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State of New Jersey v. Herron Alston


March 2, 2011


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-07-2488.

Per curiam.


Argued: September 27, 2010 -- Decided:

Before Judges Grall and C.L. Miniman.

Defendant Herron Alston appeals from the denial of his verified petition for post-conviction relief (PCR) and his motion for a new trial. We affirm.

Defendant and his co-defendant, Reginald Davis, were indicted on July 19, 1995, and charged with second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (2) (count two); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count three); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four).

Tried with his co-defendant, the jury convicted defendant of aggravated manslaughter, a lesser-included offense to murder, and both weapons offenses. State v. Alston (Alston I), 312 N.J. Super. 102, 105 (App. Div. 1998). Defendant appealed, and we reversed his convictions on May 29, 1998. Id. at 116.

Defendant and his co-defendant were subsequently retried during December 1999 on the aggravated manslaughter charge and the two weapons offenses. The jury again found defendant guilty of all three offenses. The judge merged count four with count two for sentencing purposes and imposed an extended term of life imprisonment with a twenty-five-year period of parole ineligibility for aggravated manslaughter and a concurrent five-year term on count three. Defendant again appealed, we affirmed his conviction and sentence, and the Supreme Court denied defendant's petition for certification. State v. Alston (Alston II), No. A-3453-00 (App. Div. Feb. 8, 2002), certif. denied, 174 N.J. 41 (2002).

Thereafter, defendant filed his PCR petition alleging ineffective assistance of counsel. He subsequently filed a new-trial motion based on alleged newly discovered evidence. The judge conducted an evidentiary hearing to determine the issues, after which the judge denied all relief. Defendant appealed and raises the following issues for our consideration:



These are the facts relevant to the issues on appeal. Defendant's convictions arise from the fatal shooting of Paul Magliero on January 6, 1995, in Newark. Alston II, supra, slip op. at 2-6. According to Magliero's cousin, John Coccia, he and Magliero purchased cocaine a few times per week in the area of Sanford Avenue and Silver Street. Coccia "would do the buying" while Magliero waited in the car because Magliero had cheated the drug dealers in this area on several occasions. Magliero would drop Coccia off a few blocks from where they would purchase drugs. After Coccia made a purchase, he would walk back to the car.

On January 6, 1995, fifteen-year-old M.W. was at the home of her boyfriend, Lamar Brown, at 43 Silver Street. They were sitting on the front steps in the rain when they saw a car stop in front of a white house on Sanford Avenue near the intersection with Silver Street. M.W. testified that she observed defendant and his co-defendant standing near the car and saw defendant approach the driver's side. Defendant asked the driver, "[A]ren't you the one who owe[d] me some money back in the summer[?]" She further testified that the co-defendant also approached the car and said, "[Y]eah, get him."*fn1 She testified that defendant took out a gun and shot Magliero twice, causing his death.

Newark Police Detective Rashid Sabur spoke with M.W. on January 12, 1995, and she indicated that she had heard rumors about the homicide but did not have personal knowledge of it. However, when Sabur again interviewed M.W. on February 9, 1995, she admitted seeing the murder and identified both defendant and his co-defendant from photo arrays.

Sabur also spoke with Brown, who initially stated that he did not have any information about the homicide. However, like M.W., Brown later gave a statement identifying both defendant and co-defendant as the perpetrators and selected their pictures from photo arrays. Later, he recanted his identification in an unsworn statement and then testified at the retrial that he was not a witness to the homicide. These inconsistencies were introduced at the retrial.

In his January 20, 2005, PCR petition, defendant stated that his retrial attorney had represented him during the first appeal. He claimed that his attorney consulted with him only once during the appeal and never met with him thereafter. As a consequence, he asserted that he was denied the effective assistance of counsel. He further alleged that he was prejudiced by this lack of consultation because he was deprived of the opportunity to discuss an alibi defense and to discuss whether he should testify on his own behalf.

Defendant also asserted that M.W. was the only witness who testified that she saw him shoot Magliero and, without her testimony, the State could not prove its case beyond a reasonable doubt. He then claimed a Brady*fn2 violation based on the State's failure to advise him that M.W. had been charged with second-degree child endangerment on March 20, 1997, for an offense committed on June 11, 1996, and that the charges were dismissed on March 24, 1997, while his first appeal was pending. Defendant was not apprised of this charge and its disposition during his retrial.

On September 4, 2007, defendant filed an application for a new trial pursuant to Rule 3:20 based on newly discovered evidence. Defendant asserted that, in a May 10, 2007, statement to a defense private investigator, M.W. recanted her identification of him as the shooter. She asserted that she was not even outside during the evening of the shooting and did not see it. She also advised the investigator that her parental rights to her three children had been terminated and that she took Tegretol for seizures. The State opposed this motion.

The judge heard defendant's PCR and new-trial applications on September 25, 2008; December 22, 2008, which was an evidentiary hearing; and May 21, 2009. The following evidence was adduced at the evidentiary hearing, at which defendant, M.W., and the attorney who represented defendant on his first appeal and retrial testified.

Defendant testified that his mother retained his attorney to represent him on his appeal and admitted that his attorney knew a lot about his case. Immediately before his retrial, defendant was housed in the Essex County Jail for five months.*fn3

About three weeks before the retrial, he met with his attorney once for approximately fifteen minutes. Defendant said his attorney "was . . . basically listening to him . . . . He was just basically telling me what he was going to do as far as the trial." Defendant recalls that he "felt good" about his attorney's representation on the retrial because "[t]hat's why we retained him[,] because we won the appeal and we thought he was going to do all right [sic] on remand." Defendant claimed that his attorney did not discuss the case during the trial.

Defendant and his attorney, however, gave conflicting accounts of their communications during trial preparation. Defendant testified that they had agreed not to discuss case strategy over the phone because they "wouldn't trust the phones," but his attorney testified that they had a "good number" of conversations. The attorney also discussed the case with defendant's mother, expecting that she would relay information to defendant, but defendant denied learning of this information. Defendant only recalled telephone conversations with his attorney about the appeal, which occurred while he was in Trenton.

The attorney asserted that he was "familiar with the record" and the individuals who were called as alibi witnesses in the first trial. The attorney stated that, based on his work on the appeal, he found that the alibi witnesses probably hurt more than they helped. Both he and the first trial judge agreed their testimony was "horrible" because they lied and could not recall people. Counsel for the co-defendant had agreed with this assessment and the decision not to call them at the retrial. Although defendant admitted that his lawyer "already knew" about the witnesses before the retrial because of his work on the appeal, defendant "wish[ed he] would have said some things" to him about the case and the witnesses that would have aided his defense. However, defendant never told his attorney that he wanted to speak with him about the case.

As to defendant's own trial testimony, it was undisputed that defendant had two prior convictions for the third-degree offense of receiving stolen property. His attorney testified that he discussed this "fairly extensive record" with defendant and how it "was out of the question" that defendant would testify on his own behalf. The attorney also said that he discussed this information with defendant's mother. Defendant disputes that he and his attorney discussed that his convictions could impede him from testifying.

As to M.W., the attorney testified that he was unaware of her involvement with the Division of Youth and Family Services (DYFS) and the earlier criminal charge, and had he known of the information, he would have used it to impeach M.W., particularly because they "re-tried the case on a basic theory of reasonable doubt."

Although M.W. had testified as a State witness at both of defendant's trials, she testified on defendant's behalf at the PCR evidentiary hearing. She stated that, during the homicide investigation, she had repeated to the police what Brown told her about defendant shooting the victim.

At the hearing, M.W. admitted her memory of events was better in 1995 than it was in 2008. She also testified she has suffered from seizures since she was twelve years old and has been taking medication since that time. According to M.W., the seizures and not her medication cause confusion and affect her memory. She testified that "I don't remember some of the things I might have said because of my seizures." Defendant asserted that, although he knew of the seizures, he did not have access to information about M.W.'s medication during his retrial.

After the evidentiary hearing, defendant filed a motion on March 3, 2009, for in camera review of DYFS's records relating to M.W. In April, Deputy Attorney General Mary Pat Baxter confirmed in a letter to the court that M.W. lost her parental rights to two of her children in 1999, which was before the retrial, and her third child in 2000. This disposed of defendant's motion regarding the DYFS records.

After hearing the testimony of the witnesses, and having presided over defendant's retrial, the PCR judge on May 21, 2009, found that the attorney's performance was not deficient under the first prong of Strickland.*fn4 Even though the men did not talk frequently, the judge found that the attorney had "handled the appeal successfully" and "argued this case vigorously." He found that the attorney "clearly understood the case" and "had the facts of the case at his fingertips." The attorney made the decision not to call witnesses based on "his background, his education, and his experience." Based on the testimony of both defendant and his attorney, and because the judge recalled asking defendant at trial about his decision not to testify, the judge concluded that defendant knowingly and voluntarily waived his right to testify.

The judge also found that the criminal endangering charges against M.W. did not create a motivation for M.W. to lie at trial. Those charges "had been dismissed for well over two years" before the retrial. As a result, "[t]here was certainly no threat . . . that these endangering charges were going to affect her testimony." Further, her parental rights to two children had already been terminated by the retrial, and "the third one was well on her way." Last, the judge concluded that nothing in the record demonstrated that the Prosecutor's Office had knowledge of the DYFS investigation or related proceedings at the time of the retrial. In addition, the judge concluded that M.W.'s trial testimony was more credible than her written recantation and PCR testimony and denied defendant's motion for a new trial.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Fact-findings are reviewed for clear error. Id. at 420. Credibility determinations are accorded deference. Id. at 420-21.


We first address defendant's argument that "the State withheld information that was critical to his defense and that he must be granted a new trial" with respect to M.W.'s arrest and termination of her parental rights. Defendant, claiming a Brady violation, contends that the prosecution's suppression of this evidence was material and that he "was entitled to this information in order to explore and impeach [M.W.'s] motive for testifying at the second trial." Defendant further asserts that he "lost . . . a vital cross-examination tool" and could not "vehemently attack[]" M.W.'s credibility.

The State urges that the information concerning M.W. was not material to the defense because "[t]here was no real possibility that the undisclosed information might have affected the outcome of the trial." Moreover, the State argues that it "did not knowingly withhold favorable evidence from the defense because there was no evidence that M.W. received any favorable treatment with regard to the [child-endangerment] charge and the DYFS proceedings in exchange for her testimony, and therefore, they were not relevant to show bias or motive to fabricate." The State also contends that defendant could not have used this information for any other impeachment purpose.

In Brady, supra, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. A Brady violation requires a showing of three elements: "[t]he evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999); see also State v. Carter, 91 N.J. 86, 111 (1982). Materiality includes evidence that "concerns only the credibility" of a witness. Ibid.

Even where a prosecutor is not actually aware of the information, a court may impute constructive knowledge "to the prose-cutor's entire office . . . , as well as law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture." Nelson, supra, 155 N.J. at 499 (citation and internal quotation marks omitted).

Citing State v. Helewa, 223 N.J. Super. 40 (App. Div. 1988), defendant argues that the State should be charged with constructive knowledge of the DYFS investigation due to the close working relationship between DYFS and the Prosecutor's Office. We held in Helewa that a DYFS caseworker "must be equated with that of a law enforcement officer for purposes of triggering Miranda" when conducting a custodial interview. Id. at 47. We will not extend Helewa to the imputation of knowledge under Nelson because Nelson limited the reach of the rule announced there to "other arms of the State involved in investigative aspects of a particular criminal venture." Nelson, supra, 155 N.J. at 499. DYFS was simply not involved in the investigation of this aggravated manslaughter.

Additionally, defendant was aware that Sabur threatened to call DYFS when he interviewed M.W. because, during the retrial, his attorney asked M.W. the following question:

Q: Now when [Sabur] came did he threaten or speak in terms of calling DYFS if you didn't want to come down and talk to him?

A: Yes.

Then, on redirect, she was asked:

Q: When you said Detective Sabur threatened you with DYFS you still gave a statement, is that correct?

A: Yes.

Q: And was the statement that you gave the truth?

A: Yes.

No additional questions were asked of M.W. concerning DYFS, although counsel could have clearly asked if there had been a subsequent DYFS investigation and the result of it.

Further, defendant's argument that information about the child-endangerment charges and the DYFS investigation would have been admissible to impeach M.W.'s credibility at trial has no merit. Although one may impeach a witness with evidence of a criminal conviction, State v. Jenkins, 299 N.J. Super. 61, 72 (App. Div. 1997), evidence of an arrest that does not result in a conviction is inadmissible to attack credibility. State v. Medina, 254 N.J. Super. 668, 678 (App. Div. 1992). Furthermore, M.W.'s parental rights to two of her children had already been terminated at the time of the retrial. The fact that the rights to her third child were subsequently terminated after trial indicates that she in fact did not receive favorable treatment for testifying.


Turning to defendant's claims of ineffective assistance of counsel, both the United States and New Jersey Constitutions guarantee the right to counsel. See U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10. This guarantee requires the effective assistance of counsel and not merely the presence of an attorney. State v. Jack, 144 N.J. 240, 248 (1996). "[A] criminal defendant is entitled to the assistance of reasonably competent counsel, and . . . if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie case of ineffective assistance of counsel, the defendant must meet the two-part standard formulated by the United States Supreme Court in Strickland and adopted in New Jersey under Fritz, supra, 105 N.J. at 57-58. To meet the first prong, the defendant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Moreover, "'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). Additionally, a reviewing court "must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Furthermore, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

If a defendant satisfies the first prong, he or she must then show that the error was "prejudicial to the defense." Id. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. "[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. However, a court may address the second prong before the first prong if the defendant has failed to establish prima facie prejudice. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.

Defendant relies on State v. Preciose, 129 N.J. 451, 463-66 (1992), and State v. Savage, 120 N.J. 594, 598, 620 (1990), for the proposition that his counsel was ineffective in that he failed to consult with him adequately. The Supreme Court first addressed this issue in Savage, supra, 120 N.J. 594. There, defense counsel consulted with the defendant only once prior to the capital murder trial and had not called witnesses on his behalf. Id. at 608. Defense counsel could not recall how many times he met with the defendant but conceded the jail record of one visit was probably correct. Id. at 610-11. He had no investigator and did not speak to anyone before trial. Id. at 611. He did not retain experts and did not communicate with the State's experts. Ibid. He could not testify with certainty that he and defendant discussed trial strategy or the defendant's right to testify. Id. at 611-612.

The Savage Court "recognize[d] that it is not the frequency of consultation that reveals whether a defendant has been effectively denied effective legal assistance. Rather, the proper inquiry is whether as a result of that consultation, counsel was able to properly investigate the case and develop a reasonable defense." Id. at 617. The Court concluded that defense counsel's strategy was ineffective because "it was not preceded by a 'thorough investigation of law and facts' and a consideration of all 'plausible options.'" Id. at 618 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695). Counsel also did not conduct an adequate investigation, id. at 619, the first step of which is consultation with the defendant, id. at 619-20. The Court found that defendant was prejudiced at both the guilt and sentencing phases of his trial by defense counsel's ineffective assistance. Id. at 621-22.

The defense counsel in Preciose, supra, 129 N.J. at 463, "met with [the d]efendant on a single occasion for twenty minutes." The Court determined that the defendant made out a prima facie case of ineffective assistance of counsel, but the fact that the defendant met just one time with defense counsel was not dispositive. Ibid. Rather, the Court addressed six areas of alleged deficiency before concluding that "defendant might have demonstrated at an evidentiary hearing that the cumulative effect of trial and substituted counsels' allegedly casual and superficial representation of defendant's interests constituted deficient performance." Ibid. (emphasis added).

