On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue in this appeal is whether newly discovered evidence presented at a post- conviction relief (PCR) hearing undermines the jury verdict, compelling the grant of a new trial.
On April 22, 1989, Wayne Hunter and John Weist were cruising the streets of Camden in Hunter's green Datsun looking to purchase some cocaine. They stopped at a street corner where Weist had purchased drugs in the past. An individual approached the car and then went into an alleyway between a house and a bar, returning a short time later to the passenger side where Weist was seated. The individual then pointed a gun at Weist and demanded his money. Hunter pulled away in a panic and the gun went off. The bullet struck Weist in the heart and he was pronounced dead at 1:30 a.m. at JFK Hospital in Cherry Hill.
From the hospital, Hunter led police to the Time and Place Lounge on the corner of Chase and Louis Streets, where he claimed the shot was fired. Hunter told police that he remembered the location because of the cyclone fence around the bar, although he also recalled that there was an alleyway, but there was no alleyway next to the Time and Place Lounge. Hunter described the assailant as an eighteen- to nineteen-year-old black male, about 6' tall and weighing approximately 150 pounds, with a small mustache and short hair, wearing an aqua green or turquoise-colored jacket or sweatshirt and maybe a knit hat. Ways was approximately 6'2" and 225 pounds. Hunter was not wearing his prescription glasses for near-sightedness on the night in question. On the following day, Hunter picked out Ways's photograph from an array, although he admitted that he was drawn to Ways's picture because he was the only one wearing a hat. Hunter also admitted that he only had a couple of seconds before he sped away, and that the only illumination came from a street lamp and a bar across the street.
At the time of his arrest, Ways was wearing an aqua or turquoise-colored, suede, jogging suit with red trim. Hunter later identified the jacket as the one worn by the person who shot John Weist. A test of Ways's jacket revealed no gunpowder residue or bloodstains. No latent fingerprints of any relevance to the investigation were lifted from Hunter's car. Primarily on Hunter's testimony and that of another "eyewitness," Donna Carter, who gave conflicting accounts, Ways was convicted of Weist's murder. Other testimony included: Todd Johnson, a friend of Ways, who testified that he saw Ways at the Time and Place Lounge sometime between 7:00 and 8:00 p.m. on April 22, and that he was there when Johnson left sometime between 12:00 and 12:30 a.m.; Margaret Witcher, a bartender at the Time and Place Lounge, who testified that Ways was at the bar the evening of the murder and that he had left around 2:00 or 2:15 a.m., though she admitted that she could have been wrong about the date; Hector Cintron, who testified that Hunter's car broad sided his car about one block from the Time and Place Lounge; and Dr. Robert L. Catherman, an Assistant Medical Examiner, who testified that the bullet that killed Weist came from a.44 Magnum handgun.
Ways asserted that he was not the killer and that the murderer was Franklin King. The defense postured that the shooting took place at the corner of Thurman and Louis Streets by Wally's Bar, and not by the Time and Place Lounge. Franklin Shaw testified that he saw Franklin King fire a shot into the Datsun before the car sped away down Thurman Street Shaw also testified that he heard King say that the Datsun had hit another vehicle and that he (Shaw) went into Wally's Bar after the shooting and recounted what he had seen. Shaw identified King in court as the shooter.
Anthony Ways was convicted of murder, in violation of N.J.S.A. 2C: 11-3a, felony murder, in violation of N.J.S.A. 2C: 11-3a(3), first degree armed robbery, in violation of N.J.S.A. 2C: 15-1, second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C: 39-4a, and third-degree unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C: 39-5b. Ways was sentenced to a term of life imprisonment with thirty years of parole ineligibility, a consecutive twenty-year term with a ten-year period of parole ineligibility, and a concurrent ten-year term with a five-year period of parole ineligibility. On March 11, 1993, the Appellate Division affirmed the convictions. The Supreme Court denied certification.
In 1995, Ways filed a petition for post-conviction relief (PCR) claiming that newly discovered evidence warranted a new trial and that the trial counsel was ineffective for failing to request a cross-racial identification instruction or an identification charge tailored to the facts of the case. The PCR court held an evidentiary hearing on September 6 and 7, 2000.
At the PCR hearing, Tyrone Williams testified that on April 23, 1989, between 2:00 a.m. and 3:00 a.m., Franklin King attempted to sell him a.44 Magnum handgun, with one spent shell, and that King had admitted to killing someone with the gun that night. The PCR judge found Williams's testimony credible but cumulative and that there was no likelihood that the testimony would change the jury's verdict if there were a new trial. Leonard Hall, a retired police officer, testified that members of a local gang brought Franklin King to his house, accusing him of the Weist murder and that King stated, "I'm not the only one in Camden with a.44 Magnum," a statement that was not elicited at trial. The PCR judge found Hall's testimony credible, but concluded that King had explained his reference to the gun by testifying that a member of the gang had told him that a.44 Magnum was used in the shooting of Weist. Vincent Williams testified that he saw the shooting, that the shooting occurred at the corner of Louis and Thurman Streets, and that Ways was not the shooter. Apparently Williams did not come forward during the trial because he was on the run from the police. The PCR judge did not find Williams's testimony credible. Ways's cousin, Thomas Ways, testified that while he and Franklin King were in state prison and the county jail together, King admitted that he killed Weist. The PCR court gave no weight to Thomas Ways's testimony because of his familial relationship with the defendant. Franklin King made several statements that corroborated the testimony of other witnesses at the PCR hearing, though he denied killing Weist.
The court denied the petition for post-conviction relief. The Appellate Division affirmed in an unreported opinion. The Supreme Court granted certification.
HELD: The newly discovered evidence presented at the post-conviction relief (PCR) hearing creates a probability that a jury would return a verdict different from the one reached at the first trial, warranting a new trial.
1. To meet the standard for a new trial based on newly discovered evidence, defendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300 (1981). All three prongs of that test must be satisfied before a defendant will gain the relief of a new trial. Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial. The passage of time must not be a bar to assessing the validity of a verdict that is cast in doubt by evidence suggesting that a defendant may be innocent. Evidence that supports a defense, such as alibi, third-party guilt, or a general denial of guilt would be material. The characterization of evidence as "merely cumulative, or impeaching, or contradictory" is a judgment that such evidence is not of great significance and would probably not alter the outcome of a verdict. However, evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory. Case law dictates that a reviewing court must engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury. The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence. Prong two of the Carter test requires that the new evidence must have been discovered after completion of trial and must not have been discoverable earlier through the exercise of reasonable diligence. However, we would not require a person who is probably innocent to languish in prison because the exculpatory evidence was discoverable and overlooked by a less than reasonably diligent attorney. (Pp. 22-30)
2. There were substantial questions raised concerning the credibility and reliability of the witnesses for both the State and the defense at trial. The jury by its verdict answered those questions in favor of the State. We cannot ignore, however, that the State's proofs were far from overwhelming. We cannot conclude, as did the PCR court and the Appellate Division, that none of the newly discovered evidenced would have had the probable effect of altering the verdict. We believe that certain pieces of the newly discovered evidence, when placed in context with the trial evidence, sufficiently implicates King in the killing. The new evidence, however labeled - impeaching, contradictory, or corroborative - in our view, would probably change the outcome of the case. From the newly discovered evidence, a jury could infer that King attempted to dispose of the murder weapon to Tyrone Williams, that king confessed to the shooting, and that the gun and one spent shell in the.44 Magnum were the physical links to the crime. There is a probability - not a certainty - that a new jury would find Anthony Ways not guilty of the crime for which he is imprisoned. (Pp. 30-37)
3. Although the Court need not address the issue of cross-racial identification, it offers guidance with regard to the giving of a cross-racial identification charge in a new trial. We believe that the jury would benefit from the crossracial identification charge suggested in State v. Cromedy, 158 N.J. 112 (1999). (Pp. 37-38)
The judgment of the Appellate Division is REVERSED. T he judgment of conviction is vacated and a new trial is ordered consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LAVECCHIA, ZAZZALI and WALLACE join in Justice ALBIN's opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Albin
In 1991, defendant Anthony Ways was convicted of committing a murder during a botched armed robbery of two young men in a sports car trolling for drugs on the streets of Camden. At trial, Ways claimed that he was not at the scene of the crime and presented a witness who testified that Franklin King was the killer. Although Ways vigorously challenged the eyewitness testimony that implicated him in the murder, the jury rejected his defense. At a post-conviction relief hearing, Ways introduced "newly discovered" evidence offered by witnesses who gave accounts that tied King to the murder. The motion judge found two of those witnesses credible, but concluded that their testimony was "merely" impeaching and cumulative and did not entitle Ways to a new trial. The Appellate Division affirmed. We must determine whether that newly discovered evidence undermines our confidence in the verdict, thus compelling the grant of a new trial.
