STATE OF NEW JERSEY v. SHAWN JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4364-03T44364-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN JACKSON,

Defendant-Appellant.

_____________________________

 

Submitted November 1, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from Denial of Motion for New

Trial in the Superior Court of New Jersey,

Law Division, Criminal Part, Atlantic County, 89-12-3501.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Zavotsky,

Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County

Prosecutor, attorney for respondent

(Yasmeen Shihabi, Assistant County

Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant, Shawn Jackson, appeals from the denial of his motion for a new trial. We affirm.

Defendant, who waived his right to a jury trial, was convicted of eleven counts, including kidnapping and murder, following a one-day bench trial on May 15, 1991. He was sentenced to life imprisonment with a thirty-year parole ineligibility on the murder conviction and a consecutive fifteen-year custodial term with a five-year parole ineligibility on the kidnapping count. All other convictions were merged or sentenced concurrently.

Jackson appealed, and we reversed and remanded for an evidentiary hearing to determine if a statement given by defendant to the police was taken after he had asserted a right to remain silent. State v. Jackson, 272 N.J. Super. 543 (App. Div. 1994) certif. denied, 142 N.J. 450 (1995). That opinion relates the facts necessary for an understanding of this appeal and we summarize them here briefly.

On December 22, 1988, the body of seventeen year-old Jessie Rice, who had been shot seven times, was discovered. Police investigation of the death led to defendant and two others, Darryl Welsh and Terry Bailey. While defendant was being questioned by the police, it became clear that he had information concerning the shooting. When asked for that information, however, he told Investigator Juliano that "he was afraid to tell because he was afraid someone might hurt he or his girlfriend." Juliano left the room and Investigator Folks came into the room to continue the questioning. Investigator Folks remembered being "informed by Investigator Juliano that Shawn had stated that he wasn't going to tell anything that happened because of personal reasons." In any event, Jackson gave a statement to Folks and was then released.

He was then brought back to the police station later that evening where, after the administration of Miranda warnings, defendant gave a full confession. On defendant's direct appeal, we were concerned that the statement made by defendant, either that he did not wish to speak for fear that someone would harm him or his girlfriend or that he did not want to speak for personal reasons, was an invocation of his right to remain silent. Were that the case, the police would have been required to honor the request and cease all questioning. See State v. Hartley, 103 N.J. 252 (1986). We were also concerned that if the statements made in the initial interview were given because the State had failed to honor scrupulously a request (however ambiguous) to cease questioning, the statements might have tainted the later confession. Because that issue had not been raised when defendant sought unsuccessfully to suppress his confession, a remand was necessary.

The remand hearing was conducted on September 14, 1994. At the hearing, Investigator Juliano testified that he was aware that there were two gangs, one of which was the Abdullahs, competing for control of the drug traffic in Atlantic City. He also testified that both Welsh and Bailey were members of the gang and that defendant was a "want-a-be" member. Juliano's information came from verbal briefings. He was asked specifically if there were ". . . written reports . . . [or if] . . . any of this [was] ever memorialized by way of a report for you to review, or was this just information that was told by someone?" He responded that "Intelligence was given verbally. I am not aware of any reports that I had, no."

Having given this background, Juliano's attention was directed to defendant's comment that "he was afraid to tell because he was afraid someone might hurt he or his girlfriend." Juliano testified that defendant was afraid of the Abdullahs "[a]nd that's what his fear was when he said, 'I'm afraid to tell.'" He did not ask of whom defendant was afraid because, "I know he was referring to the Abdullahs."

Investigator Folks gave similar testimony. He prefaced his comments by correcting his earlier recitation of the words used by Juliano to describe defendant's reluctance to talk. He explained that Juliano had said that defendant expressed fear for the safety of himself and his girl friend and that he, Folks, had used the term "personal reasons" at the initial Miranda hearing because the expression of fear seemed to be a "personal reason." Under the circumstances, Folks "didn't think it was that important to be that specific." He then went on to explain his understanding of defendant's initial reluctance:

Q Now, when Investigator Juliano told you that Jackson was afraid, did he tell you who Jackson was afraid of?

A No.

Q By context of this, were you aware who Jackson would be afraid of?

A Yes.

Q Tell us what you mean by that?

A Well, I knew because of his affiliation with the Abdullahs that he could only be afraid of the Abdullahs if he gave information lending itself to the implication of an Abdullah.

Q And therefore did you find it necessary to question Juliano any further about the fact that Jackson had said he was afraid?

A No.

Folks also testified to his knowledge of the relationship of defendant, Welsh and Bailey with the Abdullahs. When asked for the source of that knowledge, he responded "that came from many sources in the Atlantic City intelligence unit." There was never a representation that written intelligence reports existed.

The trial court concluded that defendant had expressed fear for his safety, and not some undefined "personal reason," as the reason for his initial reluctance to proceed with his interview. The judge also concluded that defendant's statement "did not in any manner implicate his rights to silence . . . ." Accordingly, the trial court determined that the original statement was not given in violation of defendant's invocation of a right to silence and could not, therefore, have tainted the later confession. We affirmed, in an unpublished decision bearing Docket No. A-47-91T4, and, as we have noted, the Supreme Court denied certification. 142 N.J. 450 (1995).

Defendant then sought post-conviction relief. One of the claims raised in that proceeding was an asserted failure of the State to produce information relating to gang activiities. Judge Neustadter denied the application for post-conviction relief and we affirmed in an unpublished opinion under Docket No. A-1725-00T4. In affirming, we said:

While defendant asserts that the investigators had information relating to possible gang activity which should have been turned over to him, he neither demonstrates that there were any investigative reports subject to discovery nor explains how anything in an essentially unrelated investigation could have been exculpatory as to him.

The Supreme Court denied certification. 176 N.J. 429 (2003).

Defendant next sought a new trial before Judge Neustadter based on what he claimed was newly discovered evidence. The context for reviewing such a motion is well-established:

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, 426 A.2d 501 (1981). We have held that all three prongs of that test must be satisfied before a defendant will gain the relief of a new trial. Ibid.; State v. Artis, 36 N.J. 538, 541, 178 A.2d 198 (1962) (citing State v. Johnson, 34 N.J. 212, 223, 168 A.2d 1, appeal dismissed, 368 U.S. 145, 82 S. Ct. 247, 7 L. Ed. 2d 188, cert. denied, 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961)).

[State v. Ways, 180 N.J. 171, 187 (2004).]

The "newly discovered" evidence upon which defendant now relies, as we understand it, is an admission by the Atlantic City investigators that there were no written intelligence reports linking the defendant, Welsh and Bailey to the Abdullahs. Defendant asserts that this information would have undermined the basis for a finding that defendant's disinclination to speak related to his fear of the Abdullahs. The claim fails on several levels.

Initially, the evidence is not material. Neither Juliano nor Folks suggested that written intelligence supporting their claimed knowledge of gang ties existed. Indeed, as we have seen, Juliano specifically disclaimed knowledge of any such reports. Accordingly, if anything, this evidence does nothing more than support the testimony of the investigators.

For the same reason, we cannot comprehend how the evidence, if presented to Judge Neustadter, could have affected the outcome of the remand hearing. The judge had heard from the State's witnesses that no such written reports existed. Defendant was able to suggest that the connection drawn by the witnesses between the defendant and the Abdullahs should be discredited exactly as he has done on the application for a new trial. In this sense the evidence is not "new" at all; it was well-known at the remand hearing.

Judge Neustadter rejected defendant's position and, for the reasons we have just set out, we agree with that determination.

Defendant also argues that the State's testimony at the remand hearing "was false testimony" and that this claim was analyzed by the remand court "under the [wrong] standard ...." That claim does not have sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

We retained jurisdiction so that certification was not denied until after we had reviewed the results of the remand.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-4364-03T4

December 9, 2005