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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. ORLANDO RODRIGUEZ, Defendant–Appellant.

DOCKET NO. A–3639–11T3

    Decided: March 26, 2014

Before Judges Simonelli and Haas.Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

Defendant Orlando Rodriguez appeals from the October 17, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11–3a(1);  second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4a;  and third-degree unlawful possession of a loaded rifle/shotgun, N.J.S.A. 2C:39–5c(1).   After appropriate merger of the offenses, the trial judge sentenced defendant to life imprisonment with thirty years parole ineligibility for murder, plus a consecutive term of five years, with two years of parole ineligibility, for unlawful possession of a loaded rifle/shotgun.   Defendant appealed.   We affirmed his conviction, but modified his sentence so that the weapons sentence ran concurrent to defendant's life term.  State v. Rodriguez, No. A–3272–97 (App.Div. Dec. 3, 1999), certif. denied, 163 N.J. 79 (2000).

At trial, the State presented defendant's recorded statement, in which he admitted that he started a fight with the victim because he saw the victim abusing his aunt, Nereida Rivera (Nereida).1  Id. at 4. Defendant left the victim's home, but later returned with a gun.  Ibid. He stated that he meant to scare the victim, but the gun went off when he slipped on the steps of the home, killing the victim who was inside the house.  Ibid.

An eyewitness to the murder testified that he saw defendant leave the victim's house and return with a duffel bag.  Id. at 3. The witness saw defendant remove a gun from the bag, leaned toward the front window of the house, and stuck the gun in the window.  Ibid. The witness then “heard a ‘bang’ and saw defendant jumping off the steps and running away.”  Ibid. Defendant's girlfriend also testified that “defendant admitted to her he had shot the victim.   She further related defendant told her he shot [the victim] while [the] victim was ‘in his house, sitting down.’ ”  Ibid.

In addition, Nereida testified that defendant had been living with her and the victim, who was her common-law husband.  Id. at 2. She told defendant to leave her home after he and the victim got into an “altercation.”  Ibid. “Defendant returned a short time later in a car driven by his aunt, Evelyn Rivera” (Evelyn).  Ibid. Nereida “locked the door to the house attempting to avoid further conflict.”  Ibid. She testified that “the victim was sitting on the couch watching television with two of their children.”  Ibid. Although Nereida did not see defendant shoot the victim, she “heard a ‘bang’ and then saw the victim, who, while clutching his side, told her to ‘look at what your nephew did to me.’  [Nereida] stated she then screamed and sought help.”  Id. at 3.

Evelyn gave a recorded statement to the police shortly after the incident in which she stated that “she had observed defendant with a gun and saw him shoot the gun into the household.”  Ibid. However, she “recanted this version when she testified.”  Ibid. She testified that “she had never seen defendant with a gun and had never seen him fire a gun.”  Ibid. Portions of Evelyn's recorded statement were played to the jury.

Sharon Rivera (Sharon) was twelve years old at the time of the murder.   According to the presentence report, Sharon gave a statement to the police in which she stated that she observed defendant remove the shotgun from a bag, point the weapon into the window of the victim's home, and fire one shot.   Sharon did not testify at the trial and her statement was not provided to the jury.

In August 2006, defendant filed a second petition for PCR.2 On April 1, 2008, defendant's attorney submitted an amended petition, which asserted that defendant's trial attorney was ineffective for failing to discover the existence of an exculpatory witness.   However, no exculpatory witnesses were identified in the petition.3  On July 11, 2011, defendant submitted affidavits from Nereida, Evelyn, and Sharon in support of his petition and argued that he was entitled to a new trial because of newly discovered evidence which his trial counsel had failed to obtain.

In her affidavit, Nereida stated that the victim started pushing and “smack [ing]” her on the night of the murder.   Nereida called to defendant to “get him off me” and defendant and the victim began to fight.   After the two men were separated, Nereida stated that defendant left the house, but then returned with Evelyn.   Defendant and the victim exchanged “foul words” while defendant was outside.   Nereida went into the kitchen, where she was later joined by Evelyn.   Nereida stated that she “heard a loud bang sound” and saw the victim “staggering towards the kitchen and said ‘look what (Andy) did to me and repeated these words once more and collapsed[.]”  Nereida identified “Andy” as defendant's friend.4  Nereida claimed that she went outside for help and saw Sharon, who advised her that defendant's friend Andy “shot through the window” and that defendant “asked him not to do it.”   Nereida asserted that she told the police that defendant was not involved, but they threatened “to take away my kids and threatened to lock me up if I refuse[d] to testify against” defendant.

Evelyn stated in her affidavit that she was present at the home when the fight began between defendant and the victim.   She alleged that she went outside after the fight to “calm my nephew [defendant].”   After she went back into the home, she “heard a (bang) sound” and the victim “ran towards us yelling look what (Andy) did to me and repeated these words twice before he fainted․”  Outside the house, Evelyn's daughter, Sharon, told her that defendant's friend Andy shot the victim.   Evelyn also claimed that a police officer told her that she would be arrested, lose custody of her children, and lose her job if she did not implicate defendant in the murder.

Contrary to her earlier statement to the police, Sharon now asserted in her affidavit that she saw defendant's friend Andy shoot the victim after he spoke to defendant outside the home.   She stated that defendant tried to stop Andy, but was not successful.   After the shooting, Andy ran off and defendant “walked [away] in a jogging motion.”   Sharon alleged that a detective had “used trickery and used threats” to get her to originally identify defendant as the shooter.

Following oral argument, Judge Michael Kassel rendered a thorough oral opinion, denying defendant's request for a new trial and rejecting his petition for PCR. The judge observed that the alleged “newly discovered evidence” consisted of affidavits from three of defendant's relatives, who had all given conflicting statements to the police shortly after the murder.   The judge stated:

The defendant's defense at trial was not that this Andy shot [the victim] but was that he—- acknowledged shooting [the victim].   He told it to the police.   That's what he's stuck with.

[W]e could speculate if that was not true why he did it, but that's what he said to ․ the police right after the incident, and not at the time of trial—- at some point after the incident.

[T]hese witnesses, which support a completely different theory, it would ․ look to the jury as though the defendant were grasping for some type of defense that ․ they could choose from.

Well, my first defense, it was accidental.   If you don't believe that, then Andy shot him.   If you don't believe that, maybe ․ some third offering for the jury to pick from.

And the problem with doing that, any experienced trial attorney will tell you, is that you don't make the case stronger by offering the jury inconsistent defenses that they can pick from.   You weaken, perhaps, the only defense that might be plausible.   Giv[ing] the jury more, in fact, is less, since the jury begins to think it's making a mockery of the system that you're saying completely inconsistent things at different times.

Thus, the judge concluded that the affidavits “would not have been exculpatory in the context of what other witnesses said, what these witnesses said at the time, what [Evelyn] said at the time, with which she had already changed her testimony at the time of trial.”   Therefore, the judge found that defendant did not establish that the evidence would “more probably than not change the jury verdict.”

In addition, Judge Kassel found that there had been “a lack of due diligence in trying to present this” allegedly new evidence.   The murder occurred in 1995 and defendant was convicted in 1997.   The affidavits were not submitted until 2011.   Nereida, Evelyn, and Sharon were all related to defendant and the judge observed that “[t]here's a complete lack of a plausible explanation why it takes that length of time in order to present the certifications that have been presented here today.”   This appeal followed.

On appeal, defendant has raised the following contention:


To secure a new trial based upon newly discovered evidence, a “defendant 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.’ ”  State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).   All three prongs of the test must be established.  Ibid. “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.

Based on our review of the record and applicable law, we conclude that defendant failed to satisfy the three-prong test for a new trial based on newly discovered evidence or make the prima facie showing of ineffectiveness of trial counsel that is required to warrant an evidentiary hearing.  State v. Preciose, 129 N.J. 451, 462–63 (1992).   As Judge Kassel found, the evidence that defendant submitted in support of his petition for PCR could have been obtained prior to the trial had the witnesses come forward with it at that time.   All of the witnesses are related to defendant.   However, there is nothing in the record to indicate that either defendant or the three witnesses ever advised defendant's trial attorney of the new claims raised by them.   Indeed, although defendant was convicted in 1997, he did not submit the affidavits until 2011.   Thus, the evidence was clearly discoverable by reasonable diligence beforehand.

Just as critically, the evidence probably would not have changed the jury's verdict if a new trial was granted.   Defendant admitted in a recorded statement that he shot the victim, but alleged that the shooting had occurred by accident.   A neutral eyewitness saw defendant shoot through the victim's window and defendant's girlfriend testified that he admitted to her that he shot the victim.   At trial, Nereida testified that the victim told her that defendant shot him.   Evelyn originally identified defendant as the shooter, but testified that she had not seen him with a gun.   Sharon, who did not testify, also named defendant as the shooter in her statement to the police after the shooting.

Thus, the claims now raised by Nereida, Evelyn, and Sharon about Andy's alleged involvement in the murder not only contradict defendant's own admissions concerning his involvement, they also contradict their own previous statements and, in the case of Nereida and Evelyn, their testimony.   Under these circumstances, we discern no basis for disturbing Judge Kassel's conclusion that the alleged new evidence would have not have affected the outcome of the trial and, instead, would have severely weakened defendant's overall defense to the charges.



FN1. Because three of the individuals involved in this case share the same surname, we refer to them by their first names for ease of reference.   We intend no disrespect..  FN1. Because three of the individuals involved in this case share the same surname, we refer to them by their first names for ease of reference.   We intend no disrespect.

FN2. Defendant's appellate brief states that he filed a petition for PCR in 2001, which was denied on October 22, 2001.   We have not been provided a copy of that order..  FN2. Defendant's appellate brief states that he filed a petition for PCR in 2001, which was denied on October 22, 2001.   We have not been provided a copy of that order.

FN3. The parties' appellate briefs indicate that the petition was either adjourned or denied without prejudice so that defendant could seek signed affidavits..  FN3. The parties' appellate briefs indicate that the petition was either adjourned or denied without prejudice so that defendant could seek signed affidavits.

FN4. Nereida also stated that defendant's nickname was “Landy.”   Andy was deceased at the time the three affidavits were submitted..  FN4. Nereida also stated that defendant's nickname was “Landy.”   Andy was deceased at the time the three affidavits were submitted.


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