February 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL A. SUAREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 98-04-0624.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Parrillo, Lihotz and Messano.
Defendant Miguel Suarez appeals from a Law Division order denying his motion for a new trial based on newly discovered evidence. We affirm.
Tried to a jury jointly with co-defendant Richard Morales, defendant was convicted of multiple charges arising out of a triple homicide, namely second-degree conspiracy to commit armed robbery; second-degree conspiracy to commit murder; first-degree robbery; three counts of first-degree murder; and various weapons offenses.*fn1 After appropriate mergers, defendant was sentenced to three life terms with a ninety-year parole bar. We affirmed the judgment of conviction except to remand for clarification that the No Early Release Act (NERA) did not apply to the murder conviction, and for the court to impose a NERA sentence on the armed robbery charge. State v. Miguel Suarez and Richard Morales, Docket Nos. A-5638-00T4 and A-6768-00T4 (App. Div. May 21, 2004). The Supreme Court denied certification. State v. Suarez, 181 N.J. 547 (2004).
While his appeal was pending, defendant had filed a motion for a new trial on the basis of newly discovered evidence, which was stayed pending the outcome of the appeal. The newly discovered evidence consisted of a co-conspirator's subsequent recantation of certain testimony he gave at defendant's trial and another co-conspirator's so-called "exculpatory" evidence. A hearing on the motion for a new trial was eventually held on October 25, 2005, after which the Law Division judge, who had presided over defendant's trial and that of his co-conspirators, denied the requested relief. On appeal, defendant claims the judge erred in this determination.
We recite fully the facts stated in our earlier opinion because they are relevant to the issue on this appeal. On October 23, 1997, the blood-covered bodies of Rajesh Kalsaria, Ajit Hira, and Bhushan Raval were discovered inside Kalsaria's home at 71 Chestnut Street in Bogota. Hira and Kalsaria had been shot in the head at close range while they were lying face down on the floor, bound by duct tape. Raval had been shot in the face, likely while kneeling, and then stabbed twenty-six times in the neck, chest and abdomen before dying from his wounds. Over $60,000 in diamonds, gold jewelry and cash had been taken from the house, and Hira's Toyota Avalon was missing from Kalsaria's driveway.
Investigation at the scene uncovered pieces of a rubber silencer, as well as a knife covered with blood, later confirmed to be that of the victim, Raval. Police also recovered several nine-millimeter bullets and a number of spent shell casings. It was subsequently determined that all of the bullets and casings had been discharged from the same weapon, which could have been a MAC 11 automatic firearm.
The State's investigation disclosed that Dimpy Patel, a wealthy entrepreneur in his thirties, first met Darwin Godoy, a twenty-year old Secaucus student who had hoped to secure employment with Patel through Patel's cousin, sometime in August 1997. Shortly thereafter, Patel requested that, in return for $10,000, Godoy find a hit man who would be willing to do a job for him. Godoy had been acquainted with defendant Suarez, with whom he had been selling illegal cloned cell phones. Godoy knew Suarez to be a violent person who had bragged that he enjoyed killing people. Godoy arranged a meeting between Suarez and Patel, which he also attended.
During that meeting, Patel told Suarez that he wanted to hire him to kill a diamond merchant and that, if he agreed, Suarez could keep any jewelry and cash he found inside the diamond merchant's home, estimated by Patel to be worth $200,000. Neither the identity nor address of the diamond merchant was disclosed by Patel at that time. After reaching an agreement, Patel gave $1,000 to Godoy for he and Suarez to purchase a firearm with a silencer. Thereafter, Suarez, co-defendant Morales, who was a long-time friend of Suarez, Godoy, and another man, Eddie Nieves, drove into New York City where Godoy and Suarez purchased a MAC 11 automatic firearm with a silencer from someone named "Mike," to whom they were introduced by Nieves.
Two days before the murders, Patel telephoned Godoy and provided the address of Kalsaria, the diamond merchant, which was 71 Chestnut Street, Bogota. The next day, Godoy and Suarez drove by the house. The following day, October 23, Godoy met Suarez, who was accompanied by Morales,*fn2 and they drove in separate vehicles to Bogota - Godoy in his Subaru, and Suarez and Morales in Suarez's Honda. After parking his vehicle, Godoy entered Suarez's vehicle and they drove to the area of 71 Chestnut Street.
Suarez showed Godoy a light blue, bullet-proof vest he intended to wear while carrying out the job, as well as the MAC 11 and silencer. Suarez also advised that he had brought along a nine-millimeter handgun and some duct tape which he planned to place over the victim's mouth, at which time Morales drew his hand across his mouth to pantomime what was going to occur. Suarez instructed Godoy to act as a lookout while he and Morales entered the residence and completed the hit. Suarez and Morales exited the vehicle, with Suarez carrying the firearm.
Godoy then returned to his car, drove by 71 Chestnut Street, circled back and parked a short distance away. From where he remained inside the parked vehicle, Godoy spotted Suarez and Morales walking along Chestnut Street towards the diamond merchant's home. Moments later, though, Godoy saw the pair walking back towards their car. Thereafter, Suarez called Godoy on his cell phone and advised that there were three men inside the house and that he did not know what to do. However, after a pause, Suarez said, "Fuck it. I'm going to do it."
Immediately thereafter, a police car operated by Officer James Sepp of the Bogota Police Department pulled alongside Godoy's vehicle to investigate why Godoy was parked there. Godoy told Officer Sepp he had been sent by his brother, Carlos, the owner of J&J Maintenance in North Bergen, to estimate a garage for an upcoming construction project. During the conversation with Officer Sepp, Godoy's cell phone rang approximately five times, with Godoy abruptly terminating the calls. After some additional questioning, Godoy admitted to Officer Sepp that the three cell phones in his possession might be cloned phones. Officer Sepp seized the phones, issued two summonses to Godoy for various traffic violations, and let him go. Godoy then left the area, purchased a phone card and called Suarez, who informed Godoy that he had "whacked him" and had stolen various jewelry and diamonds from the home. Later, Godoy reported the information to Patel, who told Godoy that Suarez had dropped off some jewelry and diamonds and had left for Puerto Rico.
After the murders were discovered, Officer Sepp recalled the incident with Godoy, who had been present near the murder scene at or about the estimated time of the three murders. After being located and questioned during the police investigation, Godoy confessed to his involvement in the murders, implicating Suarez, Morales and Patel.
Based upon Godoy's statement, officers were dispatched to locate and apprehend Patel, Suarez and Morales. While police searched Morales' home shortly after his arrest at 3:00 a.m. on October 24, 1997, the phone rang, and a man, later identified as Suarez, left a message for Morales urging him to call back because there was an emergency.
Although police, at first, were unable to locate Suarez, they searched his Newark home and found a light blue, bullet-proof vest hidden under a mattress. Later, when Sergeant Richard Barbato was speaking to Suarez's girlfriend, Betsy Tufino, at her apartment, Suarez called and Tufino handed the phone to Sergeant Barbato. The officer identified himself and told Suarez that he was investigating a triple homicide in Bogota which had taken place the day before. After denying any knowledge, Suarez angrily responded that the police would never find him and that he was not going to turn himself in. He then hung up. However, later that same day, Suarez did surrender to police at his attorney's office.
According to Tufino, who testified at trial, in early October 1997, she complained to Suarez about the frequent phone calls he was receiving from Godoy, whom she called by his nickname "Giovanni." Tufino was aware that Giovanni wanted Suarez to rob and kill an Indian man in return for $20,000 and some diamonds. Although she begged Suarez not to do it, Suarez would not respond. A few days later she overheard Suarez talking on the phone with Giovanni and again heard Giovanni encouraging Suarez to "do it." She also claimed that at some point prior to October 23, 1997, she overheard Morales tell his girlfriend on the telephone that he was going to rob and kill an Indian man.
