Opinion
DOCKET NO. A-2715-11T3
05-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-07-2400.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant Kevin Smith was convicted of various offenses including first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1). The court denied defendant's motion for a new trial and thereafter sentenced him to a thirty- year term of incarceration without the possibility of parole on the murder conviction and imposed concurrent sentences on the remaining charges for which he was convicted. Defendant subsequently sought reconsideration of the court's denial of his new trial motion, which the court denied. We affirmed defendant's conviction in an unpublished opinion. State v. Smith, No. A-3094-94 (App. Div. Oct. 4, 1996). The Supreme Court denied defendant's petition for certification. State v. Smith, 148 N.J. 461 (1997).
On January 19, 2000, defendant filed a verified petition for post-conviction relief (PCR) claiming ineffective assistance of counsel because trial counsel retained a private investigator who had a conflict of interest and who had also failed to properly investigate the matter. In addition, defendant claimed his trial counsel had a conflict of interest as a result of utilizing this private investigator. In an amended verified petition, defendant contended that a witness, Brenda Moore, who implicated him in the murder of the victim, testified in another proceeding during which she stated she had been "'lying for years to the Prosecutor's Office in different homicide cases and the Prosecutor's Office knew that she was lying.'" He additionally stated that "Ms. Moore indicated that she 'lied in the case of State v. Kevin Smith.'" The PCR judge denied the petition, and on appeal, in an unpublished opinion, we affirmed. State v. Smith, No. A-6542-99 (App. Div. March 6, 2007). The Supreme Court denied defendant's petition for certification on May 15, 2007. State v. Smith, 191 N.J. 316 (2007).
Brenda Moore is referred to as Brenda Medina in Appellate Division opinion Docket Number A-6542-99. She is referred to as Brenda Moore in the new trial motion. She is referred to as Brenda Moore throughout this opinion.
On August 24, 2007, defendant filed a pro se motion seeking a new trial, claiming newly discovered evidence. After assigned counsel was appointed, defendant's second motion was filed. Defendant urged that he was entitled to a new trial because the prosecution failed to disclose Brenda Moore's mental instability about which the prosecution knew or should have known. Defendant also sought access to the witness's medical records based upon defendant's clear showing that she suffers from mental illness.
In denying the petition, the PCR judge found defendant's motion was essentially "the same application that was -- that was filed before about the same witness." The judge additionally found that there was no reason to view Brenda Moore's testimony "any differently than what it was back in . . . 2000 when [another judge] ruled that [her] testimony was immaterial based on the revelation that she had some mental illness, based on all of the facts that came out in trial." The judge concluded Brenda Moore, as a witness, "was not material in 2000. She's not material now and probably wasn't material . . . at all -- just added as a cumulative witness at the time of trial." The present appeal followed.
On appeal, defendant raises the following points for our consideration:
Point I
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TR[IA]L BY VIRTUE OF BRENDA MOORE'S TESTIMONY AT THE PCR EVIDENTIARY HEARING, WHICH CONSTI[T]UTES NEWLY DISCOVERED EVIDENCE.
A. Brenda Moore's evidentiary hearing testimony is material and not merely cumulative or impeaching or contradictory.
B. Brenda Moore's evidentiary hearing testimony was discovered since the trial and not discoverable by reasonable diligence beforehand.
C. Brenda Moore's evidentiary hearing testimony is evidence of the sort that would probably change the jury's verdict if a new trial were granted.
Point II
THE LOWER COURT ORDER DENYING THE MOTION MUST BE REVERSED SINCE THE PROSECUTOR
WITHHELD EVIDENCE.
A. The prosecution suppressed evidence of Brenda Moore's mental illness.
B. The evidence suppressed by the prosecution is favorable to the defense.
C. The evidence suppressed by the prosecution is material.
Point III
THE LOWER COURT ORDER DENYING THE MOTION MUST BE REVERSED SINCE THE PROSECUTOR'S MISCONDUCT DEPRIVED DEFENDANT OF THE OPPORTUNITY TO CHALLENGE BRENDA MOORE'S COMPETENCY TO TESTIFY.
Point IV
THE LOWER COURT ORDER DENYING THE MOTION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
Point V
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We have considered the points raised in light of the record, arguments advanced in the briefs, and the governing legal principles. The points raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
We initially reject the State's argument that defendant's petition is procedurally barred pursuant to Rule 3:22-5 because the issues raised in this second petition were previously raised and resolved in the first PCR petition which the court denied and which decision was affirmed on appeal and for which certification before the Supreme Court was denied. The present appeal arises out of defendant's claim that he is entitled to a new trial based upon newly discovered evidence, which motion may be filed at any time. R. 3:20-2. In addition, the standards for granting a new trial are different from the standards employed in considering a PCR claim premised upon ineffective assistance of counsel.
Whether to grant a motion for a new trial based upon newly discovered evidence is a decision which rests within the court's sound discretion. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Such a motion should not be granted unless the proffered evidence 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." State v. Bey, 161 N.J. 233, 287 (1999) (citing State v. Carter, 85 N.J. 300, 314 (1981)), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Generally, the first and third criteria share the same analysis: a determination that evidence is not merely cumulative, impeaching, or contradictory is equivalent to one that the evidence is of the sort that would probably change the verdict. State v. Ways, 180 N.J. 171, 188-89 (2004).
A motion for a new trial on the basis of newly discovered evidence is 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). To warrant a new trial, the newly-discovered evidence must be capable "of raising a reasonable doubt as to the defendant's guilt." Ways, supra, 180 N.J. at 189.
The materiality of Brenda Moore's testimony has already been addressed in the prior PCR petition, which was denied, upheld on appeal, and for which the Supreme Court denied defendant's petition for certification. The key testimony at trial was elicited from other witnesses, namely, Chad Green and Elizabeth Moore, both of whom witnessed defendant with the gun in his hand at the time of the victim's shooting and also running from the scene.
Green had been with the victim moments before the shooting. Green testified that according to the victim, he and defendant had a problem. Green saw defendant approaching the rear of the building and attempted to warn the victim of defendant's presence by entering the front of the building. He saw defendant, who was at the rear of the building, fire five shots at the victim. Green then fled the building.
Elizabeth Moore, prior to the shooting, had been looking out her window. She saw defendant "creeping" along the side of the building where the shooting occurred, and shortly thereafter saw defendant running out of the building with a gun in his hand. The trial court did not abuse its discretion in denying the motion under these circumstances.
The testimony of these two witnesses minimized the significance of Brenda Moore's testimony. She saw defendant after the fact, when he purportedly told her that he regretted shooting the victim. Therefore, assuming the prosecution knew of her mental health issues and her substance abuse addiction, that evidence, if fully disclosed and explored before the jury, was not likely to have changed the outcome of the jury's verdict, given the more compelling testimony of Green and Elizabeth Moore.
Likewise, the same analysis applies to defendant's contention he was entitled to a hearing to test Brenda Moore's competency, given the evidence of her mental illness. Her testimony, though clearly cumulative, was not critical to the State's case. Thus, had the evidence of her mental condition been disclosed at the time of trial and a competency hearing been conducted, resulting in a determination that she was not competent to testify, the exclusion of her testimony was not likely to have altered the outcome of the jury's verdict.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION