February 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARIN HICKSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 following points:
THE LAW DIVISION ERRED IN DENYING THE DEFENDANT APPOINTED COUNSEL, RESULTING IN VIOLATIONS OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL UNDER [THE] CONSTITUTION OF THE UNITED STATES, AND A DENIAL OF DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
THE LAW DIVISION'S ORDER IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE RESULTS IN AN INJUSTICE VIOLATING THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW OF THE UNITED SATES CONSTITUTION.
THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WHERE TRIAL PROSECUTOR'S MISCONDUCT PERTAINING TO THE FELONY MURDER (ROBBERY)CONVICTION WAS OBTAINED IN VIOLATIONS OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW OF THE UNITED STATES CONSTITUTION
"[T]o qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). All three elements must be fulfilled before the evidence can justify a new trial. State v. Johnson, 34 N.J. 212, 223, appeal dismissed, 368 U.S. 145, 82 S. Ct. 247, 7 L. Ed. 2d 188, cert. denied, 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961). The decision to grant or deny a motion for a new trial based upon newly discovered evidence rests within the sound discretion of the trial judge. State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997).
Applying these standards, we discern no abuse of discretion, nor any other error, in the trial court's denial of defendant's new trial motion. After considering the record and briefs, we conclude that the arguments advanced by defendant, including his claims regarding the denial of appointed counsel and alleged prosecutorial misconduct, are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by the motion judge in his oral opinion dated July 20, 2010. We add the following brief comments.
Defendant's "newly discovered evidence" - an alleged immunity agreement with Wagner - is nonexistent. The record does not clearly demonstrate that Wagner received immunity from the Attorney General. The State did not present to the trial judge an immunity petition because Wagner never refused to answer questions during the trial. Thus, the immunity statute, N.J.S.A. 2A:81-17.3, was inapplicable. Even if the jury learned that Wagner received immunity, it would be cumulative of other evidence presented to the jury establishing that the State treated Wagner favorably. Wagner testified at trial that Sergeant Roger Kane, who participated in the investigation, told him that "it would be helpful if I cooperated . . . so that no charges could come against me, and [Kane] said if I help[ed] him, . . . [the police] can say that I helped out, [that] I was cooperative." Moreover, the evidence against defendant, as we have already indicated, was overwhelming, and any evidence of an immunity agreement with Wagner would not be "the sort that would probably change the jury's verdict if a new trial were granted." Carter, supra, 85 N.J. at 314.