On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-06-00515.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
The State appeals, by leave granted, from an order granting post-conviction relief (PCR) to defendant, Aswad Charles, and vacating defendant's conviction for first-degree murder, conspiracy to commit murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. In a lengthy and thoughtful oral opinion, the judge determined that the Supreme Court's decision in State v. A.O., 198 N.J. 69, 90 (2009), barring the introduction of polygraph evidence based on stipulations entered into without the advice of counsel was fully retroactive. Thus defendant's convictions, which were based in part on polygraph evidence introduced pursuant to such stipulations was invalid, despite the fact that defendant had exhausted his right of direct appeal prior to the Court's decision in A.O. Additionally, defendant cross-appeals from the judge's denial of his application to suppress his November 12, 2002 post-polygraph statement to law enforcement officials.
On appeal, the State raises the following issues:
THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND VACATING HIS CONVICTION.
A. The Trial Court Incorrectly Held That The New Jersey Supreme Court's Decision in A.O. Should Be Given Full Retroactive Effect.
B. The Trial Court Erred in Granting Defendant's Petition for Post-Conviction Relief Even if A.O. is Given Full Retroactivity and Applies to Defendant's Case.
On cross-appeal, defendant argues:
POINT II - DEFENDANT-RESPONDENT'S CROSS APPEAL [THE JUDGE] ERRED IN HIS DECISION NOT TO SUPPRESS MR. CHARLES' NOVEMBER 12, 2002 POST POLYGRAPH STATEMENT.
We reverse the order on appeal and affirm on the cross-appeal.
At trial, evidence was presented that would have permitted the jury to conclude that defendant and the victim, Eddie Fernandez, were at one time best friends. However, when defendant borrowed a gun from Fernandez and gave it to another without assuring its return, the friendship soured. A year or more later, on October 31, 2002, the two attended a birthday party, and an argument ensued. Following the intervention of other partygoers, defendant left the party, but while walking to his car, he yelled, "I'm gonna shoot your ass."
On November 5, 2002, Fernandez was shot in the chest with a sawed-off shotgun. Although he survived for a period of time after the shooting, he was unable to communicate, and thus did not identify the shooter prior to his death.
On the day after the shooting, defendant sought to develop an alibi by asking a friend to give a false statement regarding his whereabouts. On November 8, 2002, defendant was arrested for a drug offense, having been found at the time to be in possession of eighty bags of heroin and a small amount of marijuana. While in custody, he was questioned regarding the Fernandez murder, but he claimed that he was unaware of it until November 6, when his uncle informed defendant that he was being accused of the crime. To support his claim of innocence, defendant requested a polygraph examination, which was conducted by Detective Kaminskas after defendant had stipulated to its admissibility at trial and agreed to other conditions that appear to have been identical to those at issue in A.O.. See 198 N.J. at 75-76.*fn1
After the polygraph examination, defendant was informed that Kaminskas had concluded from an analysis of his responses to questions regarding the murder, that those responses were deceptive. Thereafter, defendant gave a statement in which he admitted to being the driver of the car utilized in the shooting of Hernandez. However, he claimed that the shooter was Luther (Lex) Lilliewood and the other participant in the murder was Easson (E) Dominick. Both the polygraph results and defendant's confession were admitted at trial.
Following defendant's conviction on July 23, 2004 and sentencing on October 5, 2004, he appealed, arguing on appeal through counsel that the trial judge had erroneously admitted evidence regarding the dispute between him and Hernandez over the gun, which "other crime" evidence was inadmissible under N.J.R.E. 404(b). He argued additionally that his sentence of forty-five years in custody subject to an eighty-five percent parole disqualifier was manifestly excessive. In a pro se supplemental brief, defendant argued that the warrants for his arrest were invalid, and that his November 12, 2002 statement should have been suppressed as the product of an illegal detention. We affirmed defendant's conviction ...