On Saturday evening, April 22, 1989, Wayne Hunter and John Weist attended a party in Haddon Township where they consumed cocaine, marijuana, and alcohol. At approximately 12:30 a.m., they left the party and drove in Hunter's green sports car, a Datsun 280Z, to Camden where they cruised the streets in search of more cocaine. Hunter, who was driving, stopped at two streets familiar to him from past drug purchases. When prospects at those locations did not look promising, Weist directed him to a street corner where he had purchased drugs in the past. Weist, in the front passenger's seat, gave a hand signal to a person on the street, who approached the car, and told Hunter to pull over. That person then proceeded to an alleyway between a house and a bar on the other side of the intersection. He returned a short time later to the passenger side where Weist was seated, leaned into the open window, pointed a gun into the car, and yelled, "give me all your money." Weist then yelled, "go," and as soon as Hunter began to accelerate, the gun went off. The shot struck Weist in the heart. In a panicked flight, Hunter sped away, and at the end of the block collided with another car. Thereafter, he took his mortally wounded friend to JFK Hospital in Cherry Hill, where Weist was pronounced dead at 1:30 a.m.
At the hospital, a "shaken" Hunter spoke with Detective Latham of the Camden County Prosecutor's Office. Hunter agreed to accompany Latham and another officer in the detective's car to retrace the route to the street corner where his friend had been shot. According to Detective Latham, Hunter did not appear intoxicated or under the influence of drugs. Their travels brought them to the Time and Place Lounge on the corner of Chase and Louis Streets in Camden. Hunter told the detective that it was there that the shooting had occurred. Hunter remembered the bar because of the cyclone fence around it. Hunter, however, also recalled that the killer had retreated to an alleyway, but there was no alleyway next to the Time and Place Lounge.
That same day, Hunter gave a statement to the police in which he described the shooter as an eighteen- to nineteen-year old black male with a small moustache and short hair, wearing an aqua green or turquoise-colored jacket or sweatshirt and maybe a knit hat. Hunter also described the shooter as about 6' tall and weighing approximately 150 pounds, but added that he had a "big build." Hunter was 6'1" and weighed about 150 pounds at the time, and acknowledged at trial that he would describe someone with those physical attributes as "thin." At the time of the incident, Ways was approximately 6'2" and 225 pounds. On the night in question, Hunter was not wearing his prescription glasses for near-sightedness, although he said he did not have difficulty seeing at close distances.
The following day, April 24, Detective Latham spoke with Hunter at his home and showed him an array of eight photographs. The photographs in the array did not expose enough of the individuals to allow for a judgment as to height or weight. Hunter picked out the picture of defendant Anthony Ways 23af the only person in the array wearing a hat 23af as the shooter.*fn1 He admitted that he was drawn to Ways's picture because he was wearing a hat. Hunter testified that he selected defendant's picture without hesitation as the person who "looked like what [he] remembered." Hunter, however, conceded that the shooter was only at the car's passenger window for a couple of seconds, that he did not get a "perfect look" at the shooter, and that the only illumination came from a street lamp and a bar across the street. Hunter's mother, who was present when her son viewed the photographic array, recalled that he had no hesitation in making an identification. Diane Cowan, a private investigator for the defense, testified that she interviewed Hunter's mother, who stated that her son was not sure that he had "pointed the right guy out" from the photographic array. The prosecutor never asked Hunter to identify Ways as the shooter in the presence of the jury.
The State's other eyewitness, Donna Carter, gave conflicting accounts of the shooting on the corner of Louis and Chase Streets in the early hours of April 23. Carter testified that sometime on April 22, she had purchased cocaine on the corner of Louis and Chase Streets from someone she knew as "Mancakes," an apparent nickname for Ways, whose real name she did not know. She smoked crack cocaine that day and, while under the influence, returned to the same street corner at 12:30 a.m. in the hope of buying more drugs. She saw an average-sized white or light blue car with white occupants pull up to the corner and stop on Louis Street. Two unidentified individuals approached the car and left, walking around the corner. One of the two then returned and fired a gun into the vehicle.
