June 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARON ANTHONY HILL, A/K/A P-NUT, TYRONE G. HILL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-09-3492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Lisa, Baxter and Coburn.
Following a trial by jury, defendant Taron Hill appeals from his March 13, 2007 conviction on two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2) (counts one and two); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). On counts one and two, the judge imposed two consecutive thirty-year terms of imprisonment, with a thirty-year parole ineligibility period on each. He imposed a seven-year sentence on count three and a four-year sentence on count four, each one concurrent to the other and concurrent to the sentences imposed on counts one and two. The aggregate sentence was thus sixty years imprisonment, subject to a sixty-year parole ineligibility term.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.
A. FACTUAL INTRODUCTION.
B. THE PREVAILING CASE LAW ON NEWLY DISCOVERED EVIDENCE.
C. SINCE THE PROFFERED TESTIMONY SATISFIED ALL THREE REQUISITE ELEMENTS OF THE PREVAILING STANDARD GOVERNING A MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE, THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION.
II. THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNTS I AND II CHARGING PURPOSEFUL/KNOWING MURDER. (Not Raised Below).
IV. THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING CONSECUTIVE 30 YEARS TERMS WITH 30 YEAR PAROLE DISQUALIFIERS ON COUNTS I AND II CHARGING PURPOSEFUL/KNOWING MURDER.
We reject the claims defendant advances in Points I, II and IV. We do, however, agree with the merger argument defendant presents in Point III and remand for the entry of an amended judgment of conviction merging count three with counts one and two.
Just after midnight on September 26, 2004, a gunman, whom witnesses described as thin, masked, and dressed in a black hooded sweatshirt and baggy black pants, approached a crowd at the corner of Thurman and Louis Streets in Camden and fired nine gunshots into the crowd. The intended target was Karah Moore, a local drug dealer, who escaped uninjured. Two women, one who was sitting in a nearby parked car, and one who was standing across the street, were fatally wounded.
Because no forensic evidence linked the bullets or shell casings to the perpetrator, the State's case principally relied upon the testimony of two eyewitnesses, who saw defendant fleeing the scene, and two jail inmates, who testified that defendant told them he had murdered the two women. The State's first witness was Harry Cabassa, who testified that he heard the gunshots while driving on Everett Street, and when he turned the corner, observed a tall man dressed completely in black shooting a gun. Although Cabassa did not see the gunman enter a vehicle, he did see a "[l]ittle gray" car and, suspecting that it might be carrying the shooter, followed it to Pershing Street. Cabassa saw the vehicle parked in front of the house where defendant lived with his grandmother and his brother, Anthony.
Wakita Saunders also testified to having seen an unusual gray or "silver" car that night. She first noticed the car parked across the street from her apartment on the night of the shooting. As she was about to insert her key into the lock on the ground floor of the building where she lived, Saunders heard gunshots and quickly ran up the stairs to her second-floor apartment. From the porch, she was able to see a man run around the corner from Louis Street onto Everett Street.
Saunders's description matched the description provided by Cabassa of the man he had seen firing shots. Saunders observed the man running and stuffing what appeared to be a gun into the waistband of his pants. When the gun fell to the ground, and the man stooped down to retrieve it, he glanced up and observed Saunders watching him. As Saunders retreated into her apartment, she saw the man enter the gray car.
According to Saunders, the gunman wore no mask and nothing other than the hood of his sweatshirt obscured his face. She recognized the man as someone she knew from the neighborhood where she had lived for years, although she did not know his name. Consequently, although she later identified defendant as the man she saw running from Louis onto Everett Street, she incorrectly referred to him as "Angie Moore's nephew," both while speaking with an investigator and in a later conversation with Karah Moore.
Even though Saunders had incorrectly accused "Angie Moore's nephew" of being the gunman, an investigator showed her only a photograph of defendant, rather than include defendant's photograph in an array. Saunders immediately identified defendant's photograph as depicting the man she saw with a gun on the night in question.
Later, the investigator showed Saunders a photograph of defendant's brother Anthony because of the strong resemblance between the two. Saunders commented that the man in the second photograph looked similar to defendant, as though they could be brothers, but the man she had seen running was "a lot skinnier" and had "lighter, buggier eyes." She repeated her earlier comment that the man she had initially identified was "definitely" the correct one.
On cross-examination, the defense attempted to impeach Saunders's credibility with a notarized letter that she signed after speaking with an investigator. That letter stated: "I, Wakita Saunders, on the day in question[,] did not see the individual Taron Hill. I did see a gray car that was parked outside my home. I do not have any recollection of the night in question due to the fact that I was intoxicated."
Saunders denied that the substance of the letter was true and explained that she signed it under pressure from Anthony Blake, defendant's father. She recalled that Blake approached her outside her son's school while he was accompanied by two other men, handed her a letter, and drove her to a nearby funeral home to have the letter notarized. Blake provided the notary fee. Saunders, who has difficulty reading and writing, testified that she could not read the letter and that it was never read to her before she signed it.
Blake asserted that he had nothing to do with authoring the letter. He testified that Saunders had volunteered to sign such a letter when he told her during a chance meeting in the neighborhood that her name appeared in the discovery documents in his son's case. According to Blake, Saunders insisted that she had not identified his son, but had only identified "Angie Moore's nephew." According to Blake, Saunders agreed to sign a letter to that effect, and when he met her again by chance in the neighborhood, she wrote the letter on notebook paper from her son's bookbag.
The defense further attempted to challenge Saunders's credibility with testimony from her sister, Diana Anderson, and her niece, Nadira Anderson, who both asserted that Saunders's accusation of defendant as the shooter could not possibly be correct because Saunders was with them elsewhere at the time of the shooting and could not have observed what she claimed to have seen. Nadira authored a letter on Diana's behalf to that effect. On cross-examination, Diana acknowledged that she had difficulty reading her own statement and could not understand the critical phrase, "in my presence."
The State also presented the testimony of Alexis Chaplin, who had gone to school with defendant and whose cousin was the mother of defendant's child. Chaplin testified that on the night of the murders, she saw defendant driving a gray car down Morton Street five minutes before the sound of gunshots rang out.
During Saunders's and Cabassa's testimony, each identified a standard photograph depicting a Pontiac Vibe automobile as similar to the car they saw on the night in question. The State also presented Christine Stanley, defendant's grandmother, who acknowledged that she had rented a 2005 Vibe a day or so before the shooting, although she testified that she had driven the car to work on the night of the shooting and had never permitted anyone else to use it.
Last, the State presented the testimony of two jail inmates. The first had met defendant in 2005 while both were incarcerated at the Salem County jail. The inmate testified that while describing his own criminal trial, defendant responded by discussing his pending trial and confided in some detail that he had inadvertently shot two women while trying to kill another person with whom he had a dispute. Defendant explained to the inmate that a witness, apparently Saunders, had seen him, although he was unsure whether he had already removed his mask by then. According to the Salem County jail inmate's testimony, defendant wondered aloud whether he could pay Saunders to recant her testimony. Defendant also worried about another witness, apparently Cabassa, who had followed his car just after the shooting. On cross-examination, the Salem County jail inmate acknowledged a long record of convictions and conceded that he had been an informant in other matters and believed he would soon be indicted on other serious charges.
The State also presented the testimony of an inmate in the Camden County jail, who was incarcerated with defendant after defendant was transferred from the Salem County jail to Camden. According to the Camden inmate, defendant admitted firing the shots that had killed the two women, explaining that someone he referred to as "Mancakes" had promised to pay him $10,000 to kill Moore because Mancakes "wanted that block" for himself. By the time of trial, the Camden County inmate had substantially recanted. He did acknowledge a prior conviction for unsworn falsification.
Following his conviction, defendant moved for a new trial on two grounds: 1) the verdict was against the weight of the evidence; and 2) newly discovered evidence established that defendant's brother Anthony had confessed to the murders.
At the evidentiary hearing, defendant presented the testimony of several witnesses who asserted that Anthony had confessed to the murders. Notably, Anthony himself did not testify and, other than hearsay, defendant was unable to present any direct evidence of Anthony's purported confession.
At the hearing, Blake testified that while the jury was deliberating, he telephoned Anthony and told him to come to the courthouse to be with his family, because "it [didn't] look good" for defendant. According to Blake, Anthony confessed to the crime in considerable detail over the course of that twenty-minute telephone conversation, admitting that it was he, not defendant, who had killed the two victims while shooting at Moore.
Defendant also testified at the hearing, asserting that Anthony confessed to him by telephone just after the jury delivered the verdict. Defendant testified that Anthony admitted his guilt, apologized and promised to turn himself in to police. Defendant's aunt, Stacy Hill-Fontanez, testified that she saw Anthony that day and overheard the telephone conversation defendant had described. According to defendant, Anthony continued to make that promise in letters he wrote to defendant, although defendant never produced the letters.
Brian Hill, defendant's uncle, testified that he brought Anthony to an attorney with the intention that, once represented by counsel, Anthony would turn himself in. Hill claimed to have eavesdropped on Anthony's conversation with the lawyer by positioning himself just outside the closed office door. According to Hill, he overheard Anthony describe the night's events in considerable detail.
Defendant also presented the testimony of his friend, Sonia Still, who testified that Anthony admitted to the shootings the night before the jury returned its verdict, promising to confess in the event of defendant's conviction. Still also recalled that she was with defendant on the night of the murders from 8:00 p.m. to 1:00 a.m. and that Anthony had been driving the Vibe that night.
At the conclusion of the evidentiary hearing, the judge rendered a comprehensive decision denying defendant's motion for a new trial. The judge described defendant's proofs as "a clear case of manufactured evidence, coercion of a witness to recant testimony, [and] a complete lack of credibility [by] clearly biased and interested witnesses."
The judge thoroughly recounted the testimony presented at the hearing, detailing inconsistencies in that testimony. He compared that evidence with that introduced at trial, setting forth the trial testimony in substantial detail as well. The court concluded that eyewitness testimony placing defendant and his grandmother's rental car at the scene of the crime, as well as testimony that defendant confessed to two other inmates in separate locations and who did not know each other, constituted "overwhelming" evidence of defendant's guilt. The judge reasoned that, in light of such overwhelming evidence, the "highly suspect" and "unreliable" evidence that defendant presented was insufficient to require a change in the jury's verdict or the granting of a new trial.
The judge also denied another portion of defendant's motion for a new trial, in which defendant had argued that the State's proofs were insufficient to establish guilt beyond a reasonable doubt.
A court's decision on a motion for a new trial based on newly discovered evidence rests within the court's sound discretion. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Such a motion should not be granted unless the proffered evidence is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Bey, 161 N.J. 233, 287 (1999) (citing State v. Carter, 85 N.J. 300, 314 (1981)), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000). Generally, the first and third criteria share the same analysis, as a determination that evidence is not merely cumulative, impeaching, or contradictory is equivalent to one that the evidence is of the sort that would probably change the verdict. State v. Ways, 180 N.J. 171, 188-89 (2004). To warrant a new trial, the newly-discovered evidence must be capable "of raising a reasonable doubt as to the defendant's guilt." Id. at 189.
Moreover, although credibility issues are best left to the jury, if a court, having had the opportunity to observe witnesses testify, determines that their testimony was "clearly manufactured and did not have the minimum ring of truth sufficient to have the credibility issue presented to the jury," that determination is entitled to deference. State v. Robinson, 253 N.J. Super. 346, 367 (App. Div.), certif. denied, 130 N.J. 6 (1992). Indeed, "[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons[,]" and "[n]ewly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication . . . ." Ways, supra, 180 N.J. at 187-88.
Applying the Bey criteria, we are satisfied that the first two prongs are satisfied. The testimony presented by Blake, Hill, Still, Fontanez and defendant was material to the issue of defendant's guilt, and was discovered after the trial and could not have been ascertained by reasonable diligence beforehand. The only issue reasonably in dispute, therefore, is the third Bey factor, namely whether the evidence "would probably change the jury's verdict." Bey, supra, 161 N.J. at 287.
In support of his argument that the judge erred by denying the motion for a new trial, defendant points to two errors in the judge's reasoning. In particular, defendant contends that the court mistakenly concluded that the hearsay testimony describing Anthony's confession was inherently unreliable because it consisted of nothing other than inadmissible hearsay. We agree with defendant that the hearsay testimony would, in fact, be admissible as statements by Anthony against his penal interest. See N.J.R.E. 803(c)(25).
We likewise agree with defendant that the judge miscalculated the extent to which the witnesses' relationship to defendant in itself impacts their credibility. As defendant correctly argues, with the exception of Still, each witness was related to Anthony in the same manner as to defendant. Therefore, by that relationship, the witnesses' motivation to protect defendant by falsely implicating Anthony would have been no greater than their incentive to protect Anthony from the possibility of arrest and conviction.
Although we part company with the judge on those two preliminary observations, we are satisfied that the remaining portions of the judge's detailed, comprehensive and well-reasoned oral opinion are entitled to our deference. The judge noted that he had listened to the testimony presented during the new trial motion and observed the demeanor of the witnesses, many of whom had also testified at the trial. Where, as here, the judge has had the opportunity to observe and evaluate the witnesses firsthand, his credibility findings are binding upon us. State v. Carter, 69 N.J. 420, 427-28 (1976).
The judge devoted a considerable portion of his oral opinion to a discussion of Saunders's credibility, and rejected defendant's contention that because he and his brother Anthony resemble each other, Saunders had mistaken him for his brother. As the judge noted, although Saunders did not know defendant's name, she knew him and his family members from the neighborhood. The jury observed her testimony and evaluated her credibility when she was shown a photograph of defendant's brother at trial and was asked whether it could have been Anthony whom she saw that night. The judge specifically found Saunders to be a credible witness, commenting that "it was obvious" that the jury likewise found her testimony credible.
The judge remarked that in addition to Saunders, the State's proofs at trial included the testimony of a number of unbiased witnesses who were not defendant's relatives. Among them were Chaplin, who saw defendant driving a gray car a block from the crime scene only moments before the shooting began; Cabassa, who followed the gray car to defendant's grandmother's house where he lived; and the testimony of the two jail inmates, neither of whom knew each other, but who both described in precise detail the remarkably similar confession defendant had made to each of them at a different time and at a different place.
We agree with the judge's conclusion that when measured against the convincing testimony the State offered at trial, defendant's proofs at the new trial hearing were weak, contradictory and unconvincing. This is so for several reasons. First, although defendant testified at the hearing that he received letters from Anthony promising to turn himself in, defendant never produced the letters and a search of defendant's jail cell revealed that defendant did not have such notes or letters in his possession. Second, Diana Anderson, Wakita Saunders's sister, had signed a statement asserting that Wakita was with her on the night of the murder and therefore could not possibly have seen defendant as she claimed; however, Diana cannot read or write and therefore could not have written the statement herself or been able to read it if someone else had prepared it for her. Third, Diana Anderson's daughter, Nadira, admitted that she had written the false statement and admitted she had done so at the behest of someone whom she did not know who had approached her outside the courtroom and provided a notepad. Fourth, although Blake and the other witnesses testified that Anthony had confessed to them that he was the gunman, Anthony vehemently denied at the hearing that he had ever confessed "to anybody."
Fifth, defendant had submitted an alibi notice to the State prior to trial that included an alibi statement from Still, yet chose at trial not to present her alibi testimony. Nonetheless, despite not proceeding with Still's alibi testimony at trial, defendant presented her testimony at the hearing. Her testimony, as the judge correctly observed, was highly questionable because in her alibi statement, she recalled having gone to school the day after spending the evening of the murders with defendant, yet the murders occurred on a Friday and therefore she could not have gone to school the next day. Sixth, Still testified that she was with defendant on the night of the murders and that Anthony had driven them to defendant's grandmother's house in the Pontiac Vibe, yet defendant had indicated in his statement that, while Anthony drove the Vibe the night before, defendant drove the Vibe the night of the shootings. Thus, defendant's own statement contradicts Still's account of which brother was driving the car in question on the night of the murders. Seventh, although Fontanez testified to defendant's alibi, stating that she went to Stanley's house just before midnight where she saw defendant with a girlfriend, and that she was still at the house with defendant at the time when the shootings occurred, neither Still's nor defendant's statement mentions that Fontanez was ever there. Indeed, defendant's alibi list included no one other than himself, Still and Anthony, thereby casting considerable doubt on the truthfulness of the alibi testimony Fontanez presented at the hearing.
As we have discussed, a motion for a new trial should not be granted unless the evidence "'would probably change the jury's verdict if a new trial were granted.'" Ways, supra, 180 N.J. at 189 (quoting Carter, supra, 85 N.J. at 314). We are obliged to affirm a trial judge's rejection of a new trial motion unless the court abused its discretion. Russo, supra, 333 N.J. Super. at 137.
In light of the pronounced and pervasive weaknesses in the witness testimony presented at the hearing, which we have already discussed, we are satisfied that the judge properly chose to reject the testimony he heard. Like the judge, we are satisfied that the testimony of the independent witnesses who testified at trial, and whose credibility was not weakened in any significant respect, was so strong that the unreliable testimony presented at the hearing would not have changed the jury's verdict if a new trial were granted. Under those circumstances, the judge did not abuse his discretion in denying defendant's motion. We are satisfied that the judge's decision represents a wholly proper exercise of the discretion afforded him and therefore reject the claim defendant advances in Point
We turn to Point II, in which defendant maintains that the denial of his motion for acquittal constitutes reversible error because the evidence was insufficient to support the guilty verdict. The standards governing our review are well-accepted. Rule 3:20-1 provides that:
The trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
So long as a "'trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present'" based on the evidence in the record, a miscarriage of justice has not occurred and a defendant's motion for a new trial must be denied. State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting State v. Carter, 91 N.J. 86, 96 (1982)), certif. denied, 134 N.J. 476 (1993). Moreover, "[w]here the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." Ibid. In reviewing the denial of a motion for a new trial, we apply the same standard the trial judge applied. State v. Brown, 118 N.J. 595, 604 (1990).
We are satisfied, as was the trial judge, that the testimony of Saunders, Cabassa, Chaplin and the two jail inmates, when viewed as a whole, is more than sufficient to support the jury's conclusion that defendant was the shooter. Under those circumstances, the denial of defendant's motion for a new trial was correct. We thus reject the claim defendant advances in Point II.
In Point III, defendant argues, and the State concedes, that the judge erred in failing to merge his conviction for possession of a weapon for an unlawful purpose into his murder convictions. Merger of the possessory offense is required whenever the only unlawful purpose proven by the State at trial is the weapon's use in committing the substantive offense. State v. Diaz, 144 N.J. 628, 636 (1996). That was the case here. No unlawful purpose for possession of the weapon was demonstrated other than its use to commit the murders. We therefore reverse defendant's conviction on count three and remand for the entry of an amended judgment of conviction merging count three with counts one and two. Any fines and penalties imposed on count three must be vacated.
Last, in Point IV, defendant maintains that the judge abused his sentencing discretion by imposing consecutive sentences for the two murder convictions. Defendant further maintains that the judge erred by failing to find the existence of mitigating factor eleven, the imprisonment of defendant would entail excessive hardship to his family, N.J.S.A. 2C:44-1(b)(11), and failed to consider his youth as a mitigating factor. He also finds fault with the judge's conclusion that aggravating factors one and three apply, which are, respectively, the nature and circumstances of the offense and the role of actor therein, N.J.S.A. 2C:44-1(a)(1), and the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3).
Our review of sentencing decisions is circumscribed. We will affirm the sentence under review so long as the judge followed the applicable sentencing guidelines and found aggravating and mitigating factors that were supported by the record. State v. Roth, 95 N.J. 334, 364-65 (1984). Only if the sentence imposed is so clearly unreasonable as to "shock the judicial conscience" will we disturb it. Ibid.
Turning to defendant's arguments concerning the consecutive sentences, we reject defendant's claim that the judge misapplied the considerable sentencing discretion afforded him by Roth. Where multiple victims are involved, a consecutive sentence should not be disturbed. State v. Molina, 168 N.J. 436, 441-43 (2001); State v. Carey, 168 N.J. 413, 422 (2001). We see no reason to reach a different result here.
As to the mitigating factors defendant advances, no showing has been made that defendant's son is dependent upon him or would be unduly harmed by defendant's incarceration. Under such circumstances, we reject defendant's contention that the judge erred by failing to find mitigating factor eleven. As to defendant's claims respecting the judge's failure to find his youth as a mitigating factor, and defendant's arguments that aggravating factors one and three were improperly found, we need not address those claims as the sentence imposed on each count was the absolute minimum sentence that can be applied for the crime of murder. Had the judge found defendant's youth to be a mitigating factor, or had the judge not found aggravating factors one and three, the murder sentence could not have been less than what the judge imposed, namely thirty years in prison with a thirty year period of parole ineligibility. Thus, even if the aggravating and mitigating factors were not properly applied, which is not the case, any such error would have had no bearing on the sentence imposed. We thus decline to consider these claims. We are satisfied that the sentence was well within the judge's sentencing discretion and we decline to disturb it. We thus reject the sentencing claim defendant advances in Point IV.
The conviction is affirmed. We remand the sentence for merger of count three with counts one and two. In all other respects, the sentence is affirmed.
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