UNITED STATES
            CONSTITUTION WERE VIOLATED AND THIS
            INJUSTICE SHOULD BE REVERSED.

                                      IV.

      We begin our analysis by acknowledging the legal principles governing

this appeal. To advance the truth-seeking function of our criminal justice

system, our court rules afford defendants broad pretrial discovery rights. State

v. Scoles, 214 N.J. 236, 251–52 (2013). The rules entitle an accused person to

automatic discovery of all evidence that the State has gathered to support its

charges. Id. at 252 (citing R. 3:13-3). In particular, Rule 3:13-3(b)(1)(C)

                                                                        A-1113-18T2
                                       8
expressly requires the State to make available the "results of reports of . . .

scientific tests or experiments made in connection with the matter or copies

thereof, which are within the possession, custody or control of the prosecutor. "

      The rule also explicitly requires the State to provide a defendant with

access to all "exculpatory information or material." R. 3:13-3(a)(2), (b)(1).

Indeed, as a matter of due process, the State must disclose to a defendant any

evidence that is material and favorable to his or her defense. Brady, 373 U.S. at

87. Thus, a Brady violation results from the State's suppression of evidence

favorable to an accused person that is material to the issue of his or her guilt or

innocence, irrespective of the good faith or bad faith of the prosecution. Ibid.

The Brady rule applies even when the defendant makes no formal request for

Brady material. State v. Martini, 160 N.J. 248, 268 (1999) (citations omitted).

      There are three essential elements to a Brady claim: "(1) the evidence at

issue must be favorable to the accused, either as exculpatory or impeachment

evidence; (2) the State must have suppressed the evidence, either purposely or

inadvertently; and (3) the evidence must be material to the defendant's case."

State v. Brown, 236 N.J. 497, 518 (2019); accord Moore v. Illinois, 408 U.S.

786, 794–95 (1972).




                                                                           A-1113-18T2
                                        9
      With respect to the third element, which is a critical point of contention

in this appeal, "[e]vidence is material 'if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding

would have been different.'" State v. Hyppolite, 236 N.J. 154, 165 (2018)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). This standard does

not require the defendant to demonstrate "by a preponderance that disclosure of

the suppressed evidence would have resulted ultimately in the defendant's

acquittal." Kyles v. Whitley, 514 U.S. 419, 434 (1995). Rather, in determining

whether a Brady violation has occurred, reviewing courts must inquire "whether

in the absence of the undisclosed evidence the defendant received a fair trial,

'understood as a trial resulting in a verdict worthy of confidence.'" State v.

Nelson, 155 N.J. 487, 500 (1998) (quoting Kyles, 514 U.S. at 434).

Furthermore, in deciding whether evidence is material, we examine "[t]he

significance of a nondisclosure in the context of the entire record." State v.

Marshall, 123 N.J. 1, 200 (1991).

      We note further that in reviewing a Brady claim, "the issue of whether

evidence is material . . . [is] a 'mixed question of law and fact.'" State v.

Robertson, 438 N.J. Super. 47, 64 (App. Div. 2014) (quoting State v. Marshall,

148 N.J. 89, 185 (1997)); accord United States v. Pelullo, 14 F.3d 881, 886 (3d


                                                                           A-1113-18T2
                                       10
Cir. 1994). Consequently, we review a trial court's determinations of law de

novo but will not disturb a court's factual findings unless they are "clearly

erroneous." Marshall, 148 N.J. at 185 (citing Pelullo, 14 F.3d at 886).

      We proceed to apply the foregoing legal principles and standards to the

particular circumstances of this case. Ultimately, while we are satisfied that

defendant has established the State suppressed favorable evidence in failing to

divulge the report of the muzzle-to-garment test, we conclude defendant has not

proven the report is material evidence in light of the strong evidence presented

by the State showing defendant was a co-conspirator and accomplice in the

killing of Roy.

                                       A.

