January 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEXTER TYSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 85-06-2616.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Dexter Tyson (Tyson) appeals from the denial of his fourth petition for post-conviction relief (PCR) seeking a new trial based on the submission of an affidavit of Jason Hines. The PCR judge denied the petition. We affirm.
Tyson, who was tried before a jury and Judge Donald E. King, was found guilty on November 8, 1985, on all counts charged in Essex County Indictment No. 85-06-2616: felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count one); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count two); third-degree possession of a weapon (handgun), contrary to N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). At the sentencing hearing on March 7, 1986, Judge King merged counts two and three into counts one and four respectively, and sentenced petitioner to an aggregate life term of imprisonment, including a thirty-year mandatory parole disqualifier, and imposed other relevant penalties. On August 25, 1988, this court affirmed the judgments of conviction of Tyson and co-defendants Aaron Chandler and Walter Lee, Jr. in an unreported per curiam opinion. State v. Tyson, No. A-3844-85T4 (App. Div. Aug. 25, 1988); State v. Lee, No. A-3441-85T4 (App. Div. Aug. 25, 1988); State v. Chandler, No. A-3016-85T4 (App. Div. Aug. 25, 1988). On January 26, 1989, the Supreme Court of New Jersey filed an order denying Tyson's petition for certification. State v. Tyson, 114 N.J. 497 (1989).
On April 20, 1992, Tyson filed his first petition for PCR, which Judge King denied, by letter opinion dated September 23, 1993, on the grounds that the same issues had been raised on appeal, Rule 3:22-5, and the application had not been filed timely, Rule 3:22-12.
On October 22, 1992, May 18, 1993, and December 15, 1995, the United States District Court denied three petitions for a habeas corpus filed by Tyson. On January 24, 1996, the Third Circuit Court of Appeals denied Tyson's appeal from the December 15, 1995, denial of his habeas corpus petition.
On January 13, 2000, defendant filed a second petition for PCR. On April 9, 2000, Judge Harold W. Fullilove, by letter, denied the application for the appointment of a public defender. Then, on June 19, 2000, Judge Michael J. Nelson denied defendant's application, finding that due to the gravity of the offenses, the best efforts of counsel during the waiver hearing would not have prevented waiver from Family Part, Juvenile jurisdiction, to Law Division Criminal Part, because the prospects for rehabilitation of defendant, then seventeen years old, did not substantially outweigh the reasons for waiver.
On July 24, 2002, defendant filed a motion for a new trial, based on newly discovered evidence and an assertedly unconstitutional sentence. On July 11, 2003, Judge Joseph V. Isabella entertained oral argument on the application and denied the petition for reasons stated on the record. An order dated March 8, 2004, memorialized that ruling, and on April 6, 2004, defendant filed a notice of appeal. In that appeal, Tyson argued that a notarized affidavit of Kevin Hayes (Hayes) dated July 31, 2002, was newly discovered evidence that warranted a new trial or an evidentiary hearing. In his affidavit, Hayes stated he testified falsely at trial that Tyson, Lee, and Chandler had told him they had committed a homicide near an establishment called Sonny Oliver's. We affirmed the trial judge's denial of Tyson's PCR petition on August 10, 2005, finding that the statement given by Hayes at trial was cumulative and that this recantation made some seventeen years after the trial was "extremely weak in believability and trustworthiness."
On January 12, 2006, Tyson, along with Chandler and Lee, filed another PCR motion for a new trial based on newly discovered evidence. In furtherance of his petition, Tyson presented, as newly discovered evidence, a notarized certification of Jason Hines (Hines) dated July 11, 2005. According to the trial testimony, Hines, along with Tyson, Chandler, and Lee, robbed the victim who was shot by Tyson.
Hines was a juvenile at the time of the incident. In his certification, Hines states in pertinent part:
In 1985, I testified falsely against Walter "Wali" Lee, Dexter Tyson and Aaron "Shahid" Chandler.
In all my statements to the police and prosecutor I maintained that we (meaning myself, Lee and Chandler) were not aware that Tyson had a gun nor did we plan to rob anyone.
The police convinced me to change my statements and testify falsely and say that we all agreed to rob someone and that we knew Tyson had a gun in order to obtain a four-year sentence.
Up until the time of my guilty plea in Juvenile Court, I had always told the truth about what I knew and there was never any robbery and the victim had been drinking and arguing, but I agreed to change my story to get my plea accepted.
After I testified, I told a defense investigator that there never was any robbery and that neither Lee, Chandler or I knew that Tyson had a gun.
Hines now states, almost twenty years after the trial, that the detectives "prepared me on what to say and to testify to," and that they convinced him to change his statements and testify falsely that all four defendants agreed to rob someone and knew that Tyson had a gun. He claims that he only agreed to testify falsely to obtain the benefit of a plea bargain and save himself from a life sentence. He further states that he did not come forward sooner because of his continuous problem with drugs and crime.
Judge Isabella found that Tyson did not present enough evidence to establish a possibility of a miscarriage of justice. He pointed out that defendant offered only the affidavit of Hines that he lied, but stressed that there was no evidence to support this contention. Moreover, Judge Isabella concluded that the evidence of defendant's guilt remains strong. The judge pointed to the testimony of Charles Lakes and Terry Wilder, as well as circumstantial evidence concerning the gun found in Tyson's possession when he was apprehended four hours after the crime. The court concluded that Hines' testimony at the trial was cumulative and that a recantation, nearly twenty years after trial, by Hines, who was familiar with the defendant, is not credible or believable. The trial court concluded that without Hines's testimony, the jury verdict would not have changed, and, therefore, denied the application.
On appeal, defendant presents the following arguments for our consideration:
ALTHOUGH THIS DEFENDANT WAS CONVICTED IN 1985, HE IS ENTITLED TO POST CONVICTION RELIEF AS HE WAS UNJUSTLY CONVICTED.
THIS DEFENDANT RECEIVED INEFFECTIVE ASSITANCE OF COUNSEL AT THE POST CONVICTION RELIEF HEARING.
Rule 3:20-1 states,
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
The denial of a motion for a new trial will only be reversed on appeal if there has been a clear abuse of discretion by the trial judge. State v. Puchalski, 45 N.J. 97, 107 (1965). A defendant must show that the newly discovered 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. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). Evidence is material if it has "some bearing on the claims being advanced." Id. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)). Evidence is merely cumulative, impeaching, or contradictory if the evidence is of no great significance and would likely not change the outcome of the trial or verdict. Id. at 189.
"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." Id. at 187-88. This is especially true where the newly discovered evidence is a recantation. State v. Baldwin, 47 N.J. 379, 400 (1966). As our Supreme Court stated in Baldwin, recantations by fellow prisoners are not uncommon. It would be unwise to vest in a State's witness the effective power thereby to grant a new trial. Recantations are inherently suspect. And the issue for the trial court upon the application for a new trial is not whether the new story, had it been available at trial, would have impugned the credibility of the witness, for obviously a different story under oath must have that effect, but rather the question is whether the testimony given at the trial was probably false and that on that account there is a substantial possibility of miscarriage of justice. Thus the trial judge must himself consider where the truth probably lies, and if the trial court is satisfied the present testimony of the recanting witness is unbelievable, the application must be denied.
"[T]he 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." Ways, supra, 180 N.J. at 191-92.
We note, first of all, that the certification of Hines does not exculpate Tyson. It clearly does not state that Tyson did not have a gun, nor that Tyson was not the shooter. It claims rather, only that Hines's testimony that the other defendants knew Tyson had a gun and planned to rob someone was false. It goes on to say that there was never a robbery, but does not deny the killing by Tyson of the victim with a gun Tyson had beforehand. As such, at the outset it is not exculpatory with respect to Tyson and, therefore, not material.
The statement, of course, is highly suspect as a recantation made some twenty years after the trial, by an acquaintance of the petitioner. Further, there is no corroboration that the statement that Hines made at trial was the result of improper police efforts.
Most importantly, we find that the evidence of Tyson's guilt remains strong, even if Hines's testimony had been that the other defendants did not know that Tyson had a gun, that they did not plan to rob anyone, and that the victim was drinking and arguing with the defendants. That evidence would not have exculpated Tyson. Moreover Charles Lakes, who was confined at the Youth House where Tyson was held after the murder, testified that Tyson told him about "robbing a man and he shot him twice." Another witness, Terry Wilder, testified he heard the shots, and saw the three co-defendants and Hines leaving the scene of the crime.
An autopsy of the decedent revealed that he had been shot twice with a .22 caliber handgun. When Tyson was apprehended, approximately four hours later after the crime, he was in possession of a .22 caliber handgun, which contained four live rounds and two blank caps. A firearm's analysis of the gun seized from Tyson was inconclusive as to whether the bullets had come from his gun. However, Charles Lakes testified he told him at the Youth House that when the police arrested him on March 15, 1985, for possession of the gun, they did not know he had used it to kill someone that night.
Accordingly, we find no basis to disturb the court's denial of the defendant's motion for a new trial. We specifically note Tyson's argument that the recantation of Hines, together with the earlier recantation of Hayes's testimony, warrant a new trial. Our analysis remains the same, though. Both recantations lack corroboration and believability and there remains strong evidence without the testimony of both Hines and Hayes upon which defendant could have been convicted.
Tyson also argues that he should receive post-conviction relief because he received ineffective assistance of counsel at the most recent PCR hearing. We agree with the State's brief that ineffective-assistance-of-counsel claims are ordinarily decided by the Law Division in the first instance. State v. Preciose, 129 N.J. 451, 460 (1992). We agree further with the State's statement that the effectiveness of his counsel during the instant PCR application before the trial court was never considered by the Law Division. This claim, therefore, is not properly before us. Ibid.
However, given our disposition of Tyson's first argument on appeal, we see no merit in his ineffective-assistance-of-counsel claim. For a court to find that an attorney rendered ineffective assistance, the court must apply the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To prove such a claim, the burden is on defendant to show that counsel's performance was deficient. Thus, defendant must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed defendant by the Sixth Amendment, and defendant must show that the deficient performance prejudiced his defense. That means that defendant must show that counsel's error were so serious as to deprive the defendant of a fair trial. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693)). To support a claim, a defendant is required to cite specific facts supporting a claim of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. den., 162 N.J. 199 (1999). And, defendant must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698.
That standard has also been applied to the claim of ineffective assistance of counsel at PCR proceedings. State v. Rue, 175 N.J. 1, 12-14 (2002). Consequently, when a defendant claims ineffective assistance of counsel during a petition for post-conviction relief, that defendant must prove that his attorney's conduct contributed to the denial of the petition for post conviction to prevail. Ibid.
According to defendant's appellate counsel in this matter, defendant's PCR counsel did not argue that there was cumulative error based upon the recantation of two key witnesses and the reference to Maurice Valentine's out-of-court statement implicating Tyson in the trial such that a new trial was warranted. However, given the fact that we have found that the recantations of both Hayes and Hines are not credible or corroborated and were made after a long passage of time, as well as the fact that there is strong evidence which would sustain Tyson's conviction absent their testimony, we do not view PCR counsel's performance as deficient, nor would it have produced a different result in the Law Division when the trial judge heard the PCR application. Accordingly, we are satisfied that defendant received a fair PCR hearing and the denial on his PCR relief is, therefore, affirmed.
We have carefully reviewed the extensive record in this matter, and in light of applicable law, we are satisfied that any of Tyson's remaining contentions are clearly without merit.
© 1992-2008 VersusLaw Inc.