STATE OF NEW JERSEY v. DARIUS T. MURPHY

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4346-16T2


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DARIUS T. MURPHY,

     Defendant-Appellant.
___________________________

                    Submitted October 31, 2018 – Decided November 21, 2018

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 96-04-1271.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Darius T. Murphy appeals from a November 1, 2016 order

denying his motion for a new trial. In his counseled brief, defendant raises the

following point of argument:

            THE   MOTION     COURT'S    DENIAL  OF
            DEFENDANT'S MOTION FOR NEW TRIAL BASED
            ON THE NEWLY DISCOVERED RECANTATION
            TESTIMONY OF THE STATE'S PIVOTAL
            WITNESS AT TRIAL WAS ERROR.

      In a supplemental pro se brief, which contains no point headings,

defendant contends that the motion judge erred in finding the recanting witness

not credible.

      After reviewing the record, we find no merit in defendant's appellate

arguments. We affirm substantially for the reasons stated by Judge Alfonse J.

Cifelli in his October 28, 2016 oral opinion, issued after holding an evidentiary

hearing on the motion. We add these comments.

      In 1996, defendant was convicted of felony murder and associated

offenses, and was sentenced to thirty years in prison without parole.          We

outlined the evidence and the history of the case in our prior opinions, affirming

the conviction on direct appeal, State v. Murphy, No. A-2262-97 (App. Div. Jun.

15, 1999), affirming in part and remanding in part defendant's first petition for


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post-conviction relief (PCR), State v. Murphy, No. A-0708-04 (App. Div. May

22, 2007), and affirming the denial of PCR after the remand, State v. Murphy,

No. A-5959-10 (App. Div. March 25, 2013). For purposes of this opinion, the

following summary will suffice.

      According to the State's evidence, defendant and several co-defendants

forced their way into the apartment of Corey Davis, a drug dealer.           They

threatened Davis's girlfriend, attempted to rob Davis, and fatally shot him.

Several months later, the girlfriend identified a photo of defendant as someone

who resembled one of the assailants. However, the State's chief witness was

Victor Parker, a co-defendant who testified pursuant to a plea agreement. At the

trial, Parker unequivocally identified defendant as one of the participants in the

home invasion. The trial judge, who heard Parker testify against defendant,

would later characterize Parker as one of the most credible witnesses he had ever

observed.

      In 2013, defendant filed a motion for a new trial, based on affidavits from

Parker stating that he misidentified defendant as a participant in the crime. 1 In

his affidavits, Parker asserted that he had confused defendant with a man named


1
  Defendant asserts that he originally filed the new trial motion in April 2011,
however, that motion is not in his appendix. Nor are most of the documents
admitted in evidence at the evidentiary hearing.
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                                        3
"Ra-Ra," who resembled defendant. According to Parker, he first learned of Ra-

Ra's identity and participation in the crime in 2002, but Parker did not recant his

identification testimony until 2011.

      After a testimonial hearing, Judge Cifelli found that Parker's hearing

testimony was inconsistent with his written recantation statements in important

respects, and contradicted significant details in his trial testimony. The judge

also found that Parker was an evasive witness whose testimony was not credible.

The judge noted that, prior to the 1996 trial, Parker wrote a letter to another co-

defendant, Keith Henderson, essentially promising that he would eventually

exculpate defendant. 2 Applying the standards set forth in State v. Ways,  180 N.J. 171, 187-89 (2004), and State v. Carter,  85 N.J. 300, 314 (1981), Judge

Cifelli concluded that Parker's recantation testimony was completely unreliable,

would probably not change the jury's verdict, and did not warrant a new trial.

      Ordinarily,   recantation   testimony    is   regarded    as   suspect   and

untrustworthy. State v. Carter,  69 N.J. 420, 427 (1976). In addressing the

standards for granting a new trial based on newly discovered evidence, the

Supreme Court has cautioned:


2
  Ra-Ra and defendant were Henderson's nephews. Ra-Ra, whose real name
was Rahjahn Farrell, died in 2010, a year before Parker's 2011 recantation.
Henderson died several years earlier.
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                                        4
            A jury verdict rendered after a fair trial should not be
            disturbed except for the clearest of reasons. 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.

            [Ways,  180 N.J. at 187-88.]

      In this case, Judge Cifelli concluded that Parker's recantation was a

fabrication, and that his incredible testimony would not affect the jury's verdict

if the case were retried. We owe great deference to Judge Cifelli's evaluation of

Parker's credibility. See Ways,  180 N.J. at 196. However, we review his legal

conclusions de novo. State v. Nash,  212 N.J. 518, 540-41 (2013). Overall, we

determine whether the judge abused his discretion in denying the new trial

motion. See State v. Henries,  306 N.J. Super. 512, 529 (App. Div. 1997). After

reviewing the record, we find no basis to disturb the judge's decision that

Parker's testimony was not credible. In light of that determination, we find no

legal error, and no abuse of discretion, in the judge's decision to deny the new

trial motion.

      Affirmed.




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