On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-03-1111.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Wefing, Grall and LeWinn.
Defendant Michael Jackson appeals from the denial of his application for post-conviction relief. Because defendant's evidence was adequate to require a hearing on one of his claims of ineffective assistance of counsel and his claim of newly discovered evidence, we reverse and remand for an evidentiary hearing.
Defendant and his co-defendant Ethan Blane White were tried to a jury on an indictment charging crimes, including capital murder, committed during the invasion of an apartment in Newark on September 19, 1991. There were three intruders, but the third was never identified. One of the residents, Hwa Ryun Paik, died as a consequence of injuries resulting from repeated brutal blows delivered by the intruders. Although her husband, Young Bae Paik, was also beaten and kicked before the trio left the apartment with the money they found, he survived.
Proximate to the time that the men left the Paiks' apartment, a neighbor of the Paiks, Audrey Chitty, heard a noise on her porch and from her window saw defendant drop from an adjacent roof to her porch. In the process, defendant lost his hat. Chitty later retrieved the hat and gave it to the police.
Defendant lived in the same neighborhood as Mr. Paik and Mrs. Chitty; they both recognized him and subsequently selected his photograph from an array. Mr. Paik also identified the hat found by Mrs. Chitty as the one worn by defendant on the night his wife was killed. There was no forensic evidence linking either defendant or White to the crime or the hat recovered by Mrs. Chitty. A hair removed from the hat did not match either defendant's or White's hair.
Neither defendant nor White testified at trial.
On October 21, 1994, the jurors found defendant guilty of second-degree burglary, N.J.S.A. 2C:18-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; felony murder, N.J.S.A. 2C:11-3(a)(3); reckless manslaughter, a charge submitted to the jury as a lesser included offense on a count of the indictment charging murder; two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-5d; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The jurors were unable to reach a verdict on any of the State's charges against co-defendant White. Defendant was sentenced to a life-term of imprisonment and a forty-year term of parole ineligibility. The judgment of conviction and sentence was entered on December 14, 1994.
White subsequently pled guilty to reckless manslaughter in return for the State's agreement to dismiss the charges included in this indictment and others. Because this indictment included a charge of capital murder, White was permitted to enter a plea to second-degree manslaughter without providing a factual basis. See R. 3:9-2.
This court affirmed defendant's conviction and sentence on direct appeal, and the Supreme Court denied his petition for certification. State v. Jackson, No. A-4673-94 (App. Div. Mar. 19, 1998), certif. denied, 156 N.J. 411 (1998). On that appeal, defendant raised four issues:
(1) testimony relating to his declaration against penal interest was admitted although never provided in pretrial discovery, (2) the prosecutor disparaged the defense in summation and his remarks exceeded the bounds of fair comment, (3) the trial court committed plain error in its jury instructions, and (4) the trial court erred by imposing a separate consecutive sentence on the conviction for first[-]degree robbery. [Slip op. at 2-3.]
On November 10, 1999, defendant filed a timely application for post-conviction relief. R. 3:22-12(a). The court took no action until April 5, 2006, when the court asked the public defender to assign new counsel for defendant because no brief had been submitted. Counsel was assigned, but in November 2006 defendant retained an attorney. In support of defendant's application, counsel submitted affidavits of co-defendant Ethan White, defendant's uncle, Robert Haywood, defendant and Robert Hasanoeddin, an investigator employed by the State in the Office of the Public Defender.*fn1 By the time defendant's motion was perfected, Mrs. Chitty had died. The record does not include the date of her death.
The following facts were disclosed in the sworn affidavits. Acknowledging his role in Mrs. Paik's death, White swore that defendant was not one of his two confederates and that he was prepared to identify the men who were responsible. He further swore that he had not taken any action to exonerate defendant prior to trial because he could not do that without implicating himself in the commission of the crimes. He explained that on September 19, 1991, he and defendant were not even speaking because he had robbed defendant to support his own heroin addiction. Consistent with the evidence at trial, White further explained that he knew the Paiks and had played chess with Mr. Paik prior to the night of the crime. Further, indicating that defendant had accompanied him on some of these visits, White suggested that Mr. Paik could have recognized defendant because of these prior contacts. In addition, he indicated that he executed the affidavit of his own free will and not due to any pressure, threats or coercion.
Robert Haywood's affidavit tended to cast doubt upon the testimony given by Mrs. Chitty. In 2002, Haywood was interviewed by Hasanoeddin. He did so at the request of the attorney then working on defendant's application for post-conviction relief. Haywood, who is defendant's uncle, knew Mrs. Chitty and spoke to her several times in 1991 and during defendant's trial in 1994. He swore that Mrs. Chitty told him she was not certain whether defendant was one of the men she saw on the night Mrs. Paik was killed and that she was afraid of one of the men whom she saw jump onto her porch. Haywood also knew Gerald Roberts, a friend of defendant, who told Haywood that Roberts was with him on the night of the crime. According to Haywood, he told defendant's trial attorney that Roberts was willing to provide alibi testimony on defendant's behalf.
Defendant's affidavit included the following assertions. Although he asked his trial attorney to call both Haywood and Roberts as witnesses at trial, to the best of his knowledge, the lawyer did not interview either man, told him he would not call Roberts to testify and would not allow defendant to give testimony on his own behalf.
On this application for post-conviction relief, defendant argued that his trial counsel's performance was deficient for failure to: request a cross-racial identification charge; adequately advise defendant about his right to testify; adequately investigate critical facts relevant to Mrs. Chitty's identification and his alibi defense; file a pre-trial motion for severance; and argue factors in mitigation of sentence. He also contended that appellate counsel was ineffective for failure to challenge the adequacy of the jury instruction on identification. Finally, he argued ...