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State v. Dazilme

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NESLEY DAZILME, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3554.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2010

Before Judges Cuff and Payne.

Following the kidnapping of Leslie Pierre and Lucien Bruno and the shooting of Pierre, six individuals, Nesly Dazilme, Kerlo Berthelus, Martial Saint Preux, Ernest Nichols, Evans Mary, and Wilder Romelus were indicted on charges that included second-degree conspiracy to commit kidnapping and/or murder, first-degree kidnapping, first-degree attempted murder, second- degree aggravated assault, third-degree possession of a weapon without a permit, and second-degree possession of a weapon for an unlawful purpose. Prior to trial, charges against Romelus were severed. Additionally, counts pertaining to Bruno were dismissed as the result of his refusal to take an oath and to testify.

Following a jury trial, Dazilme, Berthelus, St. Preux and Nichols were found guilty of conspiracy to commit murder or kidnapping, N.J.S.A. 2C:5-2 and 2C:13-1 or 2C:11-3, and of first-degree kidnapping, N.J.S.A. 2C:13-2. Dazilme, St. Preux and Nichols were found guilty of second-degree assault, N.J.S.A. 2C:12-1b(1). Mary was acquitted of all charges, and all defendants were acquitted of attempted murder and the weapons charges. Defendant Dazilme was sentenced to thirty years in custody with a fifteen-year parole disqualifier on the kidnapping conviction, with a concurrent sentence of ten years for the aggravated assault. On appeal, we affirmed all convictions and sentences, State v. Dazilme, No. A-3848-97 (App. Div. December 17, 1999), and the Supreme Court denied certification. State v. Dazilme, 163 N.J. 397 (2000).

Defendant Dazilme then filed for post-conviction relief (PCR). However, in an opinion filed on June 22, 2004, we found PCR counsel's representation before the trial court to have been ineffective, and we reversed and remanded the matter for reconsideration after assignment of new counsel and a re- presentation of the petition by newly assigned counsel, followed by argument suited to the circumstances. State v. Dazilme, No. A-1277-02 (App. Div. June 22, 2004). On remand, newly appointed counsel raised the following arguments:

POINT I

THE AFFIDAVIT BY LUCIEN BRUNO, THE ALLEGED OTHER VICTIM, WHOSE HARMS WERE NOT THE SUBJECT OF CHARGE FOR THIS TRIAL, UNEQUIVOCALLY STATES THAT DEFENDANT NESLY DAZILME WAS NOT PRESENT ON THE NIGHT OF THE ABDUCTION AND SHOOTING. THIS IS NEWLY DISCOVERED EVIDENCE ON A MATTER CENTRAL TO THE TRIAL. AS SUCH, IT IS A CLEAR PRIMA FACIE OFFER OF PROOF WARRANTING AN EVIDENTIARY HEARING. THIS IS NOT A RECANTATION OF PRIOR TESTIMONY IN COURT, A CIRCUMSTANCE GIVING RISE TO HISTORIC SKEPTICISM BY COURTS CONSIDERING SUCH A SCENARIO. INSTEAD, IT IS THE REPUDIATION OF BRUNO'S OUT-OF-COURT STATEMENT TO POLICE, A LESS SOLEMN PROFESSION OF TRUTH, AND ONE WHICH HIS REFUSAL TO TESTIFY AT TRIAL RENDERED SUSPECT SIMULTANEOUS TO ITS ATTEMPTED OFFER.

POINT II

THE INSTRUCTION WAS FATALLY DEFECTIVE - AN INSTANCE OF EITHER INEFFECTIVE ASSISTANCE OF COUNSEL OR PLAIN ERROR BY THE TRIAL JUDGE - BECAUSE IT DID NOT DISTINGUISH BETWEEN THE TWO ALLEGED VICTIMS (PIERRE, THE SUBJECT OF THE TRIAL, AND BRUNO, FOR WHOM DEFENDANT DID NOT STAND TO ANSWER BEFORE THIS JURY). QUITE CLEARLY, DEFENDANT COULD HAVE HAD DIFFERENT, EVEN INNOCENT, INTENTS AS TO EACH OF THESE MEN REGARDING BOTH THE CRIMINAL AGREEMENT AND ITS SCOPE (THAT IS, THE CONSPIRACY) AND THE KIDNAPPING AND ATTEMPTED MURDER/AGGRAVATED ASSAULT (THAT IS, THE SUBSTANTIVE CRIMES). QUITE SIMPLY, WITH BRUNO IN THE MIX AND ABSENT A CLARIFYING INSTRUCTION, THE JURY COULD HAVE INFERRED CRIMINAL CULPABILITY FROM ACTIONS AS TO BRUNO ALONE.

POINT III

THE DEFENSE HEREBY INCORPORATES ARGUMENTS FROM THE BRIEF BY COUNSEL ON PCR-APPEAL.

[1) Ineffective assistance of trial counsel for failure to move for judgments of acquittal, and for other reasons.

2) Counsel on direct-appeal was ineffective for not raising sufficiency of the evidence before the Appellate Division.

