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NOT FOR PUBLICATION WITHOUT THE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-5560-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL TAYLOR, a/k/a

EARL WILSON TAYLOR,

Defendant-Appellant.

________________________________

Submitted May 6, 2013 Decided June 3, 2013

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-02-0584.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted in a 1992 jury trial of first-degree murder of his wife and unlawful possession of a weapon. In this fourth appeal arising out of his conviction, defendant seeks reversal of a June 28, 2011 order denying his motion for a new trial. In that motion, defendant proffered newly-discovered evidence, most notably a recantation by his son Nigel, who had inculpated him as a witness for the State almost two decades earlier when he was ten years old. We affirm the trial court's denial of the motion.

The factual background is set forth in detail in our February 1995 opinion sustaining defendant's conviction on direct appeal. See State v. Taylor, No. A-4021-92 (App. Div. Feb. 14, 1995). Defendant and his wife had marital problems, which caused her to separate from him. She left Georgia with their two sons, relocating to New Jersey to an apartment in Montclair. Although the wife had become romantically involved with another man, she allowed defendant to stay in her apartment over the 1991 Christmas holiday. In a conversation with a guest at a party, defendant suggested that he might harm his wife.

According to Nigel's trial testimony, he overheard defendant state on the phone to Nigel's grandmother on either December 27 or 28, 1991 an intention to kill Nigel's mother. On December 30, 1991, the children woke up without their mother present in the apartment. Through a window, Nigel saw his mother slumped over the front passenger seat of her car outside. Nigel pointed this out to defendant. Rather than immediately coming to her aid, they waited an hour because defendant had suggested that they eat and bathe before they go outside to look in the car.

The wife was subsequently found dead. An autopsy showed that she had been strangled and stabbed. Defendant was identified by authorities as her assailant, and he was charged with murder and other related offenses.

Defendant did not testify at his trial. His defense theme apparently was that some of the scratches found on his own body were from his son and the rest were the result of rough sex with his wife, but that he did not cause his wife's death.

After we upheld defendant's conviction on direct appeal, the Supreme Court denied certification. 140 N.J. 328 (1995). Defendant then filed a petition for post-conviction relief ("PCR"), alleging that he received ineffective assistance of counsel. His PCR claim was rejected by the trial court and affirmed by this court. State v. Taylor, No. A-3801-98 (App. Div. Dec. 15, 2000). Again, the Supreme Court denied certification. 167 N.J. 636 (2001).

In January 2007, defendant filed a pro se motion for a new trial, alleging newly-discovered evidence consisting of, among other things, the fact that Nigel was recanting key aspects of his trial testimony. A private investigator for defendant had met with Nigel, by that point an adult, and provided a report confirming Nigel's change of narrative. Upon considering these contentions, the trial court initially denied a new trial without an evidentiary hearing.

In an unpublished July 2010 opinion, we rejected most of defendant's arguments concerning the denial of a new trial, but remanded for further proceedings to clarify facts surrounding the son's alleged recantation; specifically, to determine if defendant had been deprived of representation by a public defender with respect to his new trial motion. State v. Taylor, No. A-2148-08 (App. Div. July 21, 2010). After the remand confirmed that defendant had, in fact, been deprived of an assigned attorney, our court issued a supplemental opinion in February 2011, remanding the new trial issue for a plenary hearing wherein defendant would be provided counsel.

Judge Stephen J. Bernstein presided over the evidentiary hearing in April 2011. At that hearing, Nigel, who was at that point twenty-nine years old, took the stand. He recanted his trial testimony that he had overheard his father tell his grandmother on the phone that he was going to kill Nigel's mother. Nigel further recanted his testimony that defendant and the two sons had approached the mother's car one hour after observing her in it. Instead, Nigel now asserted that they had waited between fifteen and thirty minutes, during which time they ate breakfast and defendant called the police.

After considering Nigel's new version of the events, Judge Bernstein issued a bench ruling on June 28, 2011. The judge concluded that Nigel's recantation did not rise to a level sufficient to warrant a new trial. It was significant to the judge that nearly twenty years had passed since the time of Nigel's trial testimony, which led him to have doubts about the considerable level of detail contained in the recantation testimony. Importantly though, the judge found that even if a fact-finder were to fully accept Nigel's revised account, it would not have changed the jury verdict, given the "extent of forensic evidence [previously] testified to" linking defendant to the crime. Further, the judge explained that "whether it [was fifteen minutes, thirty minutes,] or an hour later, [defendant's delay] do[es]n't match up with someone who really has any concern or doesn't possibly already know what's happened to [the victim]."

On the present appeal, defendant contends that Judge Bernstein abused his discretion in denying him a new trial. In particular, defendant raises the following points in his brief and reply brief:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NIGEL'S TESTIMONY AT THE REMAND HEARING, WHICH CONSTITUTES NEWLY DISCOVERED EVIDENCE.

A) Nigel's remand testimony is material and not merely cumulative or impeaching or contradictory.

B) Nigel's remand testimony was discovered since the trial and not discoverable by reasonable diligence beforehand.

C) Nigel's remand testimony is evidence of the sort that would probably change the jury's verdict if a new trial were granted.

REPLY POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NIGEL'S RECANTED TESTIMONY WHICH IS BOTH MATERIAL AND PROBABLY TRUE.

In essence, defendant maintains that Nigel's testimony was critical to the State's case and that the trial court unfairly discounted his recantation as immaterial. Defendant contends that at the time of the prosecution, Nigel had been under the influence of an aunt, who had urged him to testify against his father. Defendant also contends that the dramatic nature of a ten-year-old boy testifying against his father would have had a strong visceral impact on the jury.

To prevail on a motion for a new trial based upon newly-discovered evidence, a criminal defendant must establish that the evidence: (1) is sufficiently material and not merely cumulative, impeaching, or contradictory; (2) was not previously discoverable through due diligence at the time of trial; and (3) is so probative that it "probably" would have changed 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)). Although such newly-discovered evidence may be in the form of recantation by a witness who had testified for the State at trial, our courts have recognized that such post-trial recantations are inherently suspect and often untrustworthy. State v. Hogan, 144 N.J. 216, 239 (1996). A defendant bears the burden of proving in such situations that the trial testimony was probably false and that, conversely, the recantation testimony was probably true. State v. Feaster, 184 N.J. 235, 264 (2005) (citing State v. Carter, 69 N.J. 420, 427 (1976)).

Applying these standards, we discern no error in the court's denial of a new trial here. There is ample reason to doubt Nigel's belated recantation of his trial testimony against his father. We concur with Judge Bernstein that the long passage of time makes Nigel's current narrative questionable.

Moreover, we agree with the trial court that even if Nigel had not been completely truthful at trial, there were other credible proofs of guilt by the State, including forensic evidence, that amply support defendant's conviction. For example, among other things, investigators found in the victim's bedroom a base molding that was stained with blood, a broken fingernail with a reddish stain on a blanket, and a pillowcase with a brownish-red stain. In addition, there was considerable inculpatory trial testimony from various witnesses, which, taken together, substantiated that: on the night of the victim's death, her vehicle was in its assigned parking spot at 8:00 p.m.; the noise of heavy objects being moved came from the victim's apartment at approximately 3:00 a.m.; an automobile was running in the victim's assigned parking spot at around 5:00 a.m.; and the victim's car was found at a nearby location on the same street at 6:00 a.m.

In sum, we defer to the assessment of Judge Bernstein, who had the benefit of seeing Nigel's recantation testimony first-hand, see State v. Locurto, 157 N.J. 463, 474 (1999), and who determined that this newly-discovered proof would not have "probably change[d]" the jury verdict. Carter, supra, 85 N.J. at 314.

A