STATE OF NEW JERSEY VS. SOLOMON R. WILBORN (13-03-0949, CAMDEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1388-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SOLOMON R. WILBORN,
Defendant-Appellant.
Submitted March 26, 2020 – Decided June 26, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 13-03-0949.
Joseph E. Krakora, Public Defender, attorney for
appellant (Louis H. Miron, Designated Counsel, on the
brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Solomon R. Wilborn appeals the September 10, 2018 Law
Division order denying his petition for post-conviction relief (PCR). For the
reasons stated by Judge Michele M. Fox regarding the issue now raised on
appeal, we affirm.
A jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-
1(a)(1), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), and related
offenses. Two others were named in the indictment as co-defendants. Only
defendant was charged with second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(b). The jury convicted him of that offense as well. The judge
sentenced defendant on January 24, 2014 as a persistent offender, N.J.S.A.
2C:44-3(a), to an aggregate of thirty-four years, twenty-five and one-half of
which were to be served subject to the No Early Release Act's eighty-five
percent parole bar. N.J.S.A. 2C:43-7.2.
The convictions were affirmed, and the matter remanded for merger of an
additional offense. State v. Wilborn, No. A-4317-13 (App. Div. Mar. 28, 2016).
The Supreme Court denied certification. State v. Wilborn, 228 N.J. 77 (2016).
Defendant's PCR petition raised several ineffective assistance of counsel
arguments. The only issue on appeal relates to newly discovered evidence.
A-1388-18T1
2
The incident involved three assailants attacking and robbing a man who
was riding a bicycle. He was beaten, pistol whipped, and his belongings were
taken. Shortly after the event, the police came upon the victim. The vehicle in
question was almost immediately located nearby, and inside police found several
items taken from the victim. A gun lay on the ground within a few feet of the
car.
Defendant saw the police approach the vehicle and fled. He avoided
capture by running into some woods, but was soon located walking away from
the direction of the incident. The clothes he wore were stained with blood and
DNA from the victim.
During the trial, the jury heard the police officer who first responded
describe the scene, the items found in the vehicle, and recount that defendant
was apprehended close by. The State also presented expert testimony regarding
the DNA and blood splatters on defendant's clothing. One of the co-defendants
identified defendant as not only being involved in the robbery, but having been
the person who wielded the handgun.
In support of his PCR petition, defendant submitted the testifying co-
defendant's one-page, five-paragraph affidavit. The co-defendant said
A-1388-18T1
3
defendant had not been involved in the robbery, and that he testified against him
because he was afraid if he did not, he would not "get [his] deal."
The judge found the "newly discovered evidence" failed to meet the three-
part test enunciated in State v. Carter, 85 N.J. 300 (1981). The co-defendant's
recantation was inherently untrustworthy, if for no other reason that despite
claiming he feared if he did not testify, he would not get a plea, at the time of
trial he had accepted a six-year term of imprisonment, which would be reduced
by a year if he testified truthfully against defendant. Furthermore, although
asserting that defendant was not involved, the co-defendant did not mention the
third person involved in the robbery. Finally, the affidavit did not touch upon
the other proofs the State presented to the jury, such as the victim's blood and
DNA on defendant's clothing, the fact he was discovered near the scene of the
crime, and that he was sweating profusely and "shaking a lot" when stopped.
All told, the four corners of the affidavit cast doubt on its truthfulness. Thus,
Judge Fox concluded that even if the jury had heard the co-defendant's new
narrative, it was unlikely to have affected their ultimate decision. Since the
affidavit failed the Carter1 test, which requires the newly discovered evidence
1
State v. Carter, 85 N.J. at 314 (newly discovered evidence satisfies the
standard for a new trial where it is material, came to light after the trial, and
would probably change the jury's verdict).
A-1388-18T1
4
to be material as well as have the potential of leading to a different outcome, she
denied the motion for a new trial.
Now on appeal, defendant raises the following points for our
consideration:
I. THE PCR COURT SHOULD HAVE GRANTED
DEFENDANT A NEW TRIAL IN THE INTEREST OF
JUSTICE BASED UPON THE NEWLY
DISCOVERED EVIDENCE CONCERNING THE
STATE'S WITNESS WHO RECANTED HIS TRIAL
TESTIMONY ALMOST TWO YEARS AFTER
DEFENDANT'S CONVICTION.
II. THE PCR COURT ABUSED ITS DISCRETION IN
NOT CONDUCTING AN EVIDENTIARY HEARING
TO ADDRESS DEFENDANT'S NEWLY
DISCOVERED EVIDENCE CLAIM IN ORDER TO
TEST THE VERACITY OF THE STATEMENTS
CONTAINED IN THOMAS' AFFIDAVIT AND
THEIR IMPACT ON DEFENDANT'S TRIAL.
Motions for a new trial are subject to abuse of discretion review pursuant
to Rule 3:20-1. Such motions are granted where necessary to advance the
interest of justice. Motions for a new trial based on newly discovered evidence
must consist of proof which would affect the jury's verdict. See State v. Smith,
224 N.J. 36, 49 (2016). As Judge Fox pointed out, that is patently not the case
here. The conviction was not based on the co-defendant's trial testimony.
Rather, the testimony was just one piece of evidence the State presented to the
A-1388-18T1
5
jury. Additionally, the "newly discovered evidence" was not credible. The
petition was therefore properly denied.
Affirmed.
A-1388-18T1
6