That less than detailed account differed from a statement given by Carter to Detective Latham on May 2, a week and a half after Weist was killed. Latham took the statement from Carter after she told her probation officer that she had information about the shooting. On probation for a welfare fraud conviction, Carter had read about the shooting in one of the local newspapers. Carter told Latham she saw "Mancakes," and a person named "Braheem," co-defendant Bryant Anderson's nickname, approach a car that had pulled up to purchase drugs. Mancakes, who was wearing a hat, and Braheem, who was wearing a hood, were given money and then left. When they returned to the car, Carter saw "a gun go into the car" and the "car take off," at which point she heard a big blast. She could not say who was holding the gun. Although Carter did not know either Mancakes or Braheem "very well," she had purchased drugs from them. Carter estimated Mancakes to be twenty-five years old and "short," about 5'6" or 5'7". Detective Latham displayed to Carter the same photographic array viewed by Wayne Hunter, which included the picture of Anthony Ways. She did not identify any of the individuals in the array as the shooter. Carter was not asked to identify Ways in court.
On cross-examination, Carter stated that Ways was not beside the car at the time the shot was fired. Carter also stated that during the evening of April 22, she spoke with a drug dealer named Franklin Shaw at Louis and Thurman, the very location where Shaw claimed he saw Franklin King fire a gun into a sports car. Carter admitted that she frequented the area of Louis and Thurman Streets, and had purchased drugs there in the past.
Todd Johnson, a friend of Anthony Ways, testified that he saw Ways at the Time and Place Lounge on Louis and Chase Streets sometime between 7:00 and 8:00 p.m. on April 22, and that Ways spoke about attending a party at his uncle's house that evening. When Johnson left the bar between 12:00 a.m. and 12:30 a.m., Ways was still there.
Margaret Witcher, a bartender, worked the 7:00 p.m. to 3:00 a.m. shift at the Time and Place Lounge on April 22-23. She recalled that Ways and Anderson were at the bar that evening and left around 2:00 or 2:15 a.m., although she acknowledged on cross-examination that she could have had the wrong day because both were regulars at that establishment. Witcher did not hear any gunfire that evening.
At approximately 12:30 a.m., Hector Cintron was driving on Mount Ephraim Avenue when a sports car (Hunter's Datsun) ran a red light coming out of Chase Street and broadsided his vehicle. Cintron, who had convictions for a drug offense and two property crimes, stated that he turned his car around and gave chase for three or four blocks until he lost the speeding car. Cintron reported the accident to the police as occurring at the intersection of Mount Ephraim Avenue and Chase Street, one block down from the Time and Place Lounge. The prosecution posited that the location of the accident was consistent with Hunter's wild flight from the scene of the shooting.
Detective Fred Fitzpatrick, a Voorhees Township Police Officer assigned to the Drug Task Force of the Camden County Prosecutor's Office, assisted in the arrest of Anthony Ways on Louis Street on April 25, 1989. According to Fitzpatrick, when taken into custody, Ways said, "this must be about that body or something they found" and asked, "how long have you been looking for me?" Then, upon learning that Fitzpatrick was a narcotics officer, Ways said, "since you're from Narcotics, you have the wrong person. I have nothing to worry about." Co-defendant Bryant Anderson was arrested separately.
At the time of his arrest, Ways was wearing an aqua or turquoise-colored suede jogging suit with red trim. Hunter later identified the jacket as the one worn by the person who shot John Weist. A test of Ways's jacket revealed no gun powder residue or blood stains. A forensic expert for the prosecution testified that gun powder residue would be found on such an article of clothing only if the gun was discharged from a position lateral to the fabric and not if the shooter's arms were extended forward at the time of discharge. No latent fingerprints of any relevance to the investigation were lifted from Hunter's car.
The State also called Dr. Robert L. Catherman, an Assistant Medical Examiner for Camden County, who testified that the wound inflicted on the victim would have caused little blood splatter. Dr. Catherman concluded that the projectile found in Hunter's car and the injuries ...