On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3554.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
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.
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.
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 ...