STATE OF NEW JERSEY v. RASHOD EATO

NOT FOR PUBLICATION WITHOUT THE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.

RASHOD EATO,

Defendant-Appellant.

_____________________________

September 2, 2014

Submitted March 18, 2014 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-06-0861 and 06-01-0038.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rashod Eato appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief from his conviction of aggravated manslaughter and related charges, and his application for a new trial based on newly discovered evidence. We affirm.

I.

The pertinent facts are as follows. Eighteen-year-old Yasin Robinson was the victim of the March 22, 2005, shooting. But, the convictions arose out of a dispute between defendant and David Sanders regarding Nadirah Robinson, Yasin's older sister. Sanders had an eight-year-long relationship with Nadirah. They lived together and had two children. However, during a verbal confrontation in the later afternoon of March 22, defendant stated, in coarse terms, that he had sexual relations with Nadirah. Sanders offered to fight defendant to "[s]hoot a fair one," meaning to have a fist fight but taunted that defendant was afraid to do so.

Several witnesses testified they observed the confrontation, which occurred a few blocks from the Sanders-Robinson apartment at the end of Reservoir Avenue. The witnesses included Nadirah Robinson, David Sanders' sister Viola Sanders, and a friend of defendant, Shawn Hall. None of the three observed a weapon. Other friends of defendant were present. After defendant's cousin, Brian Butler arrived, and Nadirah Robinson and Viola Sanders urged David Sanders to leave, the two men separated without a physical altercation.

Hall testified that Viola Sanders left with her brother, contradicting his prior statement to police. However, Viola Sanders testified that she remained behind to talk to defendant, with whom she was friendly, but defendant did not want to talk. She testified she overheard defendant call Thomas Yates, and tell him that David Sanders was "wildin" and Yates should "bring them things," referring to guns. As Viola Sanders walked back toward her brother's apartment, she saw a group of people, including Butler, Yates, Alkawon James, and defendant, walking up Reservoir Avenue toward the Sanders-Robinson residence. She also saw Yasin Robinson walk from the area of the residence, toward the group. Defendant wore a black t-shirt over a white t-shirt, with the white shirt-tail hanging out. Yasin wore a black hooded jacket, and a black cap.

Viola Sanders saw Yasin and defendant exchange words but could not discern what was said. She saw Butler hand a gun to defendant. Yasin Robinson had put up his hands, although she testified, "I don't know if he was talking with his hands or just throwing his hands up or what." Then, she heard gunshots. She asserted that Yasin Robinson had a gun. She testified that both defendant and Yasin fired, but she could not say who fired first. She saw the two men run in opposite directions.

Defendant soon fell to the ground, and threw his silver gun under a vehicle. Butler retrieved the gun and fired down the street toward Yasin Robinson, who "didn't have enough wind to keep going." He suffered a fatal gunshot to his chest. Based on the path of the bullet, it appeared the victim was bent over at the time. Defendant received a non-life-threatening shot to his buttocks. During the initial moments of the shooting, Viola Sanders testified that she did not see her brother, or Nadirah Robinson, or two friends of David Sanders, Rinam Patel and Don Pancho Van Lieu. Viola Sanders called 911, as did several other persons in the neighborhood.1

David Sanders ultimately came to Yasin Robinson's side, as he lay in the street. Patel and Van Lieu had helped move the victim. He was felled by a 9 mm bullet; defendant was hit with a .380 bullet. Shell casings for 9 mm and .380 ammunition were later found in the street. Yasin Robinson also possessed a clip of .380 bullets in his jacket. The guns were never found.

The shooting was observed by neighbors. After hearing shots fired, A.J. looked out her second-floor windows and saw a young man who fit defendant's description in particular, he wore a white shirt under a black one shooting at another young man who fit Yasin Robinson's description and who was shooting as well. A.J. did not see anyone else shooting, or nearby. Contrary to Viola Sanders' testimony, A.J. saw Yasin Robinson moving toward defendant during the exchange. She saw that defendant was shot and limping.

E.D., another neighbor, also observed a young man run backwards and fire several shots. He was wearing a white shirt, visible at the shoulder, under a black jacket. B.H., who knew defendant for over ten years, went to his window after hearing shots, and saw a man dressed in all black, presumably Yasin Robinson, bent over, "fiddling" with a handgun. He told his girlfriend and child to get down, and then heard several more shots. I.H. saw defendant, his cousin, on the ground. He saw a person retrieve a gun from under a vehicle and fire shots. He saw a second person, dressed in all black, shooting, as well.

Patel testified that both Nadirah and Yasin Robinson had asked him to come to Reservoir Avenue because people were "wildin." Van Lieu was already there when Patel arrived. Patel saw Yasin Robinson talk to a group of people, return to the Sanders-Robinson building, and go outside again. Patel then heard gun fire. He saw Yasin Robinson after he was shot. Patel and Van Lieu got into Van Lieu's truck and drove to where Yasin Robinson lay. Two neighbors heard the shots. They saw the truck come down the street and two men get out and move the injured young man to the curbside.

Defendant did not testify or call witnesses.2 Before accepting defendant's waiver of his right to testify as knowing and voluntary, the court engaged in a lengthy colloquy with defense counsel and inquiry of defendant. However, as part of the State's case, prosecutor's office investigator George Trillhaase summarized two oral statements defendant made while in the hospital. In the first, defendant admitted that he and Brian Butler walked up Reservoir Avenue. He initially stated he was there to visit family, but then admitted he was there to shoot a fair one. He claimed that as he walked toward the end of the street, he saw a young black male about eighteen to nineteen years old in dark clothing walk toward him. He then heard three gunshots. He tried to seek cover between parked cars, but was struck in his back. Butler assisted him. Defendant denied he possessed a gun.

In his second statement, defendant asserted there were two prior confrontations between him and David Sanders. In the first, David Sanders allegedly chased him onto a porch, but then left. Defendant called Butler to say that David Sanders had a gun. In the second incident, David Sanders returned and contrary to Hall's testimony defendant claimed that Sanders possessed a gun and ran toward him. Defendant "indicated . . . that he was able to smack the gun away." Nadirah Robinson and Viola Sanders arrived, as did Brian Butler. Defendant told Viola Sanders that he was sexually involved with Nadirah Robinson. David Sanders asked Butler if he was assisting defendant, and promised defendant a "fair one." Defendant asserted that Viola Sanders left with her brother and Nadirah Robinson.

With respect to the events that followed, the investigator testified:

Rashod indicated that he, Alkawon and Brian then walked to Reservoir Avenue cutting through by the church. While passing by the park [on] Pine Street he saw some people by the soccer field. He then saw three people who were in the park walk toward the dead end side of Reservoir Avenue. While walking down Reservoir toward the dead end he saw a black male approximately 15 years of age wearing gloves walking toward Brian, Alkawon and him. This individual walked by them and then that is when he heard gunshots. He turned to run but he then got shot. Recalled that he saw two people running toward him and the shots continued. The impact of the gunshot caused him to roll over. He began hopping away and his cousin Brian helped him across the street.

He indicated that Alkawon left the area. . . . Rashod indicated that he did not have a gun and he denied shooting anyone. When asked if Brian or Alkawon had a gun Rashod replied they are not the type to carry guns. Rashod began to become visibly upset. He stated you want me to confess? Rashod then asked can I have a day. He further stated in effect that he wants to talk to his family. He further stated one word can be taken the wrong way and that could hurt me.

In summation, defense counsel argued that defendant was the victim of an ambush, pointing to the arrival of Patel and Van Lieu, and Yasin Robinson's possession of ammunition. If he did possess a gun at any time, defense counsel argued that defendant acted in self-defense. Defense counsel asserted that Viola Sanders was biased and incredible, and other witnesses' testimony was at worst consistent with defendant acting to defend himself.

The State argued that defendant went to Reservoir Avenue with the purpose to engage in a shooting. If defendant wanted to just fist-fight, he could have done so when David Sanders confronted him earlier. The State argued that the testimony of the multiple witnesses created a single picture of a shoot-out in which defendant fired multiple shots, including the fatal shot that struck Yasin Robinson. The State also relied on numerous photographs, maps and diagrams of the scene, including exhibits indicating the placement of the various shells. The State challenged the defense's "ambush theory." The prosecutor argued that the fatal shot did not occur in the initial confrontation, but after several shots were fired and the two protagonists had shifted positions. The State also highlighted defendant's statement, and its inconsistency with other testimony. The prosecutor argued that if defendant had been a victim, he would not have lied about his initial reason for going to Reservoir Avenue, and would not have raised the idea of confessing, and asked for a day to talk to his family.

