A-0STATE OF NEW JERSEY v. MICHAEL JACKSON May 1 2014

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL JACKSON,

Defendant-Appellant.

_______________________________

May 1, 2014

Submitted April 9, 2014 Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-03-1111.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Jackson appeals the denial of his petition for post-conviction relief. For the reasons that follow, we affirm.

Defendant's convictions are based on charges arising from the burglary and robbery of Mr. and Mrs. Paik. Three intruders entered the Paiks' apartment, bound, gagged and beat them. Mrs. Paik died as a consequence, but Mr. Paik, who feigned death, was left for dead. The intruders fled with cash from the business the Paiks operated in the same building.

Mrs. Chitty, who lived in a building near the Paiks, saw defendant, whom she knew and recognized, and two other men, whom she did not know, jump from a roof onto her front porch that night. Mr. Paik and Mrs. Chitty both identified defendant, but there was no physical evidence linking defendant to the crime scene or to a hat that Mrs. Chitty saw defendant drop as he fled.

Defendant and his co-defendant, Ethan White, were tried together; the third intruder was never identified. The jurors found defendant guilty of burglary, N.J.S.A. 2C:18-2; two counts of robbery, N.J.S.A. 2C:15-1; two counts of criminal restraint, N.J.S.A. 2C:13-2; felony murder, N.J.S.A. 2C:11-3(a)(3); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-5d; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. They were, however, unable to reach a verdict on any of the charges against co-defendant White. Subsequently, White pled guilty to reckless manslaughter in return for the State's agreement to dismiss the charges included in this indictment and others. Because the indictment included a charge of capital murder, White was not required to provide a factual basis. See R. 3:9-2. This court affirmed defendant's conviction and sentence on direct appeal, and the Supreme Court denied his petition for certification. State v. Jackson, No. A-4673-94 (App. Div. Mar. 19, 1998), certif. denied, 156 N.J. 411 (1998).

On November 10, 1999, defendant filed the petition for post-conviction relief that is at issue on this appeal. The trial court denied all relief, and, on a prior appeal from that denial we rejected all but two of the numerous arguments defendant raised in this court. State v. Michael Jackson, No. A-0211-08 (App. Div. Jan. 14, 2010). We concluded that defendant was entitled to an evidentiary hearing on two of his claims.

The first of the remanded claims was that defendant's trial counsel was ineffective because he failed to investigate information undermining Mrs. Chitty's identification that defendant's uncle, Robert Hayward,1 gave him. Hayward had submitted a certification stating that he told Jackson's lawyer that Mrs. Chitty admitted to him she was uncertain about her identification of defendant. The record on the prior appeal indicated that Mrs. Chitty had died, but it did not indicate when she died.

The second of the remanded claims was that newly discovered evidence entitled defendant to a new trial. That claim was supported by a certification from Ethan White. Acknowledging his role in Mrs. Paik's death, White swore that defendant was not one of his two confederates and that he was prepared to identify the men who were. A more complete description of the affidavit is set forth in our prior opinion. Id. at 5.

On remand, Judge Petrolle conducted an extensive evidentiary hearing spanning over four days. Both Ethan White and Robert Hayward testified.

Consistent with his affidavit, Ethan White testified that defendant was not one of the men who participated in the crimes committed against the Paiks. He testified that he did not come forth earlier because he was leaving it to the State to prove his guilt at trial. He came forward with the information after he was released from prison and only when an investigator working on defendant's behalf approached him. According to White, because he was a recovering addict, he deemed it important to his twelve-step Narcotics Anonymous program to make amends. White acknowledged that he was not serious enough about exonerating Jackson to "look up the lawyer or look up the case or look up the police" on his own, and he testified that "Mr. Jackson was not with me on that night."

Inconsistent with his affidavit, however, White refused to name his confederates. He explained that fear for his own safety was the reason.

Robert Hayward also testified at the evidentiary hearing.2 By his account, after he heard that defendant might have been responsible for the crimes against the Paiks, he spoke to Mrs. Chitty. When he asked her if defendant was "one of the individuals," she said that "he wasn t one of them." Hayward could not remember when he gave that information to defendant's attorney, but he believed he would have told him "right away." Hayward further testified that he thought the attorney sent an investigator to look into it. He knew that he had the information about Mrs. Chitty prior to trial, because he knew he should not talk to her while the trial was going on.

At the evidentiary hearing, the State produced Mrs. Chitty's death certificate and represented she died on April 24, 1995. Thus, Mrs. Chitty died about four months after the entry of defendant's judgment of conviction, and she had been dead for about four years when defendant filed his petition for post-conviction relief.

The attorney who represented defendant at trial also testified at the evidentiary hearing. He and the assistant prosecutor had the following colloquy:

Q. Did you ever receive information during your preparation of the trial from a Mr. Robert Hayw[ard] concerning the witness Ms. Audrey Chitty?

A. Yes, I well, Ms. Chitty, in my estimation was the principal witness against Mr. Jackson.

Q. And did you prior to the trial starting, did you ever have a conversation or speak to Mr. Hay[ward] about information he contended he had about Ms. Chitty?

A. My recollection is that we always spoke about Ms. Chitty. Not necessarily about information that anyone had, but what was in the discovery concerning her statement and her latest observations and discussions she had subsequent meaning the next day subsequent to the felony murder, allegedly with Mr. Jackson.

Q. Did Mr. Hayw[ard], to your recollection as you sit here today, ever tell you that Ms. Chitty essentially recanted her idea of Mr. Jackson to him?

A. I can't say with any certainty whether that's true or false.

Q. If is that would that have been a significant matter in pre-trial preparation for you?

A. I don t know if you want me to give an explanation or a yes or no answer, because it's hard for me to answer it the way the question is phrased.

Q. I'd ask for an explanation.

A. Okay. If . . . I represent a client and a family member tells me that a key witness in the case has recanted to them, I get paranoid. Because I'm afraid that what happens is that that witness might say anything to that family member as a matter to their own security. And then call the prosecutor's office and say to the prosecutor you know X cousin or uncle is here and they're asking me questions and I feel intimidated.

So, my general practice is I would tell that person, look please don t have any further discussion with the witness. And either I would assess what has already been told to me. But as a part of my trial strategy if I believed that there was some credibility to it. Because I believed that at the time the person took the witness stand those questions would still be available to me.

With respect to defendant's claim of ineffective assistance, the judge found that defense counsel's strategy was sound and that Hayward's testimony about Mrs. Chitty's retraction of her identification was not credible. With respect to Hayward's credibility, the judge noted his interest in the case as defendant's uncle, and he noted that defendant and his uncle did not seek relief on this ground until after Mrs. Chitty had died.

Apparently assuming, for the purpose of fully addressing the matter, that Hayward had informed defendant's lawyer, the judge further found that defendant's attorney had explained, to his satisfaction, his evaluation and strategy in addressing such matters. And, apparently relevant to defendant's capacity to show prejudice, the judge further noted that a retraction by Mrs. Chitty given to a relative of a defendant who approached her at her home was understandable and not persuasive evidence of inconsistency.

The judge also determined that White's testimony did not provide a basis for a new trial based on newly discovered evidence. The judge noted that White "declined to give [his confederates'] name[s] to the Court, in testimony." He concluded, "[s]o, we have failure to have any disclosure whatsoever on his part under oath in the courtroom . . . ."

Defendant raises one issue for our consideration on this appeal following remand:

THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

The judge's denials of relief rest on findings of fact that are supported by substantial evidence and credibility determinations that are binding on this court. State v. Johnson, 42 N.J. 146, 162 (1964). After considering defendant's arguments, we see no basis for disturbing the denials of relief.

In order to obtain relief from a conviction based upon ineffective assistance of counsel, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). In short, "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would" have been different but for counsel's error. State v. Allegro, 193 N.J. 352, 366 (2008).

Accepting the trial court's findings of fact, we see no basis for disturbing his determination that counsel's performance was consistent with prudent strategy and an assessment of Hayward's credibility under the circumstances in which the issue was raised.

We turn to consider defendant's entitlement to relief based on newly discovered evidence. In order to obtain relief on that ground,

"the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the original trial and not discoverable by reasonable diligence beforehand; and (3) of the sort which would probably change the jury's verdict if a new trial was granted." State v. Carter, 85 N.J. 300, 314 (1981). The absence of any one of these elements warrants denial of the motion. State v. Johnson, 34 N.J. at 212, 223 (1961).

[State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008).]

Given White's refusal to give the names of his confederates under oath, we find no error here. His willingness to say that defendant was not among his confederates and his unwillingness to identify them under oath in a courtroom cannot be said to be testimony of the type that would probably change the outcome if defendant were granted a new trial.

Affirmed.

1 In our prior opinion the spelling of the uncle's name is "Mr. Haywood" which is the name stated in his sworn affidavit. In this opinion, we use the spelling he gave when sworn in at the evidentiary hearing.

2 At the evidentiary hearing, Hayward also testified about an alibi witness, but we affirmed the denial of relief based on that claim on the last appeal. Id. at 11-12.