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State of New Jersey v. Askia Nash

January 22, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ASKIA NASH, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

The opinion of the court was delivered by: Justice Albin

State of New Jersey v. Askia Nash

(A-36-11) (068546)

Argued October 23, 2012 -- Decided January 22, 2013

ALBIN, J., writing for a unanimous Court.

The Court determines whether a middle-school librarian convicted of aggravated sexual assault and endangering the welfare of a child is entitled to a new trial because exculpatory evidence -- unknown to the prosecutor and the defense attorney -- was not disclosed to the jury.

Nash was a licensed librarian and educational media specialist at a middle school in Newark between 1995 and 2000. In October 2000, two twelve-year-old special education students, J.B. and K.L., accused Nash of sexually assaulting them. K.L. claimed that on one occasion while he was helping Nash stock books in the library, Nash rubbed his shoulders and touched his butt. J.B. claimed that Nash met him in the bathroom on three occasions between 1999 and October 2000, placed his finger inside J.B.'s butt, and on one occasion directed J.B. to touch Nash's penis. J.B. told his mother in October 2000 about the sexual assaults, and a medical examination revealed symptoms that were consistent with either sexual assault or the constipation that J.B. had been experiencing.

Nash was tried over four days in May 2002. The trial was a credibility contest because there were no witnesses to any sexual contact. Nash's defense to the charges consisted primarily of his claim that because J.B. was a special-needs student with disciplinary problems, he was assigned an aide to accompany him at all times and there was no opportunity for Nash to commit the crimes. To rebut Nash's defense, the prosecutor called the principal of the school as the last witness. The principal testified that J.B. was not assigned a "personal aide" and that only one such aide worked at the school. Neither the prosecutor nor the defense asked about other categories of aides. In his summation, Nash's attorney accepted the principal's testimony and conceded that Nash had erred in asserting that J.B. had been assigned an aide. The jury convicted Nash of aggravated sexual assault, endangering the welfare of a child, and terroristic threats for his actions with regard to J.B, and endangering the welfare of a child with regard to K.L. Nash was sentenced to twenty-two years in State prison.

In June 2002, Nash filed a motion for a new trial claiming his counsel was ineffective because he failed to challenge the false testimony that J.B. had no aide. Nash submitted three affidavits attesting that an aide escorted J.B. throughout the school day. The affidavits were provided by Crystal St. Louis, a "classroom" aide at the school, and Vanessa Johnson-Shavers, both of whom were assigned to J.B. during the time in question, and by the school's vice principal, Mary Ann Torelli. Torelli confirmed that St. Louis and Johnson-Shavers worked with J.B., and stated that J.B. could not be trusted to be alone because he exhibited behavioral problems such as telling lies. No evidentiary hearing was held to address the affidavits. The court denied relief after finding that the defense attorney's failure to call these witnesses was not constitutionally deficient or prejudicial. The court also applied the test for determining whether the newly discovered evidence warranted a new trial. Although the court determined that the evidence was "of the sort that would probably change the jury's verdict if a new trial were granted," it denied a new trial because it found the evidence to be merely cumulative and discoverable through reasonable diligence. Nash did not appeal the denial of a new trial based on newly discovered evidence.

In 2005, Nash filed a new-trial motion based on newly discovered evidence secured during civil litigation instituted by J.B.'s mother against the school district. The evidence, offered in the form of certifications, included the principal's clarification that even though J.B. did not have a "personal" aide assigned to him, a "classroom" aide, St. Louis, accompanied J.B. throughout the day. St. Louis confirmed this statement and explained that whenever J.B. went to the bathroom outside of regularly scheduled bathroom breaks for all special-education students, St. Louis escorted him and sent another student into the bathroom with him. Without explanation, the trial court denied the new-trial motion and the alternative request for an evidentiary hearing. No appeal was filed.

