On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-1892.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Sapp-Peterson and Simonelli.
Defendant Darrell Edwards appeals from the denial of his petition for post-conviction relief (PCR) and the denial of his motion for a new trial. Defendant is serving a term of life imprisonment with a thirty-year period of parole ineligibility following his conviction of first degree murder. We affirmed his conviction and sentence, State v. Edwards, No. A-6874-98 (App. Div. October 30, 2002); the Supreme Court denied certification, 175 N.J. 433 (2003).
We set forth at length the facts of this case in our earlier opinion. Edwards, supra, (slip op. at 4-6). Briefly, the charges arose from the shooting of the owner of a delicatessen. Two men entered the store, one was about six inches taller than the other. The taller man placed a sandwich order. The delicatessen owner was shot in the back of the head from a distance of at least one foot.
The victim and Victor Williams, an employee were in the delicatessen at the time the two men entered. Williams positively identified a photograph of defendant two days later and at trial as the taller man who ordered the sandwich. Patricia McKinnis heard the gunshot, and then observed defendant and another man moving quickly away from the delicatessen. She also saw defendant throw something into a garbage can.
Police recovered a spent shell in the delicatessen and a semi-automatic nine-millimeter gun from the trash can. Police later recovered the bullet from the victim's body, and a ballistics expert testified that the bullet was fired by the gun retrieved from the trash can.
At trial, defendant challenged the identifications of him by Williams and McKinnis. His defense, however, was not confined to misidentification. Defendant argued not only that he was not in the delicatessen that evening but also that the victim was shot by another in relation to a territorial dispute with a drug supplier, who had ordered the victim's murder. To that end, defendant sought the identity of a confidential informant and the informant's testimony. He also sought to introduce evidence of the victim's participation in the sale of illegal drugs. All of the third-party guilt evidence was barred at trial.
Defendant filed a motion for a new trial and a petition for PCR. The motion for a new trial was based on newly discovered evidence. Defendant submitted results of DNA tests of the sweatshirt and gun recovered from the trash can. The tests excluded defendant as a possible source of genetic material found on both items. The new trial motion was also based on the recantation of McKinnis. Defendant submitted a 2007 affidavit from her in which she avers that she is not sure of the identity of the men who threw a sweatshirt and gun into the garbage can. She also averred that she had used heroin, cocaine and drank beer before she observed the men discard the items.
In addition, defendant submitted affidavits from Steven Blevins, a witness at the third but not fourth trial,*fn1 and Maurice Brown. Blevins averred that he testified truthfully at the third trial that defendant was not one of the men he saw on the night of the shooting. Brown averred that he saw two men place something in a garbage can but defendant was not one of the men.
Addressing the DNA evidence, the motion judge held that it was neither material evidence nor likely to change the jury's verdict if a new trial ensued. He reasoned that the sweatshirt retrieved from the trash can was striped and all eyewitnesses simply testified that the men wore black. The only person who testified that one of the men wore a striped shirt, Blevins, firmly stated that defendant was not one of the men he saw that night. Blevins did not testify at the trial that produced the guilty verdict; thus, crediting Blevins' testimony did not produce material evidence of innocence but simply evidence that defendant did not wear the discarded shirt.
The DNA evidence, however, counters McKinnis' testimony that she saw defendant throw something into the garbage can. The judge, however, found that the 2007 affidavit did not cast serious doubt on the veracity of her trial testimony. He found that McKinnis had multiple opportunities to change her testimony before and during the third and fourth trials. The judge found her recantation "unbelievable." He also cited "numerous instances of witness intimidation" during the prosecution of the matter and suggested the recantation was the result of intimidation. Even if true, the motion judge held that McKinnis' revised testimony was not material because it did not exonerate defendant and does nothing to undermine Williams' testimony that defendant was the taller of the two men who entered the delicatessen and shot the victim.
The judge dismissed the Blevins and Brown affidavits because they could not be considered material, newly discovered evidence that would probably alter the result at a new trial. He reasoned that Blevins' allegedly powerful evidence only produced a hung jury at the trial at which he testified. As to Brown, the judge found his information could not be considered newly discovered. He also noted Brown's resistance to be involved in the matter and considered his omission as a trial witness a strategic choice by trial counsel.
Defendant also filed a PCR petition in which he alleged ineffective assistance of trial counsel. Defendant alleged that trial counsel erred when she did not object to the mistrial declared by the trial judge during the second trial and did not assert defendant's double jeopardy protections. Defendant also asserts that the trial judge erred in barring evidence of third-party guilt, and appellate counsel failed to recognize that this court misconstrued a third-party's statements to the confidential informant. He asserts that appellate counsel should have sought reconsideration in this court or raised the issue in the petition for certification, and counsel's failure to do so deprived defendant of the effective assistance of counsel. Finally, defendant argued that his sentence violated the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005).
