NJ Court Remands Murder/IAC Case So Alibi Witness Who Didn't Testify at 1st PCR Hearing Can Testify

In State v. Jackson, 2016 WL 2350517 (N.J.App. 2016), Amir Wilkins was fatally shot near the intersection of 18th Avenue and Alexander Street in Newark, New Jersey on March 8, 2004 between about 10:20 and 10:35 P.M. Terrell Jackson was charged with his murder and convicted despite testifying that he was at his friend Yakiemah Burks's sister's apartment at the time of the shooting. Thereafter,

In March 2011, defendant filed a PCR petition alleging he was denied the effective assistance of counsel because his trial counsel failed...to subpoena Burks as an alibi witness. In support of his petition, defendant submitted a November 1, 2011 affidavit from Burks in which she asserted the following: on March 8, 2004, defendant was with her from 6:00 p.m. to "approximately 10:30 p.m. and 11:00 p.m."; in June 2006, following defendant's trial but before he was sentenced, she wrote a letter to the court advising that she had just learned about the charges against defendant and knew that he did not commit the crimes resulting in Wilkins's death; defendant was with her at the time Wilkins was shot; she had been willing to testify at defendant's trial; and she was never contacted or subpoenaed by defendant's counsel.

Burks, however, did not appear at the initial PCR hearing.

Subsequently.

the PCR court denied defendant's petition, finding that trial counsel had been advised defendant was with Burks...at the time of Wilkins's murder, and that counsel had "attempted, unsuccessfully" to locate Burks on at least two occasions....

The court rejected the statements in Burks's affidavit based on what the court characterized as her "unwillingness" and "failure" to come to court to testify during the PCR proceeding. The court found that Burks "had, and ignored, the opportunity to appear as a witness" during the PCR hearing. The court discounted Burks's affidavit because it had "been obtained from someone who is still unwilling to come to [c]ourt."

The court further questioned the truthfulness of Burks's assertion that she had not been aware of defendant's charges until after the 2005 trial ended, finding that she had communications with defendant's family about being an alibi witness. The court found that Burks's "unavailability or unwillingness to appear" at the PCR hearing "undermine[d] any claim" by defendant that she "was not unavailable and not willing to assist" trial counsel.

The court found that the evidence did not establish any failure on trial counsel's part to attempt to contact Burks prior to trial and that counsel's "attempts at that investigation were thwarted by the purported witness'[s] obvious unavailability, which" the court found was "ongoing."

The court accepted the affidavit of an Essex County Prosecutor's Office detective stating that the distance between the scene of the shooting and [the] apartment was five and one-tenth miles and required approximately sixteen minutes of driving time. The court found that, even if Burks's affidavit was believed, "the time still allows opportunity [for] defendant['s]...commission of the killing at the conclusion of his visit at" the housing complex.

Jackson thereafter appealed this denial of relief to the Superior Court of New Jersey, Appellate Division, asking for a remand back down to the PCR court so that Burks could testify. According to Jackson, the problem wasn't that Burks was an unwilling witness; the problem was that his PCR attorney failed to compel her attendance "under the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings."

The appellate court agreed, finding that

resolution of Burks's credibility was essential to a determination of both prongs of the Strickland/Fritzstandard. Whether trial counsel's investigation fell below a reasonable standard was dependent upon the credibility of Burks's assertion that she was never contacted by counsel prior to defendant's trial....

If trial counsel failed to investigate defendant's alibi and call Burks as a witness, the assessment of whether defendant was prejudiced was also dependent upon Burks's credibility....If Burks's statements were deemed credible and the PCR court determined that they gave "rise to reasonable doubt about defendant's guilt," defendant would establish that he was prejudiced by trial counsel's failure to present Burks as a witness at trial....

Because Burks's absence from the PCR hearing appears to be the product of an erroneous belief that her appearance could not be compelled, we are constrained to remand this matter to permit counsel the opportunity to compel Burks's appearance and testimony as authorized under the Uniform Act.

The appellate court also noted that testimony by Burks consistent with her affidavit could change the result of the PCR opinion:

The evidence showed that the shooting occurred no later than 10:35 p.m....According to Burks's affidavit, she was with defendant at Shuby's apartment until “approximately 10:30 p.m. and 11:00 p.m.,” and the evidence showed that it took at least sixteen minutes to travel from the apartment to the scene of the shooting. Contrary to the court's finding, if Burks's affidavit is true the earliest defendant could have arrived at the scene of the shooting was 10:46 p.m., a minimum of eleven minutes after the shooting occurred.

-CM