On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 92-07-0827.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and A. A. Rodríguez.
Petitioner Dudley Rue appeals from the denial of his petition for post-conviction relief (PCR). The charges stem from the beating death of Jeffrey Glanton on March 10, 1992, by a group of five young men, including petitioner, Rory Bryson, Robert Dodson, Robert Williams and Tyrone Williams. Petitioner was tried alone. We affirm.
In 1994, petitioner was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Judge Andrew J. Smithson merged the first and second-degree convictions and imposed a thirty-year term with no parole eligibility and a concurrent four-year term on the third-degree conviction. We affirmed on direct appeal. 296 N.J. Super. 108 (1996), certif. denied, 148 N.J. 463 (1997).
Petitioner filed pro se a first PCR petition. Counsel was designated to assist him. A different judge denied the petition. However, we reversed and remanded the matter to allow new PCR counsel to advance Petitioner's claims. No. A-4843-99T4 (App. Div. Nov. 20, 2001). The State sought certification. The Supreme Court granted certification and later affirmed our decision. State v. Rue, 175 N.J. 1 (2002).
With the assistance of retained counsel, petitioner then filed the present verified PCR petition, which was later amended and supplemented. The petitioner alleged ineffective assistance by trial counsel, as well as a request for a new trial based on allegedly newly acquired evidence. The latter request was based on petitioner's allegation that Tyrone Williams, a co-defendant, would have exculpated him. Petitioner presented a statement made by Tyrone Williams on October 26, 2005. This statement details Tyrone Williams' version of the events of March 10, 1992. He exonerates petitioner by alleging that petitioner remained in the car during the altercation with the victim. According to the statement, after the police arrived at the scene, petitioner jumped out of the car and took off. At the time of petitioner's trial, Tyrone Williams was a fugitive.
Judge Smithson denied the petition and issued a comprehensive written opinion. In relevant part, the judge correctly reviewed the Strickland/Fritz*fn1 standard for deciding PCR petitions as well as the Preciose*fn2 standard for granting an evidentiary hearing in connection with a PCR claim. Then, the judge addressed each point raised in the PCR petition. The judge rejected the application for a new trial, finding that Tyrone Williams was a fugitive at the time of trial. Therefore, it was not possible for trial counsel to call him as a witness. Moreover, Williams had made a statement in 1999 to a defense investigation retained by first PCR counsel, in which Tyrone Williams stated that petitioner was the youngest of the group and may have been influenced by the others, and that petitioner was "indirectly involved because everyone was accountable for being in the car at the time." The judge found that the second statement by Tyrone Williams did not qualify as newly discovered evidence entitling petitioner to a new trial pursuant to State v. Carter, 85 N.J. 300, 314 (1981). The judge noted that to qualify as new evidence it must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted. Here, Tyrone Williams' first statement implicated petitioner in the murder. In his latter statement, Tyrone Williams contradicts himself by saying that petitioner did not participate in the beating. The judge questioned the materiality of the statement because other evidence exculpating petitioner from Robert Williams and Rory Bryson was available at the time of the trial.
With respect to trial counsel's alleged failure to impeach State witnesses, the judge found:
Shinette Williams' statement to the police dated March 11, 1992, provided detailed and specific information regarding the events of March 10, 1992. She stated that four men got out of the blue Hyundai and joined Tyrone Williams in the assault. She identified photographs depicting the four men ([Petitioner], Rory Bryson, Robert Williams and Robert Dodson). However, some twenty months later, Ms. Williams provided an affidavit asserting that at the time she made her statement to the police in 1992, she was scared and confused. Substantively, she stated that petitioner did not participate in the beating of the victim, but rather sat in the back seat of the blue Hyundai during the incident. Nonetheless, Ms. Williams' testimony at petitioner's trial was consistent with the damaging statement she initially made to the police.
Ms. Williams' statement to the police made the day after the assault, was made while the incident was still fresh in her mind. There is nothing in the record to suggest that it was not made voluntarily, or free from undue influence. The statement is detailed factually and is consistent with other available evidence. Petitioner asserts that the claimed trial error in failing to impeach Ms. Williams' testimony with her affidavit of November 4, 1993 satisfies both prongs of the Strickland test constituting ineffective assistance of counsel. This court disagrees. Neither prong of Strickland has been met.
The affidavit, as presented in this petition, is suspect. While it may be said that it speaks for itself, its origin presents a mystery. Nothing has been advanced by petitioner as to the genesis of the affidavit. Who initiated the taking of it? Who prepared it? What inducements or threats, if any were made? The record is silent. And, there is nothing before this court to suggest that trial counsel knew any of the answers to these simple but potentially devastating inquiries. The reverse side is also noteworthy as trial counsel may have had knowledge of the manner in which the affidavit came about-and wisely chose to avoid opening that door before the jury.
The existence of the affidavit is but one element in assessing trial counsel's performance. It does not come close to providing an answer as to whether there was trial advocacy deficiency. Petitioner has the ...