August 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHAUN BARKLEY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS PARKER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-4-1390.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges Graves and Sabatino.
The appeals of these co-defendants have been calendared back-to-back for our consideration. We now consolidate the appeals.
In a twenty-two count indictment, defendants Rashaun Barkley (Barkley) and Thomas Parker (Parker), along with a third co-defendant--John Florence a/k/a Johnnie a/k/a June (Florence), who is not party to the current appeal--were charged with eight first-degree crimes: purposeful or knowing murder (count 12); felony murder (count 13); and six instances of first-degree robbery (counts 3, 5, 6, 7, 10, and 11); four second-degree crimes: conspiracy to commit robbery (count 1); aggravated assault (count 4); and two counts of possession of a handgun for an unlawful purpose (counts 9 and 15); and four third-degree crimes: theft of an automobile (count 2); two counts of unlawful possession of a handgun (counts 8 and 14); and theft/receiving (count 16). In addition, counts seventeen through twenty-two of the same indictment charged Parker and Florence with two first-degree crimes: armed robbery (counts 17 and 18); three second-degree crimes: aggravated assault (count 19), and two counts of unlawful possession of a handgun (counts 20 and 21); and one third-degree crime: theft/receiving (count 22).
Parker was the first defendant tried on October 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, 20, 21, and 22, 1993.*fn1 He was found guilty of felony murder (count 13); four counts of first-degree robbery (counts 10, 11, 17, and 18); second-degree conspiracy to commit robbery (count 1); two counts of second-degree handgun possession (counts 15 and 21); three counts of third-degree theft (counts 2, 16, and 22); and two counts of third-degree handgun possession (counts 14 and 20). Parker was also found guilty of the lesser included offenses of second-degree robbery (count 3) and simple assault (count 4). He was acquitted of purposeful murder (count 12); three first-degree robbery charges (counts 5, 6, and 7); second-degree handgun possession (count 9); and third-degree handgun possession (count 8). One charge of aggravated assault was dismissed on the State's motion (count 19). After appropriate mergers, Parker was sentenced to an aggregate term of life plus thirty years with forty-five years parole ineligibility.
Barkley was tried next on March 23, 24, 25, 29, 30, 31, April 4, 5, 6, and 7, 1994. He was convicted of felony murder (count 13); five counts of first-degree robbery (counts 3, 5, 6, 10, and 11); second-degree conspiracy (count 1); two counts of second-degree handgun possession (counts 9 and 15); two counts of third-degree theft (counts 2 and 16); and two counts of third-degree handgun possession (counts 8 and 14). Barkley was also convicted of the lesser included offenses of aggravated manslaughter (count 12), second-degree robbery (count 7), and simple assault (count 4). After appropriate mergers, Barkley was sentenced to an aggregate term of life plus forty years with fifty years parole ineligibility.
Defendants appealed their convictions and in a consolidated, unpublished opinion this court affirmed on February 10, 1997. State v. Parker, No. A-6493-93 (App. Div. Feb. 10), certif. denied, 149 N.J. 410 (1997). On February 11, 1998, Barkley filed a petition for post-conviction relief (PCR) alleging approximately eighteen instances of ineffective assistance of counsel. Barkley's petition was denied without an evidentiary hearing on February 26, 1999, and we affirmed in an unpublished decision on February 7, 2001. State v. Barkley, No. A-0657-99 (App. Div. Feb. 7), certif. denied, 170 N.J. 87 (2001). Parker also filed a PCR petition, which was denied without an evidentiary hearing on March 24, 2000. We affirmed the trial court's decision in an unpublished opinion on July 2, 2002. State v. Parker, No. A-5455-99 (App. Div. July 2), certif. denied, 175 N.J. 76 (2002).
In May 2001 Barkley filed a second pro se PCR petition based upon newly discovered evidence--namely, affidavits from certain witnesses recanting their trial testimony inculpating defendants. Ultimately, Parker was joined in the petition, counsel was assigned, and an evidentiary hearing was conducted on October 27, 28, and December 14, 2004. During the evidentiary hearing, testimony was taken from four witnesses, three of whom testified at defendants' trials.
On February 2, 2005, the court issued an oral decision denying defendants' second PCR petition. Citing State v. Carter, 69 N.J. 420, 427 (1976) and State v. Puchalski, 45 N.J. 97, 107-08 (1965), the court stated:
[T]he test for the judge in evaluating recantation on a motion for a new trial is whether it casts serious doubt on the truth of the testimony. If believable, the factual recitation of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that it resulted in miscarriage of justice.
The trial court judge also noted he presided over the defendants' trials and, therefore, he had the opportunity to observe the witnesses at the time of trial and also to observe and to judge the credibility and demeanor of these same witnesses at the time of the new trial hearings, and to be in a position, some 11 years later, to make a determination as to credibility of the repudiation and recantation testimony and documentary evidence and support thereof, as to whether it is probably true and the trial testimony is probably false.
The court found each witness who recanted his testimony during the evidentiary hearings in 2004 lacked "any grain of credibility" and did "not cast at all any serious doubt on the truth of the testimony given at trial." The trial court's credibility findings included the following:
The [c]court has viewed the demeanor of all three of these recanting witnesses. The demeanor was such that it cannot be seriously believed to have been the testimony of truth, that it had been rehearsed, fabricated and the product of an application by these defendants to prepare and to intimate exculpatory information with respect to the validity and integrity of their convictions.
Moreover, according to the court, even if the recantation testimony was trustworthy, the integrity of the guilty verdicts remained untainted:
[A]s the [c]court indicated [at] the outset, the proof of guilt of the defendants was overwhelming, was corroborated by several witnesses, by IDs, identifications, by forensic evidence, and by the victims of their crime spree on that particular unfortunate evening. . . . [T]he recantation testimony is of such a nature that it . . . would have, in the [c]court's [judgment], little if [any] impact on the integrity of the verdicts based on the record presented to these two juries . . . .
The court's decision was memorialized in an "Order Denying New Trial" dated February 2, 2005. Defendants did not appeal from this order.
On March 14, 2005, defendants filed a "Notice of Motion for Reconsideration" of the trial court's order dated February 2, 2005. In support of their request "to reopen the Post-Conviction Relief Hearing," defendants presented the affidavits of two additional witnesses, who allegedly recanted their trial testimony during or after the 2004 evidentiary hearing. Furthermore, defendants' brief in support of the motion for reconsideration also alleged the prosecutor committed Brady*fn2
violations by concealing the involvement of an informant during its investigation of defendants.
Following oral argument on November 10, 2005, the trial court denied defendants' motion. In an oral decision, the court found the two additional recantation affidavits to be "highly questionable[,] to lack any substance or any ring of truth." According to the court, "as compared to their trial testimony" the recantation affidavits were "nothing more than a post hoc fabrication, a supposition and a proposition that is not in any way supported by factual evidence and is thoroughly inconsistent with trial testimony that was given on both occasions." Regarding defendants' alleged Brady violation, the court found the informants involvement in defendants' prosecution was "tangential, at best, in terms of the inculpation testimony that may have been accepted by the jury," and since the State "has no obligation to disclose information or material that can be fairly characterized as lacking any real probative value," disclosure of the informant's involvement was not necessary.
In an order dated December 1, 2005, the court memorialized its oral decision rendered on November 10, 2005. This appeal followed.
Barkley presents the following arguments on appeal:
THE TRIAL COURT COMMITTED ERROR IN FAILING TO GRANT THE DEFENDANT A NEW TRIAL WHEN THERE IS NEWLY DISCOVERED EVIDENCE OF NEARLY ALL OF THE KEY WITNESSES AT TRIAL RECANTING THEIR TRIAL TESTIMONY AND DENYING DEFENDANT'S INVOLVEMENT.
THE COURT ERRED IN DENYING THE DEFENDANT A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE THAT THE PROSECUTOR KNOWINGLY ALLOWED FALSE TESTIMONY FROM INVESTIGATOR WILLIAM ISSETTS [SIC] REGARDING AARON MALIK GREEN.
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN DENYING DEFENDANT'S REQUEST TO ADD AL PEQUAN MAIN [SIC] AND MALEEK GREEN [SIC] TO THE WITNESS LIST AND ALLOW THEM TO TESTIFY.
In his pro se brief, Parker advances the following issues on appeal:
THE MOTION JUDGE ERRED WHEN HE FAILED TO GRANT THE DEFENDANT'S NEW TRIAL REQUEST BASED ON THE LIVE TESTIMONY PROVIDED BY FOUR (4) OF THE SIX (6) AVAILABLE CREDIBLE WITNESSES.
THE MOTION JUDGE'S REFUSAL TO ALLOW TWO (2) MATERIAL WITNESSES TO TESTIFY DENIED THE DEFENDANT HIS RIGHT TO COMPULSORY PROCESS AND DUE PROCESS PROVIDED BY THE SIXTH AND FOURTEENTH AMENDMENTS AND [N.J.] CONST. ART. 1, PAR. 10.
THE MOTION JUDGE ERRED WHEN HE FAILED TO GRANT THE DEFENDANT A NEW TRIAL BASED ON THE STATE'S UNLAWFUL SUPPRESSION OF MATERIAL INFORMATION IN VIOLATION OF BRADY V. MARYLAND.
A. THE STATE COERCED, TRICKED AND DECEIVED A JUVENILE [INTO] COMING TO THE PROSECUTOR'S OFFICE, THEN HAVING HIM SIGN A FALSE STATEMENT THAT INVESTIGATORS HAD ALREADY DRAWN UP, AND WHEN [THE] WITNESS WAS CALLED TO TESTIFY BY THE STATE IN REGARDS TO THE FALSE STATEMENT HE INFORMED THE PROSECUTOR [OF] THE FALSITIES OF THE STATEMENT BUT THE PROSECUTOR THREATENED HIM.
B. THE MATERIAL FACTS PROVIDED IN THE POST-TRIAL AFFIDAVITS OF BOTH SYHIM COBB A/K/A JACKSON AND ALFUQUAN MAING THAT POLYGRAPH AND SCIENTIFIC TESTS WERE CONDUCTED PRIOR TO TRIAL ESTABLISHED BRADY VIOLATIONS OF UNLAWFUL SUPPRESSION OF MATERIAL EVIDENCE/INFORMATION.
Parker's attorney raises the following issues on appeal:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN MISINTERPRETING THE APPLICABLE CASE LAW TO THE FACTS PRESENTED.
A. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION BY SUMMARILY DISMISSING APPELLANT'S BRADY ARGUMENT.
B. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION BY FAILING TO CHARACTERIZE THE RECANTATION OF THE STATE'S TWO KEY WITNESSES AS "NEWLY DISCOVERED EVIDENCE" UNDER CARTER.
After reviewing these contentions in light of the entire record, the applicable law, and the PCR court's findings and conclusions, we are satisfied defendants' arguments are without sufficient merit to warrant extended discussion. Rule 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Winard in his oral decisions on February 2 and November 10, 2005. We add only the following comments.
Where a defendant's petition for a new trial is based upon the recantation of a State's witness the appropriate test is (1) "whether the testimony given at the trial was probably false," and, if so, (2) whether "on that account there is a substantial possibility of [a] miscarriage of justice." State v. Baldwin, 47 N.J. 379, 400, cert. denied, 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed. 2d 442 (1966); see also State v. Carter, 69 N.J. 420, 427 (1976) ("The test for the judge in evaluating a recantation upon a motion for a new trial is whether it casts serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice." (Internal quotations omitted)). "Courts generally regard recantation testimony as suspect and untrustworthy," therefore the burden is placed squarely upon the defendant to prove the recantation statement "is probably true and the trial testimony probably false." Carter, supra, 69 N.J. at 427. In particular, where the recanting witness is incarcerated, courts are even more skeptical in assessing the veracity of the recantation. See, e.g., State v. Engel, 249 N.J. Super. 336, 386 (App. Div.) ("Prisoners often have nothing to lose and much to gain by repudiating their trial testimony. For that reason, we regard recantations as inherently suspect."), certif. denied, 130 N.J. 393 (1991); Baldwin, supra, 47 N.J. at 400 ("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.").
Determining whether recanting statements are believable requires a trial court to assess the credibility of the recanting witness, and the court's findings should rarely be disturbed on appeal:
The determination of the credibility or lack thereof of recantation testimony is peculiarly the function of the trial judge who sees the witnesses, hears their testimony and has the feel of the case. Manner of expression, sincerity, candor and straightforwardness are just some of the intangibles available to the trial judge in evaluating the credibility of recantation testimony. A reviewing court, not having the same advantage should ordinarily defer to the trial judge's findings on this sensitive issue as long as the proper criteria are used. [Carter, supra, 69 N.J. at 427-28.]
See also State v. Locurto, 157 N.J. 463, 474 (1999) ("Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record."). If after assessing the credibility of the recanting witness "the trial court is satisfied the present testimony of the recanting witness is unbelievable, the application must be denied." Baldwin, supra, 47 N.J. at 400. Moreover, even if the recantation testimony is accepted as credible, a defendant still bears the burden of demonstrating the new evidence "would probably change the jury's verdict if a new trial were granted." State v. Bey, 161 N.J. 233, 287 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
In the present appeal, the court determined the recantation testimony and affidavits were not credible or believable, but rather "rehearsed" and "fabricated" so as "to intimate exculpatory information with respect to the validity and integrity of [defendants'] convictions." These conclusions are amply supported by the record. With the exception of one individual who did not testify at either of defendants' trials, the recanting witnesses waited between eight and twelve years to come forward with affidavits retracting their trial testimony.
Moreover, the affidavits and testimony of the recanting witnesses were suspiciously similar--each alleging they decided to come forward approximately a decade after the defendants' trials for similar reasons such as "I just got a conscious now," "I just want the truth to be told," and "I know now what I did was wrong." In fact, affidavits submitted by two of the recanting witnesses were virtually identical, and one of those witnesses testified Parker wrote the affidavit for him. Furthermore, doubt is cast upon the witnesses' recantations given that at least four of the five recanting witnesses were incarcerated at the time they signed affidavits disowning their trial testimony. Thus, the record fully supports the court's determination that defendants failed to show the trial testimony of the recanting witnesses was "probably false." Baldwin, supra, 47 N.J. at 400.
Having presided over both defendants' trials, Judge Winard was uniquely qualified to evaluate the "expression, sincerity, candor and straightforwardness" of the recanting witnesses' trial testimony as compared to their testimony during the 2004 evidentiary hearings. Carter, supra, 69 N.J. at 427-28. Judge Winard concluded the recanting testimony could not "be seriously believed to have been the testimony of truth," and we perceive no valid basis for interfering with that determination.
Furthermore, even if defendants' did succeed in establishing the trial testimony of the recanting witnesses was "probably false," they have failed to demonstrate their convictions resulted in "a substantial possibility of miscarriage of justice." Baldwin, supra, 47 N.J. at 400. As noted by the court, defendants' guilt was established "by several witnesses, by IDs, identifications, by forensic evidence, and by the victims of their crime spree," and therefore "the recantation testimony . . . would have . . . little if no impact on the integrity of the verdicts based on the record presented to these two juries." Based on our review of the record, we are satisfied that Judge Winard's comprehensive factual findings are amply supported by substantial evidence in the record, and his conclusions predicated on those findings are legally sound.
Finally, to the extent defendants' allege the prosecutor committed Brady violations by concealing the involvement of an informant, we note defendants judgments of conviction were entered over two decades ago, and defendants' apparently failed to raise this claim in either their direct appeal or first PCR petition. Their claims are therefore untimely. See R. 3:22-4 (barring grounds for relief which could have been raised in an earlier proceeding); R. 3:22-12 ("No . . . petition shall be filed pursuant to [Rule 3:22-1] more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect."). Nevertheless, even if defendants' Brady claims were not procedurally barred, we agree with the trial court's determination that the informant's involvement in the case "was no mystery," to defendants, and was "tangential, at best, in terms of the inculpation testimony that may have been accepted by the jury." Thus, even if the prosecutor failed to disclose evidence of an informant's involvement, defendants have not demonstrated "there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000).