Defendant was convicted by a jury of first-degree aggravated manslaughter as a lesser-included offense of murder, N.J.S.A. 2C:11-4(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree certain person not to possess a weapon, N.J.S.A. 2C:39-7(b), which was tried separately; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and related conspiracy counts. He received a thirty-year sentence on the manslaughter count, with an eighty-five percent parole bar, consecutive to a ten-year sentence on the certain persons offense, with a five-year parole bar. The remaining convictions merged or the respective sentences were concurrent to the manslaughter sentence. We affirmed the convictions and remanded for an amendment of the judgment of conviction to merge the conspiracy counts with the aggravated manslaughter count, and to correct other errors. State v. Eato, No. A-0867-06 (App. Div. Jan. 7, 2010) (slip op. at 24), certif. denied, 201 N.J. 499 (2010).

Defendant filed his pro se PCR petition on August 25, 2011, alleging his trial attorney was ineffective based on "failure to call witnesses that may have exonerated defendant." In an amended petition accompanied by a certification, prepared after counsel was appointed, defendant asserted that his trial counsel was ineffective by "failing to investigate and coercing [p]etitioner not to testify," which he argued would have led to acquittal. He also argued that appellate counsel was ineffective by failing to argue that his sentence was illegal. Lastly, he asserted newly discovered evidence warranted a new trial. Neither the certification nor verification of the petition was signed by defendant, according to the copies included in the record before us.

The newly discovered evidence pertained to an alleged statement by David Sanders that he, and not Yasin Robinson, shot defendant. The Sanders statement was discussed in three exhibits: transcribed interviews of Nadirah Robinson on August 22, 2007, and of Viola Sanders on September 10, 2007; a September 13, 2007, memorandum of Trillhaase, describing those two interviews, and a third interview of Brenda Robinson, Yasin's mother. Although the interview of Brenda Robinson was recorded and transcribed it was not included in defendant's motion, and is not before us. According to the evidence, David Sanders allegedly made his disclosure to Brenda Robinson and again to Viola Sanders on August 25, 2006 the day David Sanders himself was fatally shot and the day defendant was sentenced. The Sanders statement came to light when the prosecutor met in July 2007 with Brenda Robinson, Yasin's mother, to discuss plea negotiations pertaining to the still-pending case against Brian Butler.

Viola Sanders told Trillhaase that David Sanders claimed to have shot defendant. But, Viola Sanders stated that was at odds with her own observations: that Yasin fired a gun, as did defendant. She did not remember seeing David Sanders on the scene until she was at Yasin Robinson's side, as he lay mortally wounded.

According to Trillhaase's memorandum of his interview of Brenda Robinson:

David Sanders told her that the night her son Yasin Robinson was shot and killed by Rashod Eato, Yasin did not have a gun. He further indicated that Eato shot Yasin and then David ran down the street and shot Eato. David also said that he sent Yasin to get a clip for a gun, but he did not have a gun.

David Sanders did not share his disclosure directly with Nadirah Robinson. In her interview, she recounted what her mother said to her regarding David Sanders' disclosure. Brenda Robinson told her daughter that David Sanders claimed to have shot defendant after he sent Yasin Robinson to the house of David Sanders' father, to retrieve David Sanders' gun. Nadirah Robinson told Trillhaase that she spoke to Sanders' father, who denied that Yasin Robinson went to the house.

In denying the PCR petition, Judge Alan A. Rockoff applied the well-settled two-prong test for determining ineffective assistance of counsel. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as 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); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). The court noted that a petitioner must make more than mere bald assertions in support of relief. See State v. Cummings, 321 N.J. Super.154, 170 (App. Div.) (stating "apetitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J.199 (1999).

In rejecting defendant's claim that he was pressured not to testify, Judge Rockoff reviewed the trial court's extensive questioning of defendant before he waived his right to testify. The judge concluded that defendant's claim was a "mere conclusory assertion." See R. 3:22-10(e)(2) (stating that "[a] court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative"). Judge Rockoff characterized as a "bald assertion" defendant's claim that trial counsel failed to conduct an adequate investigation. Judge Rockoff noted that defendant failed to identify the witnesses who could have assisted the defense, or what a more extensive investigation would have produced.

Turning to the newly discovered evidence motion, Judge Rockoff applied the three prong test enunciated recently in State v. Ways, 180 N.J. 171 (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."

[Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

All three factors must be satisfied. Ibid. Judge Rockoff reviewed the trial evidence supporting the conviction in concluding that the new statements were not material. It was of no moment whether David Sanders or Yasin Robinson shot defendant. In particular, he noted that the jury considered substantial evidence that defendant shot and killed Yasin Robinson, and rejected defendant's self-defense claim.

