On appeal from the Superior Court of New Jersey, Criminal Division, Essex County, Indictment No. 92-02-00584.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Defendant Earl Taylor appeals from the November 10, 2008 order that denied his motion for a new trial. We affirm in part, and remand for further proceedings consistent with this opinion.
On February 13, 1992, an Essex County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4b (count three). A jury found defendant guilty on counts one and two, but not guilty on count three. On October 16, 1992, the trial court sentenced defendant on count one to a term of thirty years of imprisonment without parole, and on count two to an eighteen-month concurrent term of imprisonment.
Defendant appealed, and we affirmed. State v. Taylor, A-4021-92 (App. Div. Feb. 14, 1995). On April 27, 2995, the Supreme Court denied defendant's petition for certification. 140 N.J. 328 (1995). On March 19, 1996, defendant filed a petition for post-conviction relief (PCR), contending that he was denied effective assistance of trial counsel and of appellate counsel. On July 31, 1996, the trial court denied defendant's petition. On appeal, we affirmed. State v. Taylor, A-3801-98 (App. Div. Dec. 15, 2000). On March 27, 2001, the Court denied defendant's petition for certification. 167 N.J. 636 (2001).
On January 4, 2007, defendant filed a pro se motion for a new trial, contending that he learned of newly discovered evidence warranting the vacation of the judgment of conviction and the grant of a new trial. The evidence consisted of an April 6, 1999 report from Maria Palumbo, defendant's private investigator, and a September 24, 1991 note from Dr. Gsbert Phillips, defendant's treating physician. Palumbo's investigative report consisted of six typewritten pages, with the first five pages containing the printed name of defendant's oldest son, and the date of April 7, 1999, in the lower right hand corner, and the last page containing a certification as to the truth and accuracy of the report followed by the son's signature. Defendant offered the investigative report as evidence that his son recanted part of his trial testimony of overhearing defendant threatening to kill his wife. Defendant offered the doctor's note as evidence that he was not physically able to lift or carry his wife's body at the time she was murdered in December 1999.
In addition to arguing that the documents constituted newly discovered evidence justifying a new trial, defendant also contended that the evidence supported his claim of ineffective assistance of trial counsel. Defendant asserted that if his trial attorney had properly investigated the case, the attorney would have discovered and presented the same evidence at trial, resulting in a different verdict.
On November 10, 2008, the trial court entered an order supported by a written decision denying the motion without an evidentiary hearing. The court rejected defendant's arguments concerning his son recanting part of his trial testimony because the investigator's report which referenced the son's statements was hearsay, there was no indication in the moving papers how his son's present version of events "would [have] change[d] the testimony he gave to the jury in 1991," and the motion was not accompanied by a transcript of his son's trial testimony for the court to have compared the statements contained in the investigator's report. The court rejected the evidence concerning defendant's 1991 medical treatment on the basis that the evidence was known to defendant at time of trial and could have been presented to the jury at that time.
On appeal, defendant argues:
POINT I. THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING AND FURTHER CONSIDERATION OF DEFENDANT'S MOTION.
A. DEFENDANT ESTABLISHED AT LEAST A PRIMA FACIE CASE FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE, WARRANTING AN EVIDENTIARY HEARING.
B. DEFENDANT ALLEGED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL THAT WARRANTED FURTHER CONSIDERATION UNDER ...