3) The PCR should be granted because under equal protection principles, or simple principles of collateral estoppel, the acquittal of Evans Mary, a co-defendant situated virtually identically to defendant Dazilme, leaves Dazilme's conviction standing as an unacceptable anomaly.

4) The PCR should be granted due to the egregious misconduct of the prosecutor for presenting the jury the testimony of the victim, Feki Pierre, which he self-admitted on cross-examination was perjurious, containing eight or more lies.

5) The PCR should be granted because defendant was denied due process by improper comments by the prosecutor during opening and closing.

6) Relief should be granted because defendant's sentence is both excessive and illegal.]

POINT IV

THE "COULD HAVE BEEN RAISED PREVIOUSLY" BAR OF R. 3-22-4 DOES NOT APPLY TO THE ARGUMENTS RAISED HEREIN.

Oral argument on defendant's petition took place before Judge Michael Casale on May 28, 2008. It was followed on July 2, 2008 by a testimonial hearing on defendant's claim of newly discovered evidence, as to which we provide the following background. At the time of the events of 1996, there were two kidnapping victims, Pierre and Lucien Bruno. After being kidnapped, Pierre was shot twice in the back; Bruno escaped unscathed. Although Bruno gave a statement to the Elizabeth police identifying the participants in the kidnapping, including Dazilme, he refused to testify at trial, and as we stated previously, charges relating to him were dropped. Significantly, at trial, both Pierre and Pierre's girlfriend identified Dazilme as one of the perpetrators of the crimes.

In 2005, nine years after Bruno's statement to the police, he recanted, swearing in an affidavit offered by defendant in support of PCR that Dazilme had not participated in the crime and that he had named Dazilme to eliminate his competition as a rival drug dealer. The veracity of Bruno's statement was tested at the July 2, 2008 hearing.

On August 1, 2008, Judge Casale issued a written opinion in this matter in which he addressed each of the arguments that we have set forth, rejecting all of them. With respect to Bruno's recantation, the judge held that whether the existence of newly discovered evidence requires a new trial is governed by the three-pronged standard established in State v. Carter, 85 N.J. 300 (1981). Pursuant to that standard, to require a new trial the evidence must be "(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." Id. at 314.

Judge Casale found that the first prong had been satisfied in the present case, because Bruno's recantation bore directly on the material issue of defendant's presence on the scene.

However, the judge found that the second prong was not satisfied, determining that Bruno was available to be examined by both the State and defense counsel. Although he could have exculpated defendant at that time, he chose not to do so, instead refusing to take the oath and answer questions.

Additionally, the judge found the third prong to be unmet. He stated:

Bruno says in his affidavit that the defendant was never even present at his abduction, an assertion that was never brought up at trial. No one ever argued Defendant Dazilme was not present, just that his mere presence was not evidence enough to assign culpability. Even if a new trial were granted, there is absolutely no supporting evidence that Defendant Dazilme was not even present during the abduction and shooting. The rest of [the] facts surrounding the affidavit make the entire viability of the proposed testimony highly suspect; (1) he admits he gave a statement to police, a statement where he in great detail outlines the events and picks the 6 co-defendants out of a photo array; (2) he does not mention any of the other co-defendants in the affidavit; (3) he admits to being a drug dealer, and finally (4) the original jury never even heard his testimony or his police statement at trial because he refused to take the stand.

Despite his determination that Bruno's recantation as set forth in his affidavit failed Carter's test, the judge held an evidentiary hearing at which, on direct examination, Bruno testified that on the night of the abduction and shooting, defendant was not present. However, in his opinion, the judge described defendant's testimony and demeanor on cross- examination in the following terms:

During cross-examination, Bruno did not make eye-contact with the Assistant Prosecutor. Bruno was sarcastic and evasive in his response to questions. Bruno was constantly shaking his head and kept looking towards the floor for the majority of his questioning. When he was not looking at the floor, Bruno was smiling and laughing during questioning. His mannerisms and overall demeanor suggested that he was not trustworthy and that his recantation was not believable.

As a consequence, the judge held that it was highly unlikely, even if Bruno were to consent to testify at a new trial, that his testimony would result in different verdict. Accordingly, the judge denied PCR.

On appeal, defendant makes the following arguments:

POINT ONE

THE PCR COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.

POINT TWO

IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS REMAINING CLAIMS.

POINT THREE

DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

We affirm the denial of PCR, substantially on the basis of Judge Casale's exhaustive and thoughtful opinion. We add only the following. With respect to defendant's first argument, we note that the scope of our review of the judge's factual findings is very narrow, and is limited to a determination of whether they could reasonably have been reached on the basis of sufficient credible evidence, giving deference to findings that were substantially influenced by the judge's opportunity to see and hear the witness presented and to thereby gauge his credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999). Employing that standard, we are satisfied that the judge's findings with respect to Bruno were properly based on the evidence, and we concur with his legal conclusion that Bruno's testimony would not change the outcome of trial, and thus did not meet the Carter test.

We reject defendant's second argument that a testimonial hearing should have been conducted on issues other than those surrounding the proffer of the alleged newly discovered evidence, determining that Judge Casale did not abuse his discretion in this regard. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant failed to provide prima facie evidence in support of PCR that would require such a hearing. Ibid.

Affirmed.

20100726

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