On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-03-0426.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012 -
Before Judges Simonelli and Waugh.
Following a jury trial, defendant Edmond Garland was convicted of first-degree conspiracy, N.J.S.A. 2C:5-2 (count one); six counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two to seven); second-degree burglary, N.J.S.A. 2C:18-2 (count eight); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (count nine); four counts of third-degree criminal restraint, N.J.S.A. 2C:13-2 (counts ten to thirteen); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count fourteen).*fn1 Defendant received an aggregate sentence of twenty-five years subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and sentence. We affirmed. State v. Garland, No. A-6390-99 (App. Div. Jan. 27, 2003). Our Supreme Court denied certification. State v. Garland, 177 N.J. 219 (2003).
The charges against defendant stemmed from an armed robbery that occurred in Alfred Fuller's apartment on February 13, 1999. Following the robbery, Fuller gave the police a taped statement describing defendant and his clothing, and identifing defendant as one of the armed robbers. He also gave the police defendant's first name, which he remembered after he heard a neighbor mention it to the police. Fuller also gave the police the following written statement, which was read to the jury at trial:
I, Alfred Fuller, having a photograph shown to me by Detective Robert Campbell, do hereby identify this photograph as that of the individual who entered my home with a shotgun and another male, armed robbery at gunpoint. He also tied my wrists with duct tape and placed me in the bathroom with my brother, [fiance], and her three year old son.
I also have known this man since high school and have associated with him for approximately five years.
This identification has been made entirely on my own.
At trial, Fuller identified defendant as one of the robbers, and testified that he had no problem seeing defendant's face throughout the robbery, no trouble recognizing who defendant was and knew who defendant was, and no trouble recognizing defendant in court. He also testified that he knew defendant from the neighborhood, saw defendant in the hallway earlier on the night of the robbery, and that defendant wanted to talk to him. He told defendant that he was too busy to talk but would talk to him later. Defendant later returned and the robbery occurred. Defendant came in the front door with a gun, told him to get down on the floor and asked "where's the money and the drugs[.]" Defendant was next to him with the shotgun "the whole" time he was on the floor; defendant eventually told him to get up and get into the bathroom. Defendant then closed the bathroom door.
On September 30, 2010, over ten years after defendant's conviction, defense counsel obtained a statement under oath from Fuller (the 2010 statement), who was then at a halfway house. Fuller initially said that he was not sure that defendant was one of the robbers, and could not remember whether he saw the robbers' faces. Fuller also said that he identified defendant based on what others had told him, and he could not recall telling the police that defendant was one of the robbers. Fuller also explained that he was at a party in 2002 when some person whose name he did not know told him that defendant was not the robber. Fuller later responded "yes" when defense counsel asked if he was "100 percent positive that [defendant] was not one of the two . . . men at the door" of his apartment on the night of the robbery.
On February 15, 2011, defendant filed a motion for a new trial, arguing the 2010 statement constituted newly discovered evidence. In denying the motion Judge Kyran Connor compared Fuller's 2000 trial testimony to the 2010 statement, and considered the context in which the 2010 statement was made, including the fact that Fuller "said he thought it was around 2002 that some guy just walked up to him at a party" and told him "it wasn't that Edmond guy" who committed the robbery in 1999. The judge concluded, When you read through the [2010 statement] it seem[s] pretty clear that Mr. Fuller . . . is basing his recantation on this apparently chance meeting with a person he says he didn't know, at a place that he doesn't describe other than it being a party, and he places really firm, absolute reliance on the message that this mystery person conveyed. And there's nothing to suggest that he had any doubt at all about his identification of [defendant] until one day some stranger walks up to him and told him he was wrong.
The judge emphasized that Fuller sat on this blockbuster information for four years after this strange man shared it with him, and after supposedly volunteering then in 2006 to come forward, he drops out of sight and he's not located again until he's found imprisoned in 2010 where as a virtual captive he submits [the 2010 statement]. And then once he gets out of prison this past April the man who would do justice for [defendant] . . . slips right back out of sight and can't be found.
The judge also concluded that in the 2010 statement, Fuller "wavers and equivocates and is eventually led into something like a recantation," and there was nothing in that statement's "purported recantation" that "could lead [him] to conclude or ...