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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...