April 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY STANCAVICH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 90-11-2635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011
Before Judges Cuff and Lihotz.
Defendant Anthony Stancavich appeals from the denial of his motion seeking a new trial based on newly discovered evidence. We affirm.
On December 18, 1992, a jury convicted defendant of felony murder, N.J.S.A. 2C:11-3a(3); one count of second-degree aggravated arson, N.J.S.A. 2C:17-1a; and two counts of arson, N.J.S.A. 2C:17-1b, arising from three separate fires started on Mechanic Street in Perth Amboy over a sixteen-month period, one of which claimed the life of a fifteen-year-old boy. After merger, defendant was sentenced to imprisonment for thirty years without parole on the felony murder conviction and an aggregate consecutive term of seven years on the arson convictions. Defendant's conviction and sentence were affirmed in our unpublished opinion, and certification was denied. State v. Stancavich, A-5291-91 (App. Div. March 16), certif. denied, 142 N.J. 452 (1995).
Defendant filed his first PCR petition which was denied. Defendant advises that order was affirmed on appeal.
Defendant moved for a new trial, arguing he recently discovered new evidence disputing material facts presented to the jury. Kenneth Huber, the chief detective of the Middlesex County Prosecutor's Office Arson Unit, testified on cross-examination that defendant became the focus of the investigation based on information from a confidential informant, who was identified as defendant's mother. In his motion, defendant asserted the State used perjury to convict him in the form of Detective Huber's alleged "false testimony." He included the affidavit of Ann Chaviano, his mother, asserting she never acted as an informant for a law enforcement agency. Further, defendant attached Chaviano's certification dated September 2, 2008 to his pro se supplemental brief, in which she states: "I never implicated my son, Anthony Stancavich, as being the person who set any fires" and "I never told [Detective] Huber that my son Anthony Stancavich set any fires at all and the statement at trial during [the] testimony of [Detective] Huber before the [j]udge and jury on January 27, 1992 that I stated that Anthony had set the fires is untrue and false."*fn1
In a written opinion, Judge John H. Pursel denied defendant's motion. On appeal, defendant argues:
PROOF THAT DETECTIVE HUBER'S TRIAL TESTIMONY THAT DEFENDANT'S MOTHER WAS AN INFORMANT AND HAD IMPLICATED DEFENDANT IN THE FIRES WAS FALSE ENTITLED DEFENDANT TO A NEW TRIAL. ACCORDINGLY, THE LOWER COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.
In a pro se supplemental brief, defendant additionally asserts:
DEFENDANT'S MOTION FOR A NEW TRIAL MUST BE GRANTED PURSUANT TO R. 3:20-2, AS THE ALLEGED SIGNED STATEMENTS AND TAPE RECORDED STATEMENTS OF THE DEFENDANT WERE OBTAINED BY BEATING THE DEFENDANT WHILE HANDCUFFED TO A CHAIR, AND THREATS OF MORE BEATINGS. THE MATERIALITY OF THE STATEMENTS AND THE TESTIMONY OF ANN CHAVIANO, DEFENDANT'S MOTHER, FROM AN ALLEGED JUNE 19, 1990 INTERVIEW WITH DETECTIVE SGT. KENNETH HUBER IMPLICATING THE DEFENDANT AT TRIAL AS AN ALLEGED SUSPECT IN THE FIRES AND STATING CHAVIANO WAS AN INFORMER IN HUBER'S TRIAL TESTIMONY TO THE JURY (NOW NEW EVIDENCE, CERTIFICATION OF ANN CHAVIANO, DISCOVERED SEPT. 2, 2008), ALLOWING THE JURY AT TRIAL TO INFER THAT DEFENDANT WAS GUILTY OF THE CRIMES CHARGED. THE CRIMINAL JUSTICE SYSTEM CAN NEVER DISREGARD MISCONDUCT BY COURTS, PROSECUTORS, OR POLICE IN THE FULFILLMENT OF THEIR PUBLIC DUTIES. THIS DEPRIVED DEFENDANT OF A FAIR TRIAL BY AN IMPARTIAL JURY, THE RIGHT TO DEFEND LIFE AND LIBERTY WITH DUE PROCESS OF LAW BY UNDERMINING THE (ALIBI) DEFENSE WITH FALSE FACTS. THE FACTS PRESENTED WERE OBTAINED BY COERCED STATEMENT CONTRARY TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENT(S) OF THE U.S. CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE CONSTITUTION OF NEW JERSEY (1947).
Following our review, in light of the record and applicable law, we conclude defendant's arguments are without merit. R. 2:11-3(e)(2). We affirm, essentially for the same reasons stated in Judge Pursel's opinion, and add these brief comments.
"A jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171, 187 (2004). Claims of "[n]ewly 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. To safeguard those who may have been unjustly convicted, we assess evidence that may cast doubt on the validity of a jury verdict, applying the three-pronged test established in State v. Carter, 85 N.J. 300, 314 (1981). The Court stated that to 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. [Ibid.]
A defendant presenting newly discovered evidence has the burden of establishing all three of these prongs. Ways, supra, 180 N.J. at 187.
Defendant argues he only recently learned Detective Huber's testimony was false. Further, his mother never implicated him in the fires and Detective Huber's suggestion so tainted the evidence that he was convicted.
For completeness, we note defendant's mother was interviewed by Detective Huber on June 19, 1990; two weeks after the second fire and nearly four months before the third.
We also recite the colloquy between defense counsel and Detective Huber, presented during the six-day trial, which is the focal point of defendant's challenge:
Defense Counsel: Is it fair to say that actions that you and your unit took [were] based on information provided to your unit?
Huber: Of questioning him? Defense Counsel: Yes.
Defense Counsel: There were various sources of that information?
Huber: Oh, yeah.
Defense Counsel: Among those various sources [was] there at least one informant that came forward?
Defense Counsel: And isn't it fair to say that . . . th[e] informant's information gave you cause to narrow down your investigation to target this man, Anthony Stancavich? Huber: Oh, absolutely.
Defense Counsel: What was the name of that informant?
Huber: It was his mother.
We disagree with defendant's assertion that it is clear Detective Huber committed perjury. We have no information as to the substance of Chaviano's interview, but Detective Huber did not testify she told him defendant "set any fires." Nevertheless, characterizing Chaviano as an "informant" carries with it a connotation she was aiding the police, which may not have been entirely accurate.
Despite this, defendant's claims of materiality are undercut by the State's evidence of his guilt, which was not concentrated on Detective Huber's now challenged statements. In fact, when defendant was arrested on a different charge, he confessed to setting fires in his neighborhood. Defendant lived on Mechanic Street and told the police he threw a pack of lit matches into the hallway on a pile of garbage resulting in the deadly fire; he and his friends were playing with matches in the yard of the second residential fire when a rug caught fire; and he left a lit cigarette on a couch at the third address and went home. State v. Stancavich, supra, slip op. at 6-7. Other evidence included witnesses' descriptions of "a male, white or Hispanic, about 5'6" or 5'7", and weighing approximately 170 pounds, walk through an alley and enter the hallway of [one of the] Mechanic Street" properties. Id. at 6. Afterward, "the building's superintendent was observed extinguishing a fire under the stairwell, . . . [and] the fire was determined to have been intentionally set." Ibid. Also, the fire investigators described the fire as intentionally set, and these additional facts were presented by the State's witnesses:
(1) Regarding the fatal fire [on] Mechanic Street, Blanca Torres, a resident and the mother of the deceased, testified that there was a porch couch and it was torn as described by defendant. Further, the investigator who examined the scene testified that he had concluded that the point of origin of the fire was the right side of the couch, and that the fire had been intentionally set. This conformed with defendant's statement. Moreover, defendant had been observed at the scene where he appeared very agitated and made an ineffective attempted rescue of the victim.
(2) The same investigator, who also examined the fire scene at [another address on] Mechanic Street, testified that there were separate points of independent origin for the building fire and the shed fire, and that the fires were each intentionally set, without use of accelerants. Moreover, the investigator observed rug remnants on the site of the burned down shed, and defendant's statement indicated that he set fire to a rug in the shed.
(3) Investigation of the fire at [a third address on] Mechanic Street ruled out accidental cause, and showed an open front hall door with a burn pattern consistent with defendant's version of throwing a pack of matches and a lit match into the hallway through the open door upon some garbage.
One of the investigators testified that defendant told him that he enjoyed lighting fires when he was drunk and high.
[Id. at 8-9.]
In light of the entirety of the State's case, we reject defendant's argument that Detective Huber's statements regarding the information from his mother, leading to his arrest, were the inflammatory lynchpin that tilted the jury's verdict. We do not conclude a new trial, without the challenged statements, would produce a different verdict. See Ways, supra, 180 N.J. at 191 (stating the main issue is whether the "power of the newly discovered evidence" would "alter the [jury] verdict"). Therefore, defendant has not satisfied the third prong of the Carter test.
If the evidence were material, we would be required to examine the issue of whether it was newly discovered. Here, defendant offers little to satisfy this prong of the Carter test. Detective Huber's testimony regarding his mother's involvement was known to defendant from the time it was uttered at trial, yet he fails to explain why his mother's statements were not known until September 2008, more than fifteen years after his conviction. Also, we are not informed whether defendant was provided with the original statement his mother made to the police. See Rule 3:13-3 (outlining the pre- and post-indictment discovery requirements for criminal matters). Nevertheless, we know defendant saw no need to produce his mother in his defense at trial. Absent such evidence, it strains our credulity to accept the unexplained and unsupported statement that defendant could not have discovered these facts earlier.
Finally, we reject all arguments raised by defendant in his supplemental submission, suggesting his confession was coerced, alleging misconduct by the courts, prosecutors, and police, and claiming other constitutional infringements. R. 2:11-3(e)(2). The issues presented for the first time in this appeal are untimely, barring our consideration. See State v. Robinson, 200 N.J. 1, 18-19 (2009) (stating when an issue on appeal was never presented to the Law Division, its "factual antecedents never were subjected to the rigors of an adversary hearing, and . . . its legal propriety never was ruled on by the trial court, the issue [is] not properly preserved for appellate review"). See also Rule 3:20-2 (stating a "motion for a new trial based on the ground of newly discovered evidence . . . shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court fixes during the 10-day period").