The PCR judge held that defendant's substantive arguments were without merit. The judge dismissed the failure to object to the third mistrial because defense counsel had moved for a mistrial and waived double jeopardy protections. The judge reasoned that the trial judge declared a mistrial for reasons other than those advanced by defendant. The judge also found that defendant suffered no prejudice because "the [trial court] would have granted one of its own accord." The motion judge also held that Holmes v. South Carolina, 547 U.S. 319, 206 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) had no impact on the trial court decision to exclude evidence of third-party guilt and this court's analysis of the issue.*fn2
The PCR judge also found that this court did not misread or misapprehend the factual record and held that the confidential informant could not be considered an essential witness for the defense. The judge also rejected defendant's sentencing claims because defendant had not raised Blakely/Natale claims at trial.
On appeal, defendant raises the following arguments:
POINT I SUPPRESSION OF GRAHM'S CONFESSION TO THOMAS' MURDER AND OTHER EVIDENCE IMPLICATING GRAHM VIOLATED MR. EDWARDS' RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE.
1. Mr. Edwards' Appellate Counsel And The Lower Court Erroneously Combined the Distinct Sources of Evidence Implicating Grahm In Thomas' Murder.
2. The Lower Court Erred In Ruling That Grahm's Admission Was Inadmissible Hearsay; It Is Admissible Evidence As A Statement Against Interest Which Appellate Counsel Was Ineffective in Failing to Raise.
a. Grahm's Confession Was An Admissible Statement Against Interest.
b. The Trial Court Erred In Relying On Rule 516 To Prevent Disclosure Of The Third Party Admission Which Was A Critical Statement Against Interest.
c. Ineffective Assistance of Appellate Counsel.
3. Mr. Edwards' Constitutional Right to Present a Defense Entitled Him to Present Grahm's Admission to the Jury; The Lower Court Erroneously Dismissed Mr. Edwards' Third Party Guilt Claim Because it Did Not Consider Grahm's Admission But Rather Only the One Speculative Fact in the Record: the Potential Identity of Two Hit M[e]n.
4. Reversal of Mr. Edwards' Conviction is Required.
POINT II THE COURT ERRED IN DENYING A NEW TRIAL BASED ON THE DNA EVIDENCE; THE TEST RESULTS EXCLUDING MR. EDWARDS FROM MALE DNA ON THE SWEATSHIRT AND GUN SATISFY THE CARTER*fn3 NEW TRIAL TEST.
1. The Lower Court's Analysis Failed To Take Into Account The Different Ways That Modern Post-Conviction DNA Testing Can Yield Newly Discovered Evidence Requiring a New Trial.
2. Lower Court Erred In Finding That As A Matter Of Law The DNA Results Are Not Material Because DNA Evidence Was Not Used to Convict Him.
3. The DNA Evidence in this Case is Material.
a. The DNA has "Some Bearing" And "supports" Mr. Edwards' Misidentification Defense.
b. Blevins' Testimony Does Not Undermine the Materiality Of The DNA.
4. Probative Value Of DNA From The Murder Weapon.
5. The DNA Results Probably Would Change Verdict.
POINT III THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL BASED ON PATRICIA MCKINNIS' RECANTATION OF HER IDENTIFICATION OF MR. EDWARDS.
1. Patricia McKinnis' Recantation Is Probably True And The Trial Testimony Is Probably False.
a. The Lower Court Erred In Not Considering Substantial Evidence That Corroborates McKinnis' Recantation That She Had No Idea Who Was By The Garbage Can And "Was Just Guessing" That It Was Mr. Edwards.
1. Scientific Studies Demonstrate That Ms. McKinnis Could Not Have Identified The Perpetrators From 271 Feet.
2. DNA Testing Of Crime Scene Evidence Excludes Mr. Edwards As The Major And Minor Profile On the Sweatshirt The Tall Perpetrator Left At The Scene.
3. The Police Ignored Or Suppressed Testimony From Other Eyewitnesses Who Said Mr. Edwards Was Not One Of The Two Perpetrators.
b. The Lower Court Mischaracterized The Evidence It Used To Find The Trial Testimony Believable.
1. The Lower Court Erred in Finding the Recantation Inherently Suspect Because McKinnis Had Multiple Opportunities to Change Her Story.
2. The Lower Court Erred In Finding That The Jury Believed McKinnis Was 46 Feet From The Crime Scene.
3. The Lower Court Erred In Relying On An Irrelevant Fact.
2. The Lower Court Erred In Not Holding An Evidentiary Hearing To Determine If The Recanting Witness Was Credible, If Her Drug Addiction Contributed To The Misidentification, If Her Recantation Has Been Coerced, And If the Investigating Detectives Had Influenced/Directed The Identification.
a. The Trial Court Erred in Not Making a Credibility Determination.
b. The Trial Court Erred In Not Crediting McKinnis' Assertion Of Proof That She Had Been High And Intoxicated When She ...