STATE OF NEW JERSEY VS. JERMAINE VAUGHN (96-12-1402, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1497-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE VAUGHN,
Defendant-Appellant.
___________________________
Submitted May 1, 2018 – Decided July 30, 2018
Before Judges Hoffman and Mitterhoff.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
96-12-1402.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven E. Braun, Designated
Counsel, on the briefs).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Narline Casimir,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Appellant Jermaine Vaughn appeals from the denial of his
second petition for post-conviction relief (PCR) and motion for a
new trial. We affirm.
On August 27, 1996, a Mercer County grand jury returned
Indictment No. 96-12-1402 charging defendant Jermaine Vaughn with
first-degree felony murder in violation of N.J.S.A 2C:11-3a(3)
(count one); first-degree robbery in violation of N.J.S.A. 2C:15-
1 (count two);1 first-degree robbery in violation of N.J.S.A. 2C:2-
6 and N.J.S.A. 2C:15-1 (count three); and two counts of second-
degree possession of a weapon for an unlawful purpose in violation
of 2C:39-4(a) (counts four and five). After a four-day trial
concluding on March 23, 1999, the jury convicted defendant of all
counts of the indictment. Defendant was sentenced to a term of
life imprisonment with a thirty-year minimum period of parole
ineligibility to be served consecutively to a sentence imposed in
a previous, unrelated indictment.
The conviction arises from a chance encounter between Adrian
Davis, defendant and co-defendant Jeremiah Bass during the evening
of June 5, 1995. After driving around Trenton, stopping at his
home to obtain a black hooded jacket and a green hooded sweatshirt,
and consuming a forty-ounce bottle of malt liquor, defendant and
1
The trial court granted defendant's motion to dismiss count two
of the indictment.
2 A-1497-16T1
co-defendant decided they needed money to get into parties. Both
men were armed. As they walked down a street, defendant had his
revolver in his hand and noticed the victim walking towards him.
The man walked right up to defendant and co-defendant. After a
momentary struggle, defendant's gun discharged, the man fell to
the ground, and defendant and co-defendant walked away. The victim
was pronounced dead at the hospital. A woman observed the entire
encounter from the front window of her home. When she called the
police, she informed the dispatcher that the men had entered Marion
Street on foot.
Soon after, police observed two men on Marion Street fleeing
the area on foot. After a foot pursuit, during which police
observed co-defendant discard his gun and ammunition, the co-
defendant was detained and arrested. Although police located a
small chrome revolver and a spent .32 caliber shell casing in the
pocket of a black jacket in an empty lot, defendant was not
arrested until June 9, 1995, when police located him in the
hospital recovering from a wound received in another unrelated
incident on June 6, 1995. When released from the hospital, police
arrested defendant on a warrant issued in connection with the June
6, 1995 incident. At the police station, police advised defendant
why he was in custody, and a detective administered his Miranda
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rights.2 Defendant waived his rights, and approximately two hours
later provided a formal statement in which he admitted shooting
the victim. Defendant explained the incident as follows: "As we
got closer to the [victim] he saw my gun, and then he got up on
me real quick, grabbed my jacket and pulled me towards him, and
[that is] when the gun went off."
At defendant's 1999 trial, Detective Robert Sheehan of the
Homicide unit testified that after being conveyed to the Trenton
Police Department, defendant was placed in an interview room and
advised that he was there for an investigation. Sheehan testified
that defendant appeared coherent and clear-minded and stated he
appeared to be "a very intelligent young man." The detective
testified that he advised defendant of his Miranda rights, reviewed
the waiver of rights form with him, and ensured that defendant
understood his rights. Defendant subsequently waived his rights
by affixing his signature on the signature line without asking
Sheehan for any clarification. Detective Sheehan testified that
after defendant's waiver, he was uncooperative and unwilling to
speak, and made such statements as: "I'm not going to tell you
anything;" "there's nothing you can do to me;" and "you don't have
anything on me." After Detective Sheehan informed defendant of
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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the evidence against him including witness testimony, recovered
weapons, ballistics, and fingerprints, defendant told Detective
Sheehan that "the guy didn't have to be a hero" and that he would
tell him what happened.
Sheehan testified that he conducted a brief interview of
defendant, left the room to update his supervisors, and returned
to obtain a formal statement. Defendant indicated that he and the
co-defendant were each armed and walking down Reservoir Street and
"wanted to get some money." When defendant observed the victim
walking toward him and the co-defendant, he pulled out his firearm.
Defendant stated that when the victim saw the firearm, he quickly
approached defendant, grabbed his jacket, and pulled defendant
towards him, causing the firearm to go off. Defendant stated that
he did not mean to shoot the victim. Defendant explained that he
and his co-defendant fled the area, and he tossed the firearm and
the jacket he was wearing. When asked if he believed that the
victim was liable for having been shot, he answered, "yes, because
all he had to do was give us the money."
Defendant testified at trial that after he was conveyed to
the Trenton Police Department, he was advised of his Miranda
rights, and voluntarily waived them. Defendant testified that he
agreed to provide Detective Sheehan with his statement. Defendant
denied telling Detective Sheehan that the victim did not have to
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be a hero. Defendant also denied that he intended to rob the
victim and he testified that he did not ask him for money. On
cross-examination, defendant admitted that he was given the
opportunity to review his statement, initialed each page, and did
not make any changes.
On defendant's direct appeal, we affirmed defendant's
conviction and sentence, but remanded for a Miranda hearing. We
instructed the trial judge to determine whether defendant had
invoked his right to remain silent, an issue he had not raised
either before or during trial. State v. Vaughn, No. A-6299-98
(App. Div. June 26, 2001) (slip op. at 12-13).
The remand hearing was conducted by the same judge that
presided over defendant's trial. At the hearing, Detective Sheehan
testified that after waiving his Miranda rights, defendant was
uncooperative and made comments that there was no evidence against
him. Detective Sheehan testified that he informed defendant of
the evidence against him. On cross-examination, he explained that
when he testified at trial that defendant was uncooperative, he
did not mean that defendant stopped speaking. Rather, defendant
wanted to know what evidence the police had against him.
Defendant testified that he asserted his right to remain
silent but felt compelled to give a statement because Detective
Sheehan continued to tell him what evidence was obtained against
6 A-1497-16T1
him. On cross-examination, defendant conceded that he testified
at trial that he was advised of his Miranda rights, waived them
voluntarily, signed a written statement, and did not indicate that
he invoked his right to remain silent. The trial judge on remand
found that Detective Sheehan's testimony was credible and ruled
that defendant never truly invoked his right to remain silent, but
provided his oral and written statements knowingly, intelligently,
and voluntarily. In that regard, the court found as follows:
[T]his court does hereby today, for purposes
of this hearing, reiterate all of its findings
made on the record on March 3, 1999, to support
the determination that the defendant's
statements were indeed admissible and the
court then was convinced beyond a reasonable
doubt that the defendant was given his Miranda
rights, that he understood them, that he
waived them, that he did so knowingly,
voluntarily, and intelligently, and that he
thereupon knowingly, voluntarily, and
intelligently provided the statements which
the court then admitted.
The narrow focus of the proceedings
today, as indicated, is whether or not the
defendant invoked his right to remain silent.
In that regard the court heard testimony from
Detective Robert Sheehan who essentially
repeated large portions of his testimony
previously provided and also supplemented that
testimony.
. . . .
Now, on cross-examination defense
counsel articulately tested the credibility of
this witness. And the detective did concede
that in his testimony at the March 17, 1999
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trial date that indeed the detective testified
that the defendant was uncooperative and the
defendant told the detective "I'm not going
to tell you anything. There's nothing you can
do to me," or words of that effect. "You
don't have anything on me." The detective
next explained, however, that when he
testified that the defendant was not willing
to speak, he also—namely the defendant—also
followed up quickly with "Until he asked me
what we had on him and I told him." The
detective summed up by saying, "It was very
simple. The defendant was advised of his
rights. He did not want to speak. I advised
him what we had on him. Then he spoke to me
and gave me a statement all in the same
conversation without any undue passage of
time."
Furthermore, Detective Sheehan testified
that essentially this defendant never did stop
talking. And he further stated "I couldn't
stop the defendant from talking," supporting
the witness' testimony that there was no
passage of time here; that indeed this was one
continuous conversation that they were having.
Now, in opposition to that testimony, the
defendant took the stand and with regard to
this issue testified that he was brought to
the Trenton Police Department on Friday June
9, 1995. He was in a room with Detective
Sheehan. The detective advised him of his
right to remain silent. The defendant
testifies today for the first time on this
issue, "I advised him I did not want to talk
to him about it. We kept going back and forth.
Eventually I gave him a formal statement."
On cross-examination, the defendant
conceded that he recalled being given his
rights, that he signed the form–both parts,
that he waived his rights, including his right
to remain silent. He conceded yes, I signed
it. He further conceded in cross-examination
8 A-1497-16T1
this morning that at trial on March 18, he
recalls being asked questions regarding the
giving of the statement and the questions
regarding the understanding of his rights. He
further conceded that he agreed everything was
fine and that at no place or time at the trial
did he indicate the exercise of his right to
remain silent.
The court finds that there is truly no
inconsistency in the testimony of Detective
Sheehan and the defendant. Detective Sheehan,
this court finds . . . is a highly experienced
law enforcement officer with well over thirty
years of experience in working on major cases,
that he was the lead detective on this case,
and that it was his obligation to investigate
the murder of Adrian Davis, that Jermaine
Vaughn was a suspect, that he was properly
brought to police headquarters for the conduct
of the detective's investigation. The court
reiterates the finding that the defendant was
meticulously given all of his Miranda rights
and indeed that he signed an acknowledgment
to that effect, as well as the waiver of those
rights. And the subject matter of this
hearing is what happened after the defendant
signed the rights form.
Clearly this court finds there was a
conversation. And from the testimony of the
detective the defense urges, based on the
language that at first he was reluctant to
talk to me or hesitant to talk to me, that
therefore that constituted an exercise of the
right to remain silent. In addition, the
defendant urges that based upon the testimony
of the detective at the [March 17, 1999] trial
wherein the defendant told the detective "I'm
not going to tell you anything," that that
constituted an irrevocable right to remain
silent which barred Detective Sheehan from
speaking to the defendant any further.
9 A-1497-16T1
The court finds, based on the totality
of the circumstances herein, quite to the
contrary. The court finds that the statement
"I'm not going to tell you anything" is taken
out of context because that was immediately
followed by statements of defendant "There's
nothing you can do to me. You don't have
anything on me," but immediately followed in
the same conversation with the defendant in
the same breath, as Detective Sheehan
testifies and this court finds, asking the
detective what do you have on me, followed by
Detective Sheehan's response as to the nature
of the evidence. . . . [B]ut nonetheless the
court finds that this is one continuous
conversation.
The defendant did not testify that there
was a great lapse of time. Indeed, he had the
opportunity to do so, but did not provide this
court with any statement as to a lapse of time.
So, effectively, the court accepts the
testimony and finds Detective Sheehan's
testimony to be highly credible that this was
one continuous conversation, that the
defendant was exceedingly talkative and, to
put it in Detective Sheehan's own words, the
defendant never did stop talking and I
couldn't stop the defendant from talking.
Now, the court further finds that not
only is the credibility of Detective Sheehan
very high . . . but the court observed his
credibility from the witness stand and finds
that he was truthful, that he had recollection
of those matters that were important to him,
that certainly he couldn't recall every small
detail of what he had said on two prior
occasions. The court further finds that he
has no interest in the outcome of this case.
To the contrary, the court finds that the
defendant's credibility is not high and the
court does not accept his statements as true
10 A-1497-16T1
to the extent that they vary from Detective
Sheehan's. . . .
Now, based on these findings, the court
further finds that the defendant truly never
did invoke his right to remain silent by the
mere use of the phrase "I'm not going to tell
you anything," Or, put another way, if one
were to accept the fact that there is some
doubt as to whether he did, this court's
alternative finding was that he gratuitously
continued the conversation offering his
explanation after asking the question, "What
do you have on me."
The court finds that the duty to clarify
urged by the defendant is not applicable under
the facts of this case. The duty does not
apply to a continuous conversation. . . .
When the defendant urges the position
that there was an absolute duty of the State
through Detective Sheehan to stop any
conversations, the court finds that the case
law does not support that proposition on the
facts of this case and, once again, the
totality of the circumstances muse be taken
into consideration.
Based on his findings, by order and opinion dated June 7,
2002, the trial judge held that defendant had not invoked his
right to remain silent and that his confession was properly
admitted. We affirmed defendant's conviction on appeal, State v.
Vaughn, No. A-3921-01 (June 7, 2004) (slip op. at 10), and the
Supreme Court denied certification, State v. Vaughn, 182 N.J. 143(2004).
11 A-1497-16T1
Defendant then filed a petition for PCR. In his PCR petition,
defendant argued that the arrest warrant for the shooting was not
properly issued; therefore, he alleges his post-arrest statement
should have been suppressed. Moreover, defendant argued that
trial counsel failed to communicate with defendant prior to trial,
failed to conduct an investigation and failed to interview
witnesses, failed to file the necessary motions, and failed to
object to jury instructions. Defendant highlighted trial
counsel's failure to explore an intoxication defense. In addition,
defendant asserted, "direct appeal counsel was ineffective in that
he failed to raise necessary and important issues." Defendant did
not raise any issue that his Miranda rights were violated.
At defendant's 2006 PCR hearing, Detective Sheehan testified
that he retired from his position with the Trenton Police
Department in July 2004. Prior to retiring, the detective
testified that he suffered a brain seizure in May or June of 2004
that caused him to suffer from memory loss. Because of his memory
loss, Detective Sheehan did not have any independent recollection
of his investigation or the trial and had to testify from his
reports. Sheehan denied having any medical issues during the
trial and the prior hearings that would have affected his ability
to recollect.
12 A-1497-16T1
At the conclusion of the evidentiary hearing, the trial court
denied defendant's PCR petition by order and opinion dated January
10, 2007. We affirmed the judge's denial of PCR. State v. Vaughn,
No. A-2877-06 (App. Div. October 14, 2009) (slip op. at 8).
Defendant then filed the within application for PCR and a new
trial based on the newly discovered evidence of Detective Sheehan's
medical condition. By order dated December 11, 2014, the PCR
judge denied defendant's petition. In an accompanying letter
opinion, the judge noted that Rule 3:20-1 permits the court to
grant a new trial if required in the interests of justice.
Concerning defendant's claim that "newly discovered evidence"
warranted granting him a new trial, the judge observed that the
proffered evidence must be material and not merely cumulative,
must be discovered after the trial and not reasonably discoverable
prior thereto, and must be of a nature as to probably have affected
the jury's verdict. The judge found that because Detective Sheehan
suffered his seizure a couple of months before July 2004, "[t]his
in absolutely no way had any impact on his testimony and memory
in 1999, when [defendant was] convicted and sentenced." This
appeal ensued.
On appeal defendant makes the following arguments:
13 A-1497-16T1
POINT I
THE LAW DIVISION SHOULD HAVE ORDERED AN
EVIDENTIARY HEARING TO DETERINE WHETHER
DETECTIVE SHEEHAN WAS COMPETENT TO TESTIFY AT
THE MIRANDA HEARINGS AND AT THE 2002 REMAND
HEARING IN LIGHT OF THE EVIDENCE [OF] HIS
BRAIN SEIZURE WHICH ONLY CAME TO LIGHT AT THE
2006 PCR HEARING
POINT II
A NEW TRIAL IS WARRANTED BECAUSE OF NEWLY
DISCOVERED EVIDENCE
POINT III
DEFENDANT WAS ENTITLED TO RAISE BOTH A SECOND
PETITION FOR POST-CONVICTION RELIEF AND A
MOTION FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE, AND THE CONFUSION OF THE
LAW DIVISION BETWEEN THE TWO DIFFERENT TYPES
OF REMEDIES REQUIRES A REMAND
Defendant argues,
[w]hat Detective Sheehan did and said reflects
directly upon whether defendant's Miranda
rights were scrupulously adhered to by
Detective Sheehan, and whether the detective
had sufficient recollection to testify
regarding the obtaining of the confession
without violating defendant's rights against
self-incrimination. If Detective Sheehan's
mental health was impaired at the time he
interviewed defendant, then his testimony may
not have been accurate, and defendant
conceivably was denied his right to remain
silent.
In effect, defendant is seeking to overturn the trial judge's 2002
decision, which we affirmed, that defendant never invoked his
right to remain silent.
I. The trial court's denial of an evidentiary hearing.
14 A-1497-16T1
Our review of the factual findings of the trial court on a
petition for PCR is limited. State v. Nash, 212 N.J. 518, 540
(2013) (citing State v. Carter, 85 N.J. 300, 314 (1981)). We
uphold the factual findings of the trial court if they are
supported by sufficient credible evidence in the record. Ibid.(citing State v. Harris, 181 N.J. 391, 415 (2004)).
Pursuant to Rule 3:22-2, a defendant may seek PCR on four
grounds: (a) substantial denial in the conviction proceedings of
a defendant's state or federal constitutional rights; (b) the
court's lack of jurisdiction; (c) an unlawful sentence; or (d) any
habeas corpus, common-law, or statutory ground for collateral
attack. Defendant bears the burden by a preponderance of the
credible evidence that he is entitled to relief. State v.
Preciose, 129 N.J. 451, 459 (1992). To sustain that burden,
defendant must allege and articulate specific facts, which
"provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
According to Rule 3:22-10(b),
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of [PCR], a determination by the court that
there are material issues of disputed fact
that cannot be resolved by reference to the
existing record, and a determination that an
evidentiary hearing is necessary to resolve
the claims for relief.
15 A-1497-16T1
The rule provides the court with discretion whether to conduct
an evidentiary hearing. State v. Jones, 219 N.J. 298, 311 (2014).
"If there are disputed facts regarding entitlement to [PCR], a
hearing should be conducted." State v. Russo, 333 N.J. Super.
119, 138 (App. Div. 2000). Essentially, "to establish a prima
facie case, a defendant must demonstrate a reasonable likelihood
that his or her claim, viewing the facts alleged in the light most
favorable to the defendant, will ultimately succeed on the merits."
Id. at 141.
In this case, the trial court did not abuse its discretion
in denying defendant an evidentiary hearing. Defendant has failed
to establish a prima facie case that he is entitled to PCR. See
Preciose, 129 N.J. at 459. He has failed to articulate any facts
that, if proven, would entitle him to relief. See Mitchell, 126
N.J. at 579. The only fact articulated to support his claim is
that Detective Sheehan had a seizure in 2004 that impaired his
memory. Defendant has not certified to any facts or presented
certifications or affidavits based on personal knowledge from
anyone, including Detective Sheehan, to suggest the detective had
any memory problems in 1999 or 2002. Instead, defendant relies
on an unfounded theory based on pure speculation.
Moreover, defendant's claims are simply belied by the trial
judge's thorough findings and decision on remand, finding that
16 A-1497-16T1
Detective Sheehan's testimony at trial in 1999 was entirely
consistent with his testimony on remand three years later in 2002.
Indeed, the judge found that defendant's account was largely
consistent with Detective Sheehan's account. Therefore, there are
no disputed facts requiring a hearing for resolution.
II. The trial court's denial of defendant's motion for a new
trial based on newly discovered evidence.
We find equally unpersuasive defendant's argument that he is
entitled to a new trial based on newly discovered evidence. Newly
discovered evidence that is sufficient to warrant a new trial is
evidence that is: (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. Nash, 212 N.J. at 549. In this
case, defendant has failed to show how the evidence is material
or of the sort that would probably change the jury's verdict.
With regard to a motion for a new trial, Rule 3:20-1 provides
in pertinent part that:
The trial judge on defendant's motion may
grant the defendant a new trial if required
in the interests of justice . . . the trial
judge shall not, however, set aside the
verdict of the jury as against the weight of
the evidence unless, having given due regard
to the opportunity of the jury to pass upon
the credibility of the witnesses, it clearly
17 A-1497-16T1
and convincingly appears that there was a
manifest denial of justice under the law.
Furthermore, Rule 2:10-1 similarly requires that a trial court's
ruling on a motion for a new trial shall not be reversed unless
it clearly appears that there was a miscarriage of justice under
the law.
When a defendant seeks a new trial based on newly discovered
evidence, the standard is well established.
Evidence is newly discovered and sufficient
to warrant the grant of a new trial when it
is[:] '(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.'
Nash, 212 N.J. at 540, (citing State v. Carter, 85 N.J. 300, 314
(1981)); See also State v. Ways, 180 N.J. 171, 187 (2004).
Under prong one, "'[m]aterial evidence is any evidence that
would have some bearing on the claims being advanced,' and includes
evidence that supports a general denial of guilt." Id. Prong one
and prong three are inextricably intertwined, Ibid., and "[t]he
power of the newly discovered evidence to alter the verdict is a
central issue, not the label to be placed on that evidence." Ways,
180 N.J. at 191-92.
Here, defendant asserts that evidence that Detective Sheehan
suffered a brain seizure in the spring of 2004 is newly discovered
18 A-1497-16T1
evidence showing he was unable to recollect facts to which he
testified in 1999 and 2002. The record does not reflect any
indication that Detective Sheehan's inability to recollect was an
issue during the trial and the remand hearing. Indeed, on remand
the trial court found Detective Sheehan highly credible, and found
that his testimony was consistent with his prior testimony.
Furthermore, defendant's assertions do not satisfy the State
v. Carter test. 85 N.J. at 314. Detective Sheehan's brain seizure
of 2004 does not constitute material evidence to support
defendant's claim that Detective Sheehan suffered from an
inability to remember during the 1999 trial and the 2002 remand
hearing. Nash, 212 N.J. at 549; Ways, 180 N.J. at 188. Moreover,
defendant has failed to show that the newly discovered evidence
of Detective Sheehan's 2004 brain seizure would have altered the
jury's verdict.
At trial, the jury had the ability to assess Detective
Sheehan's credibility and capacity to recollect and rendered a
verdict that should not be disturbed. Ways, 180 N.J. at 187;
State v. Conway, 193 N.J. Super. 133, 171 (App. Div. 1984). On
remand, the judge who presided over the trial found Sheehan's
testimony credible and consistent with the detective's testimony
three years earlier. Accordingly, there is no basis to grant a
new trial.
19 A-1497-16T1
Affirmed.
20 A-1497-16T1