Patel was arrested at 8:00 a.m. on October 24, 1997, as he was driving away from his Gloucester Township home. A search of his car uncovered a bag containing a .45 caliber gun, Indian currency and several jewelry boxes containing assorted jewelry, including thirty diamonds that the victim's wife, Chetna Kalsaria, later identified as belonging to her. During a subsequent search of Patel's home, police found a piece of paper on which the name "Rajesh Kalsaria" had been written, along with Kalsaria's phone number, address and the notation "brick house." Police also found a Casio organizer and a second piece of paper containing the name "Angel" (Suarez's nickname) and several telephone numbers, later identified as Suarez's cell phone and pager numbers. Police also discovered Patel's address book, which had Godoy's phone information, another piece of paper with Godoy's number, and a business card for J&J Maintenance, Inc.
That same day, police searched defendant's apartment, pursuant to a search warrant, and found a birthday card from Morales, defendant's birth certificate, a passport indicating his name as "Miguel Angel Suarez," and a light blue, bullet-proof vest hidden underneath a bedroom mattress. Meanwhile, in Morales' residence, the police located a pair of latex gloves in a bedroom dresser drawer and listened as defendant left an answering machine message for Morales.
Hira's Toyota, which someone had tried unsuccessfully to burn, was ultimately located several blocks away from Suarez's home in Newark. Fibers gathered from Suarez's Honda Accord were subsequently determined to match fibers found on the duct tape removed from the murdered men.*fn3
Telephone records of the four conspirators were obtained and confirmed that between October 1 and 24, 1997, there were numerous calls between Godoy, Suarez and Patel. Godoy and Suarez had been on the phone for forty-one minutes just before Officer Sepp approached Godoy's parked Subaru on the day of the murders, and Suarez called Godoy back five minutes later while Godoy was being interviewed by police. Suarez also called Godoy three more times in rapid succession. According to Kalsaria's caller i.d., Suarez had called the Kalsaria home at 12:07 p.m. in an apparent attempt to ascertain who was home.
Finally, there was the testimony of George Rivera who met Suarez in December 1997 when they were cell mates for two weeks in the Bergen County Jail. Rivera renewed the acquaintance, and also met Morales, when he was reincarcerated at the jail for several weeks in February 1998, and then resumed his friendship with both men when he returned to the jail again in March 1999.
Rivera maintained that, during his third period of incarceration, Suarez revealed to him the details of the murder plot which had landed him and Morales in jail. Rivera recalled that Morales was present as Suarez recounted the story, but that he simply nodded without making any comments.
According to Rivera, Suarez claimed that Godoy had introduced him to Patel, who said he was an FBI agent and who offered to pay him $50,000 to kill someone who had swindled some friends of his. The deal also included Suarez receiving all the diamonds and money in the house. After agreeing to do the job, Suarez obtained two nine-millimeter handguns and a MAC 11 with a silencer with the help of one, "Eddie." Suarez went to the Bronx to obtain the MAC 11, for which he handed over $1,500 in cash plus a video game system. Suarez asked Morales to accompany him when he went to do the job and agreed to pay him for his assistance.
Suarez told Rivera that, on the day of the murders, he and Morales met up with Godoy, and the trio drove to Bogota in two cars. Suarez was wearing a bullet-proof vest and had stored the MAC 11, silencer and duct tape in a duffle bag. He and Morales were also each carrying a nine-millimeter handgun.
After Godoy took up his position as a look-out, Suarez and Morales approached the house and began to bluff their way in using a brochure, but abandoned the plan after noticing that there were two other men in the house. However, after leaving and calling Godoy, Suarez decided to go back and kill everyone in the house.
Once Suarez and Morales had forced their way into the house and put on the rubber gloves they had brought with them, Suarez ordered Morales to tie the three men up on the floor with duct tape while he assembled the MAC 11. Suarez then sent Morales upstairs to look for the diamonds and cash, but when he failed at this task, Suarez, himself, searched and located the cache. When Suarez came back downstairs, he noticed that the three victims were speaking among themselves in a foreign language, and so he ordered Morales to gag them with the duct tape. After some more searching, Suarez shot the homeowner, and then the other two men, with the MAC 11. When it became clear that the third man was not dead, Suarez directed Morales to get him a knife. Suarez then proceeded to stab the third man repeatedly in the chest.
After exiting the house, Suarez and Morales stole the Toyota Avalon which was sitting in the driveway and drove to Suarez's Honda, which Morales subsequently drove back to Newark. Suarez drove the Toyota to Newark and gave it to some neighborhood friends to burn. He hid the bullet-proof vest under his brother's mattress and the guns in his father's garage. Later that day, Suarez met with Patel and handed over the diamonds and other jewelry he had taken from the house. Upon learning that the police were after him, Suarez asked his father to get rid of the guns.
In return for Rivera's testimony, the prosecutor agreed to recommend that he receive a seven-year prison term, with a three-year stipulation, on all of his pending New Jersey charges. However, Rivera had multiple pending robbery cases in Pennsylvania and Connecticut which were not covered by this deal. Rivera conceded that, in his original statement to the prosecutor, he never said that Morales was present and nodding his head while Suarez recounted the details of the murder plot.
As noted, defendant was convicted of the triple murder and related charges. Following defendant's trial, Godoy, having successfully sought to vacate his plea bargain, was tried, at which time he recanted his earlier testimony about being paid by Patel to arrange the murder, about receiving $10,000 from Patel for being a look-out, and about not selling illegal cell phones. At his trial, which commenced on June 20, 2001, Godoy claimed that his previous testimony about the payment was false and admitted, under cross-examination, that he was selling illegal cell phones. In addition, at Patel's separate trial on November 14, 2001, Patel testified that another individual, also named "Angel," and not defendant, gave him a bag with jewelry immediately after the murders.
Armed with this information, defendant, as noted, moved for a new trial. The trial judge denied the motion, finding the "newly discovered" evidence immaterial and the State's remaining trial evidence so extensive that defendant's new proffer would not have made a difference in the verdict. He reasoned:
[Defense counsel] says . . . what Mr. Godoy now says in trial number two and trial number three is newly discovered evidence. [Defense counsel is] probably right, it is newly discovered evidence. But is it newly discovered evidence that in any way is material to the issue and not merely cumulative, or impeaching, or contradictory.
Mr. Godoy at all three trials was called a liar. He was called a liar both by the State in his first trial, by both defense counsel in the second . . . . There was substantial evidence in this case, even without Mr. Godoy.
I do not think, after reviewing all this matter and being the judge who sat on all three trials, that there would be a change in the jury's verdict as a result of . . . lies of Mr. Godoy. Mr. Godoy never came across to anyone as the most credible witness, but there was enough of what he said, and enough of what the State had to prove beyond a reasonable doubt, that [defendant] was the person involved in these murders.
The standard for a new trial based on newly discovered evidence involves a three-part test whereby the defendant must prove that the evidence is: "1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) . . . was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) . . . '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), appeal after remand, 91 N.J. 86 (1982)). All three prongs must be met. Ibid. Under the first prong, 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)). "[E]vidence that supports a defense, such as alibi, third-party guilt, or a general denial of guilt would be material[,]" ibid., while evidence that is "merely cumulative, or impeaching, or contradictory . . . is not of great significance and would probably not alter the outcome of a verdict." Id. at 189. In other words, "evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory." Ibid. Thus, "[t]he common theme . . . is that the 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." Id. at 191. Obviously, as to the third prong, if the new evidence supporting the defendant's claim would not have altered the jury's verdict, then it does not warrant a new trial. Id. at 191 (citing State v. Coburn, 221 N.J. Super. 586, 600 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988)).
For instance, in Coburn, the defendant was convicted of murdering his girlfriend by shooting her twice, once from the back of her head, with a gun that had to be cocked and required four-and-one-half pounds of pressure to pull the trigger. 221 N.J. Super. at 601. He moved for a new trial on the basis of a toxicological report received subsequent to trial, which indicated the victim was under the influence of a large amount of drugs at the time of her death. Id. at 599. The defendant argued such evidence would support his theory that her death was accidental and self-induced and that the jury should have this information in evaluating her testimony about the scuffle leading to her death. Ibid. In denying the motion, the judge found the toxicological report to be cumulative of the autopsy admitted at trial, which showed fresh needle marks on the victim's left wrist, from which the jury could infer recent injections of drugs, probably heroin. Id. at 600-01. We agreed, finding it highly improbable that the toxicological report would have altered the jury verdict or rendered the defense theory of an accidental shooting any less implausible. Ibid.
In contrast, in State v. Henries, 306 N.J. Super. 512, 536 (App. Div. 1997), where the defendant was convicted by a jury of murder based principally on the testimony of a thirteen-year-old boy who witnessed the events, the court found that the newly discovered evidence would probably lead to an acquittal in a new trial. Ibid. We reasoned that the post-trial diagnosis that the child suffered from multiple and severe psychiatric disorders and took substantial amounts of potent medication that impaired his ability to perceive and recall events reliably was sufficient to warrant a new trial. Id. at 521-28.
Here, while concededly "newly discovered," the information is hardly material inasmuch as the inconsistencies revealed therein were minor and do not alter in any significant way the essential points of Godoy's testimony -- that he was instructed by Patel to find someone to commit a murder, that he approached defendant who agreed to do the crime, that he was the intermediary between defendant and Dimpy Patel, that he met Morales on the day of the murder, and that he acted as the lookout on the day of the murder.
Moreover, the issue of Godoy's credibility was extensively exposed at trial. On cross-examination, he admitted to lying in his initial statement to police and the jury well understood Godoy had lied in the past. Indeed, Godoy's credibility was the focus of defense counsel's summations. Even the prosecutor, in his own summation, acknowledged Godoy's credibility problems. Given such exhaustive treatment, it is difficult to imagine how the minor inconsistencies uncovered in Godoy's subsequent partial recantation could possibly have changed the verdict of a jury who had a full opportunity to assess Godoy's credibility.
Clearly, the jury's verdict was based on overwhelming evidence of defendant's guilt, which, in all critical respects, corroborates the core ingredients of Godoy's highly incriminating trial account. This corroborating evidence includes: a record of telephone calls between Godoy and defendant during the murders; a telephone call from defendant to the victim's house shortly before the murders; duct tape fibers found in defendant's car consistent with duct tape fibers found on the victims' mouths; defendant's telephone and pager numbers found in Patel's organizer; a note with the name "Angel" and defendant's cell phone number in Patel's home; defendant's birth certificate and passport listing his name as "Miguel Angel Suarez;" the victim's stolen car found three blocks from defendant's home; the bullet-proof vest found hidden in defendant's bed; three of the victim's neighbors, Margaret Creange, Marie Blanchet, Glen Kohles, identifying defendant at the crime scene during the murder timeframe; defendant's cellmate, George Rivera's, corroborating testimony; defendant's girlfriend, Betsy Tufino's, testimony that defendant told her he was going to commit murder in exchange for money and diamonds; and Tufino placing Morales driving defendant's Honda in Newark at about 2:30 p.m. on the day of the murder.
This very same evidence, of course, demonstrates Patel's involvement in the crimes for which he, too, was later separately convicted. Just as clear is his motive, at his subsequent trial, to lie about there being two "Angels" and to distance himself from the already convicted defendant to explain away the overwhelming evidence of his guilt.
We, therefore, conclude that the newly discovered evidence is cumulative and not material; at most, it is impeaching and contradictory, having no likelihood of changing the verdict if a new trial were granted.