NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3527-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALI S. MORGANO,
Defendant-Appellant. __________________________________
Submitted September 11, 2017 – Decided June 26, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88- 10-3334.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew J. Shaw, Designated Counsel, of counsel and on the brief).
Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Ali S. Morgano appeals from the denial of his sixth
petition1 for post-conviction relief (PCR) after an evidentiary
hearing. Defendant collaterally challenges his 1989 conviction
for robbery, felony murder, purposeful murder, and other related
crimes. He principally contends that his trial counsel was
ineffective by failing to investigate alibi witnesses. He also
argues counsel was ineffective for failing to call his co-defendant
as a witness. Further, he contends the testimony of one of the
alibi witnesses is newly discovered evidence that entitles him to
a new trial. See R. 3:20-2.
We presume familiarity with the facts given defendant's
numerous appeals. See e.g., State v. Morgano, No. A-5262-88 (App.
Div. Jan. 28, 1991) (Morgano I). Suffice it to say there was
substantial evidence – including defendant's two incriminating
statements to police – that he aided Sean Jones in the commission
of the 1988 robbery and murder of a street vendor in Newark. In
his second statement, defendant told police that on June 6, 1988,
Jones approached him about robbing a man selling pictures out of
a van on Sixth Avenue in Newark. Although defendant "didn't want
no part in the [r]obbery," he drove Jones to retrieve a gun kept
1 The PCR court's 2011 order erroneously categorized this as defendant's seventh PCR petition by including defendant's federal habeas corpus petition in its count.
2 A-3527-14T1 at defendant's mother's house, and then drove Jones to Sixth
Avenue. Defendant then went to Hawk's Patio, a bar that was around
the corner on Ninth Street. He was in the bar when he heard
gunshots; he and other bar patrons went outside to see what
happened. Jones ran towards him. They got into defendant's car
and drove away. Jones gave defendant $1500 in what defendant
claimed was hush money.
Defendant claimed his second statement was coerced. In his
first statement, given several hours before the second, he admitted
only that he was in Hawk's bar, heard shots, stepped outside, and
agreed to drive Jones away from the scene. The police obtained
the second statement after Jones gave a statement, implicating him
in the robbery. According to Jones, defendant proposed the robbery
and was with Jones when it happened.2 After a hearing, the court
denied defendant's Miranda3 motion. We affirmed that ruling on
defendant's direct appeal. Morgano I, slip op. at 2-3.
Defendant filed the PCR petition at issue in 2011. He argued
trial counsel was ineffective in failing to investigate alibi
2 Defendant was tried separately, and Jones did not testify. The State proceeded on the theory, consistent with defendant's own statement, that he was in the bar when the actual robbery and shooting occurred, but had aided Jones by helping him obtain the gun, and flee the scene. 3 Miranda v. Arizona, 384 U.S. 436 (1966).
3 A-3527-14T1 witnesses, particularly individuals who were at the bar with him
at the time of the shooting. The PCR court determined the petition
was procedurally barred by Rules 3:22-4 and 3:22-12.
We affirmed in State v. Morgano, No. A-3682-11 (App. Div.
Jan. 25, 2013). We focused on defendant's argument that his
attorney was ineffective for failing to locate and call as a
witness William "Eddie" Brown, who was allegedly present with him
in the bar. We held that Brown was not a new witness, since
defendant was aware of his presence. Therefore, he could have
raised the claim previously. Id. at 1-2.
Defendant filed a petition for certification, and moved under
Rule 3:20-2 for a remand for an evidentiary hearing. In attached
certifications, he asserted the testimony of two newly discovered
witnesses, Abdullah Jackson and Qadir Pugsley, who were "unknown
to [him] at the time of . . . trial," would corroborate his alibi
that he was in Hawk's bar with Brown at the time of the shooting,
and establish trial counsel was ineffective for not investigating
alibi witnesses. The Supreme Court granted certification and
remanded defendant's petition to the PCR court for reconsideration
4 A-3527-14T1 and an evidentiary hearing on defendant's PCR. State v. Morgano,
216 N.J. 2 (2013).4
At the hearing that followed, the State presented the
testimony of defendant's trial counsel, who was a veteran public
defender at the time of trial. He acknowledged, after reviewing
his notes from defendant's file, that defendant gave him the names
of possible alibi witnesses from Hawk's bar. His notes included
Brown's name and a general area — as opposed to a specific address
— where he might be found.
Testifying twenty-five years after the trial, counsel did not
independently recall whether the individuals were located or
investigated. He testified that, consistent with his practice,
he would have submitted an investigation request upon receiving
the names from defendant. However, he admitted that he did not
"connect up" with any of the witnesses.
Although he could not recall any investigation of the bar
patrons, trial counsel was unequivocal that their testimony would
not have exculpated defendant. He explained that defendant was
never accused of shooting the street vendor. Rather, he was
accused of being Jones's accomplice. Counsel testified that
4 We note that the record before us does not include defendant's 2011 petition. Consequently, we rely on his submissions to the Supreme Court to understand the grounds he presents for PCR.
5 A-3527-14T1 defendant essentially confessed to felony murder by admitting to
police that he helped Jones get the gun, dropped him off at the
scene before he went to Hawk's bar, and was Jones's getaway driver
after the shooting. Trial counsel reasoned that testimony from
anyone inside the bar would only serve to place defendant directly
at the scene. He commented that the witnesses were not "really
alibi witnesses" at all.
Trial counsel also testified about his strategy. Although
Jones stated at a pretrial hearing that he was willing to testify
at defendant's trial, there is no competent evidence as to what
he would have said.5 Counsel chose not to call Jones as a witness
because he was "vulnerable," a "bad guy," and his testimony would
have implicated defendant. As counsel stated in his
contemporaneous notes, even if Jones attempted to exculpate
defendant on the stand, the jury would hear his prior statement
inculpating defendant on cross-examination. Counsel wrote that
Jones's testimony would "kill us," and reported that he advised
defendant that he should not be called as a witness. Counsel also
stated he advised defendant that he should not testify in his own
5 In an interview of Jones roughly ten years after trial, he stated he found religion while incarcerated, and had decided to tell the truth, that defendant's involvement was limited to his helping Jones flee. That would appear to indicate that the willingness to recant occurred long after defendant's trial.
6 A-3527-14T1 defense. He "was not going to do himself much good" by testifying,
and the better strategy was to attack the State's case during
summation.
Defendant testified at the evidentiary hearing that he chose
not to take the stand on the advice of counsel. Regarding trial
counsel's investigation of alibi witnesses, defendant testified
that he informed counsel about Brown, and another person at the
bar whom he identified only by a first name, Jihad. He admitted
he did not personally know whether counsel was able to locate any
of the witnesses he identified. He assumed counsel failed to
investigate, because they did not testify at trial. He stated
that he also asked his attorney to call Jones as a witness, because
he believed Jones would exonerate him, but counsel did not call
him at trial.
Brown and Pugsley testified for the defense at the PCR
hearing. Abdullah Jackson did not, for reasons that are not
apparent from the record. Pugsley testified that on the day of
the shooting, he saw defendant park his car near the bar and meet
Brown outside. He saw them enter the bar together. Pugsley
remained outside and heard the sound of gunshots. He saw Jones,
among others, running from Sixth Avenue. Pugsley saw defendant
and Brown exit the bar. As defendant crossed the street to his
car, Jones asked him for a ride. They both got into the car, and
7 A-3527-14T1 defendant drove away. Pugsley testified that no one questioned
him at the time about the incident, and he never sought out the
police to report what he saw.
Brown testified he was in Hawk's bar with defendant on the
day of the shooting. They heard gunshots, and walked outside to
"see . . . what was going on." Brown testified defendant told him
he was leaving. Brown saw defendant get into his car. He then
saw Jones round the corner and get into defendant's car. He saw
defendant and Jones drive off together. He left the area as the
police began to arrive. He was never contacted about the shooting.
The PCR judge found Pugsley and Brown were credible. So was
trial counsel, but the court noted that, given his lack of specific
memory, he could not definitely say whether he asked for an
investigation of the alibi witnesses. Applying the two-prong
Strickland test, see Strickland v. Washington, 466 U.S. 668, 687
(1984), the court did not expressly find that trial counsel's
performance was deficient. However, reaching the second prong,
the court held that defendant had failed to demonstrate a
"reasonable probability that but for . . . [counsel's] failings,
the result of the proceedings would have been different." Ibid.
The court reasoned that the witnesses' testimony did not overcome
the evidence that defendant aided Jones in the commission of the
robbery. The court concluded trial counsel was not ineffective
8 A-3527-14T1 because even if Pugsley or Brown testified at trial, defendant
"still would have been convicted of felony murder."
On appeal, defendant raises the following points in a
counseled brief:
POINT I: THE PCR COURT ERRED IN DENYING THE DEFENDANT'S SEVENTH PRO SE PCR PETITION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL.
A. THE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD.
B. THE FELONY MURDER AND ROBBERY CONVICTIONS.
C. THE MURDER CONVICTION.
D. POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE CONVICTION.
POINT II: THE PCR COURT ERRED BY FAILING TO RULE ON THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.
Defendant also raises the following points in a supplemental pro
se brief:
POINT ONE: THE PCR COURT ERRED IN DENYING DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO INVESTIGATE HIS POTENTIAL ALIBI WITNESSES WHOSE NAMES WERE SUPPLIED TO COUNSEL BY DEFENDANT. THIS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY SIXTH AND FOURTEEN[TH] AMENDMENT[S] TO THE U.S. CONSTITUTION AS WELL AS ARTICLE
9 A-3527-14T1 1 PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.
POINT TWO: THE DEFENDANT-APPELLANT CONTENDS THAT THE NEWLY DISCOVERED EVIDENCE WARRANT[S] A NEW TRIAL.
POINT THREE: DEFENDANT-APPELLANT CONTENDS THAT TRIAL COUNSEL WAS INEFFECTIVE FAILING TO CALL CO- DEFENDANT SEAN JONES AS A DEFENSE WITNESS TO EXCULPATE DEFENDANT FROM THE ROBB[E]RY AND FELONY MURDER CHARGES. THIS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY SIXTH AND FOURTEEN[TH] AMENDMENT[S] TO THE U.S. CONSTITUTION AS WELL AS ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.
Since the trial court did not explicitly address prong one
of the Strickland test — that is, whether trial counsel was
deficient, Strickland, 466 U.S. at 687 – we are constrained to
focus our review on the court's conclusion under prong two that,
even if trial counsel was deficient by failing to investigate
defendant's alibi witnesses, defendant suffered no prejudice. See
ibid. Our review of the court's decision, reached after an
evidentiary hearing, "is necessarily deferential to [the] court's
factual findings based on its review of live witness testimony."
State v. Nash, 212 N.J. 518, 540 (2013). We review legal
conclusions de novo. Ibid. Applying that standard of review, we
discern no error.
10 A-3527-14T1 Our Supreme Court has recognized that the "[f]ailure to
investigate an alibi defense is a serious deficiency that can
result in the reversal of a conviction." State v. Porter, 216
N.J. 343, 353 (2013). "[W]hen a petitioner claims his trial
attorney inadequately investigated his case, he must assert the
facts that an investigation would have revealed, supported by
affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification." Ibid.
(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999)). Defendant established at the evidentiary hearing what
Brown and Pugsley would have revealed at trial, assuming an
investigation would have led to their cooperation.6
Brown and Pugsley did not exonerate defendant. "'Alibi'
literally means 'elsewhere; in another place.'" State v. Nunn,
113 N.J. Super. 161, 167 (App. Div. 1971) (quoting State v. Mucci,
25 N.J. 423, 431 (1957)). Proof of an alibi, meaning that a
"defendant was elsewhere at the time and place of the crime," goes
to the heart of the question of whether the State has proved its
6 Neither Brown nor Pugsley described their whereabouts in the months after the crime; nor did they say they would have cooperated with an investigator and would have been willing to testify at trial on defendant's behalf. Also, defendant did not name or describe Pugsley to his trial counsel. At the PCR hearing, he did not present evidence to establish the likelihood that a defense investigator would have been able to identify him as a witness.
11 A-3527-14T1 case beyond a reasonable doubt. Pressler & Verniero, Current N.J.
Court Rules, cmt. 1.3 on R. 3:12-2 (2018). The defense is only
sustainable where the offered evidence establishes "the physical
impossibility of the accused's guilt . . . ." Mucci, 25 N.J. at
431.
Brown and Pugsley established the physical impossibility that
defendant shot the street vendor. But, the bar patrons provide
defendant no alibi, because the State did not allege that defendant
physically robbed and shot the street vendor. The State relied
at trial on a theory of accomplice liability, specifically that
defendant acted "[w]ith the purpose of promoting or facilitating"
Jones's commission of robbery, and ultimately murder, by supplying
Jones with a gun, driving him to the scene of the robbery, waiting
for him around the corner, and driving him away after the robbery
turned deadly. See N.J.S.A. 2C:2-6(c)(1)(b) (defining accomplice
as a person who, "[w]ith the purpose of promoting or facilitating
the commission of [an] offense," aids another in "planning or
committing" it); see also N.J.S.A. 2C:2-6(b)(3) (stating an
accomplice is legally accountable for the conduct of another
person).
Defendant detailed his involvement in two statements to the
police. The statements were admitted at trial, and established
his culpability as an accomplice. The bar patrons' testimony
12 A-3527-14T1 would not have refuted defendant's admissions about his actions
before he walked into Hawk's bar, and it would have only bolstered
the State's proofs that he was Jones's getaway driver after the
shooting. As trial counsel put it, in making those statements,
defendant "walk[ed] himself right into a felony murder." Thus,
defendant suffered no prejudice as a result of any failure to call
the two patrons as witnesses.
Defendant contends in his pro se brief that had Brown and
Pugsley testified, they would have probably affected the trial
result because they would have discredited a significant
prosecution witness. The witness testified that she observed
Jones shoot the vendor; run down the street; and enter defendant's
white Cadillac. In particular, she testified that she saw Jones
drop some money as he ran. As she bent down to pick up what turned
out to be three dollars, defendant got out of his car, told her
to give it him, and then returned to his car and drove off with
Jones.
As a threshold matter, we note that defendant did not raise
this argument before the trial court. Therefore, we are not
obliged to reach it. State v. Arthur, 184 N.J. 307, 327 (2005).
Furthermore, although the two witnesses did not mention
defendant's interaction with the woman, PCR counsel did not
directly ask Brown or Pugsley about whether they saw defendant
13 A-3527-14T1 interact with a woman before driving off. It is conceivable that
twenty-five years later, the witnesses would have acknowledged the
occurrence if their recollection had been refreshed.
In any event, even if the two witnesses definitively stated
they saw no exchange between defendant and the woman, we are
unpersuaded that would have established a reasonable probability
of a different result. Defense counsel vigorously cross-examined
the woman, exploring her bias in assisting the prosecution, because
she had pending drug charges. Furthermore, the principal evidence
against defendant was his own admissions. The State's case was
also supported by the testimony of the victim's helper, who
testified that he saw two men in a large white car — a Cadillac
or Oldsmobile — drive slowly past the vendors shortly before the
robbery.7
In sum, defendant failed to establish that – even if his
attorney provided him with constitutionally deficient
representation by not conducting an investigation – it is
7 In his pro se supplemental brief, defendant also continues to argue that his second statement was coerced. Defendant did not raise this issue before the PCR court, and we will not address it on appeal. Arthur, 184 N.J. at 327 (stating "[a]n appellate court ordinarily will not consider issues that were not presented to the trial court"). In any event, the issue is procedurally barred by Rule 3:22-5. We reviewed the denial of defendant's Miranda motion on direct appeal. Morgano I, slip op. at 3. We concluded the trial court's ruling was supported by sufficient credible evidence in the record, and affirmed his conviction. Ibid.
14 A-3527-14T1 reasonably probable that the result of the trial would have been
different. Strickland, 466 U.S. at 687.
Defendant also raises two arguments on appeal that the trial
court did not address. He contends that trial counsel was
ineffective for failing to call Jones as a witness, and that
Pugsley's testimony is newly discovered evidence that entitles him
to a new trial. Based on a review of the record it is apparent
defendant raised the issues before the PCR court. Rather than
remand for a determination of the issues, we exercise our original
jurisdiction to decide them. See R. 2:10-5.
Defendant contends that his trial attorney was ineffective
for failing to call Jones as a witness. "[A] defense attorney's
decision concerning which witnesses to call to the stand is 'an
art' . . . ." Arthur, 184 N.J. at 321 (quoting Strickland, 466
U.S. at 693). As such, our review "should be 'highly
deferential.'" Ibid. (quoting Strickland, 466 U.S. at 689). Trial
counsel testified that he chose not to call Jones as a witness,
even though he was willing to testify, because "[his testimony]
would have implicated [defendant]." Indeed, in Jones's statement
to police, he alleged that the robbery was defendant's idea, the
gun was defendant's, and defendant participated in the robbery as
well as the flight from the scene.
15 A-3527-14T1 It was reasonable trial strategy for trial counsel not to
call Jones as a witness. Even if he recanted his prior statement
to police and attempted to exonerate defendant, his testimony
would have opened the door to the introduction of his prior
inculpatory statement — in which he alleged that the robbery was
defendant's idea. N.J.R.E. 803(a)(1); see State v. Carabello, 330
N.J. Super. 545, 556 (App. Div. 2000) (stating N.J.R.E. 803(a)(1)
"allows the admission of a witness's inconsistent statement as
substantive evidence"). Absent Jones's appearance, that statement
was inadmissible hearsay. N.J.R.E. 802 (hearsay rule); see also
State v. Weaver, 219 N.J. 131, 151-52 (2014) (stating the
Confrontation Clause does not allow otherwise admissible hearsay
that is "testimonial in nature" to be admitted if the declarant
does not testify).
For the very reason that it was not constitutionally deficient
to forgo calling Jones as a witness, it was not reasonably probable
that his testimony would have changed the result. See Strickland,
466 U.S. at 687. Jones's appearance at trial was as likely to
hurt defendant as help him.
Defendant also argues Pugsley's testimony is newly discovered
evidence that warrants granting him a new trial. See R. 3:20-2.
We disagree, because the testimony would not alter the verdict at
a new trial.
16 A-3527-14T1 It is well-settled that newly discovered evidence sufficient
to warrant a new trial must be "(1) material to the issue 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." Nash, 212 N.J. at
549 (quoting State v. Carter, 85 N.J. 300, 314 (1981)). A
defendant must satisfy all three prongs to gain relief. State v.
Ways, 180 N.J. 171, 187 (2004).
The central focus of the analysis is 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."). In that way, prongs
one and three of the test are "inextricably intertwined." Nash,
212 N.J. at 549. Evidence that is merely cumulative, impeaching,
or contradictory "is not of great significance and would probably
not alter the outcome of a verdict." Ways, 180 N.J. at 189.
However, "[m]aterial evidence is any evidence that would 'have
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.
17 A-3527-14T1 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 this evaluation, a court should
consider the strategic decisions of trial counsel. Ibid. ("A
defendant is not entitled to benefit from a strategic decision to
withhold evidence.").
Here, defendant has offered only cumulative evidence that he
was in a bar at the time of the shooting, a fact already established
by the State's proofs. As we have already discussed, Pugsley is
not an alibi witness. His testimony is not material, and it would
not change the verdict at a new trial. The jury was not tasked
with determining whether defendant shot the street vendor. The
issue at trial was whether defendant was Jones's accomplice.
Except for the possibility that Pugsley could have contradicted
the State's female eyewitness, Pugsley's testimony does nothing
to undermine the State's case. However, for the reasons already
stated, that contradiction — even if we presume it in the absence
of Pugsley's explicit testimony — would not probably change the
result if a new trial were granted.
Affirmed.
18 A-3527-14T1