Defendant's arguments that he was denied effective assistance of counsel have no merit. This case is distinguishable from Savage, supra, 120 N.J. 619-22, because even if defendant's counsel did not have many communications with defendant, his performance demonstrates that he adequately investigated trial strategies and defended the case "vigorously." He was thoroughly familiar with the evidence presented at the first trial, was successful on the appeal, and made informed strategic choices about the alibi and rebuttal witnesses during the retrial. See Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Even defendant admitted that his attorney knew about the witnesses because of the appeal. He did not simply know about them, he knew what they would say at trial and how they would be cross-examined, and he evaluated the benefits and burdens of calling them. This case is analogous to Arthur, supra, 184 N.J. at 320-22, where the Supreme Court affirmed the denial of PCR in that calling unreliable and incredible witnesses would likely have done more to harm than help defendant's case. Even the judge noted that the alibi witnesses could have been "part of the reason [defendant] got convicted the first time."

With respect to defendant's guaranteed right to testify on his own behalf, Savage, supra, 120 N.J. at 626-28, the record supports the PCR judge's determination that the lawyer's testimony was credible. As in State v. Bey, 161 N.J. 233, 275 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000), the judge found that he was "convinced that [defendant's] decision not to testify was a knowing and intelligent waiver of his right." This finding is supported by the retrial transcript of December 7, 1999, where the judge inquired of counsel whether defendant would testify. Counsel replied that he had discussed it with his client and that he would not testify. The judge questioned defendant, who stated that he had discussed it with his attorney and decided not to testify.

But even if the record did not adequately support this finding under the first prong of Strickland, defendant cannot show the prejudice needed to prevail. Defense counsel provided a reasonable explanation for not wanting to expose defendant's prior convictions to the jury, and defendant has not asserted exactly what testimony he would have given to aid his defense-- testimony that would have created a different result at trial. Thus, he has failed to demonstrate prejudice under the second Strickland prong.


Next, defendant argues that he is entitled to a new trial on the ground of newly discovered evidence that (1) M.W. recanted her identification of defendant as the shooter; (2) M.W. was charged with endangering the welfare of her child, which resulted in a DYFS investigation and the termination of her parental rights; and (3) M.W.'s seizures and use of anti-convulsion medication caused her to have memory problems. Defendant asserts that this evidence is material because it "had the capacity to crush the credibility of [M.W.], the principal witness in the case against [him]." He further argues that the evidence was "not discoverable until after the completion of the trial and would have probably changed the jury's verdict inasmuch as [M.W.] was the only person to identify [him] as the shooter."

The State contends that the evidence cited by defendant is not material and would have very limited impeachment value. Additionally, the State asserts that the recantation is not credible given M.W.'s contradictory statements. Moreover, the State argues that M.W.'s recantation, as well as information pertaining to her arrest and the termination of her parental rights, were discoverable by reasonable diligence prior to the retrial.

Courts consider three factors when deciding whether to grant a new trial on the basis of newly discovered evidence. A "defendant must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). Moreover,

[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons. Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." [Id. at 187-88 (citation omitted).]

We find no merit to defendant's contentions. Here, the evidence representing the child-endangerment charges against M.W. was not admissible and her involvement with DYFS, her seizure disorder, and her use of medication was "'merely' . . . impeaching." Id. at 187 (citation omitted). Further, it could have been discovered during cross-examination of M.W. at the retrial because during cross-examination by co-defendant's counsel at the retrial, M.W. testified that "my eyes kind of messed up because I have seizures," and neither defense attorney inquired further. Ibid. Finally, it would not likely have "'change[d] the jury's verdict if a new trial were granted.'" Ibid.

Last, with respect to M.W.'s recantation, during the trial and retrial, M.W.'s testimony contradicted her first statement to the police denying any knowledge of the shooting, which had provided fertile ground for impeachment. Thus, her recent recantation would have been "merely cumulative, impeaching, or contradictory." Ways, supra, 180 N.J. at 187. We find no error in the PCR judge's finding that this evidence would not have made a difference. In any event, a witness's recantation is at issue, and deference to a PCR judge's credibility findings is "particularly warranted" as this type of evidence is "generally regarded 'as suspect and untrustworthy.'" Id. at 196-97 (citation omitted).


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