August 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ERIN FORD, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-12-4770.
Erin Ford, appellant pro se.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Guadagno.
Defendant, Erin Ford, appeals from a January 26, 2012 order denying his motion for a new trial based on newly discovered evidence. We affirm.
In 1998, Ford and co-defendant Larkeese Collins were charged in a nine-count indictment with robbery, attempted murder, aggravated assault, conspiracy and weapons charges, stemming from the armed robbery of Abdul-Aziz Harrison and the shooting of Clifton Andrews. Harrison's multi-colored, leather Avirex jacket was taken in the robbery and Andrews was shot after he indicated he recognized one of the assailants. Collins was granted use immunity prior to trial and appeared as a witness for the State. The jury convicted defendant on all counts.
Defendant fled the jurisdiction and was not sentenced until March 23, 2001. At sentencing, the court imposed an aggregate custodial term of forty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence. State v. Ford, No. A-5867-00 (App. Div. Jan. 14, 2003).
Defendant filed a petition for PCR. On August 28, 2006, the PCR judge agreed that two counts of the indictment should be vacated, otherwise he denied relief premised on the ineffective assistance of counsel and alleged due process violations.
Defendant appealed, and we affirmed the denial of his PCR petition. State v. Ford, No. A-4176-06 (App. Div. Mar. 11, 2011). Our Supreme Court denied certification on September 9, 2011. State v. Ford, 208 N.J. 336 (2011).
On December 2, 2011, defendant moved for a new trial based on a claim of newly discovered evidence. He presented an affidavit from co-defendant, Larkeese Collins stating:
During pretrial proceedings, on advise of counsel and Eugene J. Pietrolongo, prosecutor I was told I would be given immunity and leniency in exchange for my testimony against Mr. Erin Ford.
The prosecutor also told me that my sentence would not exceed no more than 5 years. If I chose not to cooperate I could receive up to 40 years if convicted.
I cooperated and received a sentence of 4 years, time served in December of 1999.
On January 26, 2012, the trial court denied defendant's motion for a new trial, finding nothing in the Collins affidavit that was inconsistent with our decision denying Ford's PCR petition. There, defendant argued he was denied a fair trial due to prosecutorial misconduct, suggesting the State made an undisclosed deal with Collins. In affirming the denial of defendant's PCR petition, we observed:
The jury was told Collins testified pursuant to a grant of use immunity and the trial judge informed the jury regarding the nature of the grant of immunity prior to Collins' appearance. Additionally, in its instructions, the court told the jury that "the testimony of an immunized witness should be subject to careful scrutiny."
Furthermore, the plea deal extended to Collins was made after completion of defendant's trial and by an assistant prosecutor who had not been involved in defendant's trial. A different judge reviewed and accepted Collins' plea and imposed sentence. Nothing suggests that the plea agreement offered to Collins was not the result of the prosecutor's independent analysis of his case.
[Ford, supra, slip op. at 13-14].
On appeal, Ford presents the following arguments:
THE COURT BELOW ERRED IN REFUSING TO SET ASIDE APPELLANT'S CONVICTION ON BASIS OF CLEARLY NEWLY DISCOVERED EVIDENCE.
1.THE NEW EVIDENCE IS MATERIAL TO THE ISSUE OF THE IDENTITY OF THE PERPETRATOR OF THE CRIME AND IS NOT MERELY CUMULATIVE, IMPEACHING OR CONTRADICTORY.
2.THE NEW EVIDENCE WAS DISCOVERED AFTER THE TRIAL AND WAS NOT DISCOVERED BY REASONABLE DILIGENCE AT THE TIME OF TRIAL.
3.THE GUILTY PLEA AND AFFIDAVIT OF LARKEESE COLLINS WOULD PROBABLY CHANGE THE JURY'S VERDICT IF A NEW TRIAL WERE GRANTED.
THE COURT BELOW ERRED WHEN IT SUMMARILY REJECTED LARKEESE COLLINS AFFIDAVIT WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING. (NOT RAISED BELOW).
The purpose of post-conviction review in light of newly discovered evidence is to provide a safeguard in the system for those who are unjustly convicted of a crime. See State v. Afanador, 151 N.J. 41, 49 (1997).
To meet the standard for a new trial based on newly discovered evidence, defendant must show that the evidence is: 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). All three prongs of that test must be satisfied before a defendant will gain the relief of a new trial. Ibid.
It is noteworthy that Collins does not repudiate his testimony implicating defendant in the robbery of Harrison and the shooting and attempted murder of Andrews. The jury was aware that Collins had been granted immunity for his testimony and had been cautioned by the trial court to scrutinize his testimony as a result. We must weigh the Collins affidavit with "a certain degree of circumspection." State v. Ways, 180 N.J. 171, 187-188 (2004). We determine that even if the jury had learned that Collins was promised that his sentence would not exceed five years, that evidence is not material, under Carter, as it does not have a direct bearing on defendant's guilt. Rather, it is more in the nature of "cumulative . . .impeaching, or contradictory, " evidence that would probably not alter the outcome of a verdict. See State v. Henries, 306 N.J.Super. 512, 535 (App. Div. 1997).