On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 85-06-2616 and 85-05-2096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012 -
Before Judges Payne and Hayden.
Defendant Aaron Chandler appeals from the March 15, 2010 Law Division order denying his motion for a new trial based upon newly discovered evidence. Having thoroughly considered the record and the applicable law, we affirm.
Following a jury trial, defendant was convicted of felony murder, N.J.S.A. 2C:11-3a(3); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. His aggregate sentence was life in prison with a thirty-year parole ineligibility period.
Defendant's conviction and sentence related to a shooting death that occurred on March 15, 1985, at a bus stop in Newark. According to the State's proofs at trial, defendant and three men, Dexter Tyson, Walter Lee and J.H., a juvenile, were walking together; Tyson had a gun, which had been supplied by defendant; and they all agreed to commit a robbery. Together they approached the designated victim at the bus stop, and when he resisted, Tyson shot him twice. Lee took money from the victim, and all four fled. Shortly thereafter, the four associates met up with a friend named Kevin Hayes, and Lee told him they had just committed a robbery during which someone had been shot. At trial, the two principal witnesses linking defendant to the robbery and murder were J.H. and Hayes.
On August 25, 1988, we affirmed defendant's conviction and sentence, and the Supreme Court denied certification. State v. Chandler, No. A-3016-85 (App. Div. August 25, 1988), certif. denied, 114 N.J. 497 (1989). In 1990, defendant's first petition for Post-Conviction Relief (PCR) was denied. We affirmed the denial in State v. Chandler, A-6075-89 (App. Div. March 6, 1992), certif. denied, 130 N.J. 13 (1992). On December 13, 1993, U.S. District Court Judge Nicholas H. Politan dismissed defendant's federal habeas corpus petition. The denial of defendant's second petition for PCR was upheld on appeal. State v. Chandler, No. A-2396-99 (App. Div. November 13, 2001), certif. denied, 172 N.J. 178 (2002).
In 2002, defendant moved for a new trial on the basis of newly discovered evidence. The trial judge denied the motion but reduced defendant's sentence from life to thirty years in prison. The denial of the motion was affirmed on appeal. State v. Chandler, No. A-2239-02 (App. Div. April 16, 2004), certif. denied, 181 N.J. 547 (2004). The denial of defendant's third petition for PCR was also affirmed on appeal. State v. Chandler, No. A-3462-03 (App. Div. September 28, 2005), certif. denied, 185 N.J. 597 (2005).
On January 12, 2006, defendant filed a second motion for a new trial based on newly discovered evidence, which consisted of certified statements from J.H. and Hayes recanting their testimony against him. On May 1, 2006, the trial judge denied the motion. On April 24, 2008, we reversed and remanded the matter for a hearing for the trial judge to make findings on the credibility of the recanting statements. State v. Chandler, No. A-0174-06 (App. Div. April 24, 2008).
Judge Gardner held an evidentiary hearing on June 23, 2009, which included the testimony of Hayes and J.H. Hayes testified that his trial testimony stating that defendant was present when the homicide was discussed shortly after it had occurred was completely untrue. He claimed that he only made the false statement when the police threatened to charge him with two other murders if he refused. On cross-examination, Hayes testified that he had been involved in many criminal cases since the trial and had not mentioned the false testimony to any of his attorneys or prosecutors. He also admitted that he and defendant were incarcerated in Southern State Prison and he considered defendant his "brother in faith."
J.H. testified that most of his trial testimony had been false. According to J.H., there had been no robbery or agreement to commit one; the death resulted from an argument between Tyson and the victim; and although defendant, Lee and J.H. were at the bus stop with Tyson, no money was taken from the victim. J.H. also denied his trial testimony that defendant had supplied the gun. J.H. further testified that during the homicide investigation, he had given a statement to the police implicating Tyson, not defendant, but he never saw the statement during the trial. J.H. contended that he testified against defendant at trial only because the police threatened him with a life sentence in prison. After he testified and pled guilty, he served four years. Although he had been in trouble with the law since being released and was currently incarcerated, he did not mention his false testimony to anyone until he was visited by an investigator in 2005.
On September 15, 2009, Judge Gardner denied the motion. The judge found Hayes' and J.H.'s current claims incredible, particularly because from 1986 through 2002 they said nothing to anybody about these falsehoods. He pointed out that to reverse a conviction on the basis of newly discovered evidence, the evidence had to be powerful enough to change the verdict if a new trial were granted. He concluded that the evidence was not newly discovered and did not meet the appropriate standard for granting a new trial. As he found the new evidence was incredible, and merely impeached evidence given at trial, he also found that defendants had not made the requisite showing that the evidence would probably change the jury verdict. Additionally, Judge Gardner denied defendant's motion for a rehearing on March 15, 2010, determining that defendant had not raised a sufficient issue to warrant a rehearing.
Defendant appeals, contending that his "convictions must be reversed because his motion for a new trial based upon newly discovered evidence should have been granted." He also claims in his pro se supplemental brief that he is entitled to a new trial due to withheld exculpatory evidence, because a statement J.H. gave to the police suggesting that Tyson, not defendant, bought the gun was not in defendant's file and may not have been turned over to the defense. Following our review, we conclude that defendant's arguments are ...