Opinion
DOCKET NO. A-3081-12T2
11-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN D. STOKES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 91-08-3859. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin D. Stokes appeals from the order of the trial court denying his motion for a new trial based on newly discovered evidence as provided for under Rule 3:20-2. We
On February 18, 1992, defendant was tried before a jury on the charges of murder, N.J.S.A. 2C:11-3, two counts of second degree aggravated assault, N.J.S.A. 2C:12-1b, second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and third degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b. On February 28, 1992, the jury returned a verdict finding defendant guilty of all charges. On March 13, 1992, the trial judge sentenced defendant to an aggregate term of thirty years.
We affirmed defendant's conviction and sentence on direct appeal. State v. Stokes, No. A-5220-91 (App. Div. Jan. 17, 1995) (slip op. at 2); the Supreme Court denied defendant's petition for certification. State v. Stokes, 142 N.J. 456 (1995). Nearly eighteen years after the jury's guilty verdict, defendant, represented by a staff attorney from the Public Defender's Office, filed a motion for a new trial in the Law Division, Criminal Part, based on newly discovered evidence under Rule 3:20-2, and alleging that the State withheld material exculpatory evidence at the time he was tried in 1992, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Defendant originally filed his motion in the Superior Court for the Essex County vicinage. The Assignment Judge of Essex County transferred venue of the motion to Hudson County because "the original trial prosecutor . . . whose conduct [is] the subject of the motion, is now a Superior Court Judge in the Essex County Vicinage . . . ."
Defendant's motion for a new trial was heard and decided by Judge Patrick J. Arre. After considering the arguments presented by counsel and evaluating the credibility of the recantation testimony of one of the eyewitnesses who was also a victim, Judge Arre denied defendant's motion. Judge Arre explained the reasons for his decision in a memorandum of opinion dated December 21, 2012.
Defendant now appeals raising the following argument:
POINT I
THE TRIAL COURT ERRED IN NOT GRANTING PETITIONER'S MOTION FOR A NEW TRIAL BECAUSE KELLY FRANKLIN'S TESTIMONY WAS CRUCIAL TO THE STATE'S CASE AND PRESENTATION OF KELLY FRANKLIN'S RECANTATION TO THE JURY WOULD HAVE PRODUCED A DIFFERENT VERDICT.
We note that defendant is not appealing from the part of the trial court's decision that rejected his claim that at the time he was tried in 1992 the State violated its obligations under Brady to turnover to defense counsel all material exculpatory evidence.
We affirm substantially for the reasons expressed by Judge Arre in his memorandum of opinion, and defer to the credibility determinations he made of the recantation testimony. We are satisfied Judge Arre's credibility determinations are supported by the record developed at the evidentiary hearing.
In lieu of restating at length the evidence presented by the State at the trial that led to defendant's conviction, we will briefly summarize the salient facts we originally recited in our unpublished opinion affirming defendant's conviction. Stokes, supra, No. A-5220-91, slip op. at 2. Distilled to its essence, the incident that triggered the chain of events that led to defendant's conviction occurred sometime after midnight on July 2, 1991. At that time, defendant came upon the scene of a crowd, consisting of approximately twenty to thirty people, which had gathered at the intersection of Martin Luther King Boulevard and Spruce Street in the City of Newark, to witness four individuals who were engaged in two separate physical altercations or "fistfights." Ibid.
Lorenzo Johnson and his brother James were among the crowd of "onlookers." The Johnson brothers were also cousins of one of the combatants. Ibid. "Witnesses testified defendant came upon the scene, pulled a gun and started shooting. Lorenzo Johnson was fatally wounded. James Johnson and Kelly Franklin [who was one of the individuals involved in the altercations] were both shot and Franklin was left with partial paralysis in his left hand." Ibid.
At trial, three witnesses identified defendant as the shooter. Jerome Johnson testified that he saw defendant approach the fight and "pull[] a pistol out of his pocket and just start[] firing into the crowd." Sharonda Cunningham testified she saw defendant come up from Spruce Street, reach behind his back, pull out a gun, and shoot. Finally, Kelly Franklin, whose recantation is at issue in this appeal, met with law enforcement investigators after he was released from the hospital and identified defendant as the man who shot him.
The attorney assigned to represent defendant in the motion for a new trial submitted a certification claiming that defendant's "appellate counsel" had advised him that Kelly Franklin, "a critical identification witness," had recanted. Counsel attached the following affidavit from Kelly Franklin in support of defendant's motion for a new trial.
While hospitalized for two weeks, I told the police I did not know who the shooter was because it happened so fast that I honestly did not get a chance to look at him (or her).
After being released from the hospital, I heard rumors that the shooter was Kevin Stokes, a.k.a. Hashim.
The police showed me a line-up containing a photograph of Kevin Stokes, who I already knew from the neighborhood. The police told me Kevin Stokes shot me and the Johnson Brothers and the police told me to pick out the photograph of Kevin Stokes.
At the time of the incident, I was a juvenile and I had my own pending charges. The police told me if I picked out Kevin
Stokes in the line-up, my charges would be dismissed, so I picked out his photograph.
After I did not hear from prosecutor [sic] in my own case, I went to kevin [sic] Stokes attorney's office to give a statement. I was told by a woman that they could not take a statement from me because I was a juvenile and needed to be accompanied by an adult.
The prosecutor told me outside the courtroom that he would give me probation for my charges and not a dismissal as the police promised but, I would have to testify against Kevin Stokes at his trial and I did just that.
My testimony against Kevin Stokes was false in order to get probation. If I am called to testify in court, I will testify truthfully how I was told to identify Kevin Stokes as the shooter by the police and testify falsely at his trial.
I am making this affidavit of my own free will to set the record straight and to clear my conscience.
Franklin's affidavit was signed and "subscribed" before a notary public on January 4, 2008. In his 2010 certification, motion counsel indicated he was not able to obtain defendant's file from defendant's trial counsel, Steven M. Olitsky. Motion counsel certified that Olitsky "is no longer listed as an attorney in the State of New Jersey." Defendant called Franklin as his only witness at the evidentiary hearing conducted by Judge Arre in August 2012. Franklin testified consistent with the statements he made in his 2008 affidavit. He agreed to hearing gunshots while engaged with the person he was fighting, but did not know who fired the shots or even the number of people who may have fired.
Our own research confirmed that the Supreme Court suspended Steven M. Olitsky from the practice of law by order dated May 16, 1997. This suspension continued until October 3, 2002, when the Court, by final order, disbarred and permanently restrained and enjoined Olitsky from practicing law in this State. In Re Olitsky, 174 N.J. 352 (2002).
--------
Franklin was hospitalized for approximately sixteen days after the shooting. Sharonda Cunningham, one of the witnesses who identified defendant as the shooter at trial, was Franklin's "ex-girlfriend at the time." She came to see him at the hospital "almost everyday." During these visits, she discussed or mentioned defendant by his street name "Hashim" three or four times. Franklin testified at the motion hearing that Cunningham told him that "the word on the street" was that defendant had shot him.
Franklin also claimed that a young woman named "Cora" (who was a friend of his former girlfriend) also visited him at the hospital "twice, that was it." Cora repeated or corroborated what Cunningham had told him about defendant being the shooter.
Franklin was fifteen years old in 1992. By his own admission, he was convicted in 2004 "for second degree reckless manslaughter and conspiracy to violate the narcotics law." When asked by defendant's counsel why he was coming forward with this information at this time, Franklin answered
because I've had time to think about the situation while I was in jail. This incident occurred 20-something years ago and I was responsible for someone going to prison for testimony I made. I wanted to clear my conscience from the wrong that I did back then and make right now, and make peace within myself and my God.
Judge Arre carefully reviewed Franklin's testimony at the motion hearing and compared it with the testimony he gave at trial eighteen years earlier. After articulating the relevant standard governing a motion for new trial under Rule 3:20-2, Judge Arre found Franklin's 2012 recantation testimony not credible and replete with "factual inconsistencies surrounding the shooting, which are not supported by Franklin's prior testimony or other evidence."
It is well-settled that recantation testimony should be scrutinized with a high degree of skepticism because such testimony is highly unreliable due to intimidation and duress. State v. Hogan, 144 N.J. 216, 239 (1996). We are bound to uphold the credibility findings made by a trial judge of testimony presented in an evidentiary hearing provided "those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (internal citation omitted). In particular, we defer to the credibility findings that are principally based on the trial judge's opportunity to observe "the character and demeanor of the witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
We discern no legal basis to disturb Judge Arre's analysis or ultimate conclusion rejecting the reliability and veracity of Franklin's recantation testimony.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION