Opinion
DOCKET NO. A-1707-11T3 DOCKET NO. A-3386-11T3
05-09-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VINCENT DIXON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE MORRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Vincent Dixon in A-1707-11 (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent State of New Jersey in A-1707-11 (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Susan L. Berkow, Special Acting Assistant Prosecutor/ Special Deputy Attorney General, on the brief). Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant Eugene Morris in A-3386-11 (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Jason Boudwin, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-3386-11 (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Susan L. Berkow, Special Acting Assistant Prosecutor/ Special Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted (A-1707-11) and Argued (A-3386-11)
Before Judges Reisner and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-06-0905.
Joseph E. Krakora, Public Defender, attorney for appellant Vincent Dixon in A-1707-11 (Kevin G. Byrnes, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent State of New Jersey in A-1707-11 (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Susan L. Berkow, Special Acting Assistant Prosecutor/ Special Deputy Attorney General, on the brief).
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant Eugene Morris in A-3386-11 (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
Jason Boudwin, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-3386-11 (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Susan L. Berkow, Special Acting Assistant Prosecutor/ Special Deputy Attorney General, on the brief). PER CURIAM
Defendants Vincent Dixon and Eugene Morris were tried together and were each convicted of the following: third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree possession of heroin with intent to distribute on or near school property, N.J.S.A. 2C:35-7; and second-degree possession of heroin with intent to distribute on or near a public housing facility, N.J.S.A. 2C:35-7.1. Dixon was sentenced to an aggregate term of nine years in prison, half to be served without parole. Morris was sentenced to an aggregate term of seven years in prison, half to be served without parole. Both defendants appeal from their convictions. Dixon also appeals from the sentence imposed. We have consolidated the appeals for purposes of this opinion.
The jury acquitted both defendants of resisting arrest and conspiracy, and acquitted Morris of eluding. Dixon was not charged with eluding.
In appealing his September 2, 2011 judgment of conviction (JOC), Dixon challenges a May 9, 2011 order denying his motion to suppress the seized heroin, and a June 30, 2011 denial of his motion for a judgment of acquittal. Morris, who was sentenced later than Dixon, appeals from his November 9, 2011 JOC, as well as from a May 9, 2011 order denying his motion to suppress an out-of-court identification, and the denial of his motion for a new trial on October 31, 2011.
The case arose from an incident in which a New Brunswick police officer stopped a speeding automobile and found heroin in the car after its occupants fled. The officer later identified Morris as the driver and Dixon as the front seat passenger.
In his appeal, Morris raises the following points for our consideration:
POINT IHaving reviewed the entire trial record, we find no merit in those contentions, and we affirm Morris's conviction.
THE COURT MISLEADINGLY INSTRUCTED THE JURY THAT A PERSON POSSESSES AN OBJECT IF HE IS AWARE OF IT AND CAPABLE OF ACCESSING IT; GLOSSED OVER THE REQUIREMENT THAT THE PERSON MUST INTEND TO CONTROL THE OBJECT; AND THEREBY SUGGESTED THAT DRIVER MORRIS WOULD HAVE POSSESSED HEROIN MERELY BY KNOWING THAT A PASSENGER HAD STOWED IT IN AN ACCESSIBLE DOOR POCKET. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I PARA. 1. (Not Raised Below).
POINT II
AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD ON MORRIS'S MOTION FOR A NEW TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10.
A. The Court Should Have Taken the Co-Defendant's Testimony Because His Post-Trial Affidavit Swearing to Sole Knowledge of the Heroin in the Car Sufficiently Suggested that the Result of the Trial was Unreliable and that the Result of a New Trial Would Be Different.
B. The Court Also Should Have Explored Why Defense Counsel Failed to Present the Co-Defendant's Testimony at Trial Because the Circumstances Sufficiently Suggested that the Failure Was Not Strategic, But was Due to an inability to Access the Testimony that was Either Reasonable (Indicating Newly Discovered Evidence) or Unreasonable (Indicating Ineffective Assistance of Counsel).
POINT III
BECAUSE THE STATE FAILED TO PRESERVE THE PHOTO THAT THE EYEWITNESS USED TO IDENTIFY MORRIS, THIS OUT-OF-COURT IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED OR, AT THE VERY LEAST, THE JURORS SHOULD HAVE RECEIVED AN ADVERSE INFERENCE INSTRUCTION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I PARA. 1.
Dixon raises the following issues in his appeal:
POINT IBased on our review of the record, we find no merit in those arguments, and we affirm Dixon's conviction and sentence.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I, PARA. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS, CONTRADICTORY, CONFUSING, AND PREJUDICIAL INSTRUCTION ON THE LAW OF POSSESSION (Not Raised Below).
A. The Trial Court's Instruction on the Law of Joint Possession was Fundamentally Flawed.
B. The Instruction on the Law of Constructive Possession was Contradictory and Confusing.
POINT II
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PARA. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE.
POINT IV
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PARA. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL WARRANTLESS SEARCH OF THE VEHICLE.
POINT V
THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
I.
We begin by reviewing the record of the N.J.R.E. 104 hearing, which the court held to address both a motion to suppress the heroin and a Wade motion challenging the identification of Morris.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
According to Officer Hector Lugo, at about 3:30 p.m. on April 16, 2010, he was participating in a pedestrian safety program near a public school. As he stood next to his patrol car, he spotted a vehicle which he clocked on his radar device as traveling thirty-five miles an hour in the fifteen-mile per hour school zone. The speeding car halted behind two already-stopped vehicles waiting for pedestrians to cross the street. While the car was stopped, Lugo was able to observe the driver and the passenger, whom he identified at the N.J.R.E. 104 hearing as Morris and Dixon. Lugo looked directly at both men for about fifteen seconds.
Lugo signaled to the two front vehicles to drive away, and signaled to defendants' car to pull over. Lugo saw that the driver, later identified as Morris, looked "dazed" or confused about what to do. Morris ignored Lugo's direction and made a left turn onto Comstock Street. Lugo got into his police vehicle and drove after the fleeing car.
On rounding the corner, Lugo saw the car parked haphazardly on Comstock Street and saw the occupants getting out. Lugo jumped out of his vehicle and ordered the occupants to "stop" and get back in their car. The suspects stood still briefly for twenty to twenty-five seconds, during which time Lugo again got a good look at their faces. Then the three men began to "back pedal" away from the car and fled on foot.
Unwilling to leave his vehicle and chase them, Lugo radioed for back-up and gave a description of the suspects. He approached the abandoned car, which was parked "halfway in the road" with the doors open. Looking into the passenger side, Lugo saw what he recognized as packaged heroin, clearly visible in the map pocket of the passenger door. Lugo seized the heroin and ordered the car to be towed to the impound lot. Lugo put a "hold" on the car, meaning that no one was permitted to "come near it or touch it" while it was in the impound lot.
According to Lugo, once he seized the drugs he found that there were two packages of heroin wrapped in white paper, one on top of the other. The top package was torn open. Inside the white paper, he could see little "bags" or glassine envelopes of heroin.
Less than two hours later, the police received a call from the impound lot, advising that an individual had arrived and was attempting to retrieve something from the car. A warrant check revealed that the individual, identified as Dixon, had several outstanding warrants. Dixon was arrested and brought to headquarters, where Lugo immediately identified him as having been the front seat passenger in the fleeing vehicle.
Based on information found in the car, Lugo learned that N. Smith had rented it. He contacted Smith, who told him that she had gotten into a fight with her boyfriend, Eugene Morris, and Morris "just took the vehicle and left." Lugo asked the dispatcher to pull up a photograph of Morris on her computer by searching the Division of Motor Vehicles database. After viewing the photo on the computer screen, Lugo identified Morris as the driver of the fleeing car. However, he did not have the dispatcher print a copy of the photograph. Nor did he identify either defendant from a photo array or an in-person line-up.
After hearing this evidence, the trial judge issued a written opinion on May 9, 2011, denying both motions. The judge found Lugo to be a credible witness. Applying the standards set forth in State v. Madison, 109 N.J. 223 (1988), State v. Herrera, 187 N.J. 493 (2006), and Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 40l (1972), the judge found that Lugo was "paying full attention to the events unfolding in front of him" and had ample opportunity to observe defendants both when they were in the car and when they were standing on the sidewalk. She found that Lugo's contemporaneous description of the defendants appeared to be accurate, and he "had no hesitation" in identifying defendants in court. She also considered that Lugo identified Morris from a photo within two to three hours after he witnessed the crime.
The judge found nothing suggestive in the identification of Morris. She found no evidence that any other officers prompted Lugo to identify him as the perpetrator. The judge also considered that Lugo was not a lay witness but a trained police officer with sixteen years' experience. Consequently, she gave little weight to the fact that a photo array or in-person lineup was not used in the identification process.
Addressing the validity of the search of the car, the judge found that the case was similar to State v. Carroll, 386 N.J. Super. 143 (App. Div. 2006), in which the defendant was found to have no legitimate expectation of privacy in a stolen car that he abandoned as he fled the crime scene. The judge credited Lugo's testimony that "the defendants fled the car, and left the doors of the car open." She also found that the heroin packets were in plain view and that Lugo found them inadvertently. The judge found that Lugo "did not know the contraband was in the car prior to seeing it in plain view after the occupants fled the vehicle." She further found that when defendants abandoned the car, leaving it "parked illegally on a public street" with the doors open, they had no legitimate expectation of privacy in its contents. Applying the plain view doctrine, the judge concluded that the seizure of the heroin was lawful, and she denied the suppression motion.
II.
We next review the most pertinent trial evidence. At the trial, Smith testified that she had rented the car, and Morris had driven it away without her permission about two days prior to April 16, 2010. Dixon was not with him at that time.
Lugo's trial testimony was consistent with his testimony at the N.J.R.E. 104 hearing. He identified Dixon and Morris as the passenger and driver, respectively, of the speeding car. He described the discovery of the heroin after defendants fled from the car, and his subsequent identification of Dixon and Morris. He explained to the jury that police officers typically did not identify suspects from photo arrays or line-ups. Lugo was cross-examined extensively about his identification of defendants.
The State also presented testimony from an employee of Dependable Motors, the towing and car rental business from which Smith rented the car. Dependable also ran the impound lot used by the police department. The employee testified that on April 16, 2010, a man later identified as Dixon came to the impound lot and attempted to retrieve his jacket from a car on which the police had placed a hold. She called the police to report the request, and they arrived and arrested Dixon. The arresting officer, Jeffrey Monticello, testified that, when he brought Dixon to headquarters, Lugo identified him as one of the occupants of the car.
The State also presented an expert police witness, who explained the typical methods of packaging and selling heroin. He opined that, in light of its packaging and quantity, the heroin found in the car was possessed with intent to distribute it. Defendants did not present any witnesses or evidence.
In his summation, Dixon's attorney conceded that his client was in the car. He argued that Dixon fled because he had outstanding warrants for his arrest, unconnected with the drugs. He argued that Dixon was merely a passenger, who did not know there were drugs in the car. The attorney also contended that if his client knew there were drugs in the car, he would not have gone to the impound lot to retrieve his jacket. Morris's attorney argued that the State did not prove that Morris was in the car, but even if he was, there was no proof that he knew the drugs were in the car.
III.
On this appeal, both defendants argue that the judge erred in instructing the jury on the concept of possession. The issue was not raised at the trial, and we therefore apply the plain error rule. R. 1:7-2; R. 2:10-2; State v. Chew, 150 N.J. 30, 82 (1997). Plain error constitutes a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to . . . convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Singleton, 211 N.J. 157, 182-83 (2012) (citations omitted). Not every misstatement of law during a jury charge warrants reversal, and we will read the charge as a whole to determine any prejudicial effect. State v. Concepcion, 111 N.J. 373, 379 (1988). Having read the challenged language in the context of the entire charge, we find no plain error.
In charging the jury on the concepts of actual, constructive, and joint possession, the judge repeatedly and correctly instructed them that to prove possession of drugs, the State must prove that "defendants acted knowingly or purposely." At one point in the charge, when she was explaining the concept of joint possession, the judge gave an example by referring to the ability of herself and the court clerk to use a pen:
An example which was given during one of the summations wherein there was a pen. Here's the pen. It's in my hand. I have sole possession. I know what it is. It's a pen. I know how to use it. When I put the pen over here and the stenographer is sitting here, she knows -- she becomes aware [that] the pen is there. I know the pen is there. We can both use the pen. It's called joint possession.
We can also consider that pen where it is presently to be in constructive possession of both of us because, again, we both know what the nature of the item is. It's a pen. We both can have control and dominion over it at any given point in time, and we can use it. Constructive Possession.
The example from the prosecutor's summation was as follows:
If I give this pen to the law clerk, we could be in joint possession of that pen. It's still my pen. I can come back and take it from him. He used it. He knows it's a pen. If we put it here after I said he can use it, we are in joint constructive possession of that pen.
The purpose of the example was to explain to the jury the concepts of "joint" or "constructive" possession. While, in that brief example, the judge did not specifically explain that defendants each had to act knowingly or purposefully, viewing the language in context we do not find that the example would have confused the jury into believing that the State could prove joint or constructive possession without also proving that defendants acted purposefully or knowingly.
In the instructions that preceded and followed the example, the judge made it abundantly clear that the State had to prove that defendants acted purposefully or knowingly. In fact, immediately before giving the example about the pen, the trial judge had correctly read the Model Jury Charge on Constructive Possession. That charge provides:
Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it. So, someone who has knowledge of the character of an item and knowingly has both the power and intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.The trial court also repeated that the State was required to prove "defendants acted knowingly or purposely in possessing or obtaining [the heroin] in evidence," five more times throughout the charge, when instructing the jury on the possession and possession with intent to distribute counts.
[Model Jury Charge (Criminal), "Possession" (2005).]
It is clear from a reading of the trial court's instructions in their entirety that all of the essential elements of the crime of possession were explained to the jury. A reasonable jury would have understood that the State was required to prove knowledge and control as essential elements of constructive possession. "Reversible error will not be found where the charge, considered as a whole adequately conveys the law and would not confuse or mislead the jury . . . ."
[State v. Brown, 80 N.J. 587, 600 (1979) (citations omitted).]
There were no objections to the charge. We infer that no objections were raised because, considering her comments in context, defense counsel perceived nothing incorrect or prejudicial in the language the judge used. Singleton, supra, 211 N.J. at 182; State v. Macon, 57 N.J. 325, 333-34 (1971). Further, before sending the jurors to deliberate, the judge gave them a copy of the various model charges concerning possession. The jurors quickly noted that a portion of the constructive possession charge was "cut off" on the copy they were given, and they asked for a complete copy. Hence, we conclude that they read the model charges, which correctly instructed them as to the State's burden to prove knowing or purposeful conduct.
Defendants' additional arguments on this point are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
IV.
We find no merit in Dixon's argument that he was entitled to a judgment of acquittal. We review the denial of a motion for judgment of acquittal using the same standard as the trial judge. State v. Bunch, 180 N.J. 534, 548-49 (2004). The court must determine whether the evidence presented at trial is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458 (1967). The standard for a directed verdict of acquittal at the close of the State's evidence is whether
viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[Id. at 459.]
Applying that standard, we find there was sufficient evidence on which reasonable jurors could conclude that Dixon knowingly or purposefully possessed the heroin. Dixon was sitting right next to the heroin, which was in plain sight. The top package was ripped, with the glassine baggies of heroin showing through the opening. See State v. Scott, 398 N.J. Super. 142, 151 (App. Div. 2006), aff'd o.b. 193 N.J. 227 (2008). Dixon's flight from the car a few minutes later, despite Lugo's direction to stop and get back inside the vehicle, was also evidence from which the jury could infer his consciousness of guilt. State v. Ingram, 196 N.J. 23, 46 (2008).
V.
Next we address defendants' arguments concerning Lugo's identification of each of them. In his Point III, Dixon contends that Lugo's identification of him when he was brought to the police station was unduly suggestive and unreliable. Dixon arguably waived this issue, because he did not file a motion for a Wade hearing. However, we will consider his argument because he participated in the Wade hearing. While the judge's opinion did not specifically reject a Wade motion relating to Dixon, perhaps because he did not file such a motion, her findings relating to Morris's Wade motion are fully applicable to Dixon as well. We agree with her reasoning, and we likewise reject Dixon's arguments, substantially for the reasons stated in the trial judge's May 9, 2011 opinion. We add the following comments.
Lugo was a trained police officer, and he identified Dixon less than two hours after clearly observing him at the crime scene. See Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S. Ct. 2243, 2253-54, 53 L. Ed. 2d 140, 154-55 (1977); State v. Micelli, 215 N.J. 284, 292 (2013); State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997). Defense counsel cross-examined Lugo about factors that might have affected the reliability of his identification of Dixon. We find no basis to disturb the trial judge's finding that Lugo was credible, and her factual findings are equally applicable to both defendants. See State v. Elders, 192 N.J. 224, 243 (2007) (In reviewing the decision of a suppression motion, we defer to the trial judge's credibility determinations, and her factual findings that are supported by sufficient credible evidence.). The judge's factual findings amply support a conclusion that Lugo's identification of Dixon was reliable. Finally, in his summation, Dixon's attorney conceded that Dixon was a passenger in the car.
Morris argues that the police should have printed and preserved a hard copy of the computerized photo Lugo used to identify him. He contends that the identification was unduly suggestive, and the failure to preserve the photograph warranted suppression of the identification. In the alternative, he argues that the trial court should have given the jury a negative inference charge, although none was requested.
We agree with defendant that the police should have printed and retained a copy of the photograph that Lugo identified. See State v. Delgado, 188 N.J. 48, 59 (2006); State v. Earle, 60 N.J. 550, 552 (1972). However, there is no evidence that the failure to do so was purposeful, as opposed to an oversight, and suppression was not warranted. See State v. Joseph, 426 N.J. Super. 204, 223-24 (App. Div.), certif. denied, 212 N.J. 462 (2012). This case is unlike State v. Peterkin, 226 N.J. Super. 25 (App. Div.), certif. denied, 114 N.J. 295 (1988), where a law enforcement officer not only failed to preserve the photo arrays but concealed the error and fabricated new arrays. Id. at 36.
Further, Lugo not only identified the photo but was able to identify Morris in person at the Wade hearing and at the trial. After the Wade hearing, the judge found that Lugo's identification of Morris was not the result of an unduly suggestive process and was reliable, conclusions "'entitled to very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). At the trial, Lugo was extensively cross-examined on the identification, and the jury had the opportunity to determine whether his in-court identification was reliable and credible. See Joseph, supra, 426 N.J. Super. at 220; Peterkin, supra, 226 N.J. Super. at 45.
Lastly, on this record, we find no plain error in the failure to sua sponte give the jury an instruction that they could draw an adverse inference against the State based on the failure to preserve the photo. See R. 2:10-2; State v. Macon, supra, 57 N.J. at 329-30.
VI.
Dixon's Points IV and V are likewise without merit. His arguments concerning the motion to suppress the heroin require little discussion. R. 2:11-3(e)(2). The trial judge's factual findings are supported by sufficient credible evidence, and in light of those findings her legal conclusions are unassailable. See Elders, supra, 192 N.J. at 243. We affirm for the reasons stated in the trial judge's written opinion. We add only that Morris took the car without permission, and he and his companions abandoned the car and the heroin. They, therefore, had no reasonable expectation of privacy with respect to the abandoned car and drugs. See State v. Carroll, 386 N.J. Super. 160-61 (App. Div. 2006). Lugo was entitled to look into the open car door, where he spotted the heroin in plain view and lawfully seized it. See State v. Johnson, 171 N.J. 192, 206-07 (2002).
We find no abuse of discretion or other error in the sentence imposed. State v. Bieniek, 200 N.J. 601, 608 (2010). The judge found that defendant had "for the majority of his life, been involved . . . with the criminal justice system," as evidenced by his prior criminal record. The judge appropriately weighed the aggravating factors and found no mitigating factors. She displayed leniency in only imposing a mandatory extended term on the third-degree possession with intent to distribute conviction, and did not impose a discretionary extended term on the conviction for second-degree possession with intent to distribute near a public housing facility. See N.J.S.A. 2C:43-6(f); N.J.S.A. 2C:43-7(c). The nine-year sentence was not shocking to the conscience or otherwise excessive. State v. Roth, 95 N.J. 334, 363-64 (1984).
VII.
Finally, we address Morris's argument that the trial court should have held an evidentiary hearing on his motion for a new trial. The issue arose in this context. The jury returned the guilty verdicts on July 1, 2011. On September 2, 2011, Morris filed a motion for a new trial, based on an affidavit from Dixon, dated July 28, 2011. In the affidavit, which we quote in full, Dixon attempted to take sole responsibility for the heroin:
I, Vincent Dixon, of full age, being duly sworn upon my oath do hereby appear and say:
On the day of April 16, 2010, I Vincent Dixon had a dangerous substance also known as heroin, in my possession while [I] was with Eugene Morris.
I Vincent Dixon did not notify Eugene Morris of the CDS [I] was carrying.
Therefore there is no way possible that Eugene Morris had known that [I] Vincent Dixon had Heroin, known to the law as CDS in my possession on the Day of April 16, 2010.
The letters we show here as [I] were lower case in the original.
Morris also relied on the transcript of a September 24, 2010 status conference, in which Dixon's counsel told the judge that Dixon was considering taking a plea offer that would call for him to serve five years with two years of parole ineligibility, and would permit him to exculpate Morris. The prosecutor was present and did not disagree with that representation. However, at the next conference, on September 29, 2010, the potential deal had fallen through. The attorneys disagreed as to whether Dixon had rejected the deal and asked for five years with an eighteen month parole bar, or whether the State had simply withdrawn the offer. The prosecutor also denied that the deal included exculpating Morris. The judge declined to become involved in the dispute, and set a trial date.
After hearing oral argument on October 31, 2011, the trial judge denied the new trial motion. Applying State v. Ways, 180 N.J. 171, 189 (2004), the judge found that Dixon's affidavit was material "because it goes to the issue that the defendant is alleging he is not guilty of the offense to which he has been found guilty." The judge found, however, that the evidence was not newly discovered, since there was ample time for defendant Dixon to exculpate defendant Morris, before or during the trial, and Morris was aware prior to the trial that Dixon was willing to exonerate him. Lastly, the court found that the evidence would likely not make a difference to the jury's verdict, because it was provided by a criminal defendant who was already convicted of the offense and awaiting sentencing.
"It goes without saying that a motion for new trial is within the sound discretion of the trial judge which we do not lightly disturb." State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997). A defendant seeking a new trial based on newly discovered evidence must satisfy all three prongs of the following test:
[D]efendant 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."The Court has cautioned that
[Ways, supra, 180 N.J. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
[a] jury verdict rendered after a fair trial should not be disturbed except for theIn evaluating the evidence, the court should focus on its probable impact on the outcome of a new trial. "[T]he reviewing court must engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury. The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence." Id. at 191-92; see State v. Nash, 212 N.J. 518, 550-51 (2013). The "belated introduction of evidence" may detract from its credibility. Ways, supra, 180 N.J. at 192.
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.
[Id. at 187-88.]
Morris argues that Dixon's testimony would be exculpatory, and it was effectively unavailable to his counsel during trial because Dixon could not be forced to testify and, presumably, was unwilling to testify until his own trial was over. Morris argues that this principle was accepted in United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997). That is correct, but the case also recognizes the inherently suspect nature of co-defendant testimony provided only after the co-defendant has been convicted:
It is not unusual for the obviously guilty codefendant to try to assume the entire guilt. United States v. Alejandro, 527 F.2d 423, 428 (5th Cir. 1976). A convicted, sentenced codefendant has little to lose (and perhaps something to gain) by such testimony. United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996). "Such testimony [by sentenced codefendants] would be untrustworthy and should not be encouraged."Further, contrary to Morris's contention, the court did not hold that a trial court must always, or even ordinarily, conduct a testimonial hearing to evaluate testimony from a convicted co-defendant. "There is no suggestion that such hearings are required in the usual course; they are not." Id. at 1067. Defendant also relies on State v. Robinson, 253 N.J. Super. 346 (App. Div.), certif. denied, 130 N.J. 6 (1992), in which the court observed:
[Ibid. (additional citation omitted).]
[E]ven though credibility determinations are generally for the fact-finder, a mere exculpatory statement of a co-defendant cannot by itself give rise to a new trial if that statement is clearly false or merely designed to give an accomplice a second chance for acquittal. While the motion judge upon receipt of a statement from a co-defendant jointly tried with the moving party should almost always grant an evidentiary hearing and treat the
application most seriously, here the trial judge conducted such a hearing . . . .
[Id. at 366-67.]
However, on this record we find no error in the trial judge's failure to hold an evidentiary hearing when none was requested. Putting aside the question of whether Dixon's information was "discoverable" earlier, we agree with the trial judge that it was highly suspect and, if introduced at a new trial, would be unlikely to be persuasive. Not only did Dixon have nothing to lose once convicted, but his affidavit is notably circumspect. In the affidavit, Dixon did not deny that Morris was driving the car. Nor did he explain why Morris failed to stop when Lugo directed him to pull over, or why Morris abandoned the vehicle and fled, if he had no idea there was heroin in the car. The fact that, prior to trial, Dixon was willing to exculpate Morris lends no credibility to his later statement. Dixon was highly likely to be convicted, since he was the passenger sitting right next to an opened package of heroin in plain view. The fact that Dixon was willing to exculpate Morris, but only if he got the lenient plea offer that he wanted, would be more likely to dissuade than persuade a jury that his exculpatory testimony was truthful. We find no abuse of the trial judge's discretion in denying the new trial motion.
Dixon's affidavit did not exclude the possibility that the third suspect in the car told Morris about the heroin.
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Morris also contends that he should have an opportunity to demonstrate that his trial attorney was ineffective in failing to move for a severance, based on Dixon's possible willingness to testify at Morris's separate trial. The record contains no evidence on that issue. We conclude that Morris's argument must be raised on a petition for post-conviction relief (PCR). See State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We affirm Morris's conviction without prejudice to his right to file a petition for PCR.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION