STATE OF NEW JERSEY v. EARL McCRAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2917-04T52917-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID BATTLE,

Defendant-Appellant.

__________________________________

 

Argued May 15, 2006 - Decided June 27, 2006

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 97-09-3979 and 97-9-3980.

Marco A. Laracca argued the cause for appellant (Bio & Laracca, attorneys; Mr. Laracca, on the brief).

Sara A. Friedman, Assistant Prosecutor argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Friedman, on the brief).

PER CURIAM

This is an appeal from the denial of three motions for post-conviction relief. Defendant was charged on September 25, 1997, in a three-count indictment with first-degree murder, N.J.S.A. 2C:11-3a(1), (2), (First Count); possession of a handgun without a permit, N.J.S.A. 2C:39-5b (Second Count); and possession of a handgun with an intent to use it unlawfully against another, N.J.S.A. 2C:39-4a (Third Count). In a separate indictment, defendant was charged with possession of a handgun by a person with a prior conviction. Defendant was convicted on May 1, 1998, of all three charges in the first indictment. After a separate trial on the second indictment, defendant was also convicted of that charge.

Defendant was sentenced on May 27, 1998, at which time the court merged the N.J.S.A. 2C:39-4a conviction with the murder conviction and sentenced defendant to a term of life with a thirty-year term of parole ineligibility. He was given a concurrent sentence of five years with a 50% parole disqualifier on the conviction of possession of a handgun without a permit. The judge sentenced defendant to an extended term on the possession of a weapon by a convicted felon for a term of twenty years with a ten-year period of parole ineligibility. Defendant's convictions and sentences were affirmed on appeal, Docket No. A-6720-97, and his petition for certification was thereafter denied. State v. Battle, 163 N.J. 80 (2000).

Defendant filed his first petition for post-conviction relief on March 20, 2001, claiming that the assistance provided by his counsel was ineffective on the ground that counsel did not adequately investigate his alibi and file a notice of alibi, nor did the attorney call witnesses who allegedly would support his theory of the case. Defendant also alleged that his counsel's assistance was ineffective because of cumulative errors. In a subsequent petition defendant sought a new trial based on an alleged recantation by the eyewitness to the murder. In the third PCR petition, defendant sought access to the victim's clothing to test for gunshot residue. All relief was denied by the PCR judge who had presided over the trial and imposed sentence.

On this appeal, defendant raises the following issues:

Point I -- The Trial Judge Erred In Denying Mr. Battle's Motion For Possession Of the Murder Victim's Clothing In Order To Allow A Defense Ballistics Expert To Conduct A Chemical Analysis To Determine The Exact Distance Between The Murder Weapon And The Victim At The Time That The Victim Was Killed.

Point II -- Mr. Battle's Petition For Post-Conviction Relief Seeking A New Trial On The Basis Of Newly-Discovered Evidence In The Form Of A Recantation By Valerie Hicks Should Have Been Granted.

Point III -- Mr. Battle Is Entitled To A New Trial Because His Trial Attorney Rendered Ineffective Assistance.

Point IV -- At A Minimum, Judge Merkelbach Should Have Remanded Mr. Battle's Petitions For Post-Conviction Relief For An Evidentiary Hearing.

We have concluded that there is no merit to any of these issues and affirm.

Mid-morning on November 12, 1995, seventeen-year-old Corey Bey, the victim, and Valerie Hicks, who were distant cousins, were at the premises of 160 Spruce Street in Newark. Corey Bey was selling drugs and Valerie Hicks was trying to buy drugs to get high. Defendant entered the lobby of the building and became engaged in an argument with the victim over the sale of drugs. Valerie Hicks had known the defendant for about five years. Defendant left the building going around the back and heading toward Barkley Street.

Five to ten minutes later Valerie Hicks saw defendant coming around from the back of the building with his hand in his pocket. Valerie Hicks was standing near the side door of the building. The victim had gone around to the front of the building, but as he came back to the side lobby defendant grabbed the victim's shirt at the back of the neck and threatened to shoot him. At that point "Corey squirmed and tried to get away. He didn't get away. [Defendant] just shot, started shooting him like 5, 6 times for nothing."

Defendant ran around the back of the building and jumped into a gray car that was parked on Barkley Street. Hicks ran upstairs and told her daughter to call the victim's mother. The victim was lying in the side entrance between the first and second doors into the building. Hicks returned to the side lobby and awaited the arrival of the police and the ambulance squad. The record demonstrates that the victim's uncle also arrived.

On cross-examination Valerie Hicks admitted that, in the statement she gave to police on the day of the murder, she related that the victim ducked down and grabbed one of Bey's customers as the shooting occurred. Valerie Hicks did not remember providing the police with that information at the time she testified in the trial. Valerie Hicks testified on cross-examination that she was standing about three feet away from the victim during the shooting. At the time of trial, she could not recall whether she had spoken to the victim's uncle at the scene of the murder.

First, defendant claims that the PCR judge erred in denying his request to examine the victim's clothing for gun powder, the absence of which might impeach Valerie Hicks' account of the closeness of the shooting. An application for discovery after conviction is addressed to the court's "inherent power to order discovery when justice so requires." State in Interest of W.C., 85 N.J. 218, 221 (1981); State v. Cook, 43 N.J. 560, 589 (1965); State v. Moffa, 36 N.J. 219, 222 (1961); State v. Butler, 27 N.J. 560, 605 (1958), cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960). Such discovery should be ordered only in the unusual case. State v. Marshall, 148 N.J. 89, 270, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). It is not available to "'confirm mere speculation or hope that a basis for collateral relief may exist.'" Id. at 270 (citation omitted).

However, where a defendant presents the PCR court with good cause to order the State to supply the defendant with discovery that is relevant to the defendant's case and not privileged, the court has the discretionary authority to grant relief.

[Ibid.]

Defendant bears the burden to show good cause for the exercise of judicial discretion to order PCR discovery.

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952).]

We thus review the denial of a PCR discovery petition for an abuse of discretion. We find none here. As the PCR judge found, the evidence of gunshot residue would not produce exculpatory evidence, but only either impeach or corroborate the details in Valerie Hicks' account of the shooting. He concluded that the evidence at trial did not clearly establish that all six shots were fired within one foot of the victim and that the potential evidence of gunshot residue fell far short of conclusive proof of innocence. He concluded that the distance from which the shots were fired did not make much difference.

Even if we assume for the sake of argument that the clothing would not have shown any gunshot residue, that evidence would not have justified a new trial. In State v. Ways, 180 N.J. 171, 187-88 (2004), our Supreme Court set the standard for post-conviction relief based on new evidence. The Court stated:

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."

[Ibid., citing State v. Carter, 85 N.J. 300, 314 (1981).]

All three prongs of this test must be satisfied before a defendant becomes entitled to a new trial. Ibid.

Here, any evidence of gunshot residue or the absence of such residue on the clothing would merely impeach Valerie Hicks' account of the close range at which the shots were fired. It would not impeach her status as an eyewitness to the crime. She spoke with the police on the day of the shooting and went down to the police headquarters to give them a written statement. The victim, in a dying declaration, also identified defendant as the person who shot him. Other witnesses placed defendant at the scene of the crime. Furthermore, the evidence was discoverable by reasonable diligence before completion of the trial and, thus, the second prong of Ways would not be satisfied by this evidence. Finally, the evidence would not change the verdict if a new trial were granted, because other powerful evidence established that defendant was the shooter, and the distance from which he fired the shots was not material to the case. Thus, it is unlikely that the evidence would have changed the guilty verdict. The discovery sought was no more than a "hope that a basis for collateral relief may exist." Marshall, supra, 148 N.J. at 270. As a consequence, we find no abuse of discretion in the denial by the PCR judge of the motion for forensic testing of the victim's clothing.

Defendant next contends that Valerie Hicks, in an interview with public-defender investigators after the trial, recanted her trial testimony. However, defendant has not proffered an affidavit from Valerie Hicks, who is apparently unwilling to provide such an affidavit. As the Ways Court has cautioned, "[n]ewly-discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Ways, supra, 180 N.J. at 187-88.

The alleged recantation by Valerie Hicks must be viewed in light of her reluctant participation in the trial. Although she had been subpoenaed by the prosecutor, she had failed to appear at trial, was arrested, found in contempt, and punished with imprisonment. She expressed fear of reprisals as an explanation for her failure to appear initially. Only after the contempt proceedings did she testify at the trial. Her trial testimony was consistent with the statement that she gave on the day of the murder. It seems more likely than not that the alleged recantation is a recent fabrication, possibly born of a continuing fear of reprisals. The fact that Valerie Hicks would not recant under oath makes the likelihood of a sworn recantation on the witness stand at a plenary hearing slim, especially because she would face possible perjury prosecution and additional jail time.

"Courts generally regard recantation testimony as suspect and untrustworthy." State v. Carter, 69 N.J. 420, 427 (1976).

The test for the judge in evaluating a recantation upon a motion for a new trial is whether it casts serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice.

[Ibid., citing State v. Pulchaski, 45 N.J. 97, 107-08 (1965).]

The alleged recantation does not meet this test because Valerie Hicks' account of the murder at trial was corroborated by other witnesses. Defendant's girlfriend, Wanda Cheeseboro, testified that defendant was living at 126 Boyd Street, which was one house away from the scene of the murder. Defendant was with her at her mother's house during the morning of the murder. According to Wanda Cheeseboro, defendant left and then he came back to her mother's house mid-morning, and appeared to be upset. Defendant stayed two to three minutes and left. Wanda Cheeseboro followed defendant in her car and saw him running around the back of 160 Boyd Street. When they both arrived at 126 Boyd Street, defendant told her that he had just shot a kid.

Other corroboration was provided by the victim's uncle, Wayne Simmons, who testified that he was outside 158 Boyd Street and heard shots. Then, one of Corey Bey's friends ran down the street and told him that Corey had just been shot. The uncle went to 160 Spruce Street and found his nephew lying in the hallway bleeding from his mouth. Valerie Hicks was kneeling behind him holding his head. Wayne Simmons asked Corey Bey what happened and Corey said "I got shot." The uncle asked who shot him and Corey responded "Battle, Battle." Wayne Simmons testified that Valerie Hicks then confirmed at the scene that David Battle shot Corey. Wayne Simmons then asked Valerie Hicks if she had called an ambulance to which she replied. They both waited until the EMS unit arrived. Two other people were at the scene before the EMS unit arrived. One, who was very agitated, was another friend of the victim.

Considering all of the evidence at trial, the alleged unsworn recantation by Valerie Hicks is highly suspect and untrustworthy. There was no abuse of discretion in denying relief on this ground, nor was an evidentiary hearing required.

Defendant's final claim for relief is based on alleged ineffective assistance of counsel. The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Moreover, the right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.

The evaluation of a claim of ineffective assistance of counsel requires a two-prong analysis. In order to prevail on a claim of ineffective assistance of counsel, the defendant must first demonstrate that trial counsel committed serious professional errors. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Id., 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The standards embodied in the Strickland test have been adopted by New Jersey courts. State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(C) and (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on November 12, 2004. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).

Affirmed.

 

The autopsy, which is in the record before us and was before the PCR judge, strongly suggests that Corey Bey was shot from a variety of angles and probably distances as well. Of the shots that went left to right, one shot was back to front and upward through the torso; another one was across the lower back and slightly upward; a third was front to back and slightly upward through the torso; a fourth was slightly back to front and downward from the knee to the calf. One shot went right to left and slightly downward through the thigh. The coroner found a sixth wound involving the left side of the neck, the tissues around the hyoid bone, the tongue, and the right maxilla and missing right upper incisors. The coroner could not determine whether this wound was a bullet track between the left side of the neck and the mouth because of the surgical intervention. However, the victim's uncle testified that the victim was bleeding from the mouth when the uncle arrived at the scene. This physical evidence corroborates Valerie Hicks' account of Corey Bey struggling to get away while he was being shot, and might also support an inference that some of the shots were inflicted while he was lying on the floor. Any or all of the shots could have been inflicted with the gun more or less than twelve inches from the victim, a detail that indeed does not make any difference, as the PCR judge concluded.

(continued)

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A-2917-04T5

June 27, 2006