In 2006, Nash filed an application for post-conviction relief (PCR) alleging ineffective assistance of counsel, prosecutorial misconduct, and perjured testimony. Without holding an evidentiary hearing, the trial court denied relief, stating that the principal had testified at trial that J.B. was escorted by adults at all times. The Appellate Division reversed in 2009, noting that the principal had denied that an escort was assigned to J.B., "thereby severely undercutting" the defense. The panel remanded for a hearing to address the ineffective assistance of counsel claim based on failure to elicit exculpatory testimony and the prosecutorial misconduct claim, and it permitted the court to consider any motion for a new trial that might be filed based on newly discovered evidence.

At the 2010 evidentiary hearing, witnesses included the aides, St. Louis and Johnson-Shavers; J.B.'s teacher, Saundra Sharp-Conte; Nash; Nash's trial attorney; and the prosecutor. The principal was deceased. The testimony revealed that the principal ordered J.B. to be followed by an aide at all times, and J.B.'s classroom teacher stated that J.B. was "known to be a pathological liar." The testimony also revealed that the principal imposed a "gag order" after Nash was accused. Nash's trial attorney testified that he and his staff contacted the potential witnesses, but they were unavailable or unhelpful. The prosecutor testified that she did not know the difference between a "personal" and a "classroom" aide, but if she had known that someone was supervising J.B. at all times, it would probably have been a "very different case." The PCR court denied relief, finding that Nash's trial attorney was not constitutionally ineffective, there was no prosecutorial misconduct, and the rules governing post-conviction relief procedurally barred the claims of newly discovered evidence. However, the judge stated that there was "no question" that St. Louis had been charged with the responsibility of following J.B. The Appellate Division affirmed, finding that Nash was not denied a fair trial based on ineffective assistance of counsel or prosecutorial misconduct. The panel did not decide whether the PCR petition was procedurally barred, and it failed to address whether Nash was entitled to PCR relief on newly discovered evidence. The Court granted Nash's petition for certification. 208 N.J. 597 (2011).

HELD: Evidence that the purported victim, J.B., was assigned an aide who accompanied him throughout the day at school constitutes newly discovered evidence as defined by New Jersey jurisprudence. Because the evidence likely would have changed the outcome of the trial if it had been presented to the jury, the integrity of the verdict has been cast in doubt and a new trial is warranted on all charges.

1. A PCR petition is a defendant's last chance to challenge the fairness and reliability of a criminal verdict. Appellate courts will uphold a PCR court's findings that are supported by sufficient credible evidence in the record, but they need not defer to its interpretation of the law. To prevail on his PCR claims alleging ineffective assistance of counsel and prosecutorial misconduct, Nash needed to show that his defense counsel made such serious errors that he was deprived of a fair trial, and that the prosecutor breached her duty to turn over material, exculpatory evidence. Nash's attorney testified that his investigation was thwarted by the lack of cooperation of school officials. The prosecutor testified that she did not learn during the investigation about an aide assigned to J.B., she was not aware of the distinction between a "personal" and a "classroom" aide when the principal testified, and she would have disclosed the information to the defense if she had known. The PCR judge determined that Nash's counsel made a reasonably diligent investigation, and that the prosecutor's testimony was credible. The PCR court's denials of these claims were supported by sufficient credible evidence in the record. (pp. 22-30)

2. With regard to Nash's claims of newly discovered evidence, even though a defendant is generally barred from presenting a claim on PCR that has been previously litigated or that could have been raised at trial or on direct appeal, the rules do not require the Court to acquiesce to a miscarriage of justice. Nash's newly discovered evidence has been repeatedly presented in the form of verified statements of material witnesses, but no court has addressed the issue on the merits in the context of an evidentiary hearing. It would be a fundamental injustice to decline to review the issue. (pp. 30-35)

3. Newly discovered evidence that is sufficient to warrant a new trial is evidence that is (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. Evidence that would shake the foundation of the State's case and almost certainly alter the jury's verdict cannot be considered "merely cumulative." Here, the evidence that J.B. was assigned an aide was clearly material because it corroborated that Nash was telling the truth and likely would change the jury's verdict if a new trial were granted. With regard to the remaining prong of the test, it is probable that the principal's gag order thwarted defense counsel's investigation efforts, and the PCR court's determination that Nash did not receive ineffective assistance of counsel confirms that his attorney used reasonable diligence and the evidence was not discoverable before trial. All three prongs of the newly discovered evidence test having been satisfied, Nash is entitled to a new trial. Because Nash was branded as a liar by the principal's testimony, Nash's credibility was seriously undermined and his ability to defend against the claim by K.L. also was compromised. Therefore, the Court reverses on all charges. (pp. 35-45)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, HOENS, and PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN's opinion. JUDGE RODRIGUEZ (temporarily assigned) did not participate.

Argued October 23, 2012 --

JUSTICE ALBIN delivered the opinion of the Court.

Our rules governing post-conviction relief are the last line of defense against a miscarriage of justice. In this case, we must determine whether a middle-school librarian convicted of aggravated sexual assault and endangering the welfare of a child is entitled to a new trial because exculpatory evidence -- unknown to both the prosecutor and defense attorney -- was not disclosed to the jury.

At a trial in 2002, J.B., a special-education student, testified that on three unspecified dates between 1999 and October 2000 when he was about twelve years old, defendant Askia Nash sexually assaulted him in the school bathroom. Nash not only denied the charge, but also insisted that he could not have committed the crime because an aide escorted J.B. around the school at all times. In rebuttal, the State called the school principal who testified that J.B. was not assigned a "personal" aide. That testimony undermined the main pillar of the defense and marked Nash as a liar. Nash was convicted of sexually assaulting J.B. and of endangering the welfare of another student who stated that the librarian had inappropriately touched his shoulders and buttocks.

In 2002 and 2005, Nash presented to the trial court newly discovered evidence -- sworn or certified statements of school officials attesting that J.B. was assigned a "classroom" aide who accompanied him throughout the day. Those statements, including one by the principal himself, directly contradicted the thrust of the principal's trial testimony. The trial court denied Nash relief without conducting an evidentiary hearing on the claim of newly discovered evidence.

No appellate court has ever determined whether Nash is entitled to a new trial based on the newly discovered evidence mentioned above -- not even in the present case where the issue was squarely raised in post-conviction-relief (PCR) proceedings. At a PCR hearing, J.B.'s classroom aide and special-education classroom teacher both testified, accounting for almost all of J.B.'s time during the day. If believed, their testimony strongly indicates that J.B. was never left alone in the bathroom and therefore Nash could not have committed the offense. The PCR court rejected Nash's ineffective-assistanceof-counsel and prosecutorial-misconduct arguments. It also rejected his newly discovered evidence argument on procedural grounds.

The Appellate Division affirmed the denial of relief based on ineffective assistance of counsel and prosecutorial misconduct. It did not address the newly discovered evidence issue. Indeed, neither the PCR court nor Appellate Division determined on the merits whether Nash was entitled to a new trial based on newly discovered evidence.

We now hold that evidence that J.B. was assigned an aide who accompanied him throughout most of the day -- evidence not disclosed to the jury -- is newly discovered evidence as defined by our jurisprudence. That evidence not only buttresses Nash's defense against J.B.'s charges, but also supports Nash's overall credibility, which was undermined by the principal's misleading trial testimony. We conclude that had that evidence been presented to the jury, the outcome of the case probably would have been different. Because the integrity of the verdict has been cast in doubt, a new trial must be ordered on all charges.

I.

Between 1995 and 2000, Nash was a licensed librarian and educational media specialist at the Morton Street Middle School in Newark. Nash taught a class of twenty-five to thirty students. Two special-education students in his class in October 2000 were J.B. and K.L., both twelve years old. The two students accused Nash of sexually abusing them.*fn1

After a four-day jury trial in May 2002, Nash was convicted of two counts of first-degree aggravated sexual assault of J.B., N.J.S.A. 2C:14-2(a)(1); two counts of second-degree endangering the welfare of a child, J.B., N.J.S.A. 2C:24-4; one count of third-degree terroristic threats against J.B., N.J.S.A. 2C:12-3; and one count of second-degree endangering the welfare of a child, K.L., N.J.S.A. 2C:24-4.*fn2

