STATE OF NEW JERSEY v. EARL TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2148-08T42148-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL TAYLOR,

Defendant-Appellant.

____________________________

 

Submitted March 23, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Criminal Division, Essex County, Indictment No. 92-02-00584.

Yvonne Smith Segars, Public Defender, attorney for appellate (Michael Confusione, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Earl Taylor appeals from the November 10, 2008 order that denied his motion for a new trial. We affirm in part, and remand for further proceedings consistent with this opinion.

On February 13, 1992, an Essex County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4b (count three). A jury found defendant guilty on counts one and two, but not guilty on count three. On October 16, 1992, the trial court sentenced defendant on count one to a term of thirty years of imprisonment without parole, and on count two to an eighteen-month concurrent term of imprisonment.

Defendant appealed, and we affirmed. State v. Taylor, A-4021-92 (App. Div. Feb. 14, 1995). On April 27, 2995, the Supreme Court denied defendant's petition for certification. 140 N.J. 328 (1995). On March 19, 1996, defendant filed a petition for post-conviction relief (PCR), contending that he was denied effective assistance of trial counsel and of appellate counsel. On July 31, 1996, the trial court denied defendant's petition. On appeal, we affirmed. State v. Taylor, A-3801-98 (App. Div. Dec. 15, 2000). On March 27, 2001, the Court denied defendant's petition for certification. 167 N.J. 636 (2001).

On January 4, 2007, defendant filed a pro se motion for a new trial, contending that he learned of newly discovered evidence warranting the vacation of the judgment of conviction and the grant of a new trial. The evidence consisted of an April 6, 1999 report from Maria Palumbo, defendant's private investigator, and a September 24, 1991 note from Dr. Gsbert Phillips, defendant's treating physician. Palumbo's investigative report consisted of six typewritten pages, with the first five pages containing the printed name of defendant's oldest son, and the date of April 7, 1999, in the lower right hand corner, and the last page containing a certification as to the truth and accuracy of the report followed by the son's signature. Defendant offered the investigative report as evidence that his son recanted part of his trial testimony of overhearing defendant threatening to kill his wife. Defendant offered the doctor's note as evidence that he was not physically able to lift or carry his wife's body at the time she was murdered in December 1999.

In addition to arguing that the documents constituted newly discovered evidence justifying a new trial, defendant also contended that the evidence supported his claim of ineffective assistance of trial counsel. Defendant asserted that if his trial attorney had properly investigated the case, the attorney would have discovered and presented the same evidence at trial, resulting in a different verdict.

On November 10, 2008, the trial court entered an order supported by a written decision denying the motion without an evidentiary hearing. The court rejected defendant's arguments concerning his son recanting part of his trial testimony because the investigator's report which referenced the son's statements was hearsay, there was no indication in the moving papers how his son's present version of events "would [have] change[d] the testimony he gave to the jury in 1991," and the motion was not accompanied by a transcript of his son's trial testimony for the court to have compared the statements contained in the investigator's report. The court rejected the evidence concerning defendant's 1991 medical treatment on the basis that the evidence was known to defendant at time of trial and could have been presented to the jury at that time.

On appeal, defendant argues:

POINT I.

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING AND FURTHER CONSIDERATION OF DEFENDANT'S MOTION.

A. DEFENDANT ESTABLISHED AT LEAST A PRIMA FACIE CASE FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE, WARRANTING AN EVIDENTIARY HEARING.

B. DEFENDANT ALLEGED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL THAT WARRANTED FURTHER CONSIDERATION UNDER POST-CONVICTION RELIEF PRINCIPLES.

C. REMAND IS WARRANTED BECAUSE DEFENDANT WAS DEPRIVED OF ANY ASSISTANCE FROM LEGAL COUNSEL IN THE COURT BELOW.

In a supplemental pro se brief, appellant argues:

POINT I.

THE COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR NEWLY DISCOVERED EVIDENCE UNDER THE STANDARDS ARTICULATED IN STATE V. CARTER[] AND STATE V. BUNYAN,[] THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR AN EVIDENTIARY HEARING ON INEFFECTIVE ASSISTANCE OF COUNSEL.

A. THE DEFENDANT WAS NOT PROCEDURALLY BARRED FROM RAISING INEFFECTIVE ASSISTANCE OF COUNSEL AND[/]OR NEWLY DISCOVERED EVIDENCE.

B. SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE [CLAIM] OF INEFFECTIVE ASSISTANCE OF COUNSEL AND THE FACT THAT THE COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR NEWLY DISCOVERED EVIDENCE WITHOUT AFFORDING THE APPELLANT A FULL EVIDENTIARY HEARING.

Motions for a new trial based on newly discovered evidence are governed by Rule 3:20-1. Under that rule, the trial court may grant the defendant a new trial "if required in the interest of justice." R. 3:20-1. In the case of newly discovered evidence, the defendant must establish 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. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). "[A]ll three prongs of that test must be satisfied before a defendant will gain the relief of a new trial." Ibid.

"Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure it is not the product of fabrication, and, if credible and material, it is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Id. at 187-88. The Court has recognized the third prong of the test, that newly discovered evidence be of the kind that would probably change the jury's verdict, presents a mixed question of law and fact. State v. Harris, 181 N.J. 391. Therefore, we should give deference to "supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings." Ibid.

We have considered the arguments presented by defendant's counsel and by defendant pro se. We are satisfied that the trial court properly denied defendant's motion for a new trial on the basis of Dr. Phillips' September 24, 1991 note. The court correctly determined that the evidence was either known to defendant or could have reasonably been discovered by defendant at the time of trial, and thus, the note did not constitute newly discovered evidence under Rule 3:20-1. Ways, supra, 180 N.J. at 187.

We also reject defendant's argument that the evidence presented on his motion for a new trial established a prima facie showing of ineffective assistance of trial counsel. Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of trial counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

This matter was tried to a jury in September 2002. We previously rejected defendant's argument that he was denied effective assistance of counsel by his attorney failing to properly investigate the case. Taylor, supra, A-3801-98 (slip op. at 4). The investigator's report relied upon by defendant was not obtained until seven years post conviction. As such, trial counsel would not have had any knowledge of defendant's son allegedly recanting part of his trial testimony seven years after the trial.

Although we have grave concerns whether the investigator's report constitutes evidence warranting a new trial, we are constrained to remand to clarify whether defendant had been assigned an attorney to represent him on his motion for a new trial. In a certification dated December 10, 2008, filed in support of a request for assignment of counsel on appeal, defendant certified that in January 2007, he had requested assistance of counsel on his motion through the Essex County Regional Public Defender's Office, and that he was advised by the office that an attorney had been assigned to represent him on the motion. Defendant further certified that, although assigned, the attorney failed to consult with him, failed to conduct an investigation in the matter, and failed to file a brief on his behalf.

Treating defendant's motion as the equivalent of a second motion for PCR, defendant would not be entitled to an assignment of counsel per se, but only upon application and a showing of good cause. R. 3:22-6(b). Here, the record does not contain a copy of an order assigning the motion to the Public Defender's Office for representation. Nor does it contain written confirmation from the Public Defender's Office that it assigned an attorney to represent defendant on the motion. However, defendant certified that the Public Defender's Officer had assigned counsel to represent him and he was relying upon that attorney to undertake his representation when he received a copy of the trial court's order denying the motion. Defendant argues that he was denied effective assistance of counsel because the attorney never undertook to represent him on the motion.

Before we address whether the trial court correctly denied defendant's motion for a new trial based on the April 6, 1999 private investigator's report, we need to ascertain whether counsel had been assigned to represent defendant on the motion, but failed to do so. This is particularly so as the trial court denied the motion in part on the procedural grounds that could have easily been remedied by an attorney.

Accordingly, we remand the matter for the trial court to ascertain whether an order had been entered assigning defendant's motion to the Public Defender's Office for representation and, if so, whether an attorney actually undertook to represent defendant on the motion. If there is an absence of an order assigning the matter to the Public Defender's Office for representation, the court shall conduct an evidentiary hearing to determine whether the Public Defender's Office sua sponte assigned counsel to represent defendant on the motion and, if so, whether the attorney failed to undertake defendant's representation. We request that the trial court conclude the remand hearing and advise this court of its findings within thirty-five days of the date of this opinion. We retain jurisdiction.

 
Affirmed in part, and remanded for further proceedings consistent with this opinion. We retain jurisdiction.

State v. Carter, 85 N.J. 300 (1981).

State v. Bunyan, 154 N.J. 261 (1998).

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

(continued)

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A-2148-08T4

July 21, 2010