On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-92-01863.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012
Before Judges Sabatino and Fasciale.
Defendant appeals from a July 20, 2010 order denying his motion for a new trial. He challenged convictions from eighteen years earlier contending that he obtained newly discovered evidence. We affirm.
Following a jury trial in 1994, defendant was convicted of felony murder, N.J.S.A. 2C:11-3(a)(3); aggravated manslaughter, N.J.S.A. 2C:11-4(a)(as a lesser included offense of murder); first-degree robbery, N.J.S.A. 2C:15-1; and possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). After various mergers, the judge sentenced defendant to life in prison with thirty years of parole ineligibility.
The convictions arose out of a robbery at a jewelry store resulting in the fatal shooting of the store owner. The evidence against defendant was overwhelming. Two independent witnesses positively identified defendant walking in the vicinity at a fast pace after the stabbing with dried blood on his left arm and a cut on his right arm. The police found defendant's fingerprints on top of a showcase in the store. Neighbors of defendant identified his voice on a telephone conversation recorded by the store's alarm company. Further, defendant mentioned to another witness that there had been a robbery in a jewelry store and there might have been a body involved.
We affirmed his convictions on direct appeal, State v. Hickson, No. A-6126-93 (App. Div. July 8, 1996), and the Supreme Court denied certification, 146 N.J. 570 (1996). Thereafter, we affirmed the dismissal of defendant's first petition for post-conviction relief (PCR), State v. Hickson, No. A-3901-99 (App. Div. April 19, 2001), and the Supreme Court denied certification, 169 N.J. 610 (2001). We then affirmed his second and third petitions for PCR. State v. Hickson, No. A-5329-01 (App. Div. October 31, 2003) (denying second petition), certif. denied, 179 N.J. 373 (2004); State v. Hickson, No. A-1741-04 (App. Div. January 26, 2006) (denying third petition), certif. denied, 186 N.J. 607 (2006).*fn1 Finally, we affirmed an order denying his motion to correct an allegedly illegal sentence, amounting to a fourth petition for PCR. State v. Hickson, No. A-0249-07 (App. Div. April 14, 2009), certif. denied, 200 N.J. 471 (2009) (but remanding for technical correction to judgment of conviction).*fn2
In 2010, defendant filed his motion for a new trial and argued primarily that he obtained newly discovered evidence regarding an alleged immunity agreement between the state and two witnesses. He contended that one of the two witnesses, Richard Wagner, testified at trial, but that the prosecutor stated in his summation that "the jury . . . did not hear anything about agreements with Wagner." The trial court denied the motion and issued a written opinion:
With respect to issues pertaining to Richard Wagner's credibility, the United States Supreme Court previously held that "nondisclosure of evidence affecting credibility falls within [the general rule regarding new trials]," but that a new trial is not automatically required "whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict." Giglio v. United States, 405 U.S. 150, 153-54[, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108] ( 1972) (internal citations and quotations omitted). Furthermore, "[a] finding of materiality of the evidence is required." Id.
In the instant case, in contrast to the Giglio case, the State presented the jury with an overwhelming amount of evidence that tended to prove defendant's guilt. Richard Wagner's testimony established a portion of the State's case, but the case did not "depend almost entirely" on his testimony. Cf. Giglio, supra, [405 U.S.] at 154[, 92 S. Ct. at, 766, 31 L. Ed. 2d at 109]. Indeed, not only did the jury contemplate the veracity of the other eyewitness accounts, but the jury also considered the credibility of the defendant himself who testified at trial. Wagner's credibility as a witness was therefore not an issue that was important enough to amount to a manifest denial of justice under the law.
This appeal followed.*fn3
On appeal, defendant raises the ...