NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3045-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARKITA A. NORRIS, a/k/a MARKITA ANITA NORRIS, MAKITA A. NORRIS, and MONROE ZYIRE QURAN NORRIS,
Defendant-Appellant. ______________________________
Submitted December 11, 2023 – Decided December 22, 2023
Before Judges Sabatino, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-07-0774.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs, Designated Counsel, on the briefs).
William A. Daniel, Union County Prosecutor, attorney for respondent (Michele C. Buckley, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Markita Norris appeals from a February 25, 2021 order denying
both her petition for post-conviction relief ("PCR") and motion for a new trial.
We affirm substantially for the reasons set forth by Judge Regina Caulfield in
her well-reasoned ninety-six-page written opinion.
I.
We incorporate the facts leading to defendant's May 30, 2012 convictions
from our decision on defendant's direct appeal, State v. Norris, No. A-1561-12,
(App. Div. Nov. 30, 2015), 2ertify. denied, 226 N.J. 213 (2016), where we
previously affirmed defendant's conviction but remanded for resentencing , and
State v. Norris, No. A-3008-15, (App. Div. May 15, 2017), where we again
remanded for resentencing. The facts underlying defendant's conviction are
detailed in our previous opinions and need not be repeated in their entirety.
Rather, we recount the facts relevant to defendant's petition and motion.
The State established at trial that in March 2010, during a fundraiser at
the Black United Fund in Plainfield, the victims were dancing when defendant
"bumped shoulders" with decedent. When the parties saw each other outside,
defendant and her uncle instigated another verbal altercation with the surviving
A-3045-20 2 victim and decedent. The verbal altercation became physical when defendant's
uncle punched the surviving victim.
At trial, the State called five eyewitnesses who saw defendant attack the
victims during the fight. Four of the eyewitnesses' testimony collectively
established that defendant was the only one who fought with and stabbed the
decedent, who collapsed on the sidewalk. The testimony of these witnesses also
established that while defendant's uncle fought with the surviving victim,
defendant stabbed the surviving victim twice in the left arm and once in the
back. The surviving victim suffered a collapsed lung and other injuries.
Defendant then went back and kicked the decedent in the head before leaving in
her uncle's car.
The fifth and final eyewitness, Mahalia Frieda Fowler-Stewart, testified
she saw decedent prior to the fight standing by a tree when defendant "just
swung on him, hit him in his stomach." She watched them fight for "a minute
and then he just fell, and the tree came out of the ground." Fowler-Stewart ran
over to decedent and saw that he had a stab wound in his chest. Fowler-Stewart
also saw defendant kick decedent after he fell to the ground. She testified
defendant then went over to the surviving victim and "hit him in the back." The
surviving victim then walked to a wall, called to Fowler-Stewart, and said, "I
A-3045-20 3 think she stabbed me." Fowler-Stewart testified that she attempted to help the
decedent by holding him in her arms. The decedent spoke to her and said, "why
she stab me? [P]lease don't let me die." Decedent repeatedly said he could not
breathe. Fowler-Stewart testified that the paramedics arrived and put decedent
in an ambulance.
The surviving victim also testified about the initial bump, the beginning
of the fight, and his fight with defendant's uncle. He testified that at some point
during the fight he began to "feel weak and didn't know why." He saw defendant
dance in the middle of the street before she and her uncle drove away in his car.
Plainfield Police Officer Candis Grant testified that she responded to the
scene before the victims were taken to the hospital. An individual in the crowd
yelled to her and pointed in the direction of defendant's uncle's car. Officer
Grant attempted to stop the car; however, she failed, and a pursuit ensued.
During the five-minute pursuit, Officer Grant observed a handgun thrown out of
the passenger window of the vehicle. When the vehicle finally stopped,
defendant and her uncle were arrested. Defendant had $234 in cash on her, and
the police found thirty-four bags of cocaine in the backseat of the patrol car
where defendant had been sitting. At trial, the parties stipulated that the gun
A-3045-20 4 thrown from the car belonged to defendant's uncle, and he pled guilty to
possessing it. Defendant did not testify.
On May 30, 2012, the jury found defendant guilty of murder, N.J.S.A.
2C:11-3a(1); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3;
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);
possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a
(1); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1);
possession of CDS with intent to distribute within 1,000 feet of school property,
N.J.S.A. 2C:35-7; and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
Initially, defendant's convictions were affirmed, but her eighty-year
sentence was remanded for resentencing. She then appealed her second
sentence, which was also remanded. Defendant was eventually sentenced to
forty years of incarceration and a consecutive fifteen-year term of incarceration,
both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 with an additional
five-year term to run concurrently for possession of CDS with the intent to
distribute within 1,000 feet of a school.
II.
In March 2019, defendant filed a petition for PCR and a motion for new
trial. Defendant argued she was entitled to post-conviction relief due to several
A-3045-20 5 errors committed by her trial attorney constituting ineffective assistance of
counsel, and she was entitled to a new trial due to the fabricated testimony
provided by Fowler-Stewart.
First, in regard to her PCR, defendant alleged her counsel was ineffective
for allowing the State to present evidence related to her uncle's guilty plea to
possession of a handgun; for failing to make a pretrial motion to sever the
unrelated drug counts into separate trials; for allowing the admission of certain
hearsay statements in violation of the evidentiary rules and her right to
confrontation; and for failing to properly investigate and cross-examine a
witness with respect to their claim that an unknown male was involved in the
altercation. Defendant further contended the cumulative errors established her
claim of ineffective assistance of counsel. As these arguments were decided on
direct appeal, the court declined to revisit them.
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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-3045-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARKITA A. NORRIS, a/k/a MARKITA ANITA NORRIS, MAKITA A. NORRIS, and MONROE ZYIRE QURAN NORRIS,
Defendant-Appellant. ______________________________
Submitted December 11, 2023 – Decided December 22, 2023
Before Judges Sabatino, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-07-0774.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs, Designated Counsel, on the briefs).
William A. Daniel, Union County Prosecutor, attorney for respondent (Michele C. Buckley, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Markita Norris appeals from a February 25, 2021 order denying
both her petition for post-conviction relief ("PCR") and motion for a new trial.
We affirm substantially for the reasons set forth by Judge Regina Caulfield in
her well-reasoned ninety-six-page written opinion.
I.
We incorporate the facts leading to defendant's May 30, 2012 convictions
from our decision on defendant's direct appeal, State v. Norris, No. A-1561-12,
(App. Div. Nov. 30, 2015), 2ertify. denied, 226 N.J. 213 (2016), where we
previously affirmed defendant's conviction but remanded for resentencing , and
State v. Norris, No. A-3008-15, (App. Div. May 15, 2017), where we again
remanded for resentencing. The facts underlying defendant's conviction are
detailed in our previous opinions and need not be repeated in their entirety.
Rather, we recount the facts relevant to defendant's petition and motion.
The State established at trial that in March 2010, during a fundraiser at
the Black United Fund in Plainfield, the victims were dancing when defendant
"bumped shoulders" with decedent. When the parties saw each other outside,
defendant and her uncle instigated another verbal altercation with the surviving
A-3045-20 2 victim and decedent. The verbal altercation became physical when defendant's
uncle punched the surviving victim.
At trial, the State called five eyewitnesses who saw defendant attack the
victims during the fight. Four of the eyewitnesses' testimony collectively
established that defendant was the only one who fought with and stabbed the
decedent, who collapsed on the sidewalk. The testimony of these witnesses also
established that while defendant's uncle fought with the surviving victim,
defendant stabbed the surviving victim twice in the left arm and once in the
back. The surviving victim suffered a collapsed lung and other injuries.
Defendant then went back and kicked the decedent in the head before leaving in
her uncle's car.
The fifth and final eyewitness, Mahalia Frieda Fowler-Stewart, testified
she saw decedent prior to the fight standing by a tree when defendant "just
swung on him, hit him in his stomach." She watched them fight for "a minute
and then he just fell, and the tree came out of the ground." Fowler-Stewart ran
over to decedent and saw that he had a stab wound in his chest. Fowler-Stewart
also saw defendant kick decedent after he fell to the ground. She testified
defendant then went over to the surviving victim and "hit him in the back." The
surviving victim then walked to a wall, called to Fowler-Stewart, and said, "I
A-3045-20 3 think she stabbed me." Fowler-Stewart testified that she attempted to help the
decedent by holding him in her arms. The decedent spoke to her and said, "why
she stab me? [P]lease don't let me die." Decedent repeatedly said he could not
breathe. Fowler-Stewart testified that the paramedics arrived and put decedent
in an ambulance.
The surviving victim also testified about the initial bump, the beginning
of the fight, and his fight with defendant's uncle. He testified that at some point
during the fight he began to "feel weak and didn't know why." He saw defendant
dance in the middle of the street before she and her uncle drove away in his car.
Plainfield Police Officer Candis Grant testified that she responded to the
scene before the victims were taken to the hospital. An individual in the crowd
yelled to her and pointed in the direction of defendant's uncle's car. Officer
Grant attempted to stop the car; however, she failed, and a pursuit ensued.
During the five-minute pursuit, Officer Grant observed a handgun thrown out of
the passenger window of the vehicle. When the vehicle finally stopped,
defendant and her uncle were arrested. Defendant had $234 in cash on her, and
the police found thirty-four bags of cocaine in the backseat of the patrol car
where defendant had been sitting. At trial, the parties stipulated that the gun
A-3045-20 4 thrown from the car belonged to defendant's uncle, and he pled guilty to
possessing it. Defendant did not testify.
On May 30, 2012, the jury found defendant guilty of murder, N.J.S.A.
2C:11-3a(1); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3;
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);
possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a
(1); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1);
possession of CDS with intent to distribute within 1,000 feet of school property,
N.J.S.A. 2C:35-7; and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
Initially, defendant's convictions were affirmed, but her eighty-year
sentence was remanded for resentencing. She then appealed her second
sentence, which was also remanded. Defendant was eventually sentenced to
forty years of incarceration and a consecutive fifteen-year term of incarceration,
both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 with an additional
five-year term to run concurrently for possession of CDS with the intent to
distribute within 1,000 feet of a school.
II.
In March 2019, defendant filed a petition for PCR and a motion for new
trial. Defendant argued she was entitled to post-conviction relief due to several
A-3045-20 5 errors committed by her trial attorney constituting ineffective assistance of
counsel, and she was entitled to a new trial due to the fabricated testimony
provided by Fowler-Stewart.
First, in regard to her PCR, defendant alleged her counsel was ineffective
for allowing the State to present evidence related to her uncle's guilty plea to
possession of a handgun; for failing to make a pretrial motion to sever the
unrelated drug counts into separate trials; for allowing the admission of certain
hearsay statements in violation of the evidentiary rules and her right to
confrontation; and for failing to properly investigate and cross-examine a
witness with respect to their claim that an unknown male was involved in the
altercation. Defendant further contended the cumulative errors established her
claim of ineffective assistance of counsel. As these arguments were decided on
direct appeal, the court declined to revisit them.
Regarding the motion for a new trial, the court heard testimony from
November 2019 to February 2020. First, the court heard the testimony of Shohin
Ghaffari, a family friend of defendant. Ghaffari testified defendant was a "friend
of the family" and was his "fiancé's cousin." Ghaffari did not believe defendant
committed the alleged offenses, and he began conducting his own investigation.
Ghaffari spoke to ten people as part of his investigation, but only Fowler-Stewart
A-3045-20 6 was cooperative. Ghaffari decided to take further action after Fowler-Stewart
"broke out and started crying in tears" when asked about defendant's case.
Ghaffari brought Fowler-Stewart to PCR counsel's office on two occasions. He
denied making any threats or promises to Fowler-Stewart in exchange for
meeting with PCR counsel. Ghaffari explained, to his understanding, Fowler -
Stewart met with PCR counsel freely and voluntarily. Ghaffari had no training
in the practice of law, legal research, law enforcement, security, or
investigations.
The trial court determined Ghaffari was not a credible witness due to his
inability to recall key information, his refusal to provide names of individuals
from whom he obtained information regarding defendant's innocence, and his
noted recollection of only information he felt was important to the case. The
court also noted Ghaffari's body language and hesitation when answering certain
questions posed by the State. Further, the court found Ghaffari was "often
inconsistent and non-responsive, was often evasive and, at other times
defensive, and insisted he could not recall certain information when
pressed . . . ." The court ultimately rejected Ghaffari's testimony as being
mostly untrue, particularly as it related to his conversations with Fowler-Stewart
and his contact with certain alleged witnesses during his investigation.
A-3045-20 7 Following Ghaffari, Fowler-Stewart testified intermittently before the
PCR court over several months. Fowler-Stewart testified that upon meeting with
Ghaffari, she confessed she fabricated decedent's dying declaration. Fowler-
Stewart explained when she ran over to decedent as he was lying bleeding on
the ground, he had not made the declaration to her. When asked why she
previously lied about the statement, Fowler-Stewart said she felt compelled to
do so due to a detective on the case harassing her and threatening to remove her
from Recovery Court if she did not testify. Fowler-Stewart thought she should
"tell them what they wanted to hear." Fowler-Stewart denied seeing defendant
swing at decedent's stomach, and insisted she did not see anything besides
defendant kick decedent and swing towards the surviving witness.
The court compared Fowler-Stewart's statements, demeanor, and behavior
when she originally gave statements to police to her testimony at trial where she
recanted her testimony. When giving statements to police following the
incident, the court found Fowler-Stewart to be clear, consistent, alert,
responsive, focused, and cooperative. The court noted Fowler-Stewart was
polite and respectful to the officers and, without being asked to do so,
demonstrated defendant's motions towards both victims during the fight. In
considering Fowler-Stewart's behavior at trial, after both reading the transcript
A-3045-20 8 and listening to the same testimony, the court found it easy to understand why
the jury found Fowler-Stewart believable. The court found Fowler-Stewart's
trial testimony completely credible, cooperative, responsive, and consistent in
providing her answers.
The court found fowle—Stewart's demeanor took a noticeable turn during
the motion for new trial. The court determined Fowler-Stewart's testimony to
be not credible, as Fowler-Stewart gave no basis for her previous statements
being forced on her by police officers. The court noted her repeated
inconsistencies, that she contradicted herself during the hearing, and displayed
abrupt behavior, indicating a lack of truthfulness.
The court held the trial testimony recanted by Fowler-Stewart to be
material; however, the court reasoned defendant's recantation "must be placed
in context with the trial evidence" and considered alongside the State's solid
circumstantial case against defendant for both stabbings. The court noted that
had Fowler-Stewart not testified, the court and jury would have been able to
compile the remaining witnesses' testimonies to determine it was defendant who
was in the altercation with decedent and likely the assailant, as no other
testimony identified another person fighting during the altercation.
Additionally, even without Fowler-Stewart's testimony, if defendant was
A-3045-20 9 granted a new trial with the other witnesses presenting the same testimony as
they did in 2012, defendant would likely be convicted. The court opined
defendant's presentation of Fowler-Stewart's recantation as "new evidence" in
her motion for new trial was "completely incredible." According to the court,
the recantation did not cast serious doubt upon the truth of the testimony that
Fowler-Stewart gave at trial.
On February 25, 2021, the court denied defendant's motion for a new trial
and denied the PCR petition without an evidentiary hearing. This appeal
followed.
III.
On appeal, defendant raises the following issues for our consideration:
POINT I
AS DEFENDANT HAD SHOWN THAT SHE RECEIVED PREJUDICIAL INEFFECTIVE . . . ASSSISTANCE OF PCR COUNSEL, THE PCR COURT ERRED BY DENYING HER PCR PETITION WITHOUT AN EVIDENTIARY HEARING
(1) Defendant was prejudiced when trial counsel failed to object to the introduction of evidence that co-defendant Malcolm Hunter entered a guilty plea to unlawful possession of a handgun.
(2) Trial counsel was ineffective by failing to move to sever the drug charges.
A-3045-20 10 (3) Trial counsel's cumulative errors denied defendant effective legal representation.
(4) As there were genuine issues of material facts in dispute, an evidentiary hearing was required.
POINT II
AS DEFENDANT HAS SHOWN THAT THE INTERESTS OF JUSTICE WARRANT A NEW TRIAL, THE PCR COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.
We discern no abuse of discretion in the judge's decision to deny both the PCR
petition without an evidentiary hearing and the motion for a new trial. We add
the following comments.
A.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To establish a prima facie claim of ineffective assistance of counsel,
the defendant is obligated to show not only the particular way counsel's
performance was deficient, but also that the deficiency prejudiced h er right to a
fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,
A-3045-20 11 105 N.J. 42, 58 (1987). We review a judge's decision to deny a PCR petition
without an evidentiary hearing for abuse of discretion. Preciose, 129 N.J. at
462.
Collectively, Rules 3:22-4(a) and 3:22-5 provide procedural bars such that
"a defendant may not employ PCR to assert a new claim that could have been
raised on direct appeal, . . . or to relitigate a claim already decided on the merits."
State v. Goodwin, 173 N.J. 583, 593 (2002) (citing respectively R. 3:22-4 and -
5). Under Rule 3:22-5, "[p]reclusion of consideration of an argument presented
in PCR proceedings should be effected only if the issue raised is identical or
substantially equivalent to that adjudicated previously on direct appeal." State
v. Marshall, 148 N.J. 89, 150 (1997) (quoting State v. Bontempo, 170 N.J. Super.
220, 234 (App. Div. 1979)).
Defendant raised the following issues in her direct appeal: 1) her uncle's
plea to possession of the handgun should not have been admitted at her trial; 2)
trial counsel's agreement to stipulate to this information amounted to ineffective
assistance of counsel; and 3) trial counsel was ineffective for failing to move for
severance of drug charges that were unrelated to the murder and attempt charges.
The trial court did not abuse its discretion in holding defendant was not entitled
to re-argue the same issues at her PCR hearing as she had in her direct appeal.
A-3045-20 12 Since none of the individual actions of defendant's trial attorney had been
deemed improper or ineffective, but rather strategic, the cumulative effect of
such alleged actions would not be improper.
B.
"[Appellate courts] review a motion for a new trial decision for an abuse
of discretion," State v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020) (citing
State v. Armour, 446 N.J. Super. 295, 306 (App. Div. 2016)), and will not
interfere with the decision "unless a clear abuse has been shown." State v.
Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (State v. Artis, 36 N.J. 538,
541 (1962)). "[Appellate courts] must keep in mind that the purpose of post -
conviction review in light of newly discovered evidence is to provide a
safeguard in the system for those who are unjustly convicted of a crime ." State
v. Ways, 180 N.J. 171, 188 (2004). "Newly discovered evidence must be
reviewed with a certain degree of circumspection to ensure that it is not the
product of fabrication, and, if credible and material, is of sufficient weight that
it would probably alter the outcome of the verdict in a new trial." Id. at 187-88.
Appellate courts apply a deferential standard in reviewing factual findings
by a judge. Balducci v. Cige, 240 N.J. 574, 595 (2020); State v. McNeil-
Thomas, 238 N.J. 256, 271 (2019). In an appeal from a non-jury trial, appellate
A-3045-20 13 courts "give deference to the trial court that heard the witnesses, sifted the
competing evidence, and made reasoned conclusions." Griepenburg v. Twp. of
Ocean, 220 N.J. 239, 254 (2015). "Appellate courts owe deference to the trial
court's credibility determinations as well because it has 'a better perspective than
a reviewing court €n evaluating the veracity of a witness.'" C.R. v. M.T., 248
N.J. 428, 440 (2021) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting
Cesare v. Cesare, 154 N.J. 394, 412 (1998))).
The court denied defendant's motion for new trial based on its
determination that Fowler-Stewart's testimony at the hearing was not credible
and would not set aside the jury's sound verdict if presented at trial. The court
further found that even if Fowler-Stewart had not testified, the court and jury
would have been able to compile the remaining witnesses' testimonies to identify
defendant in the altercation with decedent and that she was likely the person
responsible for his murder. The court thus reasonably concluded defendant
would likely still be convicted at a new trial. Thus, defendant failed to meet her
burden to warrant the granting of her motion. In adhering to the deferential
standard of review for a court's factual findings on its review of live witness
testimony, there is no reason to deviate from the court's denial of defendant's
motion for new trial.
A-3045-20 14 Defendant's remaining arguments are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(2).
Affirmed.
A-3045-20 15