NOT FOR PUBLICATION WITHOUT THE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-4917-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROME FARNVILLE,
Defendant-Appellant.
________________________
Submitted February 26, 2019 – Decided April 5, 2019
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 06-08-
0789.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order dated April 21, 2017, which denied his
motions to compel the State to produce an inter-office memorandum prepared
by an assistant prosecutor regarding a plea agreement with a co-defendant, and
to dismiss his indictment and judgment of conviction (JOC). Defendant also
appeals from an order dated May 12, 2017, which denied his motion for a new
trial. We affirm.
I.
On September 12, 2005, Hamilton Blackshear was shot and killed while
exiting the back door of the home of his son Albert in Bridgeton. Before the
shooting, Albert had been involved in several disputes with Kenneth Bartee
about a purported relationship between Albert and Bartee's girlfriend, which
resulted in an altercation between them on September 10, 2005. In retaliation,
Albert set fire to the house where Bartee was living.
On September 12, 2005, Bartee broke into Albert's house and stole certain
items of personal property. Later that night, Hamilton went with Albert to
Albert's house to retrieve the remaining property and change the locks. After
Hamilton exited a door at the rear of the house, Albert heard "a loud noise [which
was] like a bang." Hamilton went back into the house, told Albert he had been
shot, and fell to the floor. Hamilton later died from his gunshot wound. Officers
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from the Bridgeton Police Department thereafter arrested defendant, Bartee,
Andrew Swinton, William Rothmaller, Brian Baldwin, Archie Perry, and
Charles Clark in connection with the homicide.
Thereafter, a Cumberland County grand jury returned an indictment
charging defendant, Swinton, Bartee, Rothmaller, Baldwin, Perry, and Clark
with first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts one and two);
first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (count three);
second-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (count four); second-
degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.SA. 2C:18-2 (count five);
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and 2C:15-
1 (count ten); and second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-
2(a)(1) and 2C:18-2 (count eleven).
Defendant also was charged with second-degree possession of a weapon
for an unlawful purpose, in violation of N.J.S.A. 2C:39-4.1(a) (count six); third-
degree unlawful acquisition of a firearm, in violation of N.J.S.A. 2C:39 -10
(count seven); and third-degree possession of a prohibited weapon, in violation
of N.J.S.A. 2C:39-3(b) (count twelve).
On May 9, 2007, Clark pled guilty to conspiracy to commit robbery, in
violation of N.J.S.A. 2C:5-2(a)(1) and 2C:15-1, as charged in count ten of the
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indictment. The plea agreement stated that Clark would “provide truthful
testimony against [his] co-defendants.” In exchange, the State agreed to dismiss
Clark's remaining charges and recommend a six-year prison sentence.
At defendant’s trial, Clark testified against defendant. He stated that on
September 12, 2005, he and the other co-defendants drove to Albert's home to
confront Albert and take some property. Clark said defendant was armed with
what appeared to be a sawed-off shotgun. He testified that, when the group
approached the house, they saw a man exit the back door. Clark said he
witnessed defendant “let off a shot.” He was sure defendant fired the shot
because he witnessed the incident first-hand.
The jury found defendant guilty of murder (count one), robbery (counts
three and four), unlawful possession of a firearm (count seven), conspiracy to
commit robbery (count ten), and conspiracy to commit burglary (count eleven).
Defendant was found not guilty of the remaining charges. At sentencing, the
judge merged counts four and ten with count one, and sentenced defendant on
count one to sixty years in prison, with fifty-one years of parole ineligibility,
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The court also sentenced defendant to concurrent terms of eight years,
with four years of parole ineligibility, on count eleven, and four years, with two
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4
years of parole ineligibility, on count seven. The court filed a JOC dated April
24, 2009. Defendant appealed from the JOC and challenged his convictions and
sentence.
Clark later testified against another co-defendant at a second trial. Clark
was prepared to testify against a third co-defendant, but that co-defendant pled
guilty. On April 15, 2011, the court entered an order vacating Clark’s plea
agreement. Clark then pled guilty to conspiracy to commit burglary, and the
court sentenced him to time-served, which was eighty-five days, and two years
of probation.
In February 2012, we reversed defendant’s conviction for first-degree
robbery (count three), but affirmed his other convictions and sentences. State
v. Farnville, No. A-0169-09 (App. Div. Feb. 15, 2012). The Supreme Court
denied defendant's petition for certification. State v. Farnville, 212 N.J. 199
(2012).
Defendant thereafter filed a petition for post-conviction relief (PCR),
alleging he was denied the effective assistance of counsel. He claimed his trial
attorney gave him misinformation and advice, failed to file all appropriate
motions, and did not object to certain allegedly prejudicial questions posed by
the assistant prosecutor. The PCR court denied the petition. We affirmed the
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order denying PCR. State v. Farnville, No. A-3226-13 (App. Div. Nov. 4, 2015).
The Supreme Court later denied defendant's petition for certification. State v.
Farnville, 224 N.J. 527 (2016).
II.
In August 2016, defendant filed a pro se motion for a new trial. He stated
that he had obtained a copy of Clark's JOC, which was entered after his plea
agreement was modified. Defendant alleged that at his trial, the assistant
prosecutor knowingly used or failed to correct materially misleading testimony
by Clark about his plea agreement. He also claimed the assistant prosecutor
failed to disclose exculpatory evidence regarding Clark's amended plea
agreement before Clark testified against him. The court appointed counsel to
represent defendant.
On October 14, 2016, the judge heard oral argument on the motion.
Defendant's attorney argued that he believed that Clark and the prosecutor had
a “secret” agreement in place when Clark testified at defendant's trial. He
asserted that the assistant prosecutor never intended to recommend that the court
sentence Clark to a six-year prison term. Counsel acknowledged, however, that
defendant had no evidence to support these allegations.
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The judge instructed the State to locate any memoranda in its case files
showing when and why the State decided to vacate Clark's original plea
agreement. The judge instructed the State to prepare to produce any such
memoranda for in camera review.
On December 9, 2016, the judge heard further argument on the motion.
The assistant prosecutor stated that the internal memorandum pertaining to the
decision to offer Clark a new plea agreement had been found, but the State
objected to its disclosure. The assistant prosecutor offered to provide the judge
with a transcript of Clark's sentencing, during which the assistant prosecutor
assigned to the case explained the reasons the State had agreed to modify Clark's
plea agreement.
The judge ordered the State to provide the internal memorandum for in
camera review. The judge stated, however, that if the prosecutor’s office
objected to in camera review of the memorandum, it could make an ex parte
submission to the court explaining the basis for the objection.
On February 21, 2017, the State provided the judge and defendant with a
certified statement by John Jesperson, the assistant prosecutor who handled the
prosecution of defendant, Clark and other co-defendants. In his certification,
Jesperson stated that in the original plea agreement, Clark had agreed to testify
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truthfully against his co-defendants. In exchange for that promise, the State had
agreed to recommend that the court sentence Clark to a six-year prison term.
Jesperson stated that Clark had complied with his obligations under his
agreement.
Jesperson also stated that after “the three most culpable armed
individuals” were tried, and other co-defendants with less culpability were
sentenced to probation, the State re-evaluated the terms of Clark’s original plea
agreement. Jesperson said the State decided “it was unfair to give the others
probation for their lack of culpability and then give [Clark] a six-year sentence
when he, too, was less culpable.” He said the State believed it was “[i]n the
interest of justice and in all fairness to [Clark]” to vacate the original plea
agreement and offer a plea that recommended a lesser sentence.
On March 13, 2017, defendant filed another motion with the trial court,
seeking an order dismissing his indictment and his JOC. Defendant asserted that
the assistant prosecutor acted improperly when he allowed Clark to testify
untruthfully about the terms of his plea agreement. Defendant claimed that in
doing so, the State had withheld material evidence favorable to his defense, in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
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On April 6, 2017, the judge heard further argument on defendant's
motions. The judge noted that defendant had amended his motion to add a claim
that the State improperly failed to disclose Clark’s criminal record before he
testified at defendant’s trial. Defendant claimed the State’s failure to disclose
this information prejudiced the defense. The judge found that he did not have
sufficient evidence to address defendant's new claim. The judge scheduled the
matter for another proceeding to allow the State to respond to the new claim.
The judge ruled, however, that at the time of defendant's trial, the State
and Clark did not have a secret agreement that Clark would not be sentenced to
a six-year term, as provided by the original plea agreement. The judge found
that Jesperson's certification made “very clear” that the State decided to vacate
Clark’s original plea agreement after Clark testified as a witness in defendant’s
trial.
The judge therefore decided that there was no need for the State to produce
its internal memorandum regarding Clark's plea. The judge memorialized his
decision in an order dated April 21, 2017, which denied defendant’s motions:
for a new trial, for release of the State’s internal memorandum, and dismissal of
the indictment and JOC.
A-4917-16T4
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On May 12, 2017, the judge heard further argument by the parties on
defendant's motion for a new trial on the ground that the State failed to disclose
Clark’s criminal record before Clark testified at defendant's trial. The judge
reviewed Clark’s pre-sentencing report and found that “there is no information
[in the report] that would have benefitted the defense in any way or would have
provided the defendant with any material information necessary" to prepare his
defense or cross-examine Clark.
The judge therefore ruled that the State had no obligation to disclose this
information to the defense unless defendant had requested it. The judge filed an
order dated May 12, 2017, denying defendant’s motion. This appeal followed.
On appeal, defendant raises the following arguments for our
consideration:
POINT ONE
THE FAILURE TO PRODUCE THE STATE'S 2011
INTERNAL MEMORANDUM REGARDING ITS
DECISION TO VACATE A CO-DEFENDANT'S
PRIOR PLEA IN ORDER FOR HIM TO RECEIVE A
MORE LENIENT SENTENCE AFTER TESTIFYING
AT DEFENDANT'S TRIAL PRECLUDED
DEFENDANT FROM ESTABLISHING WHETHER
THE PROSECUTING ATTORNEY KNOWINGLY
USED MISLEADING INFORMATION AT
DEFENDANT'S TRIAL WHERE THE CO-
DEFENDANT TESTIFIED THAT THE SENTENCE
HE WAS TO RECEIVE WAS GREATER THAN THE
SENTENCE HE ACTUALLY RECEIVED.
A-4917-16T4
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POINT TWO
THE MOTION COURT ABUSED ITS DISCRETION
WHERE, IN DENYING DEFENDANT'S NEW TRIAL
MOTION WITHOUT CONDUCTING AN
EVIDENTIARY HEARING, IT GAVE GREATER
WEIGHT TO THE PROSECUTING ATTORNEY'S
CERTIFICATION THAN TO DEFENDANT'S
REASONING REGARDING WHY A CO-
DEFENDANT REMAINED FREE AFTER A PLEA
TO A SIX-YEAR TERM IF THE STATE DID NOT
INTEND TO OFFER HIM A LESSER TERM
[AFTER] TESTIFYING AT DEFENDANT'S TRIAL.
POINT THREE
THE MOTION COURT WRONGLY CONCLUDED
THAT THE STATE DID NOT HAVE A DUTY TO
DISCLOSE ANY PENDING ARRESTS WITHOUT A
SPECIFIC REQUEST FROM DEFENDANT.
POINT FOUR
DEFENDANT'S ATTORNEY ON [THE] NEW
TRIAL MOTION WAS CONSTITUTIONALLY
INEFFECTIVE WHERE SHE ABANDONED
DEFENDANT TO ARGUE ON HIS OWN THE
MERITS OF HIS PRO SE FILINGS.
III.
We first consider defendant's argument that the judge erred by refusing to
order the State to release its internal memorandum from 2011, which pertained
to the State's decision to vacate Clark's original plea agreement and allow him
to enter a new plea with a lesser sentence. Defendant asserts that, at the very
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least, the judge should have ordered the State to provide the memorandum to the
court for in camera review. We disagree.
As we have explained, instead of producing the memorandum, the State
presented the judge with a certification from Jesperson, the assistant prosecutor
who prosecuted defendant, Clark and others charged in the indictment. In his
certification, Jesperson explained the reasons why the State decided to vacate
Clark's original plea, allow him to enter a new plea, and recommend a lesser
sentence.
Defendant failed to present sufficient evidence to support his demand for
the production of the State's internal memorandum. Defendant presented no
direct evidence that in 2009, when Clark testified against defendant, there was
a secret agreement between the State and Clark that he would not be sentenced
to a six-year prison term, as provided by the original plea agreement. Defendant
relies instead on circumstantial evidence and speculation.
It is undisputed that Clark's original plea was vacated and he was
sentenced in 2011, but that is not evidence that a secret agreement between the
State and Clark regarding the plea existed in 2009 when Clark testified at
defendant's trial. Defendant also notes that after Clark entered his original plea,
he did not immediately begin to serve his custodial sentence. This, too, is not
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evidence that the State and Clark had agreed before defendant's trial that Clark
would not be required to serve the six-year term.
We therefore conclude the judge did not err by refusing to order the State
to provide defendant with a copy of the internal memorandum written in 2011,
or by refusing to order the State to provide it for in camera review. Jesperson
had explained the reason for the State's decision to allow Clark to vacate his
original plea and to plead to another charge. Defendant failed to establish a
sufficient factual basis to compel the State to provide the 2011 memorandum to
defendant, or the court for in camera review.
IV.
Defendant also argues that the judge erred by denying his motion for a
new trial. He contends the record does not support the judge's finding that the
State did not agree to modify Clark's plea agreement until 2011. Defendant
maintains the judge should have conducted an evidentiary hearing on this issue.
A court may grant a defendant "a new trial if required in the interest of
justice." R. 3:20-1. Where, as here, the defendant seeks a new trial based on
newly discovered evidence, the defendant must show "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
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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)).
For purposes of applying this test, evidence is considered material if it has
"some bearing on the claims being advanced." Id. at 188 (quoting State v.
Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). This includes "evidence
that supports a defense, such as alibi, third-party guilt, or a general denial of
guilt[.]" Ibid. Moreover, evidence is considered to be "merely" cumulative,
impeaching, or contradictory if it "is not of great significance and would
probably not alter the outcome of the verdict." Id. at 189 (citing Henries, 306
N.J. Super. at 585).
Here, defendant asserted that he was entitled to a new trial based on
evidence that purportedly shows the State and Clark had a secret agreement in
2009, when Clark testified at defendant's trial, that Clark would not be requir ed
to serve six years in jail, as provided in the original plea agreement. However,
the record supports the judge's finding that there was "absolutely no evidence or
reason to believe that there was, in fact, any other deal than the deal under which
[Clark] testified at the time of the trial in 2009."
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The judge noted that Jesperson's certification and the other documents
regarding Clark's plea established that the State decided to modify the plea
agreement in 2011, when Clark was scheduled to be sentenced. The judge
observed that "it was a modification agreement that was predicated upon how
things actually played out" at defendant's trial and the trials of other co-
defendants where Clark agreed to testify.
On appeal, defendant argues that the State failed to establish when
Jesperson made the decision to modify Clark's plea agreement, and when the
other co-defendants were sentenced to probationary terms. As the judge found,
however, there is sufficient credible evidence in the record to support the judge's
finding that the decision to modify Clark's plea agreement was made after Clark
testified at several trials and after the charges against other similarly-situated
co-defendants were resolved.
Defendant further argues that the judge erred by relying upon Jesperson's
certification. He contends the judge gave greater weight to Jesperson's
certification than he did to any other evidence. He asserts that in his
certification, Jesperson did not state "[w]hen prosecutorial knowledge existed"
that co-defendants similarly situated to Clark should be offered probationary
terms. Defendant also asserts that Jesperson failed to explain why Clark
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remained free after his plea. Defendant contends the judge should have taken
testimony on these issues.
We are not persuaded by these contentions. The record supports the
judge's finding that the State made the decision to modify Clark's plea agreement
after Clark testified at defendant's trial. Defendant failed to present sufficient
evidence to warrant a plenary hearing on that issue.
V.
Defendant also contends that the judge erred by denying his motion for a
new trial because the State failed to disclose certain information relating to
Clark's criminal history before Clark testified at defendant's trial. Defendant
contends the State failed to provide the defense with Clark's "rap sheet," which
did not list any convictions for indictable offenses, but mentioned several
arrests. Defendant claims the State's failure to disclose this information violated
its obligations under Brady. He argues that the court should have conducted an
evidentiary hearing on this issue.
We note that defendant has not included the "rap sheet" in the record on
appeal. We are convinced, however, that the judge correctly found that
defendant's claim regarding the "rap sheet" is entirely without merit. The record
shows that at oral argument on the motion, the judge asked defendant directly
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whether or not the State had provided Clark's "rap sheet" to the defense.
Defendant said he did not know. He just assumed the State had not provided the
information because his attorney did not ask Clark about it on cross -
examination. Therefore, defendant failed to establish that the State did not
provide the defense with Clark's "rap sheet."
The judge noted, however, that although the "rap sheet" showed that Clark
had several arrests, generally pending charges could not be used for purposes of
impeachment. The judge's statement was consistent with Rule 609(a)(1). The
rule allows the use of a witness's conviction of a crime to be used to impeach
the witness's credibility, subject to Rule 403, unless excluded by the judge
pursuant to subsection (b)(1) of the rule. See N.J.R.E. 609(a)(1).
The judge also noted that Clark's "rap sheet" included a conviction for a
disorderly persons offense. The judge correctly found that the conviction for a
disorderly persons offense could not be used to impeach Clark. See State v.
Rowe, 57 N.J. 293, 302-03 (1970).
Thus, the record supports the judge's determination that defendant failed
to establish that the State did not provide the defense with Clark's criminal
record. The record also supports the judge's decision that the information on
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Clark's "rap sheet" could not be used for impeachment. The judge did not err
by deciding these issues without a plenary hearing.
VI.
Defendant also claims he was denied the effective assistance of counsel
with regard to his motions. He contends that his attorney participated in the oral
argument on the request for production of the State's 2011 internal memorandum
regarding Clark's plea agreement. He contends, however, that when the judge
turned to the merits of the motion for a new trial, his attorney "abandoned" him,
leaving him to argue the motion himself.
To establish ineffective assistance of counsel, a defendant in a criminal
matter must satisfy the two-part test established in Strickland v. Washington,
466 U.S. 668, 687 (1984), and later adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). A defendant first must "show that counsel's
performance was deficient." Strickland, 466 U.S. at 687. The defendant also
must establish that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Id. at 694.
Here, the record does not support defendant's claim that his attorney
"abandoned" him at the argument on his motions. Counsel presented argument
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over the course of four hearings on defendant's motions. During the third
proceeding, after counsel presented her argument, the judge gave defendant the
opportunity to "present any final arguments you want" before rendering a
decision. Defendant presented additional arguments.
On appeal, defendant has not identified any argument that his attorney
failed to present, nor has he shown that the outcome of his motions would have
been different if his attorney had presented the supplemental arguments instead
of defendant. We therefore reject defendant's claim that he was denied the
effective assistance of counsel on his motions.
Affirmed.
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