Opinion
DOCKET NO. A-4837-10T2
05-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUCERITA STONE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh, and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-06-0962.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Lucerita Stone appeals the Law Division's April 29, 2011 order denying her motion for a new trial and petition for post-conviction relief. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Stone was indicted on charges growing out of a fire at a multi-family dwelling in the early morning hours of May 30, 1997. She lived in the building's illegal basement apartment, and had a contentious relationship with the resident landlord. Three children who also lived in the building died in the fire.
Following a jury trial, Stone was found guilty of three counts of second-degree reckless manslaughter, three counts of first-degree felony murder, and one count of arson. She was acquitted on a charge of aggravated arson. The sentencing judge merged the reckless-manslaughter and arson convictions into the felony-murder convictions. After finding aggravating factors one and nine and mitigating factor seven, the judge sentenced defendant to three consecutive life terms in prison with a ninety-year period of parole ineligibility.
Stone appealed both the convictions and the sentence. We affirmed the convictions, but modified the sentence to three concurrent terms of life imprisonment with a thirty-year parole disqualifier. State v. Lucerita Stone, No. A-3307-99 (App. Div. Aug. 4, 2003). The Supreme Court denied Stone's petition for certification. State v. Stone, 178 N.J. 36 (2003).
In 2004, Stone filed a petition for post-conviction relief (PCR), raising fourteen issues. The Law Division dismissed the petition in April 2006. We affirmed the dismissal. State v. Lucerita Stone, No. A-5317-05 (App. Div. Feb. 29, 2008). The Supreme Court denied Stone's petition for certification. State v. Stone, 195 N.J. 524 (2008).
In November 2007, Stone filed a pro se motion for a new trial based on newly discovered evidence. The evidence at issue consisted of computer printouts reflecting certain gasoline sales during the time Stone was alleged to have purchased the gasoline used in connection with the arson. Stone argued that a new trial was required because the printouts did not reflect the purchase of the small amount of gasoline she was alleged to have purchased and, consequently, could have been used to impeach the witnesses who testified that she was the person who made the purchase. Although the printouts had been produced by the State prior to trial, they were not used at trial. According to Stone, they had been "misplaced."
The motion judge heard oral argument on April 29, 2011, at which time Stone was represented by counsel. Following argument, the judge placed an oral decision on the record. In addition to determining that the evidence was not "newly discovered" because it had been produced during discovery and that the motion was time barred, the motion judge also determined that the evidence, had it been used at trial, would not have changed the result. He explained his reasons as follows:
Even if the Court were to put the procedural bars aside the result would be the same. This petition is clearly without merit. The significance the defendant attaches to the computer printout here is grossly overstated. One need only review the statement of facts set forth in the appellate opinion denying the defendant's direct appeal to see the evidence . . . of the defendant's guilt was overwhelming.The implementing order was filed the same day. This appeal followed.
The defendant's argument here is that had the computer printout, which did not note the cash purchase of ten to 15 cents worth of gasoline[,] been introduced at trial it would somehow prove, "the innocence of the defendant and the impossibility of her being the purchaser of gasoline." There is no evidence either in the trial record or in support of this motion which would establish that the printout relied upon reported anything other than purchases made using either credit or debit cards for bulk purchases. Insofar as the evidence at trial established the defendant purchased the gasoline using cash, its absence on a credit/debit card printout would be at best marginally relevant.
Additionally, the evidence produced at trial establishing the defendant as the purchaser of the gasoline was extraordinarily reliable and credible. The defendant was identified by both gas station employees as the purchaser of the gasoline. Mohammad [Zafar], who knew the defendant as a regular customer, testified that she came to the station on the evening in question
wearing a tuxedo, bought a pack of cigarettes and left the convenience store area. She then entered the pump area and spoke to the other attendant, one Gregorio Bara who was attending the gas pumps. Bara identified the defendant as the woman dressed in a tuxedo to whom he sold ten to 15 cents worth of gasoline that evening.
Further testimony established that the defendant had attended a formal affair dressed in a tuxedo just prior to visiting the gas station. To suggest that a marginally relevant printout would, in light of the overwhelming evidence establishing the defendant as the purchaser of the gasoline, have [a]ffected the outcome of the trial is completely without merit.
II.
Stone raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE
POINT II: PRIOR COUNSEL FOR THE DEFENDANT WERE INEFFECTIVE IN FAILING TO OBTAIN AND ANALYZE THE PRINTOUT OF SALES AT THE GAS STATION WHICH WAS EVIDENCE OF DEFENDANT'S INNOCENCE
A. DEFENDANT'S CLAIM SHOULD NOT HAVE BEEN TIME BARREDPOINT III: AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED
B. TRIAL COUNSEL WAS INEFFECTIVE
In State v. Ways, 180 N.J. 171 (2004), the Supreme Court described the standard applicable to a motion for a new trial based upon newly discovered evidence:
[D]efendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted.""[A]ll three prongs of that test must be satisfied" before a new trial is warranted. Ibid.
[Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
The motion judge found that the printouts were made available to the defense prior to trial and that use of the printouts at trial would not have changed the results. The former is conceded. We agree with the judge's conclusion as to the latter. The evidence against Stone at trial was overwhelming and the testimony concerning her purchase of gasoline would not have been undercut by the documents at issue. The judge correctly denied the motion for a new trial because Stone failed to demonstrate at least two of the three prongs required by Ways.
We would reach the same result on the merits even if we were to treat the motion as a second PCR petition based upon ineffective assistance of counsel in failing to use the documents at trial. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). State v. Preciose, 129 N.J. 451, 463 (1992); State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Even assuming that trial counsel should have used the printouts during cross-examination, we are convinced that the result would not have changed for the reasons already stated. Consequently, Stone cannot satisfy the second prong of the Strickland test. The trial judge correctly denied her petition for PCR.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION