April 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AARON CHANDLER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. Nos. 85-6-2616, 85-5-2096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Coburn and Chambers.
Defendant, serving a sentence of thirty years on a felony murder conviction and related charges, seeks a new trial based on newly discovered evidence. The two witnesses who implicated him in the crime have now recanted. The trial court denied the motion. However, since these are the only two witnesses implicating defendant in the crime, we reverse and remand in order that an evidentiary hearing be held on the motion for a new trial.
Defendant's convictions arose out of a robbery that took place at a bus stop in Newark on March 15, 1985. On that day, four men robbed the victim, Andrew Alexander, at gunpoint. During the course of the robbery, the victim was shot twice by co-defendant Dexter Tyson who had a gun; the victim died. At trial, Jason Hines and Kevin Hayes identified defendant as one of the four participants in the robbery.
Defendant was convicted by jury of felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); first degree robbery, N.J.S.A. 2C:15-1 (count two); third degree possession of a handgun without the requisite permit, N.J.S.A. 2C:39-5(b) (count three) and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). He was originally sentenced to life imprisonment, with thirty years of parole ineligibility on count one, twenty years concurrent with ten years of parole ineligibility on count two, and ten years on count four. Count three was merged with count four. As the result of a post- conviction relief application, on November 19, 2002, the defendant's aggregate sentence was reduced to thirty years with thirty years of parole ineligibility.
This case has a lengthy post-conviction procedural history. The conviction and sentence were affirmed by the Appellate Division on direct appeal. State v. Chandler, No. A-3016-85T4 (App. Div. August 25, 1988), certif. denied, 114 N.J. 497 (1989). The denial of defendant's first petition for post-conviction relief was upheld on appeal. State v. Chandler, No. A-6075-89T4 (App. Div. March 6, 1992), certif. denied, 130 N.J. 13 (1992). The denial of defendant's second petition for post-conviction relief was also upheld on appeal. State v. Chandler, No. A-2396-99 (App. Div. November 13, 2001), certif. denied, 172 N.J. 178 (2002). Defendant's first motion for a new trial on the basis of newly discovered evidence was also denied, although his sentence was reduced to thirty years. The denial was affirmed on appeal. State v. Chandler, No. A-2239-02T4 (App. Div. April 16, 2004), certif. denied, 181 N.J. 547 (2004). The denial of defendant's third post-conviction relief petition, dealing with commutation and work credit issues, was also affirmed. State v. Chandler, No. A-3462-03T4 (App. Div. September 28, 2005), certif. denied, 185 N.J. 597 (2005).
Thereafter, defendant filed a second motion for a new trial, which was denied by the trial judge in a written opinion dated May 1, 2006. Defendant now appeals the denial of that motion. Post-conviction relief counsel raises the following issues:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NEW DISCOVERED EVIDENCE.
POINT II THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR WITHHELD EXCULPATORY EVIDENCE WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III THE LOWER COURT ERRED IN FAILING TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEFENDANT'S REQUEST TO COMPEL THE STATE TO TURN OVER HINES' VIDEOTAPED STATEMENT AND ALL DISCOVERY RELATING TO THIS MATTER. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT IV THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
In his pro se supplemental brief, defendant raises the following issue:
POINT I THE TRIAL COURT BELOW ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL, WHEN IT IS CLEAR FROM THE RECORD, THAT THE STATE'S SUPPRESSION OF EVIDENCE, EXCULPATORY IN NATURE, DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF THE DICTATES OF BRADY V.
MARYLAND, AND HIS RIGHT TO EFFECTIVELY CONFRONT HIS ACCUSERS.
Defendant contends that he is entitled to a new trial due to Hines' and Hayes' recantation of their trial testimony.*fn1
Hines was one of the four individuals who participated in the crime. He was a juvenile at the time. At trial, he identified defendant as one of the participants in the crime. He testified that on the evening in question, the four were walking down the street together and Tyson showed them a gun which Chandler had obtained a week earlier, and Tyson said that they were going to rob someone. They then proceeded to do so. On cross-examination, Hines indicated that he received favorable treatment, namely, a four-year sentence as a juvenile instead of a possible life sentence as an adult, in exchange for his testimony. In addition, Hines was impeached with an earlier statement made to the police that neither he, defendant, nor the third participant in the robbery, Walter Lee, knew that Tyson was going to approach the victim.
In a certification dated July 11, 2005, Hines contends that he testified falsely at trial against defendant. He maintains that Lee, defendant, and he were not aware that Tyson had a gun or intended to rob someone. He states that the police and prosecutor convinced him to change this testimony which he did in order to avoid life imprisonment.
Hayes, a friend of the four, testified that when he saw them later that evening, they said "they had a homicide on them" and identified the location of the crime. At trial, Hayes said that he had been pressured into giving a statement to the police because he was going to be accused of two homicides if he did not cooperate. At one point, the prosecutor argued that Hayes was a hostile witness.
In his certification dated July 31, 2002, Hayes contends that the police detectives badgered him into making false statements. He states that he told the prosecutor prior to trial that his statement was not true. According to Hayes, the prosecutor responded that Hayes would be buried in prison with consecutive life sentences, but if he stuck by his statement, he would receive probation, which is the sentence Hayes did receive after his testimony. At the time of this certification, Hayes was housed in the same unit as defendant at East Jersey State prison, along with Tyson and Lee.
Defendant contends that this newly discovered testimony entitles him to a new trial. Timeliness of the application is not an issue since "[a] motion for a new trial based on the ground of newly-discovered evidence may be made at any time."
R. 3:20-2. A motion for a new trial may be granted "in the interest of justice." R. 3:20-1.
A jury verdict will not be set aside unless "it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid. A motion for a new trial on the basis of newly discovered evidence is not favored and "should be granted with caution." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.), certif. denied, 97 N.J. 650 (1984). Newly discovered evidence warrants a new trial where defendant shows "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. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).
The trial court denied the motion without an evidentiary hearing, finding that even without the recantation testimony, the evidence against defendant remained strong. This other evidence noted by the trial judge consisted of the following: testimony by a witness that Tyson admitted to him that Tyson had robbed and shot a man twice; testimony by an eyewitness, Terry Wilder, that he heard the shots and saw four people committing the crime; and evidence tying Tyson to the gun that killed the victim of the robbery. None of this evidence, however, ties defendant to the robbery. While Wilder identified Lee and Tyson in court as among the four, he could not identify defendant as a participant. The evidence connecting defendant to the crime was the testimony of Hayes and Hines. The State points to no other evidence tying defendant to the crime.
Newly discovered evidence must be looked at "with a certain degree of circumspection to ensure that it is not the product of fabrication." State v. Ways, supra, 180 N.J. at 188. Where recantation testimony is the asserted newly discovered evidence, that evidence is generally regarded as "suspect and untrustworthy." State v. Carter, 69 N.J. 420, 427 (1976). This observation makes sense, since in the absence of a mistake or a new recollection, the witnesses must have either lied under oath when they testified at the trial or lied in their recantation.
Therefore, the burden is on defendant to show that the recantation testimony is "probably true and the trial testimony probably false." Ibid. We further note that as far back as 1966, the Supreme Court recognized that "[r]ecantations by fellow prisoners are not uncommon." State v. Baldwin, 47 N.J. 379, 400 (1966). The Supreme Court went on to state that "[i]t would be unwise to vest in a State's witness the effective power thereby to grant a new trial. Recantations are inherently suspect." Ibid.
Nevertheless, in order to determine whether the recanted testimony in this case merits a new trial, the trial judge must determine whether the recanting statement is believable. State v. Puchalski, 45 N.J. 97, 107-08 (1965). If it is believable, the judge must determine whether the testimony "so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice." Ibid. The trial judge, who has the opportunity to see the witnesses and hear their testimony, and "has the feel of the case," must determine whether the recanted testimony is credible. State v. Carter, supra, 69 N.J. at 427; see State v. Ways, supra, 180 N.J. at 196 (deferring to the trial court's findings on the credibility of recantation testimony). Here no hearing was held for the trial court to have an opportunity to do so.
Accordingly, we reverse and remand in order that a hearing may be held so that the trial judge may make findings on the credibility of the recanting statements of Hayes and Hines. In doing so, the trial court must consider the witnesses' testimony at the hearing in light of their testimony at the trial and the law cited above regarding the inherently suspect nature of recanting testimony.
The balance of the arguments in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed and remanded.