| At about 11:30 p.m. on July 2, 2009, 24-year-old Jayne Gourgiotis was wearing earphones and listening to music, as she walked home in Jersey City, New Jersey after having a few drinks with friends. A vehicle she later described as a “long boaty type dark” car pulled up nearby and a man got out of the passenger seat.
The man was black, heavy-set, and wearing a black T-shirt. He said something, but Gourgiotis didn’t hear it, so she removed her earphones. He then tapped her hip with a pistol and asked for her cell phone. Gourgiotis handed over her purse, which contained her phone, keys, about $50, and an iPod.
The man immediately got back into the car and left. Gourgiotis would later estimate the entire incident lasted 10 seconds and that she looked at the robber for about four seconds.
Gourgiotis ran to a nearby police station where she reported the crime. Less than 20 minutes later, she cancelled the service to her cell phone.
Sometime after midnight, police stopped a car resembling the description Gourgiotis had given. Police took her to the scene to look at the two men in the car. She said neither man was the robber and that the car was not the one she saw. Not long after, police recovered Gourgiotis’s purse on a street in the area of the robbery and returned it to her.
A few hours later, police spotted a black Oldsmobile Aurora parked at a gas station mini-mart. When two black men left the mini-mart and got into the car, police pulled them over and discovered a third man in the back seat.
When the men gave conflicting stories about what they had been doing that night and police found heroin in the car, police took them to the police station, photographed them, and let them go. The police did not find any stolen items or a gun in the car. However, because the driver did not have the car’s registration form, the vehicle was impounded.
A few days after the robbery, on July 6, 2009, Gourgiotis went to the police station and viewed binders of mug shots. A detective inserted photos of the three men into the binders. Gourgiotis selected the photograph of 30-year-old Julius Smith—who was a passenger in the Oldsmobile—and said she was “pretty positive” he was the man who robbed her.
Police then took Gourgiotis to the impound lot. She picked out the Oldsmobile, saying it “looked like” the one involved in the robbery, although she could not say it was the actual car. Smith was arrested and charged with first-degree armed robbery, illegal possession of a firearm and possession of a controlled substance.
About six weeks after the robbery, on August 10, 2009, the New Jersey state police arrested Stebbin Drew in a stolen black Infiniti, a car similar in shape to an Oldsmobile Aurora. They found Gourgiotis's cell phone in his possession. Drew was black and about the same height and weight as Smith. Not long after, state police informed Gourgiotis that her phone had been recovered.
However, state police never informed the Hudson County prosecutor’s office, and Gourgiotis didn’t tell the prosecutor in her case about the call until November 2, 2010, the second day of Smith’s jury trial.
The prosecution called Gourgiotis as its first witness and she identified Smith as the robber. During cross-examination, the defense asked Gourgiotis a few questions about the call she said she had received from state police. The defense attorney requested a sidebar conference, during which he asked the judge to declare a mistrial because he had been “denied what could be very important exculpatory information.”
The trial judge denied the mistrial motion, saying that since Gourgiotis had turned off her service so quickly, there was little likelihood any calls had been made that could be investigated. The judge also noted that the prosecutor had not yet confirmed Gourgiotis’s claim that the state police had called her to report the recovery of the phone.
Cross-examination then resumed. After the defense asked a few more questions about the cell phone and the state police call, the judge called the defense and prosecution lawyers back to another sidebar. The judge said the phone call from the state police was “a collateral issue” and barred the defense from asking further questions about the matter.
The trial then recessed for lunch. When it resumed, the prosecutor presented a copy of the state police report of Drew’s arrest and the confiscation of a bag of several stolen items, including Gourgiotis’s cell phone. Smith’s lawyer again asked for a mistrial, saying he should have gotten the information prior to trial and that he needed time to investigate. The motion was again denied.
Later in the afternoon, the prosecution gave Smith’s lawyer two photos of Drew from 2007 and 2008, along with his criminal record. The defense noted that the photos were dated and the information was contradictory—the rap sheet listed Drew as 5 feet 8 inches tall and 140 pounds, while the police report said he was 6 feet tall and 175 pounds.
The following day, the prosecution presented Drew’s photo from his August 10, 2009 arrest. Gourgiotis returned to the witness stand and testified that based on her viewing of the most recent photo, Drew was not the robber.
The trial concluded after Smith’s defense attorney was allowed to read a statement to the jury saying that Gourgiotis’s phone had been found on August 20, 2009 in the possession of a 25-year-old black man who weighed 175 pounds and was wearing a white T-shirt.
On November 5, 2010, the jury convicted Smith of first-degree armed robbery, possession of a weapon and possession of drugs. He was sentenced to 20 years in prison.
After the New Jersey Appellate Division upheld the conviction, the New Jersey Supreme Court granted a petition to hear a further appeal from Smith’s appeals lawyer, Kevin W. Roe.
On January 13, 2016, the New Jersey Supreme Court reversed Smith’s convictions for armed robbery and possession of a weapon and ordered a new trial. The drug conviction was not reversed.
The Supreme Court noted that the late discovery of the information “left several unanswered questions. How did Drew acquire the phone? Who gave it to him? Was it used in the minutes after the robbery to place calls? Was it used in some other way? Answers to those questions could have bolstered the defense, but it was not possible to investigate them in the middle of a short trial without granting an adjournment — or a mistrial.”
The court, noting that the defense “had no basis to know of Drew’s involvement before trial began and no ability to examine the actual phone,” ruled the trial judge should have granted a mistrial.
Two weeks later, Smith was released on bond pending a retrial. Subsequently the defense discovered that on the night Gourgiotis was robbed, there were a series of armed robberies involving two men in a dark car in the same geographic area—some of which occurred after Smith had been brought to the police station.
On January 23, 2017, the prosecution dismissed the charges.
– Maurice Possley
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