On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-08-1208.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 13, 2010 -- Decided: Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Yusef Allen appeals from the denial of post-conviction relief (PCR) in connection with his convictions for first-degree murder; second-degree possession of a firearm for an unlawful purpose; and third-degree possession of a firearm without a permit. We affirmed his conviction and aggregate sentence of life imprisonment but reversed and remanded for resentencing to vacate the eighty-five-percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. State v. Allen (Allen I), 337 N.J. Super. 259, 263-64 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002).
Defendant subsequently filed a PCR petition, which was denied in all respects by the PCR judge, who was also the trial and sentencing judge, and he again appealed. State v. Allen (Allen II), 398 N.J. Super. 247 (App. Div. 2008). Defendant raised a litany of errors, most of which we rejected as not warranting discussion in a written opinion, id. at 259, but we remanded for an evidentiary hearing (1) to consider the effectiveness of trial counsel's decisions to reject the judge's two offers to declare a mistrial and (2) to determine whether an exculpatory affidavit from John Korman constituted newly discovered evidence, id. at 253, both of which we will describe more fully hereafter. The judge again denied PCR, (1) finding that trial counsel made a strategic decision to decline the judge's two offers to grant a mistrial and (2) holding that Korman's affidavit was unreliable and Korman was known to the defense at the time of trial.
After the date this appeal was submitted for decision, defendant pro se filed a motion to supplement the record with newly discovered evidence respecting a witness's recantation. The State did not object to the motion, which we granted. We did not, however, concur in defendant's characterization of the evidence as "newly discovered."
The facts of this case and the testimony offered at trial were fully described in Allen I, supra, 337 N.J. Super. at 264-266, and need not be repeated here, although we incorporate them by reference. The facts relevant to our remand are these. On the second day of trial, the judge ruled that the prosecutor had violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to inform defendant that one of the witnesses at trial, Rhonda Whitfield, had suffered multiple head traumas in a car accident, including concussions that affected her memory.
The judge offered to declare a mistrial, which he thought defendant might decline for economic reasons, but suggested that counsel confer with defendant. The following colloquy occurred after a recess:
TRIAL COUNSEL: Judge, knowing that, based on my experience, believing that your Honor would actually seriously entertain that, we discussed for 15 or 20 minutes and from a tactical--economics has nothing to do with it. I'm not going to disclose the tactical reasons. I feel that the State might not call this witness again. And the State, I also feel the State might handle this case a little more efficiently and effectively next time. I discussed this with [defendant]. I will not disclose tactical reasons, but I'll be quite clear, economics has nothing to do with it. If I thought it was in my client's best interest, I'd ask for a mistrial right now and start again next week.
THE JUDGE: You concur no mistrial be requested, right or wrong?
THE JUDGE: I don't know about the discussions back and forth with your lawyer, but has he discussed these issues he talked to me about with you?
THE JUDGE: You agree with the decision to go forward?
On another occasion later that day, counsel complained that the prosecutor's conduct prejudiced defendant's right to a fair trial. The judge reminded counsel that he was prepared to declare a mistrial:
THE JUDGE: I asked you earlier do you want a mistrial. You said no.
TRIAL COUNSEL: Not on this issue.
THE JUDGE: A mistrial is a mistrial, isn't it, one way or the other. Do you want a new jury or not?
Before answering that question[,] why don't you talk to your client on the issue. He's not right here at this point in time. Ask him on that point. I told you earlier I would give you another trial. You can't have it both ways. Either you want a mistrial and another shot to try it before a different jury or you don't. You talk to your client and you tell me what your preference is.
After a recess, trial counsel informed the judge as follows:
TRIAL COUNSEL: Your Honor, I'm not renewing any applications pursuant to your request.
I discussed this again with my client and I have no motions for mistrial.
THE JUDGE: If you made one a few minutes ago[,] you withdraw it. Is that what you're telling me?
On the third trial day, during the direct examination of Cynthia Harrison, a defense witness, trial counsel had Korman escorted into the courtroom so that Harrison could identify him as follows:
TRIAL COUNSEL: Was that man that you saw laying [sic] in the street--we'll call him the victim, okay-had you seen the victim with anyone else earlier that day?
TRIAL COUNSEL: Who had you seen him with? HARRISON: Him (indicating).
THE JUDGE: Him being whom, ma'am?
THE JUDGE: The man between the two officers?
TRIAL COUNSEL: You identified John Korman as the individual you saw with Lannie ...