STATE OF NEW JERSEY v. EDWARD LOCKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD LOCKE,

Defendant-Appellant.

________________________________________________

March 5, 2014

Submitted February 10, 2014 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-01-0235.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Edward Locke appeals from the June 20, 2012 Law Division order denying his motion for a new trial based on a claim of newly discovered evidence. Finding no merit to defendant's claim of error, we affirm.

In January 1995, defendant was convicted after trial of first-degree felony murder, aggravated manslaughter, aggravated assault, second-degree burglary, and two counts of first-degree robbery. He was sentenced to a term of life imprisonment with thirty years of parole ineligibility for the murder count and to a consecutive term of twenty years with ten years of parole ineligibility on the robbery count. On defendant's direct appeal, we affirmed his conviction, but remanded for correction of the sentence to effect an additional merger of the concurrent term. State v. Locke, No. A-4116-94 (App. Div. Apr. 29, 1997). The aggregate prison term and the period of parole ineligibility were not affected by our decision. The Supreme Court denied defendant's petition for certification. 151 N.J. 76 (1997).

We affirmed the denial of defendant's first petition for post-conviction relief (PCR), State v. Locke, No. A-2122-99 (App. Div. Apr. 16, 2001), and the Supreme Court again denied defendant's petition for certification. 170 N.J. 89 (2001).

In 2006, we affirmed the denial of defendant's second PCR petition, State v. Locke, No. A-0452-05 (App. Div. May 23, 2006), and the Supreme Court denied defendant's petition for certification. 188 N.J. 354 (2006).

The facts adduced at trial indicate that at approximately 6:30 p.m. on December 8, 1993, two octogenarians, John and Dorothy Walker, were in their Newark apartment when defendant knocked on their door. Dorothy, age eighty-three, opened the door and defendant pushed his way into the apartment and demanded money. When Dorothy told him she had no money, defendant began to beat her on her head and arms. When John, age eighty-eight, came to the aid of his wife of sixty-six years, defendant knocked him down and repeatedly kicked him in the head as he lay on the floor.

Defendant ransacked the Walker's apartment, took two watches, and fled. He was apprehended by a security officer as he attempted to leave the building and found to have blood on his hands and boots. Shortly after he was taken into custody, Dorothy identified defendant as the assailant, and two gold watches found in his possession. Defendant provided a written statement where he confessed to the robbery and assaults.

Dorothy suffered a broken nose and broken arm and was placed in a cast for nine months. John's injuries were far more serious. He suffered an acute subdural hematoma and required emergency surgery to remove two blood clots in his brain. Despite additional procedures to lessen the pressure on his brain, John's condition continued to worsen. John was intubated, placed on a ventilator, and feeding tubes were inserted, but he developed pneumonia and his kidneys failed. John died on December 28, 1993.

At the time of the assault, John was taking the blood thinner, Coumadin, prescribed after he had previously suffered a heart attack. To counter the blood-thinning effect of the drug, John was infused with fresh frozen plasma before surgery. Two treating physicians and a medical expert testified at trial. They all concluded that, although the blood-thinner might have worsened the bleeding, defendant's assault to John's head was the cause of his death. The effects of Coumadin on John's injury and death were discussed and examined at length during trial.

Defendant's claim of newly discovered evidence consisted of a 2007 "black box warning"1 from the Food and Drug Administration, that "Warfarin sodium [Coumadin] can cause major or fatal bleeding." Defendant sought a new trial, claiming that this evidence would likely have changed the outcome of his trial. After oral argument, Judge Peter V. Ryan denied the motion in a thorough and comprehensive written opinion.

On appeal, defendant presents the following argument:

POINT ONE

the trial court erred by denying Mr. Locke's motion for new trial based on newly discovered evidence.

In a pro se brief, defendant raises these points:

point one

motion for new trial based on newly discovered evidence, requires (1) that the evidence is material, and not merely cumulative, impeaching, or contradictory; (2) that the evidence was discoverable after completion of 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.

point two

criminal justice system can never disregard misconduct by courts, prosecutors, or police in fulfillment of their public duties, as system depends on integrity of such actors.

point three

there is clear and convincing evidence that in the mind of the trier of fact, a firm belieF as to the truth has been established, and that no reasonable jury, being instructed properly, would have voted to find guilt beyond a reasonable doubt.

We find the arguments raised by defendant are totally devoid of merit and we affirm the denial of his motion for a new trial on the basis of the written opinion of Judge Ryan. R. 2:11-3(e)(2). We add only these brief comments.

"[A] motion for new trial is within the sound discretion of the trial judge which we do not lightly disturb." State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997). Rule 3:20-1 provides:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

"A jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J.171, 187 (2004).

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.(quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

Judge Ryan applied the criteria set forth in Ways, and concluded that the threshold requirements for a new trial had not been satisfied:

First, although the proffered evidence is material, it is also cumulative as the substance of the 2007 black box warning was addressed at trial even though published warnings were not yet released. Second, the evidence was not discovered after the trial. Although the warnings were published post-trial, the possible effects of [C]oumadin were already public knowledge. This is evident by the extensive testimony elicited at trial from the attending physicians who all surmised that [C]oumadin was not the cause of Mr. Walker's death. Third, the evidence would not "change the jury's verdict if a new trial was granted." The black box warning does not provide new evidence that was not already presented [at] Mr. Locke's trial.

The medical experts and treating physicians at trial all considered and discussed the effects of Coumadin on John Walker's injuries. They conceded that the Coumadin might have worsened the bleeding, but concluded that defendant's assault to Mr. Walker's head was the cause of his death.

In State v. Loray, 41 N.J. 131 (1963), the victim had a pre-existing heart condition "and could have died at any moment from a heart attack without the injuries inflicted by defendant[.]" Id. at 140. The Court held that, although the primary cause of death was acute congestive heart failure, the precipitating and contributory causes were the injuries resulting from the assault by defendant. Ibid. The language of the Court in Loray is particularly applicable here:

The fact that a victim of an assault is in a weakened condition or suffers from disease and as a result succumbs to a blow which might not be fatal to a person in perfect health does not lessen the criminal responsibility for causing death. [There is] no duty imposed upon a victim to supply a guarantee of good health to a robber.

[Ibid.]

"It surely ought not to be the law that because a person is afflicted with a mortal malady, from which he must soon die, . . . another may be excused for acts of violence which hasten or contribute to or cause death sooner than it would otherwise occur." State v. Smith, 73 Iowa 32, 41, 34 N.W. 597, 601-02 (Sup. Ct. 1887), quoted in Loray, supra, 41 N.J. at 140. "Life at best is but of short duration, and one who causes death ought not to be excused for his act because his victim was soon to die from other causes, whatever they may be . . . ." Ibid.

1 "The term 'black box warning' often is used to describe a warning in bold type that is circumscribed, and thus emphasized, by a bold black rectangle which houses the warning." Ray v. Allergan, Inc., 863 F. Supp. 2d 552, 557 (E.D. Va. 2012).