STATE OF NEW JERSEY v. JAMA SMITH

NOT FOR PUBLICATION WITHOUT THE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.

JAMA SMITH,

Defendant-Appellant.

______________________________

November 23, 2015

Submitted April 21, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-03-0359.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Jama Smith appeals from the trial court's June 28, 2013 order denying his petition for post-conviction relief (PCR). Defendant collaterally challenges his convictions of murder, conspiracy to commit murder, and related weapons offenses. He sought relief on the grounds of ineffective assistance of counsel and newly discovered evidence.

I.

We described at length the evidence presented at trial in our opinion affirming defendant's conviction and sentence on direct appeal. State v. Smith, No. A-2146-06 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). The State's proofs established that defendant and co-defendant Willie Evans1 participated in the November 12, 2003 drive-by shooting of Terryl Lee, a drug dealer who supplied lower-level dealers. The shooting arose out of a disputed transaction between Lee and Evans; Evans then robbed one of Lee's workers, Kenneth Lucky, and when Evans learned that Lee intended to retaliate, he and defendant launched a preemptive strike against Lee.

As we noted in our previous opinion, the State's case was circumstantial. The only direct witness to the shooting was one of Lee's cohorts, Kashawn Coleman. He was in Lee's parked vehicle on North Third Street in Paterson when Lee was shot right next to the vehicle. Coleman testified that the shooter was seated in the rear passenger seat of a black Yukon truck with an Enterprise rental car sticker. Coleman could not identify the shooter or the driver.

The State connected defendant to the murder through the black truck and his relationship with Evans. Defendant was present in the vehicle when Evans's sister returned it to Enterprise the day after the shooting.2 A shell casing from the weapon used to kill Lee was found in the vehicle.

Two detectives testified that after defendant was arrested and received his Miranda warning, he stated that on the night of the homicide, he drove the truck to an address on Clinton Street, outside Evans's house. He left the truck there overnight while he spent the night at his girlfriend's house on North Street. He retrieved the truck the next morning and returned it to Enterprise with Evans's sister.3

Coleman testified that defendant was present during one of Evans's drug transactions with Lee. Coleman identified defendant in court as the person who was with Evans during that transaction. Coleman also provided testimony regarding the robbery of Lucky during a planned sale to Evans. Coleman conceded on cross-examination that in earlier testimony, he never mentioned seeing defendant at the transaction with Evans. He claimed it was because no one asked if anyone was with Evans.4 Coleman was incarcerated when he testified, and acknowledged that he sought assistance from the State in return for his cooperation against defendant.

The State also presented the prior statement of another witness, Davon Forbes, in which he claimed he had seen defendant and Evans in the SUV earlier in the day on November 12, 2003. Forbes also said, in the prior statement, that he saw defendant and Evans together in a restaurant shortly after the homicide. The court allowed the State to present Forbes's statement in light of his inconsistent testimony at trial.

Rashawn Barrett, a "jailhouse snitch," testified that while defendant and he were incarcerated together in the Passaic County Jail, defendant admitted his involvement in the murder. Defendant allegedly described to Barrett the events leading up to the homicide: he and Evans had bought cocaine from Lee; Lee shortchanged Evans in a drug deal; Evans and defendant responded by robbing Lee's "runner"; rumors circulated that Lee intended to retaliate; and Evans and defendant decided to strike first.

Defendant did not testify. He presented two alibi witnesses, his aunt and her daughter. His aunt testified that defendant was residing in the upstairs apartment of her home in Haledon, with her daughter and her daughter's two children. She testified that defendant was in the upstairs apartment at the date and time of the homicide. Defendant's cousin corroborated her mother's testimony. On the other hand, both women confirmed that defendant and Evans were close friends. They also admitted they did not volunteer their knowledge of defendant's whereabouts until 2006.

Defendant also presented the testimony of two persons who were incarcerated with defendant and Barrett at the Passaic County jail. They testified that they never saw evidence of a close relationship between defendant and Barrett; they never saw the two have a close one-on-one conversation; and defendant never shared details of his case with them.

In 2011, defendant filed a PCR petition, in which he asserted that he was entitled to a new trial, or at least an evidentiary hearing, based on newly discovered evidence consisting of certifications of Evans and Coleman. He also asserted his trial counsel was ineffective because he failed to call Lucky as a witness, allowed two defense witnesses to testify in prison garb, and did not adequately advise defendant about taking the stand before defendant waived his right to testify.5

Evans executed two certifications, five years apart. In a June 5, 2006 certification, Evans noted that he entered his guilty plea to manslaughter on March 22, 2006 (the day the jury began deliberating in defendant's case) in return for a sentence of five years, with an eighty-five percent period of parole ineligibility pursuant to NERA, N.J.S.A. 2C:43-7.2. Evans admitted that he shot Lee.6 Evans stated that when he entered his plea, "I wasn't allowed to say that [defendant] wasn't there or that he didn't have anything to do with this situation, which I'm asserting right now."

In his second certification, executed September 16, 2011, Evans amplified his reasons for not exculpating defendant. He claimed the State's plea offer of a five-year term was initially contingent on him stating that defendant was the driver during the shooting of Lee. Evans claimed he declined the offer because he would not falsely incriminate defendant. Once the jury began deliberating in defendant's trial, the State renewed the five-year offer without the condition that Evans inculpate defendant, but subject to the condition he not exculpate defendant

Even though I made no reference to Jama Smith, when I plead guilty I wasn't allowed to say that he wasn't there or that he had nothing to do with this situation. Before Jama Smiths' trial I was offered 5 with a 85% (NERA) however apart of that plead was for me to state in my factual basis was that Jama Smith was the driver of the vehicle when the shooting of Tyrell Lee took place. I refused the plea because I had to implicate Jama Smith, reasoning be Jama Smith had nothing to do with this crime. Once I refused the plea the procutor informed my lawyer that I would be going to trial after Jama Smith. However, once Jama Smith trial was over the prosecutor offered me the same plea again 5 with a 85% (NERA) this time I didn't have to name Jama Smith as the driver, I only had to admit my guilt. I acceppted the plea and I wanted to clear Jama Smtih's name at the plea proceedings, in my factual basis, however I was informed by the procutor that I coundn't clear Jama Smith name of this crime and if I did I would not get the plea.7

Evans explained he declined to speak before or during defendant's trial in order to avoid incriminating himself, so he waited until after he was sentenced.

Regarding defendant's presence at Enterprise, Evans claimed he learned that parole officers were at his home the morning after the shooting. To avoid the officers, Evans asked defendant to return the rental car to his sister

The next morning after the shooting of Tyrel Lee, my sister, Shawanda Evans, called an informed me that Parole was at my residence looking for me so not wanting to be seen by parole, I called Jama Smith and asked him to do me a favor and take the vehicle back to my sister. At this time Jama Smith had no knowlegde from myself of the nights before events (the shooting). I nevere told him what I did. So he agreed to do me that favor. So I drove to Tonya Brown house in Haledon where Jama Smith was living at the time. He got in the vehicle and he dropped me off at Tanika Redds house where I was staying. Jama Smith took the vehicle to my sister and they both took the vehicle back to Enterprise car rental, that's where Jama Smith and my sister, Shawanda Evans were taken into custody. At that time Jama Smith and Shawanda Evans had no knowledge of the shooting and the only reason he is in his current situation is because I asked him to do me a favor of taking the vehicle back. This is why I am coming forward with the truth of this matter because I feel I got Jama Smith in a situation he had nothing to do with.

Coleman's April 9, 2012 certification consisted of his endorsement of an investigator's written report of an interview with Coleman.8 According to the investigation report, Coleman asserted that he told an agent of the Passaic County Prosecutor's Office that he did not know defendant and could not identify him. He had never seen defendant prior to viewing him in court during the trial. The certification implied that Coleman lied when he claimed at trial that he saw defendant with Evans at a drug deal with Lee. Coleman also stated that his prior statement to the county prosecutor's office was false, except for his identification of the truck and hearing gunshots. "Everything else is false." He claimed he had difficulty reading and writing, and after the agent read the statement back to him, he signed it.

The trial court denied defendant's petition. With respect to the newly discovered evidence claim, the court applied the three-prong test established in State v. Carter, 85 N.J. 300, 314 (1981). Under that test, to obtain a new trial based on newly discovered evidence, "the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." Ibid. All three prongs must be satisfied.

The court held defendant satisfied the second prong, because Evans was unwilling to incriminate himself prior to entering his plea agreement. However, the court found that defendant failed to satisfy prongs one and three. The judge recognized that Evans's two certifications were material, and not impeaching or cumulative, as Evans did not testify at trial. However, recognizing that the first prong was linked to the third, the court held the information could be deemed contradictory.

As for the third prong, the court held that "the quality and nature of the other evidence in this case led to [defendant's] conviction." The court cited Forbes's statement that defendant was in the vehicle with Evans on the day of the shooting, and Barrett's testimony regarding defendant's involvement in the shooting.

The court found that Evans's certifications did not have the capacity to change the verdict, since defendant's aunt and cousin had already placed defendant someplace other than the scene of the crime. The court also noted that Evans did not volunteer who was driving the vehicle if not defendant. The court held that the new evidence was not credible and had "the potential to confuse the issues as it merely serves as a baseless contradiction of statements given by witnesses who were found to have testified credibly at trial."

The court also found that Coleman's statement did not warrant a new trial. The court noted that Coleman's statement was a recantation. Because recantation testimony is "generally regarded as suspect and untrustworthy," defendant was obliged to show not merely that Coleman had recanted, but that his new statement was "probably true." State v. Carter, 69 N.J. 420, 427 (1976). The court found "no basis . . . to conclude that [Coleman's] testimony is 'probably true.'"

Applying the three prongs, the court found that Coleman's certification was not "newly discovered," since his pre-trial testimony did not place defendant at the October 2003 drug deal with Evans. The court also concluded that Coleman's statements would not likely change the jury's verdict if a new trial were granted, because Coleman's trial testimony "merely echoed testimony offered from other sources," particularly Barrett. The court noted that in our decision on defendant's direct appeal, we held that Coleman's "single reference to defendant being present during [the] transaction . . . was unlikely to prejudice defendant and produce an unjust result."

As for the claim of ineffective assistance of counsel, the court applied the two-pronged test for assessing claims of ineffective assistance announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under that test, a defendant must establish (1) that counsel performed deficiently, and made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id.at 687, 694, 104 S. Ct.at 2064, 2068, 80 L. Ed. 2d 693, 698; State v. Fritz, 105 N.J.42, 58 (1987) (adopting Stricklandstandard).

The court rejected defendant's argument that his trial counsel was ineffective. With respect to counsel's failure to call Lucky as a witness, the court noted that defendant did not assert this decision was an oversight, or make any "reference to the ways in which the testimony of Kenneth Lucky would have advanced his case." The court concluded the decision not to call Lucky was a strategic one. With regard to permitting witnesses to testify in prison garb, the court concluded that the issue had been addressed on direct appeal.

As for the claim that counsel provided inadequate guidance regarding defendant's decision whether to testify or not, the court quoted at length from the trial judge's extensive voir dire of defendant. During that exchange, defendant confirmed he had discussed the decision at length with his counsel and was satisfied with counsel's advice.

On appeal, defendant raises the following issues for our consideration

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING REGARDING DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

A. The Affidavits of Co-Defendant Willie Evans.

B. The Investigation Report/Certification of Kashawn Coleman.

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS.

A. Trial Counsel was Ineffective Regarding Defendant's Decision Not to Testify.

B. Trial Counsel Failed to Call an Exculpatory Witness.

Defendant raised an additional issue in a pro se supplemental brief

POINT I

PCR COURT ERRED IN USING R. 3:22-5 TO DENY PETITIONER'S PCR CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR NOT OBJECTING TO AND ALLOWING TWO DEFENSE WITNESSES TO TESTIFY IN PRISON GARB.

II.

We affirm the trial court's order denying PCR based on defendant's claim of ineffective assistance of counsel. With respect to the failure to call Lucky as a witness and the failure to advise defendant before he waived his right to testify, we affirm substantially for the reasons set forth in the trial court's opinion. We add only the following comments.

Defendant failed to present any competent evidence in the form of a certification from Lucky as to the substance of his testimony, had he been called. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant's claims regarding Lucky's testimony are nothing more than "bald assertions," which fall short of establishing a prima facie claim of ineffective assistance. Ibid.

With respect to the defense witnesses who were allowed to testify in prison garb, we held on direct appeal that defendant waived the issue by failing to object at trial. We recognize that defendant's claim in the PCR proceeding is different: he challenges his attorney's decision to waive the objection to the prison garb as ineffective assistance. Nevertheless, that decision alone does not make it reasonably probable that the jury would have reached a different verdict. See Fritz, supra, 105 N.J. at 52. Defendant's ineffective assistance of counsel claim does not warrant any further comment. R. 2:11-3(e)(2).

III.

We turn to the more significant issue raised on appeal: the newly discovered evidence consisting of Evans's two certifications. Where the PCR judge did not preside over the trial or conduct an evidentiary hearing on the new trial motion, he is in "no better position . . . than we" to determine if a new trial is warranted based on newly discovered evidence. State v. Behn, 375 N.J. Super. 409, 432-33 (App. Div.), certif. denied, 183 N.J. 591 (2005). We therefore exercise de novo review. Ibid.

We agree that the certifications were newly discovered, since Evans would have had to waive his Fifth Amendment rights in order to testify at defendant's trial. See State v. Robinson, 253 N.J. Super. 346, 365-66 (App. Div.) (stating that in "most instances," "the availability of the co-defendant to testify upon waiver of his Fifth Amendment rights following verdict, or upon final disposition of his case . . . must be deemed 'newly discovered'"), certif. denied, 130 N.J. 6 (1992).

We part company with the PCR judge's holding that defendant failed to satisfy prongs one and three. We recognize that a defendant seeking a new trial based on newly discovered evidence faces a high hurdle. In particular, the third prong's requirement that the evidence would "probably change the jury's verdict" sets a standard more demanding than Strickland's prejudice standard: "a reasonable probability that . . . the result of the proceeding would have been different." See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged." Ibid.

We also recognize that post-trial exculpatory statements of a co-defendant may be inherently suspect. See State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008); Robinson, supra, 253 N.J. Super. at 367. This is because "a sentenced co-defendant [has] nothing to lose by exonerating" his cohort. Robinson, supra, 253 N.J. Super. at 367 (quoting United States v. Castano, 756 F. Supp. 820, 824 (S.D.N.Y. 1991)).

Nonetheless, the exculpatory statement of a co-defendant, by its nature, usually satisfies the first prong. "[I]nformation from someone admittedly involved in a criminal transaction must generally be deemed more than 'merely cumulative, impeaching or contradictory', although that may depend on the quality and quantity of the proofs at trial." Id. at 366. Evans's statements cannot fairly be dismissed as "merely cumulative" of the alibi testimony of defendant's relatives or "merely contradictory" of Barrett's testimony. Although the statement above was qualified by reference to the "quality and quantity" of the trial proofs, the proofs at defendant's trial were not overwhelming, although they were strong enough to secure a conviction. In any event, because "prongs one and three are inextricably intertwined," an assessment of prong one cannot be made in isolation of prong three. State v. Nash, 212 N.J. 518, 549-50 (2013).

Whether defendant could meet the third prong would depend on Evans's credibility. We do not minimize the factors the PCR court identified in critiquing the credibility of Evans's certification. In particular, as the PCR judge noted, Evans failed to identify who drove the SUV, if not defendant. That omission, if it remains unaddressed, may seriously undermine Evans's credibility and the weight of his testimony.

We also note other gaps and discrepancies in the defense version of events. Although Evans stated that he asked defendant to retrieve his car because parole officers were at his home, a detective testified at trial that the officers were at Evans's home the morning after the shooting. That leaves unexplained why defendant was driving the vehicle the night of the homicide. Moreover, defendant reportedly said he drove the SUV to Evans's home the night of the homicide and then went to his girlfriend's house, but his aunt and cousin testified that he was at their home watching television until 10:30 p.m. or later.

Nonetheless, we conclude that an assessment of Evans's credibility must be made at an evidentiary hearing. A new trial is not warranted if a co-defendant's statement is "clearly false or merely designed to give an accomplice a second chance for acquittal." Robinson, supra, N.J. Super. at 366-67. However, when Evans's version of events is set beside the State's case, as presented by witnesses with biases of their own, we cannot conclude that it is "clearly false" or "merely designed" to secure defendant a new trial. Cf. State v. Porter, 216 N.J. 343, 356 (2013) ("There is no substitute for placing a witness on the stand and having the testimony scrutinized by an impartial factfinder.").

We do not reach the same conclusion with respect to Coleman's certification standing alone. Coleman's trial testimony did not place defendant at the murder scene, and his certification does not place him somewhere other than the murder scene. Even assuming Coleman's new version of events is true, this testimony would not probably lead to an acquittal at a new trial. On the other hand, defendant may call Coleman as a witness at the remand hearing, because his testimony, if consistent with his certification, may serve to bolster Evans's credibility.

In sum, we affirm the trial court's denial of PCR for ineffective assistance of counsel. We remand for a hearing on the claim of newly discovered evidence consisting of Evans's certifications.

Remanded. We do not retain jurisdiction.

1 The court ordered Evans's trial severed. Defendant was tried first. Evans pleaded guilty as deliberations began in defendant's trial.

2 Although the returned vehicle was a GMC Yukon and Coleman originally identified the shooter's vehicle as a Chevrolet Tahoe, the State established that the two vehicles were similar in appearance.

3 The court found after a pre-trial Miranda hearing that this statement was admissible.

4 Coleman testified at a 404(b) hearing that he knew Lee sold cocaine to Evans prior to November 2003. Coleman testified that he never had any business dealings directly with defendant and he agreed "that whatever [he] knew or thought [he] knew with regard to [defendant] was by virtue of of what [he] heard or what [he] read or what other people told [him]."

5 Defendant presented other grounds for relief to the PCR court, which defendant does not pursue on appeal. We therefore do not address them.

6 The transcript of Evans's plea was not presented to the trial court. However, the State does not dispute Evans's claim regarding his allocution.

7 Any spelling and grammatical errors are as they appeared in Evans's certifications.

8 Coleman certified that the report was "true to the best of my knowledge" and that he understood if he made any "willful misstatements of fact in this statement I am subject to punishment." We recognize that statements made to the best of one's knowledge do not qualify as a certification under Rule 1:6-6. However, for purposes of our analysis, we presume that Coleman would execute a proper certification if asked.