STATE OF NEW JERSEY VS. WILBERT HANNAH (93-08-1826, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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 internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3515-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILBERT HANNAH, a/k/a RABE,
Defendant-Appellant.
_____________________________
Submitted March 9, 2017 – Decided May 12, 2017
Before Judges Hoffman, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
93-08-1826.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the briefs).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Eric P. Knowles,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant appeals from an August 27, 2014 order denying his
petition for post-conviction relief (PCR) following an evidentiary
hearing. We affirm in part, and remand in part.
We have outlined the relevant facts in our prior opinion
affirming defendant's conviction on direct appeal. State v.
Hannah, No. A-5022-94 (App. Div. Dec. 11, 1997), certif. denied,
153 N.J. 217 (1998). We need not repeat them here.
Defendant's first petition for post-conviction relief was
denied by the trial court, but we remanded for an evidentiary
hearing. State v. Hannah, No. A-6424-99 (App. Div. Jan. 31, 2002).
After the evidentiary hearing, the trial court denied defendant's
first petition for PCR, and we affirmed. State v. Hannah, No. A-
6379-01 (App. Div. Nov. 7, 2003). The Court denied certification.
State v. Hannah, 178 N.J. 453 (2004).
Defendant then brought a second petition, this time arguing
he was entitled to a new trial because the State withheld evidence,
specifically a report by Investigator Charles Lee Redd
(hereinafter Redd Report), which discussed a pager found at the
crime scene. Defendant's petition was denied. We remanded the
matter for an evidentiary hearing for the court to determine
"whether a Brady[1] violation occurred and the pager [was] newly
discovered evidence." State v. Hannah, No. A-3788-07 (App. Div.
June 19, 2009). The PCR judge conducted an evidentiary hearing
and denied defendant's petition; however, defendant argued the
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
213 (1963).
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judge should have recused himself due to a conflict. We reversed
the denial of defendant's petition and remanded the matter for a
hearing before a different judge. State v. Hannah, No. A-5099-09
(App. Div. July 16, 2012).
The matter was ultimately heard by a different judge, and
following a three-day evidentiary hearing, that judge denied
defendant's petition on August 27, 2014. This appeal followed.
On appeal defendant argues,
POINT I: THE TRIAL COURT ERRED IN NOT FINDING
A BRADY VIOLATION BECAUSE THE STATE VIOLATED
THE REQUIREMENTS OF R. 3:13-3(B)(1) AND DUE
PROCESS WHEN IT FAILED TO PROVIDE THE DEFENSE
WITH THE REDD REPORT.
1. The Redd Report Was Not Provided In
Discovery.
2. The Redd Report Was Exculpatory.
3. The Redd Report Was Material.
POINT II: IF THE STATE DID PROVIDE THE REPORT
OF DETECTIVE REDD TO THE DEFENSE, THEN DEFENSE
COUNSEL WAS CLEARLY INEFFECTIVE IN FAILING TO
UTILIZE IT TO ADMIT THE TESTIMONY OF MARY
JONES AT TRIAL AND TO REBUT THE CLOSING
ARGUMENT OF THE PROSECUTOR.
POINT III: THE TRIAL COURT FAILED TO FOLLOW
THE INITIAL REMAND INSTRUCTIONS ISSUED BY THE
APPELLATE DIVISION AND ADDRESS WHETHER THE
PAGER WAS NEWLY DISCOVERED MATERIAL.
We have considered these arguments in light of the record and
the applicable legal standards and conclude defendant's first two
arguments are without sufficient merit to warrant discussion in a
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written opinion. See R. 2:11-3(e)(2). As to these arguments, we
affirm substantially for the reasons expressed in the judge's
written opinion. As to defendant's third argument, we remand for
an evidentiary hearing to address whether the pager is newly
discovered evidence pursuant to our initial remand instructions.
Newly discovered evidence warrants a new trial if it "places
in doubt the integrity of [the] conviction." State v. Ways, 180
N.J. 171, 187 (2004). To meet this standard, the newly discovered
evidence must meet the following three prongs: (1) it must be
"material, and not 'merely' cumulative, impeaching, or
contradictory;" (2) it must have been discovered after the trial
and "not discoverable by reasonable diligence beforehand;" and (3)
it must be evidence that "would probably change the jury's verdict
if a new trial were granted." Ibid. (quoting State v. Carter, 85
N.J. 300, 314 (1981)). If any of these elements are missing, the
motion must be denied. State v. Allen, 398 N.J. Super. 247, 258
(App. Div. 2008).
In our 2009 opinion, we reversed and remanded defendant's PCR
petition and ordered the court to conduct an evidentiary hearing
as to whether a Brady violation occurred and if the pager was
newly discovered evidence. After a hearing on this issue, the
first PCR judge found the Redd Report did not confirm there was
an additional pager found at the crime scene despite defendant's
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arguments to the contrary. However, that judge's order was
reversed and remanded to a different judge.
The second judge presided over an evidentiary hearing
following the remand. PCR counsel argued there were two pagers.
The first was found at the scene of the crime and listed on the
Redd Report. The second, he argues, was found after the police
discovered a piece of paper containing a pager number. PCR counsel
argued the police called that number, and therefore, the pager
belonging to that number was a second pager. The second pager,
defendant argues, is the newly discovered evidence. In defendant's
opinion, the second judge determined the Redd Report was not newly
discovered evidence, but did not address whether the pager was
newly discovered evidence. We agree. As such, although we affirm
the PCR judge's determination there were no Brady violations, we
are constrained to remand solely to address whether the pager was
newly discovered evidence.
Remanded for further findings consistent with this opinion.
We do not retain jurisdiction.
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