State of New Jersey v. Lionell G. Miller ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0065-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LIONELL G. MILLER,
Defendant-Appellant.
_______________________
Submitted February 12, 2024 – Decided July 15, 2024
Before Judges DeAlmeida, Berdote Byrne, and Bishop-
Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 95-01-0128.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Susan L. Romeo, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Lionell G. Miller appeals from the June 30, 2021 order denying
his motion for a new trial based on newly discovered evidence. We reject his
argument and for the reasons set forth below, we affirm.
I.
In January 1995, a Passaic County grand jury returned an indictment,
charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (a)(2), and
N.J.S.A. 2C:2-6 (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3)
and N.J.S.A. 2C:2-6 (count two); three counts of first-degree robbery, N.J.S.A.
2C:15-1(a)(1) and/or N.J.S.A. 2C:15-1(a)(2) and N.J.S.A. 2C:2-6 (counts three,
six, and nine); eight counts of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6 (counts four, five,
seven, eight, ten, eleven, fourteen, and fifteen); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:2-6 (count twelve); third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) and N.J.S.A. 2C:2-6 (count
thirteen); two counts of third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-59(b), N.J.S.A. 2C:39-5(c)(1) and N.J.S.A. 2C:2-6 (counts sixteen and
seventeen); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d)
and N.J.S.A. 2C:2-6 (count eighteen), and tampering with a witness, N.J.S.A.
2C:28-5(a)(2) (count nineteen). Codefendants Lamont Townes and Jerry
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Clyburn were also charged in counts one through eighteen, and Townes was
separately charged with certain persons not to have weapons, N.J.S.A. 2C:39 -
7(b) (count twenty).
Defendant was tried separately and convicted of felony murder, first-
degree robbery, second-degree aggravated assault, and related weapons
offenses. On the felony murder conviction, defendant was sentenced to life in
prison with a thirty-year parole ineligibility period as prescribed by the No Early
Release Act, N.J.S.A. 2C:43-7.2, which merged with the first-degree robbery
and second-degree possession of a weapon for an unlawful purpose conviction.
The convictions for second-degree aggravated assault and the second-degree
possession of a weapon for an unlawful purpose were merged, and defendant
was sentenced to ten years in prison with a five-year parole ineligibility period
to run concurrent with his life sentence. As to the third-degree unlawful
possession of a weapon conviction, defendant was sentenced to five years in
prison with a two-year parole ineligibility period to run concurrent with his life
sentence.
The facts underlying defendant's conviction are set forth in our previous
opinions and need not be repeated here. We affirmed defendant's conviction and
sentence. State v. Miller, No. A-4184-96 (App. Div. Apr. 7, 1999), certif.
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denied, 161 N.J. 331 (1999). We affirmed the denial of defendant's first petition
for post-conviction relief (PCR). State v. Miller, No. A-0399-01 (App. Div.
Feb. 20, 2003). Defendant filed an amended PCR petition, which was also
denied. State v. Miller, No. A-5890-05 (App. Div. Dec. 28, 2007).
Nine years later, in April 2016, defendant filed a self-represented motion
for a new trial based on newly discovered evidence. Defendant re-filed the
motion in February 2019, and it was fully briefed by January 2020.
Oral argument was held after numerous adjournments. After oral
argument on June 30, 2021, in an oral opinion, the trial court denied defendant's
motion for a new trial. Citing State v. Carter, 85 N.J. 300 (1981), the court
found defendant failed to satisfy the three-prong test for a new trial. The court
analyzed and considered defendant's proofs: an October 2019 handwritten letter
from Otis Clyburn stating that his June 2013 notarized affidavit recanting his
October 1994 statement to a Paterson detective was false; (2) a July 2009
handwritten letter from Sabrina Simmons recanting her 1994 statement claiming
defendant did not confess to her, Eugene Clyburn gave a statement to police
based on his perception of the events and conversations with defendant, and she
signed the statement after speaking with detectives; and (3) an affidavit signed
in July 2009 by Miguel Vega that restated he witnessed the shooting in October
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1994 but clarified he was unable to identify the driver's gender and the second
shooter.
The court reasoned that Clyburn's and Simmons's "unsworn letter[s]" were
produced nearly thirteen years after the trial, which "add[ed] to their lack of
veracity." The court also found that neither document "exculpated defendant"
nor "casted doubt" on their trial testimony. Moreover, the court concluded
defendant did not show the three statements would have changed the jury's
verdict. Finally, Vega's affidavit was considered and rejected in defendant's
PCR petition. This appeal ensured.
II.
We review a motion for a new trial decision for an abuse of discretion.
State v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020). Questions of law
are reviewed de novo. Ibid. (citing State v. Miles, 229 N.J. 83, 90 (2017)).
"[T]o qualify as newly discovered evidence entitling a party to a new trial,
the new evidence must be (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." Fortin, 464 N.J. Super. at
216 (citing Carter, 85 N.J. at 314). "All three [prongs of the] test[ ] must be met
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before the evidence can be said to justify a new trial." Ibid. (citing Carter, 85
N.J. at 314) (alterations in original). "The defendant has the burden to establish
each prong is met." Ibid. (citing State v. Smith, 29 N.J. 561, 573 (1959)).
Defendant argues the trial court abused its discretion in denying the
motion for a new trial without an evidentiary hearing. He further argues the
court failed to apply the appropriate legal principles and failed to consider the
new evidence in the light most favorable to defendant. Lastly, he posits the
court did not provide a substantive basis for its reasoning in denying defendant's
application. We reject defendant's contentions.
Defendant incorrectly relies on Rule 3:22-10(b) governing petitions for
post-conviction relief. In that regard, we focus on the second prong of the Carter
test that recognizes "judgments must be accorded a degree of finality and,
therefore, requires that the new evidence must have been discovered after
completion of trial and must not have been discoverable earlier through the
exercise of reasonable diligence." State v. Ways, 180 N.J. 171, 192 (2004)
(citing Carter, 85 N.J. at 314). This prong encourages defendants and attorneys
"to act with reasonable dispatch in searching for evidence before the start of the
trial." Ibid.A-0065-21
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After applying the second prong of Carter to defendant's claims, we are
not persuaded that the three statements constitute "new" evidence to satisfy the
requisite criteria. The State offered the testimony of Clyburn and Simmons at
trial. Both witnesses were subject to cross-examination at trial by defense
counsel concerning defendant's statements and actions after the shooting.
Furthermore, Vega's identity was known to both the State and defendant at the
time of trial and was addressed and considered in defendant's PCR petition.
In other words, defendant's contentions are unconvincing and undermine
his theory that the affidavits present new information unknown at the time of
trial. Defendant's premise is further weakened by the significant passage of
time, as stated by the motion judge. We also add that Vega could have been
called as a witness at trial, and defense counsel's failure to do so was previously
rejected as grounds for PCR by this court.
As previously noted, all three prongs must be satisfied. Ways, 180 N.J. at
187. We, therefore, need not address the materiality of this evidence or its
probability of changing the jury's verdict.
Defendant's remaining arguments regarding the motion judge's denial of
his request for an adjournment of the motion and the alleged technical
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difficulties during the Zoom hearing lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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