STATE OF NEW JERSEY v. EMILIO GIRON, a/k/a EMILIO ROBERTO GIRON and EMILIO R. GIRON

NOT FOR PUBLICATION WITHOUT THE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.

EMILIO GIRON, a/k/a

EMILIO ROBERTO GIRON and

EMILIO R. GIRON,

Defendant-Appellant.

___________________________

March 10, 2016

Submitted December 14, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-11-1594.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Emilio Giron appeals from the January 2, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.

Tried in absentia by a jury, in June 2000, defendant was found guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5) (counts four and ten); two additional counts of first-degree sexual assault, N.J.S.A. 2C:14-2(a)(4) (counts five and eleven); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts six and twelve); two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts seven and thirteen); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts eight and fourteen); two counts of fourth-degree weapon possession under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d) (counts nine and fifteen); and first- and second-degree robbery, N.J.S.A. 2C:15-1 (counts sixteen and seventeen). Nine years after the conviction, on March 24, 2009, the court sentenced defendant to an aggregate thirty-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The charges against defendant stemmed from his participation, along with three co-defendants, including Oseas Pons, in two separate episodes over a three-day period involving two different women whom they forced into their truck and proceeded to rape at knife point. Both victims positively identified defendant from a photo array as one of the assailants. The photos of defendant from the array were admitted into evidence at the trial.

In addition to this evidence, defendant gave a statement to the police following Miranda1 warnings, admitting his involvement in both incidents. He explained that he and his friends were returning from a night at a dancing club when they told him to find a prostitute. When they saw a woman on the phone at a Getty gas station, he stopped the Chevrolet Blazer in which they were riding, which belonged to his wife, and the woman agreed to go for a ride. While negotiating over the price, "Eric [Quintanilla] got crazy and he put a knife at her throat." Quintanilla then told the woman she was going to have sex with all of them while he held the knife at her throat. Defendant told Eric not to cut her or do anything stupid. While defendant indicated "the other guys had sex with her[,]" he stated he did not have sex with her but rather "[s]he gave [him] a blow job." Thereafter, they told her to get out of the car, during which time Pons took her out of the car and told her to run. They then left. Defendant was captured on surveillance buying condoms at the Getty gas station.

Defendant further explained that the second incident also began as a search for a prostitute after a night of clubbing. When the victim they eventually found suggested their offer was "too cheap[,]" Quintanilla "got crazy again and put the knife [to] her throat." Defendant told him not to do anything stupid. The woman began screaming not to kill her, and he tried to assure her they were not going to do anything to her. Defendant then parked the car and, as Quintanilla and Pons held knives, they "started having sex with her." They told her to get out of the car, keeping her bag, which contained a Game Boy and "some more stuff." Defendant stated that another man, a Honduran, was also involved in this incident.

Defendant appealed his conviction and sentence. We affirmed, but remanded solely to correct the judgment of conviction to reflect the fifteen-year term of imprisonment actually imposed on count thirteen. State v. Giron, No. A-6009-08 (App. Div. Dec. 14, 2011). Our Supreme Court denied certification. State v. Giron, 201 N.J. 263 (2012).

In September 2012, defendant filed a PCR petition, contending he was entitled to a new trial based on newly discovered evidence.2 In support thereof, he submitted a notarized affidavit from Pons, dated June 8, 2009,3 which stated as follows, in pertinent part

I, Oseas Pons, of full age, being duly sworn according to law, upon my own oath, deposes and says

1. At no point in time, on the nights of the alleged incidents set forth under Ind. No. 99-11-01594-I (State v. Emilio Giron), did I see my Co-Defendant Emilio Giron, commit any of the alleged crimes that he has been charged with in this Indictment.

The PCR judge denied the petition, concluding that defendant failed to establish the first and third prongs set forth in State v. Carter, 85 N.J. 300, 314 (1981). As to the third prong the judge found that given the overwhelming evidence of defendant's guilt, including his confession, the newly discovered evidence was not likely to change the jury's verdict. This appeal followed. On appeal, defendant reiterates the argument made to the PCR judge.

Whether to grant a motion for a new trial based on newly discovered evidence rests within the trial court's discretion. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Newly discovered evidence warrants a new trial when it is "'(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.'" State v. Nash, 212 N.J. 518, 549 (2013) (quoting Carter, supra, 85 N.J. at 314). All three prongs must be satisfied before a new trial is warranted. State v. Ways, 180 N.J. 171, 187 (2004). "The burden of establishing the necessary factors is upon the defendant." State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959).

When evaluating a defendant's proffer of newly discovered evidence, the court must bear in mind that "[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." Ways, supra, 180 N.J. at 187. Thus, "[n]ewly discovered evidence must be reviewed with a certain degree of circumspection to ensure that . . . 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.

"Under prong one of the Carter test, '[m]aterial evidence is any evidence that would have some bearing on the claims being advanced,' and includes evidence that supports a general denial of guilt." Nash, supra, 212 N.J. at 549 (alteration in original) (quoting Ways, 180 N.J. at 188). "Moreover, '[d]etermining whether evidence is merely cumulative, or impeaching, or contradictory,' necessarily implicates prong three, 'whether the evidence is of the sort that would probably change the jury's verdict if a new trial were granted.'" Ibid. (alteration in original) (quoting Ways, supra, 180 N.J. at 188-89). The Supreme Court has "declared that 'evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory.'" Ibid. (quoting Ways, supra, 180 N.J. at 189). "As is evident, under the Carter analysis, prongs one and three are inextricably intertwined. Thus, evidence [that] would shake the very foundation of the State's case and almost certainly alter the earlier jury verdict could not be categorized as merely cumulative." Ibid. (citation omitted). "'The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence.'" Id. at 549-50 (quoting Ways, supra, 180 N.J. at 191-92).

"Prong two requires that 'the new evidence must have been discovered after completion of trial and must not have been discoverable earlier through the exercise of reasonable diligence.'" Id. at 550 (quoting Ways, supra, 180 N.J. at 192). "The defense must act with reasonable dispatch in searching for evidence before the start of the trial." Ibid. (citation omitted). "One important caveat must be kept in mind. [E]vidence clearly capable of altering the outcome of a verdict that could have been discovered by reasonable diligence at the time of trial would almost certainly point to ineffective assistance of counsel." Ibid. (alteration in original) (citation omitted).

Applying the Carter test to the facts of this case, we conclude that the second prong and part of the first prong were satisfied. The testimony of a witness that would support defendant's claim that he did not commit the crimes alleged is material evidence. Ways, supra, 180 N.J. at 188. Defendant obtained the newly discovered evidence after his trial and it was not discoverable before the trial by reasonable diligence because Pons had not yet been tried on the same charges.

However, evaluating the second part of the first prong --whether the evidence is merely cumulative, impeaching, or contradictory -- entails consideration of whether the evidence would have made a difference in the jury's verdict. Id. at 188-89. Such an analysis essentially merges the first and third prongs of the Carter test. State v. Behn, 375 N.J. Super. 409, 432 (App. Div.), cert. denied, 183 N.J. 591 (2005). As the Court explained

Determining whether evidence is merely cumulative, or impeaching or contradictory, and therefore, insufficient to justify the grant of a new trial requires an evaluation of the probable impact such evidence would have on a jury verdict. Therefore, the focus properly turns to prong three of the Carter test, whether the evidence is of the sort that would probably change the jury's verdict if a new trial were granted. The characterization of evidence as merely cumulative, or impeaching, or contradictory is a judgment that such evidence is not of great significance and would probably not alter the outcome of a verdict. However, evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory.

[Ways, supra, 180 N.J. at 188-89 (citations omitted).]

Thus, "the reviewing court must engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Id. at 191. "The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence." Id. at 191-92.

Applying the above analysis, we conclude it is highly unlikely that the newly discovered evidence would have changed the jury's verdict. The evidence against defendant was clearly overwhelming. The victims identified him as one of their assailants, and he was captured on surveillance video at the Getty gas station where he encountered one of the victims. Most damaging to defendant, however, was his confession, where he gave extensive details of the crimes that were similar to the details provided by the victims. Accordingly, the PCR petition was properly denied without an evidentiary hearing.

Affirmed.

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

2 Defendant raised other contentions that are not relevant to this appeal.

3 Pons trial occurred in 2004.