STATE OF NEW JERSEY v. TYRUS JONES

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

TYRUS JONES,

Defendant-Respondent.

October 8, 2013

Argued August 26, 2013 Decided

 
Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-02-0149.

John P. Boyle, Assistant Prosecutor, argued the cause for appellant (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Boyle, on the brief).

Michael C. Dawson argued the cause for respondent.

PER CURIAM

The State appeals a February 28, 2013 Law Division order granting defendant Tyrus Jones a new trial on a charge of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).1 For the reasons that follow, we affirm.

The facts developed by the State during the trial can be briefly summarized. At approximately 9:00 p.m. on September 2, 2010, Detectives Patrick Ryan Guido and Matthew Przemieniecki of the Trenton Police Department were on patrol in an unmarked vehicle, in the area of Oakland and Hoffman Avenues, where shootings and a homicide had recently occurred. They observed a crowd gathered in front of 523 Hoffman, an apartment building that had two steps leading into the vestibule.

Przemieniecki testified that it was common practice for residents to gather in the area to drink and gamble, which are violations of local ordinances. As a result, according to Przemieniecki, they decided to circle behind the building to approach the front with their lights off.

When the officers came within ten to fifteen feet of the front door at 523 Hoffman, they said that they saw that the light was on in the building vestibule, and the door was propped open. Guido saw defendant standing right outside the doorsill. Guido testified he heard defendant say, in a "very excited" tone, "oh s---, the narcs." He observed defendant pulling a dark-colored object, similar in shape to a handgun, from his right pocket. Defendant leaned into the vestibule, tossed the object into a nearby baby carriage, and "quickly proceeded out of the building and onto the bicycle that was leaning up against the railing." Guido told Przemieniecki that he had just witnessed an unidentified object being tossed, and Przemieniecki immediately pulled over. Guido stopped defendant, directing him to dismount his bicycle and stand against a nearby wall. Meanwhile, Przemieniecki entered the building, and saw a handgun lying inside the baby carriage along with several plastic baggies containing substances later determined to contain crack cocaine. He seized the weapon, along with the baggies. Defendant was then placed under arrest.

During the trial, after the State rested, the court conducted a Rule 104 hearing regarding defendant's only proposed witness, Donte Brooks. Prior to trial, Brooks had told defendant's investigator that the weapon did not belong to defendant and that defendant had not dismounted his bicycle until stopped by police. While on the stand, however, on the advice of his attorney, Brooks exercised his Fifth Amendment right to remain silent. He only acknowledged being in the vicinity of the arrest.

Defendant was convicted on September 17, 2012. On December 14, 2012, the court entertained his motion for a new trial, premised, among other things, on Brooks's October 3, 2012 post-trial statement to defendant's investigator. In that statement, Brooks claimed that he was the owner of the gun, and reiterated that defendant never entered the vestibule or stepped off his bike when the police appeared in front of 523 Hoffman. Brooks said that defendant had ridden up on his bicycle to ask him, and an acquaintance named Victor, if they had seen a mutual friend named Alex. In this statement, Brooks also alleged that defendant was charged by police solely because he spoke up first and immediately denied ownership of the gun. The trial judge scheduled a hearing on the new trial motion.

Brooks was sentenced on February 1, 2013, on an unrelated charge of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), to six years of imprisonment subject to three years of parole ineligibility. On February 22, 2013, the court conducted the hearing on defendant's new trial motion, during which Brooks exonerated defendant.

The trial judge granted defendant's motion for a new trial, based on the theory that Brooks's testimony constituted newly discovered evidence, employing the test enunciated in State v. Carter, 85 N.J. 300 (1981). The trial judge found that Brooks's testimony was "material," "not discoverable by reasonable diligence beforehand," and that it "would probably change the jury's verdict." This appeal followed.

The State raises the following claims of error for our consideration:

POINT I

THE EVIDENCE DEFENDANT CLAIMS TO BE "NEWLY DISCOVERED" WAS NOT MATERIAL, COULD HAVE BEEN DISCOVERED BY REASONABLE DILIGENCE, AND WOULD NOT HAVE CHANGED THE OUTCOME.

A. [] BROOKS' ASSERTION THAT HE OWNED THE HANDGUN IS NEITHER MATERIAL NOR WOULD IT PROBABLY HAVE CHANGED THE OUTCOME OF THE TRIAL.

B. BROOKS' ACCOUNT OF THE INCIDENT WAS DISCOVERED OR WAS EASILY DISCOVERABLE PRIOR TO THE TRIAL AND THEREFORE, DOES NOT QUALIFY AS NEWLY DISCOVERED EVIDENCE UNDER THE CARTER TEST.

C. BROOKS' POST-TRIAL ACCOUNT OF THE INCIDENT IS NOT OF A QUALITY SUCH THAT IT WAS LIKELY TO AFFECT THE JURY'S VERDICT UNDER THE CARTER TEST.

When seeking a new trial based on newly discovered evidence, a 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.'" 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." Ways supra, 180 N.J. at 187 (citing State v. Artis, 36 N.J. 538, 541 (1962)). The newly 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 defendant bears the burden of showing that he is entitled to a new trial. See State v. Johnson, 34 N.J. 212, 223 (stating that "[f]ailure of a defendant to satisfy any one of the three prerequisites of newly discovered evidence is sufficient to warrant a denial of a motion for a new trial"), appeal dismissed, 368 U.S. 145, 82 S. Ct. 247, 7 L. Ed. 2d 188, cert. denied, 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961).

The first prong of the test requires proof that the newly discovered evidence was "material." "Material evidence is any evidence that would 'have some bearing on the claims being advanced.'" Ways, supra, 180 N.J. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). However, such evidence must be more than "merely" cumulative, impeaching, or contradictory. Ways, supra, 180 N.J. at 187. For example, evidence that establishes an "alibi, third-party guilt, or a general denial of guilt would be material." Id. at 188. Brooks's testimony, if believed, establishes third-party guilt and is clearly material.

The State contends that Brooks's account was discovered or was easily discoverable prior to trial, and therefore does not meet the second prong of the Carter test. We do not agree. Defendant issued a subpoena to Brooks, but he refused to testify, exercising his Fifth Amendment right to remain silent. Defendant was not in a position to resolve that stalemate. Pragmatically speaking, therefore, the evidence was not available to defendant. To suggest that trial counsel should have merely asked Brooks if defendant ever got off his bicycle is not realistic. If Brooks was advised not to testify, and the court stopped the questioning immediately once he exercised his Fifth Amendment privilege, trial counsel could not have done anything further.

As to the third prong, this is precisely the type of evidence "that would probably change the jury's verdict if a new trial were granted." Ways, supra, 180 N.J. at 187. We certainly agree with the State that Brooks's testimony is "evidence [which] 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." Id. at 188. In the most literal sense, however, there can be no doubt that if Brooks is believed by a jury, the verdict will be different.

The purpose of post-conviction review when newly discovered evidence is proffered "is to provide a safeguard in the system for those who are unjustly convicted of a crime." Ibid. (citing State v. Afanador, 151 N.J. 41, 49 (1997)). It is important to determine whether it would "support[] a defense, such as alibi, third-party guilt, or a general denial of guilt . . . ." Ways, supra, 180 N.J. at 188.

In this case, Brooks's testimony supports defendant's general denial of guilt, as it relates precisely to the issue that the jury decided at trial, namely, whether he possessed the weapon. It is reasonable to characterize the State's proofs as not overwhelming, since no unanimous verdict was reached on the remaining charges stemming from the same incident.2 As a result, the significance of the proffered testimony is all the more important. This is precisely the type of case in which a new trial should be granted, because, if believed, Brooks's statement means that defendant was unjustly convicted of the crime. Thus, we are satisfied the Carter test has been met.

We conclude that the Law Division judge properly granted defendant's application for a new trial based on newly discovered evidence as "required in the interest of justice." See R. 3:20-1.

1 The charge was the first count of indictment no. 11-02-0149. The jury was unable to reach a unanimous verdict on third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1); 2C:35-5(b)(3) (count three); second-degree possession of controlled dangerous substance with intent to distribute on or near a public housing facility, N.J.S.A. 2C:35-7.1; 2C:35-5(a)(1); 2C:35-5(b)(3) (count four); and second-degree possession of a firearm while committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1(a) (count five).

2 In oral argument, the State attributed the outcome to the fact that the drugs were located in a separate area of the baby carriage, and that the eyewitness testimony only connected the handgun to defendant.