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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2256-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMA SMITH,

     Defendant-Appellant.
_____________________________

                   Argued October 2, 2019 – Decided February 4, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 04-03-0359.

                   John V. Saykanic argued the cause for appellant.

                   Marc A. Festa, Senior Assistant Prosecutor, argued the
                   cause for respondent (Camelia M. Valdes, Passaic
                   County Prosecutor, attorney; Marc A. Festa, of counsel
                   and on the brief).

PER CURIAM
      This case returns to us after we remanded for a hearing on Jama Smith's

motion for a new trial based on newly discovered evidence. We assume the

reader's familiarity with our prior opinions, affirming on direct appeal Smith's

convictions of murder, conspiracy to commit murder, and related weapons

offenses, State v. Smith, No. A-2146-06 (App. Div. Aug. 4, 2010), certif. denied,

205 N.J. 78 (2011) (Smith I), and ordering the remand hearing, State v. Smith,

No. A-3141-13 (App. Div. Nov. 23, 2015), certif. denied, 228 N.J. 442 (2016)

(Smith II).

      In brief, the State established through circumstantial evidence that Smith

drove a rented SUV while his passenger Willie Evans fatally shot Terryl Lee.

The shooting arose out of a dispute between Evans and Lee. Evans was a drug

dealer and Lee was his supplier. The cases against Evans and Smith were

severed, Smith went to trial first, and Evans did not testify. He pleaded guilty

to manslaughter before the jury returned its verdict against Smith.

      Three months afterwards, Evans executed the first of two certifications

exculpating Smith. The first certification simply stated that Smith "wasn't there"

and "didn't have anything to do" with the shooting. In the second certification,

executed five years later, Evans attempted to explain why Smith returned the

rented SUV from which Evans shot Lee. We quoted the certification at length


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                                        2
in Smith II. In short, Evans contended that Smith had no knowledge of the

shooting until the morning after, when Evans asked him to do him a favor to

accompany his sister to return the SUV. Evans picked up Smith from his

cousin's house, Evans got out at a friend's house, and then Smith picked up

Evans's sister and drove to the rental car office, where he was arrested.

      Also, five years after the trial, Keshawn Coleman, a Lee associate,

recanted his trial testimony that he saw Smith at a drug transaction between Lee

and Evans. Coleman was also present when Lee was shot. Coleman had

testified at trial that Lee and Evans had a dispute over a drug deal.

      The trial court initially denied, without an evidentiary hearing, Smith's

new trial motion based on Evans's exculpatory statements, as well as Coleman's

recantation. In order to secure a new trial based on newly discovered evidence,

"the new evidence must be (1) material . . . 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." State v. Carter, 85 N.J.

300, 314 (1981). All three elements must be met. Ibid. The "criteria . . . must

be examined liberally when new information comes from a co-defendant who is

unavailable, as a matter of law, at the time of trial." State v. Robinson, 253 N.J.


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                                        3
Super. 346, 365 (App. Div. 1992) .        On appeal, we held that the Evans's

certifications met the first two elements, but the court needed to assess Evans's

and Coleman's credibility in order to properly consider the third element. Smith

II, slip op. at 7.

       On remand, after hearing from both witnesses, Judge Daniel J. Yablonsky

denied Smith's motion in a cogently written opinion. The court found both

Coleman and Evans were not credible. The court appropriately recognized that

the court's credibility finding was not the end of the analysis; rather, it was a

factor – a key factor – in determining whether the witnesses' testimony would

probably alter the verdict. "The power of the newly discovered evidence to alter

the verdict is the central issue, not the label to be placed on that evidence." State

v. Ways, 180 N.J. 171, 191-92 (2004). As Judge Yablonsky stated, "The answer

to the question of whether new evidence is probably true is the linchpin in

determining the probability that such evidence would change the jury's verdict."

(emphasis in original). Regarding Evans's credibility, the court found "[m]ost

concerning" inconsistencies between his 2011 certification and his hearing

testimony. The court also was unimpressed with Coleman's hearing testimony,

recanting his trial testimony that he saw Smith with Evans during a drug deal

with Lee.


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                                         4
      The court concluded that "Evans's testimony was merely designed to give

[Smith] a second chance for acquittal"; it "would not likely be found credible by

a jury"; and "would probably not cause a change to the original verdict." Also,

even if Coleman's hearing testimony were deemed credible at a new trial, it

would unlikely cause an acquittal, as Coleman did not affirmatively exculpate

Smith.

      We defer to the trial court's credibility findings, particularly in the case of

recantation testimony, such as Coleman's, that is "generally regarded 'as suspect

and untrustworthy.'" Ways, 180 N.J. at 196-97 (quoting State v. Carter, 69 N.J.

420, 427 (1976)). The testimony of a sentenced co-defendant, like Evans, may

also be inherently suspect, because he may have "nothing to lose by exonerating"

his co-defendant. Robinson, 353 N.J. Super. at 367 (citations omitted).

      It is the province of the fact-finder – not the reviewing court – to determine

whether to chalk up inconsistencies to failing memory and innocent mistakes,

or to weigh them as evidence of dissembling.            See Model Jury Charges

(Criminal), Prior Contradictory Statements of Witnesses (Not Defendant)

(1994). The trial court's findings in that regard are informed by its opportunity,

unavailable to an appellate court, to assess witnesses' demeanor and other

intangibles. Carter, 69 N.J. at 427-28.


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                                          5
      We also review the ultimate decision to grant a new trial for an abuse of

discretion. See State v. Smith, 29 N.J. 561, 573 (1959) (stating that the decision

to grant a new trial based on newly discovered evidence is vested in a trial court's

sound discretion).     Although we review de novo the PCR court's legal

determinations, State v. Nash, 212 N.J. 518, 540-41 (2013), it is not our role to

decide anew whether a new trial is warranted.

      Applying that standard of review, we discern an insufficient basis to

disturb the trial court's order denying a new trial. At the remand hearing, Evans

testified that on the night of the homicide, he parked the SUV about three blocks

from his house; he drove to his sister in his personal vehicle to give her the

SUV's keys so she could return the vehicle the next day. He drove her around

the block and she got out. He said that the next morning, his sister told him she

saw parole officers outside his house. He then asked Smith to accompany her,

because she was nervous. He provided no further details as to how his sister

retrieved the vehicle; and how or where she picked up Smith.

      Evans offered a different version in his 2011 certification. He claimed

that the morning after the homicide, he learned that parole officers were at his

residence. He called Smith and asked him to take the vehicle to Evans's sister.

Evans then drove the SUV to the house of Smith's cousin, Latonya Brown, where


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                                         6
Smith was living at the time. Smith got into the car, dropped Evans off at his

girlfriend's house, picked up Evans's sister at her place, and drove to the rental

car office.

      Evans's testimony was also inconsistent with Smith's own Mirandized

statement to police on the day he was arrested. We recognize the statement was

unrecorded, and, at trial, Smith challenged the credibility of the detective who

reported Smith's statement. According to the detective, Smith said he drove the

SUV the night of the homicide (not the morning after); he dropped it off in front

of Evans's house (not three blocks away); he walked to his girlfriend's house,

where he spent the night (not his cousin's house, where Evans said he picked

him up); then returned to the vehicle in the morning, picked up Evans's sister,

and then delivered the vehicle to the rental car office.

      Furthermore, Smith's statement contradicted his purported alibi witnesses,

Smith's aunt and cousin, Doris and Latonya Brown. They both testified that

Smith was at their house all night. Also, contrary to Smith's statement, a police

detective testified that the night of the homicide, they searched for the SUV and

saw none parked at Evans's address.

      Evans's 2011 certification was also at odds with Doris Brown's trial

testimony that, although Smith and Evans were often together, she never saw


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                                        7
Evans come to her house to see Smith. Latonya Brown also testified that she

never saw Evans pick up Smith in an SUV at her house. Regarding Evans's

hearing testimony that he drove his "personal vehicle" to deliver the keys to his

sister, Doris Brown testified that neither Smith nor Evans owned or had their

own car.

      Judge Yablonsky also found implausible Evans's hearing testimony that

the person who he said was at the wheel of the SUV before the homicide – James

Felton – was unaware of Evans's plan to shoot Lee. Evans testified that Felton

knew that Evans carried a gun. Evans was driving the SUV, and Felton was the

passenger, when Evans saw Lee in another vehicle. He asked Felton to drive

and follow Lee, after Evans moved to the back seat. "It is hard to believe that

Felton, without any knowledge of Evans's plan, stalked the victim and facilitated

the drive-by" shooting.

      We also will not disturb Judge Yablonsky's credibility finding regarding

Coleman, who recanted his trial testimony that he saw Smith with Evans during

a drug deal with Lee. The court recognized that the trial testimony helped

establish the motive and intent for the homicide. Coleman helped establish that

Smith and Evans were in the drug trade together, and were both at odds with

Lee, their supplier. The court found that Coleman not only lacked recall, but


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                                       8
professed not to understand questions that the court considered "simple and

straight-forward."

      In sum, we reject Smith's contention that the trial court abused its

discretion in denying him a new trial on the basis of Evans's exculpatory

statements and Coleman's recantation.

      We also decline to address two arguments that Smith presents, for the first

time, on appeal. Smith argues that there is additional newly discovered evidence

that corroborates Evans's assertion that James Felton, and not Smith, drove the

SUV while Evans fatally shot Terryl Lee. That evidence is Coleman's 2010

conviction for Felton's murder. Coleman was convicted in 2010 for murdering

Felton outside a chicken store in Paterson in 2007. See State v. Coleman, No.

A-1752-10 (App. Div. Oct 3, 2012) (affirming the conviction on direct appeal);

State v. Coleman, No. A-0779-15 (App. Div. May 3, 2017) (affirming the denial

of post-conviction relief). Smith speculates about Coleman's motive for killing

Felton. Smith asserts – without providing a basis – that Coleman believed that

Felton, not Smith, helped Evans kill Lee. We do not address whether, if Smith

obtained evidence supporting Coleman's asserted belief in Felton's complicity,

it would provide a basis for a new trial, in part by bolstering Evans's own

statements. Smith must present such evidence to the trial court in the first


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                                        9
instance. "[A]ppellate courts will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such a presentation

is available" unless the issues pertain to the court's jurisdiction or a significant

public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

      For the same reason, we decline to reach Smith's newly minted argument

that the State violated his due process rights by withholding exculpatory

evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.

United States, 405 U.S. 150 (1972). The argument is predicated on the assertion

that the State presented false testimony by Coleman, the jail house snitch

Rashawn Barrett, and Davon Forbes. See Smith II, slip op. at 1-2 (discussing

Barrett's testimony and Forbes's prior written statement that the State introduced

into evidence). The Brady-Giglio argument should first be made to the trial

court. Nieder, 62 N.J. at 234.

      Affirmed.




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