On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 85-04-0519.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Simonelli.
On this appeal from the denial of defendant Ronald Long's petition for Post-Conviction Relief (PCR) and motion for a new trial, we are urged to revisit a twenty-four year old felony murder conviction that has been affirmed on appeal and had been the subject of at least five other PCR proceedings. In this most recent application, defendant raises the new claim that the felony murder sentencing was invalid for want of a presentence report. He also moved for DNA testing of a cigarette butt, which the State had used to place defendant at the scene of another armed robbery in response to defendant's argument that the use of the same gun in all three armed robberies proved that someone else must have committed them. Defendant also included a motion for a hearing on whether a recantation by the jail-house informant indicated that the informant's testimony against him was unreliable. Here, the PCR judge considered both the most recent PCR and motion and concluded that they were without merit. We agree and affirm.
We provide an expansive discussion of both the procedural and factual background of this matter.
In 1985, defendant was indicted on thirteen counts:
1. Theft by receiving stolen property, namely, the handgun involved in the remaining counts, N.J.S.A. 2C:20-7 (third degree);
2. Possession without a permit of the handgun used against Alfred Carmichael, N.J.S.A. 2C:39-5(b) (third degree);
3. Attempted unlawful disposition of the handgun, N.J.S.A. 2C:5-1 and 2C:39-9;
4. Possession of prohibited ammunition, N.J.S.A. 2C:39-3(f) (fourth degree);
5. Possession of a weapon for unlawful purposes against Carmichael, N.J.S.A. 2C:39-4 (second degree);
6. Aggravated assault against Carmichael, N.J.S.A. 2C:12-1(b)(1) (second degree);
7. Armed robbery of Carmichael, N.J.S.A. 2C:5-1 and 2C:11-3a(2) (second degree);
8. Attempted murder of Carmichael, N.J.S.A. 2C:11-3(a)(2) and 2C:5-1;
9. Armed robbery of Albert Compton, N.J.S.A. 2C:15-1 (first degree);
10. Felony murder of Compton, N.J.S.A. 2C:3(a)(3) (first degree);
11. Purposeful or knowing murder of Compton, N.J.S.A. 2C:11-3(a)(1) or (2) (first degree);
12. Possession without a permit of the handgun used against Compton, N.J.S.A. 2C:39-5(b) (third degree); and
13. Possession of a weapon for unlawful purposes against Compton, N.J.S.A. 2C:39-4 (second degree.
On October 18, 1985, after two weeks of trial, the jury convicted defendant on all counts. They then found that the felony murder was a statutorily sufficient aggravating factor to support the death penalty, and defendant was sentenced to death by the trial judge.
On November 22, 1985, the judge sentenced defendant on the remaining convictions. He merged count two into count five; count twelve into count thirteen; count six into count eight; and counts nine and ten into count eleven, for which defendant had already been sentenced to death. Notwithstanding the absence of a presentence report (PSR), he found five aggravating factors and no mitigating factors. On the remaining counts, he imposed an aggregate sentence of 61.5 years and parole ineligibility of 30.75 years together with statutory penalties and fines.
The death penalty gave defendant a right of appeal to the Supreme Court. State v. Long, 119 N.J. 439, 460 (1990) (citing R. 2:2-1(a)(3)). The Court vacated the death penalty for error in the murder jury charge, reversed the murder conviction and ruled that the State could seek the death penalty again only by retrying the murder count. Id. at 450-51, 459-65, 504. In "all other respects," the Court affirmed "the judgment below." Id. at 504. However, it did not reach defendant's claims about the non-capital sentences or about "the merger of the weapons counts," and declared that they were to "await disposition after remand." Ibid.
Instead of seeking to retry the murder count, the State moved to dismiss the murder conviction, and in April 1991 the court did so. It resentenced defendant on the non-homicide convictions to the same terms as before.
In September 1992, defendant filed his first PCR, which was denied. Within this petition, defendant raised, among other things, the issue of whether "he was denied a fair trial because he was not permitted to voir dire prospective jurors regarding their racial biases," whether "the prosecutor's remarks were so racially inflammatory that the defendant was deprived of a fair trial" and "whether he was denied due process of law when the trial court allowed a jailhouse informant to testify against him without first holding a pretrial evidentiary hearing to determine if the informant had acted as a State agent in eliciting statements from the defendant." Defendant appealed the denial of the PCR and then realized that he had never been sentenced on the felony murder conviction. He filed a second PCR petition, arguing that the dismissal of the murder conviction precluded sentencing on any merged conviction. The State cross-moved to unmerge the felony murder for sentencing, defendant moved before us seeking to have us assume original jurisdiction of the motions, and we ordered a "limited remand" for resolution of the question.
At the March 11, 1994 hearing, the judge denied defendant's second petition and granted the State's cross-motion. The judge found five aggravating factors, four of which had also been found at the original sentencing, and no mitigating factors. He imposed a sentence of life in prison for the felony murder, with a minimum term of thirty years, plus a VCCB penalty of $10,000. He left the other sentences "as they are" and deemed them concurrent with the life sentence. On January 3, 1995, we affirmed the denials of both the first and second PCRs, and the Supreme Court denied certification. State v. Long, 139 N.J. 441 (1995).
Defendant filed a third PCR petition challenging the non-capital sentences as excessive, and on October 18, 1995, the Law Division judge denied it. Defendant apparently raised no new issues in his fourth petition, which the court summarily dismissed. Defendant then moved that Judge Neustadter*fn1 recuse himself on the ground of bias, which the judge denied on January 6, 1998.
Defendant filed a fifth PCR in which he again sought recusal. The PCR included his first motion for a hearing on new evidence, in which he sought DNA testing of a cigarette butt that the State had referenced at trial, on the basis of recent legislation permitting such testing in certain concluded cases. On May 17, 1999, the Law Division denied the petition, we affirmed, and the Supreme Court denied certification. State v. Long, 170 N.J. 86 (2001).
Defendant then filed another motion for a hearing on new evidence, asserting a recantation by the jail-house informant. On July 25, 2002, the Law Division denied the motion. Defendant's next motion for a hearing on new evidence was similar to the prior one, and it was also denied. We affirmed, and the Supreme Court denied certification. State v. Long, 178 N.J. 250 (2003).
Defendant's next motion for a hearing on new evidence was based on the lab report from the testing of the cigarette butt, which the State failed to produce despite having disclosed its contents. The Law Division denied the motion, we affirmed, and the Supreme Court denied certification. State v. Long, 183 N.J. 215 (2005).
On January 31, 2007, defendant filed his sixth PCR petition, again challenging his sentence as illegal. On June 4, 2007, he filed another motion concerning new evidence, which requested a hearing on the admissibility of the jail-house informant's testimony based on a recantation. On August 6, 2007, he filed another motion for a hearing on new evidence, in which he cited new information that the State might have failed to test the cigarette butt.
The Law Division denied the PCR and the motions. This appeal followed.
The Supreme Court succinctly outlined the two incidents for which defendant was tried, plus the third incident that each side presents in support of its respective position:
The case has a very complex trial record but a very simple factual scenario. On December 11, 1982, a gunman clad in a red baseball jacket, wielding a silver revolver, shot to death Albert Compton, the night manager of the Holiday Liquor Store. There was a single bullet to the chest. There were no witnesses to the killing itself. There was one witness on the street who identified Ronald Long as being in the vicinity of the liquor store around the time of the crime.
Earlier on the same evening, a similarly-clad gunman with a silver pistol had shot Alfred Carmichael at an apartment within walking distance of the Holiday Liquor Store. Several witnesses linked Ronald Long to the first shooting. If the same gun were used in the two crimes, Long would be a prime suspect. Ballistic tests proved that the same type of gun was used in both crimes. There was overwhelming evidence that defendant had access to such a gun, which was owned by his cousin, Harold Long. A major trial issue then, was whether it was correct to try the Carmichael and liquor-store crimes together. A final wrinkle to the case was that a third holdup and shooting had occurred that same night with a perpetrator using the same type of revolver. The victim of this crime did not identify Ronald Long as the gunman. [State v. Long, supra, 119 N.J. at 451.]
The Court then relied on "the issue-oriented version of facts as set forth in defendant's brief" to relate the testimony and forensic evidence presented at trial. Id. at 452.
In early December 1982, defendant was staying in Atlantic City at his brother's apartment. Id. at 452. He admitted possessing Harold's handgun during his stay. Ibid. The State presented evidence that defendant had stolen it from Harold, but defendant testified that he bought it from Harold on December 2, 1982, and that on December 7 or 8, 1982, he sold it to "a Rastafarian friend of Carmichael." Ibid.
Carmichael testified that he and defendant were friends. Id. at 453. On December 11, 1982, at approximately 6:00 p.m., defendant came to Carmichael's apartment to borrow money, but Carmichael refused. Ibid. Carmichael took defendant to another person's apartment, and a man named Oliver Johnson, who knew Carmichael but not defendant, briefly stopped by. Ibid. Carmichael and Johnson went to Carmichael's apartment, and a man named Liver Johnson, briefly stopped by. Ibid. After Johnson left, defendant asked Carmichael again to lend him money. Ibid. When Carmichael refused, defendant showed him a handgun and offered to sell it. Ibid. Carmichael left to take out the trash, and as he walked down the hall, he was shot in the neck. Ibid. Carmichael gave the police conflicting stories before naming defendant as the shooter. Ibid.
That same evening, Albert Compton was working at the liquor store. Id. at 454. He was shot once in the chest and died from that wound. Id. at 454-55. A witness found Compton's body at 8:35 p.m; the store's owner later determined that Compton had closed out the store's lottery machine at 8:20 p.m. and that the money in it was missing. Id. at 455, 457. The shooter left an empty shell casing on the floor but no fingerprints. Id. at 455.
The bullets removed from Carmichael and Compton were of "different types," but both were .25 caliber. Ibid. There were 70,000 automatic weapons of the same caliber "in circulation," and approximately thirty-five brands "exhibit the same ballistic patterns as found on the Carmichael and Compton shells." Ibid. The State's ballistics ...