STATE OF NEW JERSEY VS. JOY J. JEFFERSON (13-08-1054, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2655-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOY J. JEFFERSON, a/k/a JOY J.
JEFFESON,
Defendant-Appellant.
___________________________________
Submitted January 29, 2018 – Decided August 14, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
13-08-1054.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from her convictions, after a jury trial,
of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1);
third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d). The jury found defendant slashed the
victim on the arm and wrist with a small razor or other sharp
object during a fight involving the victim, defendant and
defendant's sister, Velicia Odum. After merger, the court imposed
a seven-year term of imprisonment on the assault charge, subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The principal issue on appeal is the court's denial of
defendant's motion for a new trial. The motion was based on what
defendant claimed was newly discovered evidence that Odum admitted
she, rather than defendant, slashed the victim. We affirm.
Odum had denied responsibility in a police interview
immediately after the slashing.1 Before trial, the prosecutor and
defense counsel discussed on the record that Odum might admit
guilt. Defense counsel stated she conferred with Odum and
defendant. Odum was also on defendant's witness list. The
prosecutor observed her in the courthouse during the trial. Yet,
neither side called her as a witness.
1
Odum's statement to police is not in the record before us. We
rely on the assistant prosecutor's representation during oral
argument on the motion and the trial court's ruling.
2 A-2655-15T4
The State presented multiple witnesses who saw defendant
directly confront the victim and make slashing motions. The victim
and a witness heard defendant say "this is for my niece" or "this
is for my nieces" before the victim was slashed. Also, a videotape
of the altercation belied defendant's recorded statement to police
that she was nowhere near the victim. The victim's blood was
found on a sweatshirt that defendant was seen holding in her hand.
Defendant did not testify in her own defense.
Over two months after the jury's verdict, Odum sent two
letters to the prosecutor and the trial judge, dated four days
apart. In the first, Odum said she wanted to "tell [her] story
and my sister is innocent." In the second, she repeated, "My
sister is innocent." She added, "I am the one who cut [the victim]
with a razor after she attacked me with a group of others." She
volunteered to take a polygraph. The court adjourned defendant's
sentencing date to allow the defense to investigate Odum's claim.
After Odum could not be located, the court proceeded with
sentencing.
About seven months later, defendant filed her motion for a
new trial based on newly discovered evidence. Judge Michael A.
Toto denied defendant's motion in well-reasoned written opinion.
Applying State v. Carter, 85 N.J. 300, 314 (1981), Judge Toto
determined that Odum's post-trial admission was not newly
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discovered evidence entitling defendant to a new trial. Carter
requires that such be "(1) material to the issue and not merely
cumulative or impeaching or contradictory; (2) discovered since
the trial and not discoverable by any reasonable diligence
beforehand; and (3) of the sort that would probably change the
jury's verdict if a new trial were granted." Carter, 85 N.J. at
314.
Regarding the first and third Carter factors, Judge Toto
acknowledged that evidence that someone other than defendant
injured the victim was "material evidence that may change the
jury's verdict if a new trial were granted." However, the judge
highlighted that the State would have confronted Odum with her
prior denial if she accepted guilt at a new trial. The judge also
questioned whether Odum's account was plausible in light of the
evidence against defendant. As for the second Carter factor, the
court found the evidence was "simply not new," because the
"information was available" before trial, and defendant could have
called Odum to testify.
Defendant raises the following points on appeal:
POINT I
THE DEFENDANT'S CONVICTION IS UNJUST, VIOLATES
THE FEDERAL AND STATE CONSTITUTIONS, AND
UNDERMINES CONFIDENCE IN THE ADMINISTRATION OF
JUSTICE, AS NO JURY EVER HEARD AN ADMISSION
BY DEFENDANT'S SISTER INCULPATING HERSELF AND
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EXONERATING THE DEFENDANT FROM THE COMMISSION
OF THE CRIMES.
A. THE DEFENDANT'S RIGHT TO A COMPLETE
DEFENSE AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I, PAR. 10 OF THE
NEW JERSEY CONSTITUTION WAS VIOLATED BY
THE OMISSION OF CRITICAL EXCULPATORY
EVIDENCE: A THIRD-PARTY ADMISSION OF
GUILT.
B. THE DEFENDANT'S MOTION FOR A NEW
TRIAL BASED ON NEWLY DISCVOVERED EVIDENCE
SHOULD HAVE BEEN GRANTED.
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE SUPPRESSION OF EXCULPATORY
EVIDENCE (NOT RAISED BELOW).
POINT III
IF THE TRIAL COURT'S DECISION IS CORRECT - THE
THIRD PARTY ADMISSION OF GUILT WAS AVAILABLE
PRIOR TO TRIAL - COUNSEL WAS INEFFECTIVE FOR
NOT EVEN KNOWING ABOUT IT.
POINT IV
THE DEFENDANT'S RIGHT TO REMAIN SILENT AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND THE NEW JERSEY
COMMON LAW WAS VIOLATED BY THE PROSECUTOR'S
COMMENT ON THE DEFENDANT'S SILENCE.
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART.I, PAR.
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1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY PROSECUTORIAL MISCONDUCT.
POINT VI
THE SENTENCE IS EXCESSIVE.
We reject defendant's argument that the trial court was
obliged to grant a new trial based on Odum's post-trial admissions.
A new trial motion "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). We
discern none here.
Defendant had the burden of establishing her right to relief
by satisfying all three Carter factors. State v. Ways, 180 N.J.
171, 187 (2004). The Carter analysis focuses on the nature of the
evidence presented. Id. at 191-92. "The power of the newly
discovered evidence to alter the verdict is the central issue, not
the label to be placed on that evidence." Ibid. As a result,
prongs one and three of the test are "inextricably intertwined."
State v. Nash, 212 N.J. 518, 549 (2013). Evidence that is "merely
cumulative, or impeaching, or contradictory . . . is not of great
significance and would probably not alter the outcome of a
verdict." Ways, 180 N.J. at 188-89 (internal quotation marks
omitted). "Material evidence is any evidence that would 'have
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some bearing on the claims being advanced.'" Id. at 188 (quoting
State v. Henries, 306 N.J. Super. 512, 513 (App. Div. 1991)).
"Clearly, evidence that supports a defense, such as alibi, third-
party guilt, or a general denial of guilt would be material."
Ibid.
Although proof of a third-party's guilt may certainly be
material, Odum's statements were inherently self-serving and
unreliable, because she admitted she slashed the victim only in
self-defense. She alleged she cut the victim only after the victim
and a group of others attacked her. The clear import of her
apparently uncounseled letter was that she used such force because
she reasonably believed it was necessary to protect herself from
her attackers. See N.J.S.A. 2C:3-4(a); see also State v. Urbina,
221 N.J. 509, 525 (2015) (noting that self-defense exonerates a
defendant). She attempted to exonerate defendant while insulating
herself from criminal responsibility. As the Supreme Court has
observed, "statements that exculpate the declarant from liability
by shifting blame to another . . . are inherently self-serving and
presumptively unreliable." State v. White, 158 N.J. 230, 239
(1999).
Furthermore, Odum would be discredited with her prior
denials. Her claim to be the slasher was also belied by the
testimony of multiple eyewitnesses and the forensic evidence of
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the victim's blood on defendant's sweatshirt. Therefore, we shall
not disturb the trial court's judgment that Odum's statement was
not "of the sort that would probably change the jury's verdict if
a new trial were granted." Ways, 180 N.J. at 188-89 (quoting
Carter, 85 N.J. at 314).
Prong two "requires that the new evidence must have been
discovered after completion of trial and must not have been
discoverable earlier through the exercise of reasonable
diligence." Id. at 192. In that regard, a court should consider
the strategic decisions of trial counsel in deciding whether
evidence is newly discovered. Ibid. "A defendant is not entitled
to benefit from a strategic decision to withhold evidence." Ibid.
Although Odum sent her two letters after trial, the record
is barren of any competent evidence that defendant or her counsel
were unaware of, or could not reasonably discover, Odum's claims
before or during trial, or her willingness to testify. Defense
counsel admitted on the record before trial that she jointly
conferred with Odum and defendant. The parties discussed at a
pre-trial hearing that Odum might "take responsibility" for the
crime. She was present at trial. Notwithstanding that defense
counsel may have been concerned that Odum might incriminate herself
without an attorney's advice, defendant or her counsel decided not
to call her. See Ways, 180 N.J. at 192.
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In sum, the trial judge – who had the benefit of the
perspective of having presided over the trial – did not abuse his
discretion in finding that defendant failed to meet her burden
under Carter to show she was entitled to a new trial based on
newly discovered evidence.
Defendant's remaining points require relatively brief
comment. Defendant argues that if Odum's admission was available
before trial, then the State must have suppressed it from the
defense in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963),
and she is entitled to a new trial. As defendant did not raise
this issue before the trial court, we are not obliged to reach it.
See State v. Arthur, 184 N.J. 307, 327 (2005) (stating "[a]n
appellate court ordinarily will not consider issues that were not
presented to the trial court"). In any event, defendant presents
no competent evidence that the State, before or during trial,
possessed a statement from Odum that exculpated defendant.
Alternatively, defendant argues that if her trial counsel did
possess Odum's admission before or during trial, it was ineffective
assistance of counsel not to use it. We acknowledge that "evidence
clearly capable of altering the outcome of a verdict that could
have been discovered by reasonable diligence at the time of trial
would almost certainly point to ineffective assistance of counsel
. . . ." Ways, 180 N.J. at 192. Yet, the trial court was
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unconvinced that Odum's self-serving admission was clearly capable
of changing the result. Regardless, as defendant's ineffective
assistance of counsel claim involves evidence outside the trial
record, it should be resolved on a petition for post-conviction
relief, and not on direct appeal. See State v. Quixal, 431 N.J.
Super. 502, 512 (App. Div. 2013).
Defendant also challenges her conviction on the ground that
the prosecutor engaged in misconduct in his opening statement, by
asserting that the victim's injury had changed her life, and in
his summation, by noting "there's no answer" to the inconsistencies
between defendant's statement to police and the videotape of the
altercation. As to the former, defendant contends it was unduly
prejudicial. As to the latter, defendant contends the argument
impermissibly commented on defendant's decision not to testify.
We are unpersuaded. The comment in the opening statement
fairly addressed the nature of the victim's injury, which was
supported by testimony that she lost full use of her hand and had
scarring on her arm because of the assault. We discern no
misconduct, let alone the egregious misconduct that deprives a
defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83-
84 (1999). As for the statement in summation, we acknowledge that
the jury conceivably may have perceived it as a challenge to
defendant for not taking the stand to explain the inconsistency.
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But, more reasonably, the prosecutor meant that there could be no
rational explanation for the inconsistency. In any event, the
judge instructed the jury that defendant was entitled to remain
silent, and cautioned the jury that it "must not consider for any
purpose or in any manner . . . the fact that [she] did not testify."
We therefore conclude that statement in summation does not warrant
a new trial. See State v. Tucker, 190 N.J. 183, 190 (2007)
(finding that "the State's pointing out inconsistencies in
defendant's statements" that were voluntarily given and admitted
into evidence at trial "did not constitute an unconstitutional
comment on silence").
Finally, we reject defendant's challenge to her sentence. We
are satisfied that it is not manifestly excessive or unduly
punitive and does not constitute an abuse of discretion. State
v. Cassady, 198 N.J. 165 (2009); State v. Roth, 95 N.J. 334 (1984).
The trial court appropriately identified and weighed the
aggravating and mitigating factors, and imposed a sentence within
the second-degree range, which we shall not disturb. State v.
Case, 220 N.J. 49, 64-65 (2014).
To the extent not addressed, defendant's points on appeal
lack sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(2).
Affirmed.
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