      We begin our analysis by addressing the first element of the Brady rule,

that is, whether defendant has shown that the muzzle-to-garment evidence "is

favorable to [his] defense." Martini, 160 N.J. at 268 (citing Moore, 408 U.S. at

794–95). The forensic examination of Roy's clothing yielded the presence of

gunshot residue that did not form a pattern. The report interpreted these results

as "indicative of a firearm having been fired within the maximum muzzle -to-

garment distance at which such residues would have been deposited."




                                                                          A-1113-18T2
                                      11
      We do not have the benefit of expert trial testimony interpreting the

practical significance of the muzzle-to-garment test results of Roy's clothing.

The record before us does not include testimony, for example, as to the

maximum distance at which the seized firearms might deposit gunpowder

residue. For purposes of addressing defendant's contention on appeal, we accept

his argument that the forensic test results suggest that the distance betwe en the

muzzle and victim was greater than the distance between a person sitting in the

front passenger seat of a truck and a shooter who either shot from within the

vehicle or from just outside the vehicle.

      The fact-sensitive legal issue is whether that forensic evidence is

"favorable to the defense," not because it is intrinsically exculpatory, but rather

because it impeaches other evidence that was presented by the State.             See

Bagley, 473 U.S. at 676 (explaining that impeachment evidence falls within th e

Brady rule because it "is 'evidence favorable to an accused'" (quoting Brady,

373 U.S. at 87)); accord State v. Russo, 333 N.J. Super. 119, 134 (App. Div.

2000) ("Exculpatory evidence includes not only material that is directly

exculpatory of a defendant, but also evidence that may impeach the credibility

of a State witness." (citations omitted)). Defendant contends he could have

utilized the test results to discredit the State's theory that Roy was shot at close


                                                                            A-1113-18T2
                                        12
range within a motor vehicle. 3 More specifically, defendant asserts that the

muzzle-to-garment test results would have provided evidence with which to

impeach Ernesto Barber, who was a key witness for the prosecution.

      The trial court carefully reviewed the trial record, as have we, and found

the muzzle-to-garment test could not have been used to impeach Barber because

Barber never explicitly testified that defendant shot Roy at close range. We

accept the trial court's findings with respect to the exact language Barber used

in his testimony. We must note, however, that the trial court made factual

findings based on the trial evidence that appear to be in tension with the muzzle-

to-garment test results. Specifically, the court in its written opinion found:

            Santos then got out of the Jeep, and went to the
            passenger side door, where Roy was seated, with a gun
            in hand. Roy attempted to get out of the vehicle, but
            Santos was preventing him from opening the door.
            Santos opened the passenger side door, leaned inside,
            pointed the gun at Roy, and fired several shots.

      The court's recitation of the facts adduced by the State at trial suggests

that Santos was very close to Roy at the moment the initial shots were fired. To


3
  The court acknowledged the jury heard conflicting testimony from Barber as
to the exact circumstances of the shooting. We note in this regard that other
evidence was admitted at trial that suggests that shots may not have been fired
into the vehicle. Testimony from the State's ballistics expert, for example,
established that neither bullet holes, blood, nor anything of evidential value were
found in the Jeep.
                                                                           A-1113-18T2
                                       13
the extent that the muzzle-to-garment test results appear to be inconsistent with

that version of the fatal encounter, we choose to treat those test results as being

favorable to the defense for purposes of the Brady rule.

                                        B.

       We next address the second element of the Brady rule, that is, whether

the State intentionally or inadvertently suppressed the muzzle-to-garment test

results. It is not disputed that the State Police report of the forensic analysis of

the victim's clothing was not turned over to defendant until roughly fourteen

years after it was prepared, and then, only pursuant to defendant's OPRA

request. The prosecutor contends that the material was not "suppressed" by the

State but offers no legal or factual reasons to support that conclusion. Because

it is undisputed defendant did not receive the test results before trial, we

conclude the State effectively suppressed it for purposes of the Brady rule.

                                        C.

      We turn finally to the third element of the Brady rule. Our conclusion that

the forensic test results might have been favorable to the defense does not mean

that the outcome of the trial would have been different had that evidence been

admitted. See Hyppolite, 236 N.J. at 165 (reiterating that the suppression of

favorable evidence only constitutes a Brady violation when the evidence is also


                                                                            A-1113-18T2
                                        14
material (citing Brady, 373 U.S. at 87)). The bar for establishing the favorability

of an item of evidence is far lower than the bar for establishing materiality of

that same evidence. See N.J.R.E. 401 ("'Relevant evidence' means evidence

having a tendency in reason to prove or disprove any fact of consequence . . . .");

State v. Buckley, 216 N.J. 249, 261 (2013) ("Evidence need not be dispositive

or even strongly probative in order to clear the relevancy bar."). In this case,

defendant would have been permitted to introduce the muzzle-to-garment report

and argue to the jury that it calls into question testimonial evidence presented

by the State. That does not mean this forensic evidence would necessarily have

had a reasonable probability of changing the outcome of defendant's trial.

      Recently, our Supreme Court reaffirmed that "[t]he significance of the

nondisclosure 'depends primarily on the importance of the [evidence] and the

strength of the State's case against [a] defendant as a whole.'" Brown, 236 N.J.

at 520 (alterations in original) (quoting Marshall, 123 N.J. at 200). In other

words, in determining the probable impact the undisclosed evidence would have

had on the verdict, we consider the evidential value of the suppressed material

in relation to the State's trial proofs.

      In this instance, the muzzle-to-garment test results are not particularly

important since the State's case did not depend on whether the victim was shot


                                                                           A-1113-18T2
                                           15
at point-blank range or at a somewhat greater distance. Nor did the State's case

depend on whether Roy was inside the Jeep when shots were first fired at him.

      Furthermore, the distance between a gun muzzle and the victim was not a

critical circumstance in proving defendant's role in the premeditated murder. 4

The State presented evidence that defendant just a few days earlier had held a

gun to the victim's head. The State also presented evidence that defendant

retrieved a gun from an apartment and brought it to the scene of the homicide.

The State thus presented strong proof that defendant actively participated in the

retaliatory execution as a coconspirator and accomplice if not as an actual

shooter. See N.J.S.A. 2C:2-6(b)(4) ("A person is legally accountable for the

conduct of another when [he or she] is engaged in a conspiracy with such other

person.").

      In sum, we conclude, as did the trial court, that defendant has failed to

establish that it is reasonably probable that timely disclosure of the muzzle -to-

garment test results would have led to a different trial outcome. We base this


4
   Defendant contends the muzzle-to-garment test results are material because
he could have prepared a more effective defense using the test results, resulting
in the jury finding defendant guilty of manslaughter instead of murder. We
reject that contention as implausible. The State's evidence shows this was an
orchestrated shooting in retaliation for actions that occurred days earlier. The
distance between the shooter and victim has no bearing on whether the planned
homicide constitutes murder or manslaughter.
                                                                          A-1113-18T2
                                       16
conclusion on our assessment that the nondisclosed forensic report was not an

important piece of evidence in the context of the State's strong proofs

establishing defendant's active participation in the murder scheme as a

coconspirator and accomplice. We further hold that notwithstanding the absence

of the undisclosed test results, considering all of the evidence that was

introduced, "defendant received a fair trial, 'understood as a trial resulting in a

verdict worthy of confidence.'" Brown, 236 N.J. at 520 (quoting Nelson, 155

N.J. at 500). Accordingly, defendant's motion for a new trial based on a Brady

violation was properly denied.

      To the extent we have not already addressed them, any other arguments

raised by defendant lack sufficient merit to warrant discussion in this written

opinion. Rule 2:11-3(e)(2).

      Affirmed.




                                                                           A-1113-18T2
                                       17
