STATE OF NEW JERSEY VS. RONALD BURNS (00-07-0531, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-4614-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD BURNS,
Defendant-Appellant.
___________________________
Submitted September 16, 2019 – Decided September 23, 2019
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 00-07-
0531.
Ronald Burns, appellant pro se.
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Jennifer Bentzel Paszkiewicz,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Ronald Burns appeals from a May 14, 2018 Law Division order
denying his motion for a new trial. We affirm substantially for the reasons
expressed by Judge Philip E. Haines in his comprehensive written decisions.
The underlying facts and procedural history were set forth by the Supreme
Court on direct appeal, State v. Burns, 192 N.J. 312, 319-23 (2007), and need
not be recounted at length in this opinion.
This case arises from a homicide. Defendant was indicted for first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-
degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count
three); and third-degree hindering apprehension of another, N.J.S.A. 2C:29-
3(a)(2). Codefendant Tony Felder was also charged in counts one through three
of the indictment.
Felder was defendant's eighteen-year-old first cousin at the time of the
incident. He began selling drugs for defendant when he was fifteen years old.
Prior to trial, Felder pleaded guilty to aggravated manslaughter and agreed to
testify against defendant.
The State presented evidence at trial to show that defendant and the
victim, Ronald Patterson, Jr., were rival drug dealers who sold drugs from
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nearby houses on the same street in Mt. Holly. Defendant's drug sales declined
because Patterson was selling better quality cocaine. Defendant was upset with
Patterson and contemplated killing him. On September 6, 1999, defendant told
Felder he wanted Patterson dead. Felder said he would kill Patterson that night.
Defendant told Felder to use the gun he had previously given to Bobby Bryant.
At around eight p.m., defendant's girlfriend, drove defendant and Felder to
Bryant's residence where they met Bryant, Tifani Young, Lawrence Hightower,
and others. Defendant asked Felder, "You gonna kill him?" Felder replied,
"Yeah." Defendant gave Felder the gun. Felder then crossed the street,
approached Patterson, and attempted to shoot him but the gun did not discharge.
Felder returned and told defendant that the gun misfired. Defendant took the
gun. Bryant and Hightower saw defendant unjam the gun and hand it back to
Felder. Felder again approached Patterson and shot him several times, killing
him. Felder then threw the gun in a nearby lake and later met up with defendant
and Young.
Tried to a jury, defendant was convicted of murder, second-degree
possession of a weapon for an unlawful purpose, and third-degree hindering
apprehension. Defendant was sentenced to life in prison with thirty years of
parole ineligibility on the murder conviction and to a five-year consecutive
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sentence on the hindering apprehension after merger of count two. We reversed
the conviction on direct appeal. State v. Burns, No. A-6273-01 (App. Div. May
11, 2006) (Burns I). The Supreme Court reversed and reinstated the conviction
and sentence. Burns, 192 N.J. at 343.
Defendant's first petition for post-conviction relief (PCR) was denied. We
affirmed the denial. State v. Burns, No. A-1098-10 (App. Div. June 4, 2012)
(Burns II). The Supreme Court denied certification. State v. Burns, 213 N.J.
396 (2012).
In 2013, defendant filed a petition for a writ of habeas corpus in the United
States District Court for the District of New Jersey. Judge Robert B. Kugler
issued a comprehensive written opinion and order denying the habeas petition
and declining to issue a certificate of appealabilty. Burns v. Warren, Civ. No.
13-1929 (RBK) (D.N.J. Mar. 22, 2016). That ruling was not overturned on
appeal.
In January 2015, defendant also moved for a new trial, based on an alleged
Brady1 violation and newly discovered evidence. The motion judge rejected
those claims. Defendant appealed and moved for a limited remand, asserting we
should consider a September 15, 2015 Felder affidavit, in which he recanted his
1
Brady v. Maryland, 373 U.S. 83 (1963).
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trial testimony implicating defendant. The State opposed the application,
contending the timing and credibility of Felder's affidavit was highly suspect
given his max-out date of January 26, 2017. The State further argued that
Felder's affidavit directly contradicted the January 13, 2010 affidavit of
Investigator Angela Townes, stating Felder "informed [her] that he would not
testify in court without getting a guarantee that the new information he could
provide would not net him any additional penalty." We denied the motion and
affirmed for the reasons expressed by the motion judge. We found defendant's
appellate arguments were without sufficient merit to warrant discussion in a
written opinion. State v. Burns, No. A-0446-15 (App. Div. Apr. 12, 2017)
(citing R. 2:11-3(e)(2)). The Supreme Court denied certification. State v.
Burns, 231 N.J. 218 (2017).
Felder executed a subsequent April 15, 2016 certification, which stated he
told the truth during his plea hearing, his meeting with First Assistant Prosecutor
Raymond Milavsky, and the trial. He further certified:
I greatly regret signing the certification that was
filed in support of Burns' application for post-
conviction relief. I was in state prison at the time I
signed that certification, and you must understand that,
since Burns is my cousin, I was under a lot of pressure
from my family to sign a certification that supported his
efforts to overturn his conviction. I am sorry that I gave
in to that pressure and signed a false certification. It
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was the result of poor judgment – and, as I said,
overwhelming pressure from my family.
In August 2017, defendant moved for a new trial based on newly
discovered evidence. In support of his motion, defendant submitted the
following documents: (1) the September 15, 2015 Felder affidavit; (2) the
January 1, 2013 Townes certification; (3) an April 22, 2010 Young certification;
(4) the April 15, 2016 Felder certification; (5) an August 5, 2017 Felder
affidavit; (6) a January 7, 2010 Morris K. Burns certification; and (7) a June 13,
2013 Reverend Rose Burns-Hayes notarized letter.
The motion judge noted the Young, Townes, and Morris K. Burns
certifications were previously addressed in the court's July 2015 decision.
Felder died in February 2018 while the motion was pending. The judge
determined that even if Felder were alive to testify at a new trial, his affidavits
and certification failed to meet the three-prong test for newly discovered
evidence set forth by the Court in State v. Carter, 85 N.J. 300 (1981).2 He found
2
In Carter, the Court reiterated the following test for newly discovered
evidence:
to 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
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the Felder affidavits and certification were merely contradictory. The judge
noted that in his September 2015 and August 2017 affidavits, Felder took full
responsibility for Patterson's death yet, in his April 2016 certification, Felder
states that his testimony during the plea hearing was accurate and that he was
under family pressure to sign the September 2015 affidavit. In his August 2017
affidavit, Felder recanted his April 2016 certification. Thus, the judge
determined defendant did not satisfy the first prong of the newly discovered
evidence test.
The judge found the affidavits and certification failed to satisfy "the
second prong of the newly discovered evidence test because the information
could have been discovered at the time of trial. Mr. Felder was present and even
testified at trial."
As to the third prong, the judge noted the credibility of Felder's recantation
was addressed in Burns II. We found:
At trial, Felder testified against defendant pursuant to a
plea agreement that required his truthful testimony in
order to obtain the benefit of his bargain. Although
Felder is allegedly now willing to recant, he is reported
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.
[Id. at 314.]
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as being willing to do so only if the proffer of the new
testimony does not "net him any additional penalty."
When we consider this condition, together with the
absence of any certification of Felder himself, we find
ample grounds to conclude that Felder's alleged proffer
is the product of fabrication and is not credible. Thus
an evidentiary basis for a new trial based on Felder's
alleged recantation is absent.
[Burns II (slip op. at 9-10).]
The judge found the 2015 and 2017 Felder affidavits were not reliable.
Moreover, "[t]estimony based on the information provided in Felder's affidavits
would be impeached by his previous testimony. Any new testimony provided
by Mr. Felder would be no more credible than his original trial testimony."
Therefore, "[s]ince these recantations are not credible," and the April 2016
certification "is consistent with his trial testimony," the 2015 and 2017 Felder
affidavits "would probably not change the result if a new trial were granted." In
addition, the judge noted Felder had previously signed a false certification due
to family pressure.
Burns-Hayes is defendant's mother. The judge concluded her notarized
letter was not material and is merely impeaching and contradictory. The judge
also found it failed to satisfy the second prong because she knew on the night of
the murder that Felder said he killed Patterson because "he disrespected him."
Thus, the evidence was "reasonably discoverable before trial." More
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fundamentally, the letter "contains nothing material or new" since Felder already
testified that he was the one that shot Patterson and did so at defendant's request.
"Information that the victim disrespected him would probably not change the
result if a new trial were granted."
Defendant submitted four additional April 2018 certifications in support
of his motion. The court noted Sedvia Felder, Sonya Burns-Walker, Morris
Burns, and Regina Burns were all members of defendant's family. They
indicated Felder died in February 2018. They also indicated Felder wished to
absolve defendant and take full responsibility for the murder. The judge found
the certifications merely contradictory to Felder's trial testimony, the evidence
reasonably could have been discovered at the time of trial, the information
contained in the certifications would not change the result if a new trial were
granted, and were dependent on the Felder affidavits passing the newly
discovered evidence test, which they did not. The judge concluded the four
certifications failed to meet each prong of the Carter test.
Based on these findings and conclusions, the motion judge denied the
motion for a new trial. This appeal followed.
In this appeal, defendant raises the following issues:
I. MOTION FOR NEW TRIAL ORDER SHOULD BE
GRANTED DUE TO NEWLY DISCOVERED
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EVIDENCE TO "DEFEND LIFE AND LIBERTY" AS
GUARANTEED BY N.J. CONST. (1949) ART I, PAR.
1; U.S. CONST. AMEND XIV § 1 TOWARDS
ACQUITTAL DUE TO ACTUAL INNOCENCE
(Raised Below).
A. Recantation.
B. Actual Innocence.
II. MOTION FOR NEW TRIAL ORDER SHOULD BE
GRANTED DUE TO NEWLY DISCOVERED
EVIDENCE. THE STATE'S "KNOWING"
PRESENTATION OF PERJURED TESTIMONY OF
TONY FELDER, DURING TRIAL WAS
FUNDAMENTALLY UNFAIR, AND THE
CONVICTION MUST BE SET ASIDE SINCE THERE
IS A REASONABLE LIKELIHOOD THAT THE
FALSE TESTIMONY AFFECTED THE JUDGMENT
OF THE JURY. LITIGANT MOVES TO "DEFEND
LIFE AND LIBERTY" AS GUARANTEED BY N.J.
CONST. (1949) ART I, PAR. 1; U.S. CONST.
AMEND XIV § 1 (Raised below).
A. Prosecutorial promises w[]ere made prior to
Felder testifying.
B. Perjured testimony.
C. Third Party Guilt, et al.
III. REMAND TO THE TRIAL COURT WITH
DIRECTIONS TO HOLD EVDENTIARY HEARINGS
ON THE ISSUES RAISED AND WITNESS
TESTIMONY BE PROVIDED TO SUPPLEMENT
THE TRIAL RECORD (Not Raised below).
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We reject these arguments and affirm substantially for the reasons stated
by Judge Philip E. Haines in his written decisions. We add the following
comments.
We review a motion for a new trial based on newly discovered evidence
under an abuse-of-discretion standard. State v. Russo, 333 N.J. Super. 119, 137
(App. Div. 2000). We discern no abuse of discretion here.
Where a defendant’s petition for a new trial is based upon the recantation
of a State’s witness, the appropriate test is: (1) “whether the testimony given at
the trial was probably false,” and, if so, (2) whether “on that account there is a
substantial possibility of [a] miscarriage of justice.” State v. Baldwin, 47 N.J.
379, 400 (1966); see also State v. Carter, 69 N.J. 420, 427 (1976) (“The test for
the judge in evaluating a recantation upon a motion for a new trial is whether it
casts serious doubt upon the truth of the testimony given at the trial and whether,
if believable, the factual recital of the recantation so seriously impugns the entire
trial evidence as to give rise to the conclusion that there resulted a possible
miscarriage of justice.” (quoting State v. Puchalski, 45 N.J. 97, 107-08 (1965)).
“Courts generally regard recantation testimony as suspect and
untrustworthy,” therefore the burden is placed squarely upon the defendant to
prove the recantation statement “is probably true and the trial testimony
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probably false.” Carter, 69 N.J. at 427. In particular, where the recanting
witness is incarcerated, courts are even more skeptical in assessing the veracity
of the recantation. See, e.g., State v. Engel, 249 N.J. Super. 336, 386 (App. Div.
1991) (“Prisoners often have nothing to lose and much to gain by repudiating
their trial testimony. For that reason, we regard recantations as inherently
suspect.”); Baldwin, 47 N.J. at 400 (“Recantations by fellow prisoners are not
uncommon. It would be unwise to vest in a State’s witness the effective power
thereby to grant a new trial.”).
Judge Haines found the affidavits and certifications submitted by
defendant in support of his motion did not satisfy any of the three prongs of the
test for newly discovered evidence. He found the contradictory Felder affidavits
and certification were not reliable or credible; testimony based on the
information contained in Felder's affidavits would be impeached by his previous
testimony; and any new testimony provided by Felder would be no more credible
than his original trial testimony. Coupled with Felder certifying he had
previously signed a false certification due to family pressure, the judge
concluded the information contained in the affidavits and certifications would
probably not change the out result if a new trial were granted.
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Based on our review of the record, we are satisfied that Judge Haines'
comprehensive factual findings are amply supported by substantial evidence in
the record and his conclusions predicated on those findings are legally sound.
The judge properly denied the motion for a new trial.
Defendant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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