STATE OF NEW JERSEY VS. JAMA SMITH (04-03-0359, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2256-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMA SMITH,
Defendant-Appellant.
_____________________________
Argued October 2, 2019 – Decided February 4, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 04-03-0359.
John V. Saykanic argued the cause for appellant.
Marc A. Festa, Senior Assistant Prosecutor, argued the
cause for respondent (Camelia M. Valdes, Passaic
County Prosecutor, attorney; Marc A. Festa, of counsel
and on the brief).
PER CURIAM
This case returns to us after we remanded for a hearing on Jama Smith's
motion for a new trial based on newly discovered evidence. We assume the
reader's familiarity with our prior opinions, affirming on direct appeal Smith's
convictions of murder, conspiracy to commit murder, and related weapons
offenses, State v. Smith, No. A-2146-06 (App. Div. Aug. 4, 2010), certif. denied,
205 N.J. 78 (2011) (Smith I), and ordering the remand hearing, State v. Smith,
No. A-3141-13 (App. Div. Nov. 23, 2015), certif. denied, 228 N.J. 442 (2016)
(Smith II).
In brief, the State established through circumstantial evidence that Smith
drove a rented SUV while his passenger Willie Evans fatally shot Terryl Lee.
The shooting arose out of a dispute between Evans and Lee. Evans was a drug
dealer and Lee was his supplier. The cases against Evans and Smith were
severed, Smith went to trial first, and Evans did not testify. He pleaded guilty
to manslaughter before the jury returned its verdict against Smith.
Three months afterwards, Evans executed the first of two certifications
exculpating Smith. The first certification simply stated that Smith "wasn't there"
and "didn't have anything to do" with the shooting. In the second certification,
executed five years later, Evans attempted to explain why Smith returned the
rented SUV from which Evans shot Lee. We quoted the certification at length
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in Smith II. In short, Evans contended that Smith had no knowledge of the
shooting until the morning after, when Evans asked him to do him a favor to
accompany his sister to return the SUV. Evans picked up Smith from his
cousin's house, Evans got out at a friend's house, and then Smith picked up
Evans's sister and drove to the rental car office, where he was arrested.
Also, five years after the trial, Keshawn Coleman, a Lee associate,
recanted his trial testimony that he saw Smith at a drug transaction between Lee
and Evans. Coleman was also present when Lee was shot. Coleman had
testified at trial that Lee and Evans had a dispute over a drug deal.
The trial court initially denied, without an evidentiary hearing, Smith's
new trial motion based on Evans's exculpatory statements, as well as Coleman's
recantation. In order to secure a new trial based on newly discovered evidence,
"the new evidence must be (1) material . . . 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. Carter, 85 N.J.
300, 314 (1981). All three elements must be met. Ibid. The "criteria . . . must
be examined liberally when new information comes from a co-defendant who is
unavailable, as a matter of law, at the time of trial." State v. Robinson, 253 N.J.
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Super. 346, 365 (App. Div. 1992) . On appeal, we held that the Evans's
certifications met the first two elements, but the court needed to assess Evans's
and Coleman's credibility in order to properly consider the third element. Smith
II, slip op. at 7.
On remand, after hearing from both witnesses, Judge Daniel J. Yablonsky
denied Smith's motion in a cogently written opinion. The court found both
Coleman and Evans were not credible. The court appropriately recognized that
the court's credibility finding was not the end of the analysis; rather, it was a
factor – a key factor – in determining whether the witnesses' testimony would
probably alter the verdict. "The power of the newly discovered evidence to alter
the verdict is the central issue, not the label to be placed on that evidence." State
v. Ways, 180 N.J. 171, 191-92 (2004). As Judge Yablonsky stated, "The answer
to the question of whether new evidence is probably true is the linchpin in
determining the probability that such evidence would change the jury's verdict."
(emphasis in original). Regarding Evans's credibility, the court found "[m]ost
concerning" inconsistencies between his 2011 certification and his hearing
testimony. The court also was unimpressed with Coleman's hearing testimony,
recanting his trial testimony that he saw Smith with Evans during a drug deal
with Lee.
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The court concluded that "Evans's testimony was merely designed to give
[Smith] a second chance for acquittal"; it "would not likely be found credible by
a jury"; and "would probably not cause a change to the original verdict." Also,
even if Coleman's hearing testimony were deemed credible at a new trial, it
would unlikely cause an acquittal, as Coleman did not affirmatively exculpate
Smith.
We defer to the trial court's credibility findings, particularly in the case of
recantation testimony, such as Coleman's, that is "generally regarded 'as suspect
and untrustworthy.'" Ways, 180 N.J. at 196-97 (quoting State v. Carter, 69 N.J.
420, 427 (1976)). The testimony of a sentenced co-defendant, like Evans, may
also be inherently suspect, because he may have "nothing to lose by exonerating"
his co-defendant. Robinson, 353 N.J. Super. at 367 (citations omitted).
It is the province of the fact-finder – not the reviewing court – to determine
whether to chalk up inconsistencies to failing memory and innocent mistakes,
or to weigh them as evidence of dissembling. See Model Jury Charges
(Criminal), Prior Contradictory Statements of Witnesses (Not Defendant)
(1994). The trial court's findings in that regard are informed by its opportunity,
unavailable to an appellate court, to assess witnesses' demeanor and other
intangibles. Carter, 69 N.J. at 427-28.
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We also review the ultimate decision to grant a new trial for an abuse of
discretion. See State v. Smith, 29 N.J. 561, 573 (1959) (stating that the decision
to grant a new trial based on newly discovered evidence is vested in a trial court's
sound discretion). Although we review de novo the PCR court's legal
determinations, State v. Nash, 212 N.J. 518, 540-41 (2013), it is not our role to
decide anew whether a new trial is warranted.
Applying that standard of review, we discern an insufficient basis to
disturb the trial court's order denying a new trial. At the remand hearing, Evans
testified that on the night of the homicide, he parked the SUV about three blocks
from his house; he drove to his sister in his personal vehicle to give her the
SUV's keys so she could return the vehicle the next day. He drove her around
the block and she got out. He said that the next morning, his sister told him she
saw parole officers outside his house. He then asked Smith to accompany her,
because she was nervous. He provided no further details as to how his sister
retrieved the vehicle; and how or where she picked up Smith.
Evans offered a different version in his 2011 certification. He claimed
that the morning after the homicide, he learned that parole officers were at his
residence. He called Smith and asked him to take the vehicle to Evans's sister.
Evans then drove the SUV to the house of Smith's cousin, Latonya Brown, where
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Smith was living at the time. Smith got into the car, dropped Evans off at his
girlfriend's house, picked up Evans's sister at her place, and drove to the rental
car office.
Evans's testimony was also inconsistent with Smith's own Mirandized
statement to police on the day he was arrested. We recognize the statement was
unrecorded, and, at trial, Smith challenged the credibility of the detective who
reported Smith's statement. According to the detective, Smith said he drove the
SUV the night of the homicide (not the morning after); he dropped it off in front
of Evans's house (not three blocks away); he walked to his girlfriend's house,
where he spent the night (not his cousin's house, where Evans said he picked
him up); then returned to the vehicle in the morning, picked up Evans's sister,
and then delivered the vehicle to the rental car office.
Furthermore, Smith's statement contradicted his purported alibi witnesses,
Smith's aunt and cousin, Doris and Latonya Brown. They both testified that
Smith was at their house all night. Also, contrary to Smith's statement, a police
detective testified that the night of the homicide, they searched for the SUV and
saw none parked at Evans's address.
Evans's 2011 certification was also at odds with Doris Brown's trial
testimony that, although Smith and Evans were often together, she never saw
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Evans come to her house to see Smith. Latonya Brown also testified that she
never saw Evans pick up Smith in an SUV at her house. Regarding Evans's
hearing testimony that he drove his "personal vehicle" to deliver the keys to his
sister, Doris Brown testified that neither Smith nor Evans owned or had their
own car.
Judge Yablonsky also found implausible Evans's hearing testimony that
the person who he said was at the wheel of the SUV before the homicide – James
Felton – was unaware of Evans's plan to shoot Lee. Evans testified that Felton
knew that Evans carried a gun. Evans was driving the SUV, and Felton was the
passenger, when Evans saw Lee in another vehicle. He asked Felton to drive
and follow Lee, after Evans moved to the back seat. "It is hard to believe that
Felton, without any knowledge of Evans's plan, stalked the victim and facilitated
the drive-by" shooting.
We also will not disturb Judge Yablonsky's credibility finding regarding
Coleman, who recanted his trial testimony that he saw Smith with Evans during
a drug deal with Lee. The court recognized that the trial testimony helped
establish the motive and intent for the homicide. Coleman helped establish that
Smith and Evans were in the drug trade together, and were both at odds with
Lee, their supplier. The court found that Coleman not only lacked recall, but
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professed not to understand questions that the court considered "simple and
straight-forward."
In sum, we reject Smith's contention that the trial court abused its
discretion in denying him a new trial on the basis of Evans's exculpatory
statements and Coleman's recantation.
We also decline to address two arguments that Smith presents, for the first
time, on appeal. Smith argues that there is additional newly discovered evidence
that corroborates Evans's assertion that James Felton, and not Smith, drove the
SUV while Evans fatally shot Terryl Lee. That evidence is Coleman's 2010
conviction for Felton's murder. Coleman was convicted in 2010 for murdering
Felton outside a chicken store in Paterson in 2007. See State v. Coleman, No.
A-1752-10 (App. Div. Oct 3, 2012) (affirming the conviction on direct appeal);
State v. Coleman, No. A-0779-15 (App. Div. May 3, 2017) (affirming the denial
of post-conviction relief). Smith speculates about Coleman's motive for killing
Felton. Smith asserts – without providing a basis – that Coleman believed that
Felton, not Smith, helped Evans kill Lee. We do not address whether, if Smith
obtained evidence supporting Coleman's asserted belief in Felton's complicity,
it would provide a basis for a new trial, in part by bolstering Evans's own
statements. Smith must present such evidence to the trial court in the first
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instance. "[A]ppellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
is available" unless the issues pertain to the court's jurisdiction or a significant
public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
For the same reason, we decline to reach Smith's newly minted argument
that the State violated his due process rights by withholding exculpatory
evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972). The argument is predicated on the assertion
that the State presented false testimony by Coleman, the jail house snitch
Rashawn Barrett, and Davon Forbes. See Smith II, slip op. at 1-2 (discussing
Barrett's testimony and Forbes's prior written statement that the State introduced
into evidence). The Brady-Giglio argument should first be made to the trial
court. Nieder, 62 N.J. at 234.
Affirmed.
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