STATE OF NEW JERSEY v. ALTON BRYANT
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4169-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALTON BRYANT, a/k/a RASHAD MCKNIGHT,
ALQUAN MUSLIM, DICK DICK, QUAN,
PATRICK BRYANT and DWAYNE BROWN,
Defendant-Appellant.
___________________________________
Submitted April 24, 2018 – Decided May 7, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
96-11-3839.
Joseph E. Krakora, Public Defender, attorney
for appellant (Suzannah Brown, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an order denying reconsideration of
an order, which denied his petition for post-conviction relief
(PCR). We affirm.
The following facts are taken from the record. An Essex
County grand jury charged defendant with second-degree conspiracy
to commit murder,
N.J.S.A. 2C:5-2 and 2C:11-3 (count one); first-
degree murder,
N.J.S.A. 2C:11-3(a)(1) and (2) (count two); first-
degree attempted murder,
N.J.S.A. 2C:11-3 and 2C:5-1 (count
three); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4)
(count four); third-degree possession of a weapon,
N.J.S.A. 2C:39-
3(b) (count five); and second-degree possession of a weapon for
an unlawful purpose,
N.J.S.A. 2C:39-4(a).
At defendant's jury trial, the State presented evidence of
the following facts. On the evening of August 25, 1996, Mary
Francis and Carol Hutchins were sitting in Rodney Hutchins'1 car
in Newark, when Rodney approached them on a bicycle. Rodney was
speaking with the women and defendant approached on foot. He
pulled out a sawed-off shotgun, pointed it at Rodney, and told him
to put his hands up. Rodney told the women to run. Carol Hutchins
1
We use first names for ease of reference. In doing so, we intend
no disrespect.
2 A-4169-15T4
got out of the car and began to run. Mary Francis remained in the
car.
Defendant's brother, co-defendant Patrick Bryant, exited a
cream colored car and struck Rodney in the face. Rodney knocked
the gun out of defendant's hands and began to run. Patrick said,
"Get that mother fucker, kill that mother fucker." Defendant
chased Rodney and shot him in the back. Defendant returned to the
car, pointed the shotgun at Mary, and readied it to fire, but
Patrick told defendant to leave her alone. Patrick and defendant
drove away. Rodney died as a result of the gunshot wounds in his
back.
The State presented testimony from eyewitnesses to the
shooting, as well as the testimony of Cleveland Barlow, who stated
he saw Patrick with a shotgun similar to the one that was used in
the shooting in the summer of 1996. Barlow also testified he saw
defendant rob drug dealers, and that Rodney was a known drug
dealer. Furthermore, he stated defendant confessed to the murder
at the Essex County Jail in August of 1997.
Defendant was acquitted on count three, and convicted on the
remaining counts. He was sentenced to an aggregate term of life
imprisonment, plus six and one half years, with a thirty-eight and
one half year parole disqualifier.
3 A-4169-15T4
Defendant filed a direct appeal of his conviction and
sentence, which we affirmed. State v. Bryant, No. A-5662-97 (App.
Div. Oct. 20, 1999) (slip op. at 15), certif. denied,
163 N.J. 74
(2000).
Defendant filed a first petition for PCR on April 13, 2000.
The PCR court denied the petition. We affirmed the order denying
PCR. State v. Bryant, No. A-4448-03 (App. Div. Jan. 24, 2006)
(slip op. at 14), certif. denied,
186 N.J. 604 (2006).
Defendant filed a second petition for PCR on May 1, 2006.
The PCR court granted defendant's motion to compel the State to
produce certain documents, but denied the petition. We affirmed
the order denying PCR. State v. Bryant, No. A-4741-06 (App. Div.
Oct. 9, 2008) (slip. op. at 18), certif. denied,
198 N.J. 313
(2009).
On November 22, 2011, defendant filed a pro se motion for a
new trial based on newly-discovered evidence. He raised the
following claims in his motion:
(1) The "newly discovered evidence" of witness
Cleveland Barlow's 9/04/97 second letter to
the Essex County Prosecutor's Office
exculpates Petitioner as it impeaches Barlow's
trial testimony. Petitioner further alleges
that the State's failure to produce the letter
prior to trial constitutes a Brady[2]
violation, and that the State condoned perjury
by allowing Barlow to testify falsely;
2
Brady v. Maryland,
373 U.S. 83 (1963).
4 A-4169-15T4
(2) The State condoned perjury by allowing
witness Mary Francis to testify falsely, as
she could not identify Petitioner by name or
provide his physical description to police on
the night of the incident;
(3) The State condoned perjury by allowing
witness Cleveland Barlow to testify falsely
as to his familiarity with Petitioner, and
that Petitioner confessed to him that he
committed the charged crimes;
(4) The newly discovered evidence of
Investigator DeFrancisci's 10/01/97 report
indicates that witness Cleveland Barlow
identified Petitioner from a photo array, not
merely a single photograph as Barlow and
DeFrancisci testified at trial. Thus,
Petitioner claims that the State's failure to
produce the photo array from which Barlow
identified Petitioner constitutes a Brady
violation and prevented Petitioner from
challenging the suggestibility of the array
through a Wade[3] hearing;
(5) The State condoned perjury by allowing
witnesses Mary Francis and Carol Hutchins to
testify despite the inconsistencies between
their accounts, as well as Investigator
DeFrancisci's account;
(6) The "newly discovered evidence" of
Investigator DeFrancisci's 10/01/97 report
exculpates Petitioner as it impeaches witness
Cantrell Wilkes' trial testimony. Petitioner
further alleges that the State's failure to
produce the report prior to trial constitutes
a Brady violation;
(7) The "newly discovered evidence" of witness
Cleveland Barlow's additional convictions of
charges pending during Petitioner's trial
exculpates Petitioner as it impeaches Barlow's
3
United State v. Wade,
388 U.S. 218 (1967).
5 A-4169-15T4
trial testimony. Petitioner further claims
that the State's failure to produce these
indictments prior to trial constitutes a Brady
violation;
(8) Even if each of these errors, taken
individually, are insufficient to warrant a
new trial, the cumulative effect of these
errors requires a new trial;
(9) The "newly discovered evidence" of Yakim
Abdul-Ali's 4/29/10 Affidavit exculpates
Petitioner as it impeaches witness Cleveland
Barlow's trial testimony;
(10) The State's misconduct deprived
Petitioner of a fair trial as the prosecutor
and Investigator DeFrancisci met with
witnesses Mary Francis and Carol Hutchins
together prior to trial to discuss the case
and provide them with copies of their pre-
trial statements and grand jury testimony;
(11) The State violated Petitioner's Sixth
Amendment confrontation rights by allowing
Investigator DeFrancisci to impermissibly
provide hearsay testimony and imply to the
jury that he possessed superior knowledge
outside the record that incriminated
Petitioner;
(12) Trial counsel provided ineffective
assistance by failing to call Lorenzo Biera
and Lilmonique Scott as defense witnesses;
(13) Witness Cantrell Wilkes' charges pending
during Petitioner's trial exculpates
Petitioner as it impeaches Wilkes' trial
testimony;
(14) The "newly discovered evidence" of
Jeffrey Wise's 1/12/12 Affidavit read in
conjunction with the 8/08/97 Essex County Jail
religious services sign-in sheet exculpates
6 A-4169-15T4
Petitioner as it impeaches witness Cleveland
Barlow's trial testimony; and
(15) The State condoned perjury by allowing
witness Cleveland Barlow to testify falsely
that "he was not promised to get any deal for
his testimony," even though his plea agreement
said otherwise (four years flat and
supplemented to probation).
The trial court determined defendant's motion was in effect
a third PCR petition, raising claims previously litigated on direct
appeal and in prior PCR petitions. Defendant did not have the
right to counsel on a third PCR application, and was obligated to
provide the trial record to the court. The court explained the
Public Defender's Office had appointed counsel because defendant's
motion was erroneously captioned as "a motion for a new trial."
When defendant told the court he believed he had no choice but to
represent himself, the court allowed him to do so with appointed
counsel as standby counsel.
On August 4, 2015, the trial court denied defendant's motion.
In a comprehensive twenty-six-page opinion, the court found all
fifteen of defendant's alleged "new trial" claims were
procedurally barred by Rule 3:20-2. The trial court determined
"as these claims have been raised more than ten days after
Petitioner's 1997 guilty verdict, they are procedurally barred
. . . ."
7 A-4169-15T4
Regarding defendant's claims one, nine, and fourteen noted
above, the trial court ruled defendant did not meet the three-
prong Carter4 test for newly discovered evidence. The court
concluded Cleveland Barlow's second letter, Ali's affidavit, and
Wise's affidavit did not meet the materiality prong of Carter, but
rather purport "to provide impeaching or contradictory evidence
concerning the trial testimony of . . . Barlow." Also, the third
prong of Carter was not met because "none of these claims would
affect the jury's verdict . . . ." The trial court observed we
had "already determined Mr. Barlow's testimony 'merely
corroborated [the] other evidence of guilt.'" The trial court
found "[p]etitioner does not even attempt to demonstrate why the
allegedly 'newly discovered evidence' underlying claim [fourteen]
was not discoverable by reasonable diligence prior to the
completion of his trial, as required by the second prong of
Carter."
The trial court determined defendant's claims were time
barred by Rule 3:22-12(a)(2) because his third PCR application was
"filed more than one year after the latest of . . . the date on
which the factual predicate for the relief sought was discovered,
if that factual predicate could not have been discovered through
4
State v. Carter,
85 N.J. 300, 314 (1981).
8 A-4169-15T4
the exercise of reasonable diligence[.]" The court found defendant
was aware of the factual predicates for his claims two, three,
four, five, six, ten, eleven, twelve, and thirteen "during the
trial, over fourteen years prior to filing his present [p]etition;"
he was aware of "new evidence" claim one on December 12, 2009; he
was aware of "new evidence" claim seven in July 2010; and he was
aware of "new evidence" claim fourteen on August 8, 1997.
Moreover, "[p]etitioner does not state when he learned of the
factual predicates for his new evidence claims [four] and [six]
. . . and does not even attempt to establish that his claims [one],
[four], [six], [seven], [nine], and [fourteen] could not have been
discovered sooner through the exercise of reasonable diligence."
In addition to being time barred, the trial court ruled
defendant's fifteen claims were procedurally barred because they
did not meet any of the exceptions of Rule 3:22-4(b)(2)(A), (B),
or (C). The trial court determined defendant's claims two, three,
seven, eleven, twelve, thirteen, fourteen, and fifteen were also
barred by Rule 3:22-5 because they were raised and adjudicated in
prior PCR and habeas proceedings. The trial court also ruled Rule
3:22-4(a) precluded defendant's claims one, two, three, five,
seven, nine, ten, thirteen, fourteen, and fifteen because
defendant failed to show how these claims "could not reasonably
have been raised in a prior proceeding." The trial court also
9 A-4169-15T4
denied defendant's motion to compel discovery finding a failure
to show good cause.
This appeal followed. Defendant makes the following
arguments:
POINT I – MR. BRYANT'S CLAIMS OF NEWLY
DISCOVERED EVIDENCE WERE NOT PROCEDURALLY
BARRED.
POINT II – THE LOWER COURT INCORRECTLY RULED
THAT NEWLY DISCOVERED EVIDENCE DID NOT WARRANT
A NEW TRIAL.
POINT III – THE MATTER SHOULD BE REMANDED FOR
A NEW HEARING BASED ON INEFFECTIVE ASSISTANCE
OF ASSIGNED COUNSEL.
POINT IV – THE LOWER COURT ERRED IN FAILING
TO ASSIGN NEW COUNSEL.
I.
Defendant contends the trial court erred in finding that
claims one, nine, and fourteen did not constitute newly-discovered
evidence. He also challenges the trial court's application of the
PCR time and procedural bars to these claims.
"A motion for a new trial upon the ground of newly discovered
evidence is not favored and should be granted with caution by a
trial court since it disrupts the judicial process." State v.
Conway,
193 N.J. Super. 133, 171 (App. Div. 1984) (citing State
v. Haines,
20 N.J. 438, 443 (1956)). "A motion for a new trial
is addressed to the sound discretion of the trial court, and its
10 A-4169-15T4
determination will not be reversed on appeal unless there has been
a clear abuse of that discretion." State v. Puchalski,
45 N.J.
97, 107 (1965) (quoting State v. Artis,
36 N.J. 538, 541 (1962)).
Our Supreme Court has stated:
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." We have held that all
three prongs of that test must be satisfied
before a defendant will gain the relief of a
new trial.
[State v. Ways,
180 N.J. 171, 187 (2004)
(citation omitted) (quoting Carter, 85 N.J.
at 314).]
"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." Id. at 187-88.
Under prong one of the Carter test, a defendant must show the
evidence "ha[s] some bearing on the claims being advanced." Id.
at 188 (quoting State v. Henries,
306 N.J. Super. 512, 531 (App.
Div. 1997)). This requires the court to engage in "an evaluation
of the probable impact such evidence would have on a jury verdict."
11 A-4169-15T
4 Id. at 188-89. Because the issue of materiality inquires whether
the evidence would change the jury's verdict, the court should
evaluate the first and third prongs of the test together. Id. at
189.
Under prong two of the Carter test, "the new evidence must
have been discovered after completion of trial and must not have
been discoverable earlier through the exercise of reasonable
diligence." Id. at 192. A defendant must "act with reasonable
dispatch in searching for evidence before the start of the trial."
Ibid.
Under prong three of the Carter test, a defendant must show
the evidence "would probably change the jury's verdict if a new
trial were granted." Id. at 187 (quoting Carter,
85 N.J. at 314).
"The power of the newly discovered evidence to alter the verdict
is the central issue . . ." before the trial judge. Id. at 191.
"[T]he test is whether the evidence if introduced is such as ought
to have led the jury to a different conclusion – one of probability
and not mere possibility[.]" Haines,
20 N.J. at 445.
We agree with the trial court claims one, nine, and fourteen
did not meet the first and third prongs of Carter. We previously
determined "[t]here was substantial additional evidence of
defendant's guilt, including the testimony of two eyewitnesses.
Barlow's testimony merely corroborated substantial other evidence
12 A-4169-15T4
of guilt." Bryant, No. A-5662-97, slip op. at 12. Accordingly,
Barlow's second letter and the affidavits would have only
functioned to impeach Barlow's credibility and would not have
affected the jury verdict.
In his second letter, Barlow stated: "The person who did it
openly confess[ed] to me on what took place and how it happen[ed]."
We agree with the trial court that "[i]n addition to th[e] absence
of prejudice . . . the second Barlow letter reveals that it has
little impeachment value." This does not contradict, but rather
corroborates, Barlow's testimony defendant confessed to the murder
at the Essex County Jail in August 1997. Moreover, defendant
acknowledged he was unaware of whether Barlow's second letter was
missing any pages, and "[a]ny suggestion that there are additional
impeachment materials contained in any additional pages amounts
to pure speculation."
Regarding claim fourteen, the trial court found defendant
"does not even attempt to demonstrate why the allegedly 'newly
discovered evidence' . . . was not discoverable by reasonable
diligence prior to the completion of his trial . . . ." Therefore,
the trial court correctly determined this evidence fails the second
Carter prong. We agree with the trial court all fifteen of
defendant's claims fail the Carter test for newly discovered
evidence.
13 A-4169-15T4
Defendant also contends the trial court erred in treating his
motion for a new trial as a third PCR, and erred by applying the
procedural bars applicable to PCRs to the motion. We disagree.
Rule 3:22-4(b) states in relevant part:
A second or subsequent petition for post-
conviction relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
. . . .
(B) that the factual predicate for the
relief sought could not have been
discovered earlier through the exercise
of reasonable diligence, and the facts
underlying the ground for relief, if
proven and viewed in light of the
evidence as a whole, would raise a
reasonable probability that the relief
sought would be granted[.]
Rule 3:22-12(a)(2) states:
Notwithstanding any other provision in this
rule, no second or subsequent petition shall
be filed more than one year after the latest
of:
(A) the date on which the constitutional right
asserted was initially recognized by the
United States Supreme Court or the Supreme
Court of New Jersey, if that right has been
newly recognized by either of those Courts and
made retroactive by either of those Courts to
cases on collateral review; or
(B) the date on which the factual predicate
for the relief sought was discovered, if that
factual predicate could not have been
14 A-4169-15T4
discovered earlier through the exercise of
reasonable diligence; or
(C) the date of the denial of the first or
subsequent application for post-conviction
relief where ineffective assistance of counsel
that represented the defendant on the first
or subsequent application for postconviction
relief is being alleged.
Rule 3:22-12(b) states: "[t]hese time limitations shall not
be relaxed, except as provided herein." Rule 1:3-4(c) prohibits
the parties and the court from enlarging the time specified in
Rule 3:22-12. Rule 3:22-5 states: "A prior adjudication upon the
merits of any ground for relief is conclusive whether made in the
proceedings resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule or prior to the adoption
thereof, or in any appeal taken from such proceedings."
The trial court stated:
Petitioner was aware of the factual predicates
for his claims [two, three, four, five, six,
ten, eleven, twelve, thirteen, and fifteen]
during trial, over fourteen years prior to
filing his present [p]etition. Petitioner was
also aware of his new evidence claim [one] on
[December 8, 2009] . . . claim [seven] in July
of 2010 . . . claim [nine] on [April 29, 2010]
. . . and claim [fourteen] on [August 8, 1997]
. . . .
The trial court correctly determined defendant was aware of the
factual predicates for all fifteen claims over one year prior to
the filing of his motion. Defendant has not demonstrated any
15 A-4169-15T4
excusable neglect for the filing delays, nor has he shown a
reasonable probability that if his factual assertions were found
to be true, enforcement of the time bar would result in fundamental
injustice. R. 3:22-12(a)(1). He is not entitled to a relaxation
of the rule. State v. Mitchell,
126 N.J. 565, 576 (1992). The
trial court also correctly determined defendant failed to meet any
of the exceptions enumerated in Rule 3:22-4(b)(2).
Moreover, the trial court correctly determined some of
defendant's claims were procedurally barred by Rule 3:22-5. "[A]
defendant may not use a petition for post-conviction relief as an
opportunity to relitigate a claim already decided on the merits."
State v. McQuaid,
147 N.J. 464, 483 (1997). The trial court found
claims seven, twelve, and thirteen were already raised in
defendant's first PCR petition, which was denied by the trial
court and affirmed by this court. Claims seven, eleven, thirteen,
fourteen, and fifteen were raised in defendant's second PCR
petition, which was denied by the trial court and affirmed by this
court. Claims two, three, five, seven, thirteen, and fifteen were
raised in defendant's second habeas petition, which was rejected
by the district court. Defendant's remaining contentions,
including his contention that the court erred by treating his
motion as a PCR petition rather than a motion under Rule 3:20-2,
16 A-4169-15T4
lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E).
II.
Defendant contends the trial court erred in determining his
trial counsel was not ineffective under Strickland. He contends
the failure of assigned counsel to submit trial transcripts to the
court constituted deficient performance, and argues the prejudice
derived from this failure is self-evident and must be presumed.
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
[Strickland,
466 U.S. at 687; State v. Fritz,
105 N.J. 42, 52 (1987) (quoting Strickland,
466 U.S. at 687).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance
17 A-4169-15T4
. . . .'" Fritz,
105 N.J. at 52 (alteration in original) (quoting
Strickland,
466 U.S. at 688-89). "To rebut that strong
presumption, a defendant must establish . . . trial counsel's
actions did not equate to 'sound trial strategy.'" State v.
Castagna,
187 N.J. 293, 314 (2006) (quoting Strickland,
466 U.S.
at 689). "Mere dissatisfaction with a 'counsel's exercise of
judgment' is insufficient to warrant overturning a conviction."
State v. Nash,
212 N.J. 518, 542 (2013) (quoting State v. Echols,
199 N.J. 344, 358 (2009)).
To demonstrate prejudice, "'actual ineffectiveness' . . .
must [generally] be proved[.]" Fritz,
105 N.J. at 52 (quoting
Strickland,
466 U.S. at 692-93). Petitioner must show the
existence of "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Ibid. (quoting
Strickland,
466 U.S. at 694). Indeed,
[i]t is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland,
466 U.S. at 693 (citation
omitted).]
18 A-4169-15T4
Defendant argues his trial counsel was ineffective because
he failed to obtain, review, and submit to the court trial
transcripts in support of defendant's motion for a new trial.
Defendant contends because his motion was premised on the discovery
of new evidence warranting a new trial, the trial court could only
properly make this determination upon review of the record.
Therefore, defendant argues prejudice is presumed.
We are satisfied from our review of the record that defendant
failed to make a prima facie showing of ineffective assistance of
counsel pursuant to Strickland-Fritz, substantially for the
reasons stated by the PCR judge in his thoughtful written opinion.
As the judge noted, assigned counsel prepared a supplemental
letter-brief in support of defendant's applications and argued on
defendant's behalf at the July 31, 2015 motion hearing.
Furthermore, defendant was not prejudiced because there was no
necessity to reach the merits of defendant's claims, which were
time- and procedurally-barred. To the extent we have not
specifically addressed arguments raised by defendant, we find them
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
19 A-4169-15T4
III.
Defendant contends the trial court erred in failing to assign
new counsel on his third PCR petition after assigned counsel failed
to provide trial transcripts to the court. We disagree.
Rule 3:22-6(b) states:
Upon any second or subsequent petition filed
pursuant to this Rule attacking the same
conviction, the matter shall be assigned to
the Office of the Public Defender only upon
application therefor and showing of good
cause. For purposes of this section, good
cause exists only when the court finds that a
substantial issue of fact or law requires
assignment of counsel and when a second or
subsequent petition alleges on its face a
basis to preclude dismissal under R[ule] 3:22-
4.
Though no rule required assignment of counsel, the Office of the
Public Defender afforded defendant appointed standby counsel.
Defense counsel advocated for defendant by filing a supplemental
brief and arguing defendant's motion at the hearing. Furthermore,
defendant was not prejudiced by any alleged failure because his
claims were time- and procedurally-barred.
Affirmed.
20 A-4169-15T4
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