On appeal, defendant raises the following points for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL INVOLVING TRIAL COUNSEL'S PRESSURING HIM NOT TO TESTIFY AT TRIAL, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON THE BASIS OF NEWLY DISCOVERED EVIDENCE.

II.

As the trial court did not conduct an evidentiary hearing on defendant's PCR petition, "we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) (citing State v. Harris, 181 N.J.391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)). We also review issues of law de novo. Harris, supra, 181 N.J.at 419. Having done so, we affirm the denial of PCR substantially for the reasons stated by Judge Rockoff. We add only that inasmuch as defendant's amended petition and certification were unsigned, contrary to Rule 1:4-4, his claim that trial counsel coerced him not to testify is unsupported by any competent evidence, let alone evidence sufficient to meet the Strickland test.

As for the motion for a new trial based on newly discovered evidence, the decision rests within the trial court's sound discretion, and shall not be reversed absent "a clear abuse of that discretion." State v. Artis, 36 N.J. 538, 541 (1962). Such motions are not favored and should be granted with caution. State v. Conway, 193 N.J. Super. 133, 171 (App. Div.), certif. denied, 97 N.J. 650 (1984). "A jury verdict that has been upheld on appeal 'should not be disturbed except for the clearest of reasons.'" State v. Nash, 212 N.J. 518, 541 (2013) (quoting Ways, supra, 180 N.J. at 187).

As the Court clarified in Ways, supra, 180 N.J. at 188-89, the first and third criteria address the same ultimate question whether newly discovered evidence is "'of the sort that would probably change the verdict if a new trial were granted.'" (quoting Carter, supra, 85 N.J. at 314).3 Our task is to "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.

Having done so, we discern no basis to disturb the trial court's denial of defendant's new trial motion. We recognize that David Sanders' alleged statement accepting responsibility for shooting defendant would be admissible hearsay as a statement against interest. See N.J.R.E. 803(c)(25). However, just because it would be admissible does not make it credible. See State v. Williams, 169 N.J. 349, 359 (2001) (stating that a jury must scrutinize the "circumstances surrounding the declarant's confession and disregard the statement or any part thereof if it finds the statement not credible." (internal quotation marks and citation omitted)); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(25) (2014) ("It is, of course, clear that the fact that a statement is admissible under this hearsay exception does not mean that it is necessarily credible, and juries must be instructed to look at the circumstances surrounding the statement to assess its credibility.").

The record does not indicate whether David Sanders was already shot and contemplating his own demise when he made his admission to Yasin Robinson's mother. However, his statement may well have been made to appease a grieving mother, by portraying her son as an innocent victim and errand-runner, as opposed to an armed and knowing participant in the shoot-out. Also, if David Sanders had been contemplating his own demise, then the statement would not be fraught with the same negative penal consequences particularly given the indictment against him had it been made under different circumstances.

David's confession was also belied by the trial evidence. No witness testified that there were more than three shooters defendant and Yasin Robinson, and then, after defendant was wounded, Butler. Neither Viola Sanders, nor any of the neighbors viewing the street from their apartments, saw a fourth shooter.

Finally, David Sanders' statement even if believed does not support the defense theory of an ambush, nor undermine the finding, intrinsic to the jury's verdict, that defendant armed himself and fatally shot Yasin Robinson. David Sanders not only claimed that he shot defendant; he claimed that Yasin Robinson was unarmed, except for the clip he carried for David Sanders, and shot no one. The implication of David Sanders' statement is not that multiple shooters laid in wait for defendant. Rather, it was that defendant shot and killed an unarmed man.

In sum, we do not conclude, based on the newly discovered evidence presented, that the result of a new trial would probably be different if a jury were presented with David Sanders' statement.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Viola Sanders' and other 911 calls were played for the jury, however they are not included in the record before us.

2 Butler was a co-defendant as was David Sanders. The indictment jointly charged the two and defendant with, among other crimes, the murder of Yasin Robinson, and with conspiracy to commit second-degree aggravated assault and/or possession of a firearm for an unlawful purpose.

3 We note, as did the United States Supreme Court in Strickland, that the standard for receiving a new trial based on newly discovered evidence is more demanding than the "reasonable probability" standard governing collateral challenges to convictions based on ineffective assistance of counsel. Supra, 466 N.J. at 693-94, 104 S. Ct. at 2067-68, 80 L. Ed. 2d at 697-98.