Opinion
DOCKET NO. A-2532-08T3
05-22-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. YUSEF ALLEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Ashrafi.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-08-1208.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Yusef Allen appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In 1999, following a jury trial at which Judge John S. Triarsi presided, defendant was convicted of first-degree murder; second-degree possession of a firearm for an unlawful purpose; and third-degree possession of a firearm without a permit. The judge imposed terms aggregating life imprisonment. On direct appeal, we affirmed the conviction but vacated the eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. State v. Allen (Allen I), 337 N.J. Super. 259, 263-64 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002).
The proofs leading to the conviction are set forth in our opinion on direct appeal. Allen I, supra, 337 N.J. Super. at 264-66. This is a summary of the evidence relevant to the issues in this appeal. A residence in Plainfield, referred to by witnesses as "the Mack House," was used for distribution of narcotics in the fall of 1997. At defendant's 1999 trial, Ruby Waller, who lived near the Mack House, testified that on October 5, 1997, at around 6:00 a.m., she wanted to buy crack-cocaine. On her way there, she met the victim of the homicide, Lannie Silver, who had the same purpose. Waller took him to the Mack House on Prescott Place in Plainfield, New Jersey.
Several members of the Mack family lived in that house.
At the Mack House, Waller went to a window, sat on an adjoining bench, placed an order for crack-cocaine and slid a $20 bill under the window's drawn shade. A man she later identified as "Ben," and identified by another witness as "Marvin," came to the window and filled her order. After receiving the drugs, Waller moved away from the window. Silver sat on the bench.
Silver then asked Ben, "[w]hat you got?" Ben pulled the shade back and looked out the window at Silver. Upon seeing Silver, Ben and defendant, who was inside the house, exited and yelled at Silver, "'get the F out of here, [we] don't sell drugs [here], white mother-f. . . .'" Allen I, supra, 337 N.J. Super. at 264. Silver retreated from the porch with his hands in the air. However, defendant and Ben followed Silver, yelling and swearing profanely at him.
According to Waller, at one point defendant stated, "[h]old up, I got something for this mother-f. . . ." and reentered the Mack House. Ibid. He came out a "second" later holding a gun "in his hand, down on the side." Upon seeing defendant with a gun, Waller ran to her nearby home. As Waller neared the top of her stairs, she "heard a gunshot." Once inside the house she heard "several more" shots and "hear[d] the victim screaming." From her window, she could see Silver "trying to run" but fall to the ground after "the last shot hit him." Waller also testified that Silver tried to get up but could not and eventually collapsed. Waller stated that the time between the first and last shots was "like a half a second."
According to Waller, after the victim collapsed in the middle of the street she saw Ben and defendant "running into the Mack office," which is located close to the Mack House. She immediately phoned 911 and reported the incident to the police.
Rhonda Whitfield, who was serving a sentence in the Middlesex Correctional Facility during the trial, testified that she was "[g]oing to buy a bag," that morning and saw the victim "on the porch" of the Mack House, "[l]ike talking to the screen." Only one person is permitted on the porch of the Mack House at a time, so Whitfield stayed on the street. As the victim was talking, defendant and "Marvin" came out of the house. Whitfield was "dope sick" and paying "no mind," but "knew something wasn't right." She started to leave the area to buy drugs elsewhere when the defendant and Marvin began "yelling" at the victim, who was "trying to walk" away. As the victim walked away, defendant was "running behind the guy," holding an object to his side. Whitfield subsequently heard what she thought were "fire-crackers."
[Allen I, supra, 337 N.J. Super. at 265-66.]
Whitfield also testified to having been in an automobile accident some time after the shooting. She had subsequently experienced some memory loss due to "head trauma," as she had "hurt her head," but "was not aware of any type of failure to remember the incident."
After defendant's conviction was affirmed, he filed a PCR petition, which was denied in all respects by Judge Triarsi in September 2005. On appeal, we rejected multiple errors alleged by defendant, but remanded for an evidentiary hearing: (1) to consider the effectiveness of trial counsel's decisions to reject the judge's two offers to declare a mistrial; and (2) to determine whether an exculpatory affidavit supplied by John Korman, an inmate incarcerated with defendant, constituted newly discovered evidence. State v. Allen (Allen II), 398 N.J. Super. 247, 253 (App. Div. 2008).
On July 14, 2008, on remand, Judge Triarsi again denied PCR, finding that trial counsel made a strategic decision to decline the judge's two offers to grant a mistrial, and holding that Korman's affidavit was unreliable and Korman was known to the defense at the time of trial.
Defendant appealed, and in an unpublished opinion we rejected all but one of his allegations. State v. Allen (Allen III), Docket No. A-2532-08 (App. Div. Feb. 28, 2011). However, we remanded for an evidentiary hearing one contention raised by defendant pro se, i.e., that newly discovered evidence revealed that the State's witness Ruby Waller "knowingly lied at defendant's trial." Specifically, defendant alleged that at a subsequent federal trial against Ronald Mack, Rodney Mack and Maureen Riley, at which Judge Katherine S. Hayden presided, Waller's testimony was inconsistent with her testimony at his trial. Defendant contended that this constituted newly-discovered evidence. We remanded and directed as follows:
The judge should consider not only the testimony we have briefly described above, but also any of the other testimony identified by defendant from the Mack trial, and then determine whether any of this testimony is "newly discovered" and would support an order for a new trial.We retained jurisdiction.
On July 12, 2011, Judge Triarsi heard oral argument on the issue that we remanded. After analyzing Waller's testimony at defendant's 1999 trial and at the federal trial, he concluded that the alleged inconsistencies were not newly-discovered evidence. Specifically, the judge concluded:
. . . this testimony was made a long time ago, in a federal trial in September of 2001. We're dealing now [in] 2011. In that intervening ten years, he's had an appeal, and PCR, a remand to me, a hearing by the Appellate Division of the official PCR, and a remand again.
[Defendant has] had -- not only [trial counsel] Norton, but he had a private attorney on the appeal, if my memory is correct, then he had a public defender on the PCR. If anyone thought at all that there could be some new -- other -- other
evidence to be looked at, they could have gotten a transcript of this document a long time ago by having the ability to order it and having the ability by using reasonable diligence. I don't think that was -- in my view, therefore, it's not newly discoverable. And that a person with due diligence could have found this document ten years ago.
Following the remand, defendant contends:
THE MOTION COURT MISAPPLIED ITS DISCRETION IN DENYING [PCR] BECAUSE IT FAILED TO CONSIDER THE IMPACT THAT THE NEWLY DISCOVERED EVIDENCE HAD ON THE INTEGRITY OF THE DEFENDANT'S CONVICTION.
Defendant has filed a pro se supplemental brief contending:
THE PCR COURT ABUSED ITS DISCRETION AND MISAPPLIED THE LAW AND THE FACTS DURING THE NEWLY DISCOVERED EVIDENCE HEARING AND IMPROPERLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL, THEREBY VIOLATING HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.We reject these contentions.
The findings by Judge Triarsi, buttressing his conclusion that there was no newly discovered evidence, are supported by the transcript of the federal trial, and the judge's own recollection as refreshed by his notes. State v. Locurto, 157 N.J. 463 (1999). We have no warrant to intervene. State v. Johnson, 42 N.J. 146, 162 (1964).
In his pro se brief, defendant also contends:
THE PROSECUTOR COMMITTED MISCONDUCT BY WITHHOLDING CLEARLY EXCULPATORY EVIDENCE FROM THE GRAND JURY AND AIDING THE STATE'S CHIEF WITNESS IN GIVING FALSE TESTIMONY TO GRAND JURY, THEREBY VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.We decline to consider these issues as they are beyond the scope of our prior decision, which disposed of all issues presented except for the one issue on remand. That issue is now rejected by this opinion.
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND PCR COUNSELS, DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. Counsels Failed To Investigate Defendant's Alibi Witness And Put Forth An Alibi Defense.
B. Trial Counsel Failed To Do Any Investigation In This Case.
C. Trial Counsel Failed To Challenge The Indictment To Seek A Dismissal On The Grounds Of Prosecutorial Misconduct For Withholding "Exculpatory Evidence". Further Misconduct By Aiding Ms. Waller In Giving A False Testimony To The Grand Jury and Seeking Dismissal Of Indictment For Ms. Waller Knowingly Giving False Testimony To The Grand Jury.
D. Trial, Appellate And [sic] Counsels Were Ineffective For Failing To Raise The Following Issues (1) Defendant Was Denied Effective Assistance Of Trial Counsel: (A) Trial Counsel Failed To Challenge Indictment For Dismissal On Grounds Of Prosecutorial Misconduct, For The Prosecutor Withheld "Exculpatory Evidence" From The Grand Jury; (B) Trial Counsel Failed To Challenge Indictment For Dismissal On Grounds That The Prosecutor Knowingly And Intentionally Aided
The State's Chief Witness Ruby Waller In Falsely Testifying To Grand Jury. (2) Appeal Counsel Failed To Raise These Same Issues On Appeal. (3) PCR Counsel Failed To Raise These Same Issue On [PCR].
E. The Legal Errors Committed In This Matter By Trial, Appellate And PCR Counsel's When Viewed Either Individually Or Cumulatively Are Of Such Magnitude To Have Rendered Counsel's Performance Ineffective.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION