STATE OF NEW JERSEY VS. RALPH BAKERÂ (02-10-1265, UNION COUNTY AND STATEWIDE, AND Â 02-10-1239, MIDDLESEX COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-3867-05T4
A-3602-13T4
A-3603-13T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RALPH BAKER,
a/k/a RALPH RAHMAN,
Defendant-Appellant.
___________________________________
Submitted November 29, 2016 – Decided June 28, 2017
Before Judges Fisher and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 02-
10-1265 and Middlesex County, Indictment No.
02-10-1239.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison Perrone, Designated
Counsel, on the briefs).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent in A-3867-05 and A-
3603-13 (Milton S. Leibowitz, Special Deputy
Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent in A-3602-13 (Nancy
A. Hulett, Assistant Prosecutor, of counsel
and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Ralph Baker was convicted in separate trials in
Middlesex County and Union County. He appeals his November 10,
2005 judgment of conviction in Middlesex County, Appeal No. A-
3867-05. He also appeals the August 22, 2007, and September 17,
2007 orders denying a new trial in Union County, Appeal No. A-
3602-13, and in Middlesex County, Appeal No. A-3603-13,
respectively. The Middlesex County and Union County appeals were
listed back-to-back, and we consolidate them for purposes of this
opinion. We affirm in part, vacate in part, and remand.
I.
We outline the testimony in the Middlesex County trial. At
closing time on the evening of July 10, 2002, defendant entered a
Burger King in Edison Township. He was holding a black handgun,
carrying a black bag, and wearing latex gloves. He ordered the
fourteen-year-old cashier to give him "the f**king money." He
also grabbed a fifteen-year-old employee of a different Burger
King (the visitor), who was there visiting the manager, Michelle
Krigger, and pushed her against the counter. Krigger came forward
2 A-3867-05T4
and said only she had access to the cash register. Defendant
pointed the gun at the cashier and then at the visitor and demanded
the money. Krigger gave defendant the money from the cash
register. Defendant then demanded and took money from the
visitor's purse before he fled in a black vehicle.
We outline the testimony in the Union County trial. At about
1:40 a.m. on July 16, 2002, Union Township Police Officer Michael
Wittevrongel saw defendant running from the office of an Amoco gas
station. Defendant was headed toward a black vehicle in an
adjacent lot while wearing a black ski mask with holes cut out for
eyes and carrying a black bag. Wittevrongel radioed he believed
a robbery was in progress. He pulled over and saw defendant run
behind a small storage shed. Wittevrongel got out of his car, and
saw defendant emerge from behind the shed without the mask and
bag. Wittevrongel arrested defendant, and found $204 in his
pocket. After handcuffing defendant, Wittevrongel went behind the
shed and found the mask and the black bag. The bag contained a
black handgun, a loose bullet, thirteen packs of cigarettes, loose
cash, and fifty $1 bills in a wrapped bundle. In the black
vehicle, which was parked unlocked with the keys in the ignition
and was registered to defendant, Wittevrongel found defendant's
wallet, his driver's license, his papers, and latex gloves.
3 A-3867-05T4
A Union County grand jury indicted defendant for first-degree
robbery (first count), N.J.S.A. 2C:15-1; second-degree possession
of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and
fourth-degree aggravated assault by pointing a firearm, N.J.S.A.
2C:12-1(b)(4), and separately indicted him for second-degree
certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b).
The Union County jury convicted defendant under the first
count of the lesser–included offense of disorderly-persons theft,
N.J.S.A. 2C:20-3(a), and also convicted him of the unlawful-
possession and certain-persons counts. In judgments of conviction
dated June 18, 2004, defendant was sentenced to seventeen years
in prison with eight years of parole ineligibility on the certain-
persons count, with concurrent sentences of six months in jail for
theft and seven years in prison for unlawful possession. Defendant
filed a notice of appeal.
Defendant was then tried in Middlesex County. The ski mask,
bag, and gun seized in the Union County arrest were admitted into
evidence. The jury convicted defendant of first-degree robbery
of the Burger King cashier (Count One) and the visitor (Count
Two), N.J.S.A. 2C:15-1; second-degree possession of a firearm for
an unlawful purpose regarding the cashier (Count Three) and the
visitor (Count Four), N.J.S.A. 2C:39-4(a); fourth-degree unlawful
4 A-3867-05T4
possession of a handgun (Count Five), N.J.S.A. 2C:39-5(b); and
fourth-degree aggravated assault by pointing a firearm at the
visitor and/or the cashier (Count Six), N.J.S.A. 2C:12-1(b)(4).
The trial court merged Count Three with Count One, and Count Four
with Count Two. The court sentenced defendant to life in prison
on Count Two, with concurrent sentences of twenty years in prison
with ten years of parole ineligibility on Count One, and eighteen
months in prison with nine months of parole ineligibility on Counts
Five and Six. Defendant filed a notice of appeal.
Defendant was also charged in Somerset County with committing
a July 2, 2002 armed robbery and aggravated assault. It appears
the Somerset County court ruled the ski mask, bag, and gun seized
in the Union County arrest would be admissible, and granted
defendant's motion to have the mask tested for DNA. In 2006, the
State Police laboratory informed the Somerset County authorities
the mask bore DNA linked to another man arrested in April 2003 for
a masked armed robbery in Hudson County. Although the Somerset
County prosecutor disputed the DNA test excluded defendant, the
Somerset County indictment was dismissed voluntarily on April 3,
2008.
When the DNA evidence came to light, defendant filed motions
in his Middlesex County and Union County appeals seeking remands.
We remanded the Middlesex County appeal to allow defendant to file
5 A-3867-05T4
a motion for a new trial. We also allowed defendant to file a new
trial motion in Union County, but proceeded with the Union County
appeal. We affirmed the theft and unlawful possession convictions,
but reversed his certain-persons conviction and remanded for a new
trial on that charge, which the State later dismissed. State v.
Baker, No. A-3855-04 (App. Div. Feb. 21, 2007).
Defendant's new trial motions in Middlesex and Union Counties
were denied on August 22, 2007, and September 17, 2007,
respectively. We dismissed defendant's untimely pro se appeals
and the Supreme Court denied his petitions for certification.
State v. Baker, 196 N.J. 592 (2008).
In 2009, defendant challenged his Middlesex and Union
convictions by filing two federal "habeas" petitions under 28
U.S.C.A. § 2254 in the United States District Court for the
District of New Jersey. The petitions were consolidated before
Judge Kevin McNulty. Baker v. Ricci, No. 09-3654 (KM), 2013 U.S.
Dist. LEXIS 91718, at *2 (D.N.J. June 28, 2013). The judge
rejected the State's arguments that the petitions were untimely
or procedurally defaulted, but agreed with the State that defendant
had not exhausted his available state court remedies. Baker v.
Ricci, No. 09-3654 (KM), 2013 U.S. Dist. LEXIS 128713, at *2-3
(D.N.J. Sep. 9, 2013). The judge stayed the petitions but retained
jurisdiction while defendant exhausted his state court remedies.
6 A-3867-05T4
Id. at *43. The judge commented that defendant's claim "based on
later-discovered DNA evidence" appeared to "have sufficient merit
to warrant further scrutiny." Id. at *2, *36-37.
In May 2014, we granted defendant's motion to reinstate his
direct appeal in the Middlesex County case. We also allowed
defendant to file appeals as within time from the orders denying
new trials in Union County and in Middlesex County.
II.
We first consider defendant's appeal from his judgment of
conviction in Middlesex County, Appeal No. A-3867-05. His
counseled brief raises the following issues in that appeal:
POINT ONE - KRIGGER'S IDENTIFICATION OF
DEFENDANT SHOULD HAVE BEEN SUPPRESSED BECAUSE
THE IDENTIFICATION PROCEDURE WAS
IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A
VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
MISIDENTIFICATION.
. . . .
POINT THREE - DEFENDANT'S DISCRETIONARY
EXTENDED TERM OF LIFE IS MANIFESTLY EXCESSIVE
AND REQUIRES A REMAND.1
Defendant's pro se brief raises the following issues:
POINT I – THE IDENTIFICATION WAS NOT RELIABLE,
DUE TO THE PHOTO ARRAY AND FAILURE TO ADHERE
TO THE ATTORNEY GENERAL GUIDELINES ON
IDENTIFICATION IN PHOTO ARRAYS, AND LIVE
LINEUPS IN APRIL 2001, AGAINST UNITED [S]TATES
1
Point Two in defendant's counseled brief concerns his Appeal No.
A-3603-13, challenging the denial of a new trial, which we address
in Point V.
7 A-3867-05T4
SUPREME COURT AND NEW JERSEY SUPREME COURT
PRECEDENTS, CODIFIED INTO LAW.
A.
Defendant first challenges the December 4, 2003 denial of his
motion to suppress the out-of-court identification by Krigger.
"Our standard of review on a motion to bar an out-of-court-
identification . . . is no different from our review of a trial
court's findings in any non-jury case." State v. Wright, 444 N.J.
Super. 347, 356 (App. Div. 2016) (citing State v. Johnson, 42 N.J.
146, 161 (1964)). "Appellate review of a motion judge's factual
findings in a suppression hearing is highly deferential. We are
obliged to uphold the motion judge's factual findings so long as
sufficient credible evidence in the record supports those
findings." State v. Gonzales, 227 N.J. 77, 101 (2016) (citations
omitted). "Those factual findings are entitled to deference
because the motion judge, unlike an appellate court, has the
'opportunity to hear and see the witnesses and to have the "feel"
of the case, which a reviewing court cannot enjoy.'" Ibid.(quoting Johnson, supra, 42 N.J. at 161). A "trial court's
findings at the hearing on the [reliability and] admissibility of
identification evidence are 'entitled to very considerable
weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State
8 A-3867-05T4
v. Farrow, 61 N.J. 434, 451 (1972)). We must hew to that standard
of review.
Because Krigger's identification occurred in 2002, it is
governed by the "two-prong test articulated by the United States
Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct.
2243, 2253, 53 L. Ed. 2d 140, 154 (1977)," which "was adopted
essentially verbatim by [our Supreme] Court in" State v. Madison,
109 N.J. 223, 232-33 (1988). State v. Micelli, 215 N.J. 284, 290
(2013).2
Madison's two prongs examine suggestiveness and reliability:
a court must first decide whether the
procedure in question was in fact
impermissibly suggestive. If the court does
find the procedure impermissibly suggestive,
it must then decide whether the objectionable
procedure resulted in a "very substantial
likelihood of irreparable misidentification."
In carrying out the second part of the
analysis, the court will focus on the
reliability of the identification. If the
court finds that the identification is
reliable despite the impermissibly suggestive
nature of the procedure, the identification
may be admitted into evidence.
2
In State v. Henderson, 208 N.J. 208, 288 (2011), our Supreme
Court revised Madison's two-prong test, articulating a more
detailed framework to be applied "to future cases only." Id. at
302. Although defendant's pro se brief relies on Henderson,
"[b]ecause the events underlying this case arose before the
Henderson decision was handed down, the guidelines established in
Manson/Madison are applicable to this matter." State v. Jones,
224 N.J. 70, 86 n.1 (2016).
9 A-3867-05T4
[Madison, supra, 109 N.J. at 232 (citations
omitted).]
"Reliability is the linchpin in determining the admissibility
of identification testimony[.]" Micelli, supra, 215 N.J. at 292
(quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L.
Ed. 2d at 154). "To assess the reliability of an identification,"
a court must consider "'[t]he opportunity of the witness to view
the criminal at the time of the crime, the witness' degree of
attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the
time between the crime and the confrontation.'" Ibid. (citations
omitted).
The judge at the suppression hearing found the following
facts. During the July 10, 2002 robbery, Krigger viewed defendant
for about five minutes from about four feet away, looking at him
straight in the eye. Defendant never pointed the gun at her.
When police officers arrived, Krigger was able to describe
defendant in detail, noting he was about 5'9" tall, had a stocky
build, a receding hairline, short "salt and pepper" hair, a beard
with gray throughout, a scar on his right cheek, was wearing a
mechanics-type jumper and latex gloves, and carrying a black duffel
bag. Krigger was very confident she could identify the robber.
10 A-3867-05T4
The next day, July 11, Krigger helped prepare the computer-
generated composite. The visitor and the cashier respectively
confirmed the composite depicted or looked really similar to the
robber. Additionally, the judge found the composite had "a lot
of similarities" with defendant.
After defendant was arrested, a Union County detective
provided Edison Sergeant Joseph Shannon with a photograph of
defendant, which he gave to another officer to prepare a six-photo
array. On July 19, nine days after the robbery, Shannon showed
Krigger all six photos one at a time for ten seconds each. Krigger
very quickly identified defendant's photograph and said he was the
robber. When Shannon asked how sure she was, on a scale of one
to ten, she replied "ten."
The motion judge found that both Krigger and Sergeant Shannon
were credible, and that Krigger had "a very good opportunity" to
observe defendant. The judge found her identification was reliable
and admissible. Krigger identified defendant and his photo at the
motion hearing and at trial.
Defendant argues that, in two respects, Sergeant Shannon
violated the then-new Attorney General's Guidelines.3 First, the
3
The Guidelines became effective on October 15, 2001, about nine
months before defendant's identification here. See Letter from
Attorney General John J. Farmer, Jr., to All County Prosecutors
11 A-3867-05T4
Guidelines "advise[] agencies to utilize, whenever practical,
someone other than the primary investigator assigned to a case to
conduct both photo and live lineup identifications." A.G. Letter,
supra, at 1-2; A.G. Guidelines, supra, at 1. Sergeant Shannon
acknowledged this Guideline and that he was one of the primary
investigators on the case, but said he presented the photo lineup
because he was the only officer available to do so at that time.
Second, the Guidelines "recommend that, when possible,
'sequential lineups' should be utilized . . . . by displaying one
photo or one person at a time to the witness." A.G. Letter, supra,
at 2. "When presenting a sequential photo lineup, the lineup
administrator or investigator should . . . [p]resent each photo
to the witness separately, in a previously determined order,
removing those previously shown." A.G. Guidelines, supra, at 4.
While Sergeant Shannon displayed each photo to Krigger
sequentially, he was unaware of any need to remove from the table
the photos previously shown, and he instructed her not to make an
identification until she viewed all six photos before her.
et al. (Apr. 18, 2001) (A.G. Letter), and Office of the Attorney
Gen., N.J. Dep't of Law & Pub. Safety, Attorney General Guidelines
for Preparing and Conducting Photo and Live Lineup Identification
Procedures (A.G. Guidelines), reprinted in State v. Herrera, 187
N.J. 493, 511-20 (2006), and available at
http://www.state.nj.us/lps/dcj/agguide/photoid.pdf.
12 A-3867-05T4
However, the Guidelines permit both simultaneous photo
lineups and sequential photo lineups, albeit with a preference for
the latter. Id. at 3-4. Our Supreme Court has subsequently
observed that "recent studies that have called that preference
into doubt. Because the science supporting one procedure over the
other remains inconclusive, we are unable to find a preference for
either," and "we do not limit either one at this time." Henderson,
supra, 208 N.J. at 256-58.
In any event, the Supreme Court in Henderson explicitly
rejected the argument that "any violation of the Attorney General
Guidelines should require per se exclusion of the resulting
eyewitness identification." Id. at 292-93. The Court also refused
to draw a "'presumption of impermissible suggestiveness'" even
from a material breach of the Guidelines. Id. at 227-28, 281
(citation omitted). The Court stressed "[t]he Attorney General
expressly noted that identifications that do not follow the
recommended Guidelines should not be deemed 'inadmissible or
otherwise in error.'" Id. at 278 (quoting A.G. Letter, supra, at
3).4 Rather, the Court found "the Guidelines are a series of
4
Both the A.G. Letter, supra, at 3, and the A.G. Guidelines,
supra, at 1, affirmed "that current eyewitness identification
procedures fully comport with federal and state constitutional
requirements" even without the Guidelines' procedures.
13 A-3867-05T4
recommended best practices," prophylactic measures to reduce
certain risks of suggestiveness. Ibid.
Here, defendant failed to show those risks were realized.
There was no indication Sergeant Shannon gave "inadvertent verbal
cues or body language" or other "signaling to the witness of the
'correct' response." A.G. Guidelines, supra, at 1. To the
contrary, Shannon and Krigger testified, and the judge found, that
Shannon did nothing suggestive whatsoever. Further, as
recommended by the Guidelines, Shannon told Krigger not to assume
that anyone depicted in the photos was involved in the robbery.
Ibid.
Similarly, although Krigger examined all photos on the table
before making her identification, there was no indication she
chose "which individual looks most like the perpetrator." See
A.G. Letter, supra, at 2. Rather, she testified she chose
defendant's photograph because he was the "person that robbed me."
Defendant argues the photo array was suggestive because his
photo shows him wearing a white shirt. The judge found that all
the photos were color photos of African-American males of about
the same complexion, except for one male who was lighter, but that
Krigger was instructed the photographs do not always show the true
complexion of the person. Although the males were wearing
different-colored shirts, Sergeant Shannon and Krigger testified
14 A-3867-05T4
she made the identification based on the face in the photos rather
than the clothing. The judge concluded the photos all showed
comparable-looking people. Defendant has given us no basis to
doubt the judge's conclusion.5
Defendant notes that the police did not show the array to the
others in the Burger King, but that is not a basis for suppression.
Regardless, the officers could chose to seek an identification
from the calm adult in charge, rather than from the traumatized
young teenagers.
Defendant also notes the photo lineup was conducted nine days
after the Burger King robbery, but that was not a lengthy period.
State v. Clausell, 121 N.J. 298, 327 (1990) (finding "[t]he time
lapse between the identification and the crime -- six weeks -- was
not extensive"); see Madison, supra, 109 N.J. at 242 ("A two month
time lapse without more . . . does not cause us to conclude that
the evidence of identification is inadmissible."). Moreover, she
helped prepare the composite only one day after the robbery, and
it "resembled defendant and prompted other individuals to conclude
that it was defendant who was depicted." State v. Cherry, 289
N.J. Super. 503, 520 (App. Div. 1995) (admitting identification
5
Defendant has not supplied us with the photos used in the lineup.
15 A-3867-05T4
two-and-one-half months after the crime where the witness helped
prepare a sketch shortly after the crime).
The judge found beyond a reasonable doubt there was more than
sufficient indicia of reliability to outweigh any suggestivity in
the photo array. We defer to his findings, which were supported
by substantial credible evidence.
B.
The Middlesex County court sentenced defendant to an
extended–term sentence to life in prison for Count Two, the first-
degree robbery of the visitor. Defendant claims that sentence was
excessive. He does not dispute his prior convictions qualified
him for an extended term as a persistent offender under N.J.S.A.
2C:44-3(a).6 Nor does he claim the trial court abused its
discretion in deciding to impose an extended term. Rather,
defendant claims the court double-counted his prior record both
6
A "persistent offender" must "ha[ve] been previously convicted
on at least two separate occasions of two crimes, committed at
different times," and "the date of the defendant's last release
from confinement" must have been "within 10 years of the date of
the crime for which the defendant is being sentenced." N.J.S.A.
2C:44-3(a). Defendant was convicted of multiple armed robberies
in Essex and Union Counties in 1982, sentenced to prison with
seventeen years of parole ineligibility, and initially paroled in
2000.
16 A-3867-05T4
to qualify him for an extended term and to sentence him to the
maximum extended-term sentence.7
We need not decide that claim because the State concedes
defendant is entitled to resentencing on Count Two. Defendant's
appeal was pending when our Supreme Court decided State v. Pierce,
188 N.J. 155 (2006). In Pierce, the Court held that "once the
court finds that th[e] statutory eligibility requirements are met"
for an extended term, "the range of sentences, available for
imposition, starts at the minimum of the ordinary-term range and
ends at the maximum of the extended-term range." Id. at 169; see
State v. Robinson, 217 N.J. 594, 608 (2014). Thus, Pierce set the
range for a first-degree extended term from "ten years to life
imprisonment." Pierce, supra, 188 N.J. at 179 (Albin, J.,
dissenting); see N.J.S.A. 2C:43-6(a)(1), -7(a)(2). However, the
prosecutor advised the trial court that "the range is 20 to life."
Our Supreme Court "summarily remanded" numerous cases "for
resentencing in the light of State v. Pierce." E.g., State v.
Mejias, 198 N.J. 308 (2008).
7
The convictions used to qualify defendant for an extended term
may not be considered in determining the aggravating factors or
the length of his extended-range sentence, but the court may
consider "other aspects of the defendant's record," including
other crimes, his "juvenile record, parole or probation records,
and overall response to prior attempts at rehabilitation." State
v. Dunbar, 108 N.J. 80, 91-92 (1987); see State v. Vasquez, 374
N.J. Super. 252, 267-68 (App. Div. 2005).
17 A-3867-05T4
Accordingly, in Appeal No. A-3867-05, we vacate defendant's
life sentence on Count Two and remand "for re-sentencing, but only
in respect of reconsideration of the appropriate sentence for
defendant within the expanded range . . . . The court must
reconsider the applicable aggravating and mitigating factors and
impose a sentence within the broadened range of sentences available
consistent with [Pierce]." 188 N.J. at 171.8 We affirm his
convictions and remaining sentences in Middlesex County.
III.
We next consider defendant's appeal from the Union County
trial judge's denial of a new trial, Appeal No. A-3602-13. "[A]
motion for a new trial is addressed to the sound discretion of the
trial judge, and the exercise of that discretion will not be
interfered with on appeal unless a clear abuse has been shown."
State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (citing
State v. Artis, 36 N.J. 538, 541 (1962)). Defendant claims:
POINT ONE - THE COURT'S DECISION DENYING
DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON
NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.
8
On remand, the trial court should reconsider aggravating factors
three, six, and nine without "double-counting" the offenses relied
on to qualify defendant for the extended term. Vasquez, supra,
374 N.J. Super. at 267. Defendant also challenges the court's
finding of aggravating factors one and two. As the court is
reconsidering the aggravating factors, we decline to address this
challenge, except we agree that considering defendant's physical
assault on the visitor was not "double-counting the elements of
the offense[s]." State v. Fuentes, 217 N.J. 57, 76 (2014).
18 A-3867-05T4
POINT TWO - DEFENDANT IS ENTITLED TO A NEW
TRIAL BASED ON THE STATE'S DISCOVERY
VIOLATION.
We address defendant's claims in reverse order.
A.
After defendant's arrest near the Amoco gas station on July
16, the gas station attendant reported to the police the Amoco had
just been robbed. However, he returned to Turkey, the State was
unable to secure his return to New Jersey, and he did not testify
at trial.
Defendant claims the State failed to disclose a police
teletype message relating to a July 2, 2002 robbery of the same
Amoco and same attendant. The message related the attendant's
statements that the perpetrator of the July 2 robbery as a black
male, approximately 5'9" tall, weighing 225 pounds, and carrying
a backpack, that he took thirteen packs of cigarettes and cash,
and that he entered a small white vehicle.
After defendant was arrested near the Amoco on July 16, the
attendant gave a statement that the masked person who robbed him
on July 16 "resembled" the person who robbed him on July 2: "his
19 A-3867-05T4
size is the same, gun looked the same, he took the same cigarettes
and type of cigarettes. The first time he wasn't wearing a mask." 9
Defendant argues that the message was material because its
description of the robber differed from Officer Wittevrongel's
estimation that defendant was 6'0" tall and 230 pounds.10 The
trial judge denied a new trial, finding that there was "really
very little difference between the descriptions," that defendant's
use of the attendant's description of the perpetrator of the July
2 robbery could have lead the jury to believe defendant committed
that robbery as well, and that defendant had not shown how he
could admit the attendant's description with the attendant being
unavailable in Turkey.
"[T]he suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218
(1963). "In order to establish a Brady violation, the defendant
must show that: (1) the prosecution suppressed evidence; (2) the
9
Defendant has not provided us with the teletype or the
attendant's statement.
10
There was nothing in the record indicating defendant's actual
height and weight.
20 A-3867-05T4
evidence is favorable to the defense; and (3) the evidence is
material." State v. Martini, 160 N.J. 248, 268 (1999).
"[E]vidence is 'material' if there is a 'reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.'" Id. at 269 (quoting
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,
87 L. Ed. 2d 481, 494 (1985)).
We agree that defendant failed to show such a reasonable
probability. The attendant's statements in the police teletype
message were hearsay which defendant fails to show would be
admissible. Moreover, the attendant himself was unavailable to
reiterate the statements or to be impeached by them. Thus, the
attendant's statements were "not 'evidence' at all," and their
disclosure "could have had no direct effect on the outcome of
trial, because [defendant] could have made no mention of them
either during argument or while questioning witnesses." Wood v.
Bartholomew, 516 U.S. 1, 6, 116 S. Ct. 7, 9, 133 L. Ed. 2d 1, 6-7
(1995).
Defendant argues disclosure would have allowed him to make a
more informed decision whether to attempt to procure the
attendant's presence to testify at trial. Defendant offers no
reason to believe he could obtain the attendant's return from
Turkey and admission into the United States. As the trial court
21 A-3867-05T4
noted, the State made "numerous efforts[] to try and get the
attendant here and they were unsuccessful." Defendant's argument
"is based on mere speculation." Ibid.11
Therefore, we affirm the denial of defendant's claim that the
State committed a Brady violation regarding the teletype message.
B.
Defendant claims the DNA results are newly-discovered
evidence requiring a new trial. "[T]he test to be satisfied under
a newly discovered evidence approach is more stringent." State
v. Carter, 85 N.J. 300, 314 (1981).
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."
[State v. Nash, 212 N.J. 518, 549 (2013)
(quoting Carter, supra, 85 N.J. at 314).]
11
Thus, we need not resolve whether the slight difference in the
attendant's descriptions would have caused defendant to risk
procuring the presence at trial of the attendant, the victim in
the case. We note that, in the attendant's absence, defendant was
not convicted of first-degree robbery, of the attendant,
aggravated assault by pointing a firearm at the attendant, and
possession of a firearm with an unlawful purpose.
22 A-3867-05T4
"[A]ll three prongs of that test must be satisfied before a
defendant will gain the relief of a new trial." State v. Ways,
180 N.J. 171, 187 (2004).
At the hearing in Union County, defendant's counsel offered
the DNA report and proffered as follows. The State Police tested
the inside and outside of the ski mask for DNA. Defendant was
excluded as a potential source of the DNA inside the mask. The
DNA was run through the CODIS database, which provided the name
of a person whose DNA matched thirteen of fourteen potential
alleles, with a one in 8.6 quadrillion chance it would occur in
another African-American male. That person was under indictment
in a July 2, 2002 armed robbery in Hudson County in which a ski
mask was used.12 Defendant was not excluded as a contributor to
the DNA on the outside of the ski mask, with a match of six of six
alleles, which would appear in one in 544 African-American males.
The trial court ruled that the DNA in its totality was
"inconclusive and subject to much speculation." The court
concluded it did not "meet[] standards one and three for the
grounds for a new trial based on newly discovered evidence."13
12
Defendant now argues the person was convicted of the robbery.
13
It was not disputed that the second requirement was met.
23 A-3867-05T4
We disagree. First, the DNA evidence as proffered was
material. "'[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," or third-party guilt.
Nash, supra, 212 N.J. at 549 (quoting Ways, supra, 180 N.J. at
188). Here, the DNA evidence clearly bore on defendant's denial
of guilt and supported a claim of third-party guilt. Not only did
it indicate that someone else had been wearing the mask, but it
suggested that the bag, handgun, cigarettes, and cash found with
the mask belonged to someone else. That supported defendant's
claim that he was not guilty of theft or unlawful possession of
the handgun.
The State echoes the trial court's observation that a ski cap
could be worn inside out. Nonetheless, the vastly different
probabilities that the DNA came from defendant versus the Hudson
County suspect could make the DNA results material.
Moreover, the DNA results as proffered were evidence "of the
sort that would probably change the jury's verdict if a new trial
were granted." Carter, supra, 85 N.J. at 314; see State v. Behn,
375 N.J. Super. 409, 429 (App. Div. 2005) (noting "DNA testing has
upset many convictions"). The DNA results strongly suggested the
mask was worn by another African-American male who was also
suspected of committing a masked armed robbery two weeks earlier.
24 A-3867-05T4
That, coupled with the information that the Amoco station had been
robbed two weeks earlier by someone who used a similar handgun and
took the same type and number of cigarette packs, raised the
possibility that the bag with handgun, cash, and cigarettes came
from an earlier robbery by the person whose DNA was found on the
inside of the mask.
Thus, the DNA evidence as proffered could "have the probable
effect of raising a reasonable doubt as to the defendant's guilt."
Nash, supra, 212 N.J. at 549 (quoting Ways, supra, 180 N.J. at
189); see Ways, supra, 180 N.J. at 195 (finding the third-party-
guilt evidence had a rational tendency to engender a reasonable
doubt). "DNA test results that not only tended to exculpate
defendant but to implicate someone else would be evidence of 'the
sort that would probably change the jury's verdict if a new trial
were granted.'" State v. Peterson, 364 N.J. Super. 387, 398-99
(App. Div. 2003) (quoting Carter, supra, 85 N.J. at 314)); see
State v. DeMarco, 387 N.J. Super. 506, 521 (App. Div. 2006)
(stressing that the DNA results could "place direct responsibility
for the very crime in question on a specific third party").
The State argues its evidence was overwhelming, citing
Officer Wittevrongel's observation of defendant both before and
after he disappeared behind the shed. However, defendant was not
convicted of doing anything in Wittevrongel's sight. Rather, he
25 A-3867-05T4
was convicted of possessing the handgun, and of theft of the
cigarettes and cash, found in the bag. The handgun, cigarettes,
cash, and bag were all found with the mask and linked to defendant
in part based on the mask. "We cannot conclude that the evidence
of guilt was 'overwhelming' in light of the newly discovered
evidence." Nash, supra, 212 N.J. at 552.
Therefore, defendant's proffer regarding the DNA results
indicated he could satisfy the newly-discovered evidence standard.
However, a proffer by defense counsel is not the same as testimony
from a DNA expert. Indeed, defendant presented no testimony at
the hearing seeking a new trial. Moreover, defendant has not
supplied us with the DNA report. "Such a record does not lend
itself to suitable appellate resolution. A more precise
understanding of the pertinent facts is obtainable only through
live testimony and a trial level determination in the first
instance." Carter, supra, 85 N.J. at 314.
Accordingly, in Appeal No. A-3602-13, we vacate the denial
of the new trial motion in Union County to the extent it raised
the newly-discovered DNA issue. We remand for an evidentiary
hearing at which defendant should introduce not only the DNA
results but also expert DNA testimony. The State may also
introduce evidence, including its own expert DNA testimony. We
26 A-3867-05T4
affirm the denial of the new trial motion to the extent it raised
the Brady issue regarding the teletype message.
IV.
Finally, we consider defendant's appeal from the denial of a
new trial in Middlesex County, Appeal No. A-3603-13. Defendant
raises the following issue pertinent to that appeal:
POINT TWO - THE COURT'S DECISION DENYING
DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON
NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.
As in Union County, defendant's counsel made a similar proffer
at the Middlesex County motion hearing, and offered the DNA report.
The motion judge found "no question that prong 2 [of the newly-
discovered-evidence test] is met." Moreover, the court found the
DNA evidence was material. However, the court found the DNA
evidence would not alter the outcome of the Middlesex trial. The
court cited that the Burger King robbery did not involve a ski
mask, Krigger identified defendant's photo as the robber, Krigger
and the visitor identified defendant in court, and the cashier
clearly described the gun. The court added that only limited,
sanitized information about the Union County arrest was introduced
in the Middlesex County trial.
Nonetheless, in the Middlesex County trial, the State called
Officer Wittevrongel. He testified he saw defendant, wearing a
"woolen head covering" and carrying a bag, headed toward a black
27 A-3867-05T4
car containing his documents and latex gloves. Wittevrongel
testified he discovered where defendant dropped the bag, and found
the bag contained a handgun, and found the woolen head covering
just a couple of feet away. Wittevrongel identified defendant,
the woolen head covering, the handgun, the bag, and photographs
of the car and of the latex gloves.
Sergeant Shannon testified he received the photos of the
handgun, bag, and latex gloves from Union County. A forensic
ballistics expert testified the handgun was operable. The
prosecutor showed the bag, the handgun, and the photo of the latex
gloves to Krigger, the visitor, and the cashier, who commented on
how much the bag, gun, and latex gloves resembled those used in
the Burger King robbery.
Moreover, the prosecutor detailed this testimony and used the
items from the July 16, 2002 Union County arrest both in her
opening statement and closing argument. The prosecutor argued
that defendant robbed the Burger King "with the same bag, the same
gun. And, in the same type car, are found the gloves. The only
thing that's different, or additional on July 16th of 2002, he's
wearing a woolen head covering."
Given the use in the Middlesex trial of the mask, handgun,
and bag from the Union County arrest, we agree with the motion
judge that the DNA results as proffered are material. They bear
28 A-3867-05T4
on the prosecution's assertion that those items were connected to
defendant.
It is a far closer question whether the DNA evidence as
proffered could have the probable effect of raising a reasonable
doubt of defendant's guilt of the Middlesex County offenses. As
the motion judge emphasized, defendant was linked to the Burger
King robbery by eyewitness identifications both before and at
trial. Moreover, defendant did not wear a mask in that robbery.
However, the State offered the evidence about the mask to show
defendant's ownership of the nearby bag and the gun it contained.
Further, the prosecutor gave the information and items from the
Union County arrest a major role in its proofs and arguments.
A "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." Ways, supra, 180 N.J.
at 191. As noted above, defendant has merely proffered the DNA
evidence and has not provided us with the DNA report. Moreover,
defendant's counsel told the motion judge he was "essentially
asking the court to hold off and hear from the DNA expert first."
In these circumstances, it is most appropriate to vacate the order
denying a new trial and remand to allow the court to have a full
factual record to determine whether the actual DNA evidence could
have the probable effect of raising a reasonable doubt of
29 A-3867-05T4
defendant's guilt of the Middlesex County offenses. Again,
defendant should present the DNA report and DNA expert testimony,
and the State should have the opportunity to present contravening
evidence including expert testimony. To reduce duplication, the
parties and the courts may coordinate the conduct or the timing
of the Union County and Middlesex County proceedings on remand.
We recognize the age of these convictions. Nonetheless,
"[h]owever difficult the process of review, the passage of time
must not be a bar to assessing the validity of a verdict that is
cast in doubt by evidence suggesting that a defendant may be
innocent." Id. at 188. Moreover, "our traditions of comprehensive
justice will best be served by decisions that reflect thoughtful
and thorough consideration and disposition of substantive
contentions" prior to federal habeas review. State v. Preciose,
129 N.J. 451, 477-78 (1992).
Defendant's remaining arguments in his pro se brief lack
sufficient merit to warrant discussion. R. 2:11-3(e)(2).
In Appeal No. A-3867-05, we affirm in part, vacate in part,
and remand. In Appeal No. A-3602-13, we affirm in part, vacate
in part, and remand. In Appeal No. A-3603-13, we vacate and
remand. We do not retain jurisdiction.
30 A-3867-05T4