In large measure, the State's case turned on discrediting Nash's testimony that an aide accompanied J.B. during the school day. The State accomplished that objective by presenting the school's principal who testified that J.B. was not assigned a personal aide. The principal's testimony not only destroyed Nash's credibility, but also allowed the jury to believe that Nash had the opportunity to sexually assault J.B. in the school's bathroom. However, ten years after Nash's trial, it is all but indisputable that the principal's testimony was in error -- that, in fact, J.B. was assigned a full-time aide during the period in question.

We begin with the trial testimony, which led to Nash's conviction.

Testimony at Nash's Criminal Trial

J.B. testified that after he found a twenty-dollar bill, he agreed to loan Nash the money. Nash later repaid J.B. five dollars and told J.B. to meet him in the bathroom. According to J.B., while in the bathroom, Nash asked him to pull down his pants and then "put his finger inside [J.B.'s] butt." J.B. stated that similar incidents occurred two more times and that on one of the occasions J.B. was directed to touch Nash's penis. All three incidents happened on unspecified dates sometime between 1999 and October 2000. Not until October 2000 did J.B. tell his mother about the sexual assaults. He explained that he did not come forward sooner because Nash had threatened "to get [his] mom" if he reported the abuse. However, he did complain to his mother months earlier about pain in his rectal area.

J.B.'s mother testified that she took her son to Beth Israel Hospital after he told her about the sexual abuse. At the hospital, Dr. Gloria Jacome examined J.B. Dr. Jacome testified that J.B. had a rectal fissure, redness in the rectal area, and a "rectal sphincter tone [that] was easily dilated." Dr. Jacome learned not only about the nature of the abuse allegations but also that J.B. had suffered from a recent bout of constipation. Dr. Jacome gave alternative causes for the conditions in J.B.'s rectal area -- constipation or trauma from a sexual assault. Although sexual abuse was consistent with the conditions she observed, Dr. Jacome could not conclude that it was the cause.

K.L. testified that, on one occasion when Nash kept him after class to stock books in the library, Nash rubbed his shoulders, "touched [his] butt on purpose[,]" and he "felt uncomfortable."

J.B.'s classroom teacher, Saundra Sharp-Conte, testified that J.B. often attempted to get out of class by asking to go to see the art teacher or go to the library or bathroom. Sharp-Conte allowed J.B. to go to the bathroom, but she was not asked and did not state whether J.B. went alone or was accompanied by an adult or fellow students.

Nash took the stand and denied sexually assaulting or inappropriately touching J.B. and K.L. Nash explained that because J.B. was a special-needs student and had disciplinary problems, he was assigned an aide, Crystal St. Louis. Specifically, Nash testified that either an adult or non-special-needs student accompanied J.B. to the bathroom. Nash insisted that he never escorted a student to the bathroom. Moreover, he indicated that J.B. was "escorted throughout the building with aides" and "to and from every classroom with aides."

In rebuttal, the State called as its last witness Carl Gregory, the principal of the Morton Street Middle School. In response to questions posed by the prosecutor, Gregory stated that J.B. was not assigned a "personal aide" and that only one such aide was employed at the school. Gregory defined a personal aide as a person who "work[s] with a particular student throughout the day," providing instruction, tutoring, and nurturing. Neither the prosecutor nor defense attorney asked Gregory whether J.B. was assigned any other category of aide who shadowed him during the day, and Gregory did not discuss "classroom" aides.

Gregory's rebuttal had devastating consequences for the defense. In summation, defense counsel accepted Gregory's testimony as the truth and conceded that Nash had erred in asserting that J.B. had been assigned an aide. Backpedaling, defense counsel explained: "Does that mean that Askia Nash is lying? No. That he may have been mistaken about this one boy? Yes."

The jury found Nash guilty of, among other things, aggravated sexual assault of J.B. and endangering the welfare of K.L. Nash was sentenced to an aggregate term of twenty-two ...


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