STATE OF NEW JERSEY v. SHAWN JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5146-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN JACKSON, a/k/a

RA'ZULU S. UKAWABUTU,

Defendant-Appellant.

___________________________________

December 1, 2015

 

Submitted October 20, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 89-12-3501 and 90-11-3310.

Ra'Zulu S. Ukawabutu, appellant pro se.

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal,1 defendant Shawn Jackson, a/k/a Ra'zulu S. Ukawabutu, appeals from the Law Division's May 16, 2013 order denying his second motion for a new trial, which he filed in January 2013, almost twenty-two years after his 1991 convictions for murder and kidnapping.2 In support of his motion, defendant argued he was "subjected to ineffective assistance of counsel" because he decided to waive a jury trial, newly discovered evidence existed regarding an alleged misrepresentation concerning a State's confidential informant, and, as there were disputed facts regarding his claims, an evidentiary hearing was warranted. After considering defendant's application, Judge Kyran Connor entered an order denying the motion, setting forth his reasoning in a five-page written memorandum of decision, dated May 16, 2013. The judge found that defendant's arguments were previously raised, disposed of in earlier proceedings considering defendant's various applications, and meritless due to defendant's failure to present newly discovered evidence.

On appeal, defendant argues

POINT ONE

THE TRIAL COURT ERRED IN SUMMARILY DISMISSING DEFENDANT'S MOTION FOR A NEW TRIAL WITHOUT ANY ARGUMENT OR A HEARING ON DEFENDANT'S CLAIM THAT TRIAL COUNSEL ENTERED INTO A WAIVER OF DEFENDANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY WITHOUT DEFENDANT'S INFORMED CONSENT AND SUBJECTED HIM TO INEFFECTIVE ASSISTANCE OF COUNSEL, THEREFORE A NEW TRIAL SHOULD BE ORDERED OR THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING.

POINT TWO

THE TRIAL COURT ERRED IN SUMMARILY DISMISSING DEFENDANT'S NEW TRIAL MOTION CLAIM WITHOUT A HEARING, THAT NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT THE STATE KNOWINGLY MISREPRESENTED THE CONFIDENTIAL INFORMANT STATUS OF DERRICK INGRAM, AND FAILED TO DISCLOSE INVESTIGATION REPORTS FROM A JOINT HOMICIDE INVESTIGATION, WHICH THE STATE INTRODUCED AS EVIDENCE, BUT CLAIMS IT IS NOT REQUIRED TO DISCLOSE, THEREFORE, A NEW TRIAL SHOULD BE ORDERED.

POINT THREE

BECAUSE THERE ARE MATERIAL ISSUES OF FACT IN DISPUTE AN EVIDENTIARY HEARING SHOULD BE ORDERED IN THIS MATTER IN THE INTERESTS OF JUSTICE AND FINALITY.

We have considered defendant's arguments in light of our review of the record and applicable principles of law. Our scope of review is limited to determining whether the denial of the motion constituted "a miscarriage of justice under the law." R. 2:10-1; see also State v. Perez, 177 N.J. 540, 555 (2003). Applying that standard, we affirm substantially for the reasons stated in Judge Connor's memorandum of decision. We only add that a motion for a new trial based solely on newly discovered evidence can be made at any time, but, as to any other grounds, it must be made within ten days after a finding of guilt. See R. 3:20-1; R. 3:20-2. Defendant's arguments were not supported by any newly discovered evidence, see State v. Nash, 212 N.J. 518, 549 (2013) ("Evidence is newly discovered and sufficient to warrant the grant of 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.'" (quoting State v. Carter, 85 N.J. 300, 314 (1981)), and, as to Point I, we squarely addressed defendant's contentions in our earlier decision rendered following defendant's conviction. See Jackson, supra, 272 N.J. Super. at 552-53.3

Affirmed.

11 In another opinion being issued today, we are affirming the trial court's denial of defendant's second petition for post- conviction relief (PCR). See State v. Jackson, No. A-4986-12 (App. Div. Dec. 1, 2015).

2 We previously detailed the facts leading to defendant's convictions, after a 1991 bench trial, for committing murder and kidnapping, and his ensuing sentences, in our earlier opinions addressing his conviction, see State v. Jackson, 272 N.J. Super. 543, 545-48 (App. Div. 1994), certif. denied, 142 N.J. 450 (1995), his first PCR petition, see State v. Jackson, No. A-1725-00 (App. Div. Oct. 3, 2002), certif. denied, 176 N.J. 429 (2003), and an earlier motion for a new trial, see State v. Jackson, No. A-4364-03 (App. Div. Dec. 9, 2005), certif. denied, 186 N.J. 365 (2006). These facts need not be repeated here for purposes of this appeal.

3 Although the record of defendant's first PCR is incomplete, our review reveals that the issue raised by him in Point I was also minimally raised by defendant at oral argument before the initial PCR court.