Filed: Jan. 14, 2016
Latest Update: Jan. 14, 2016
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Samuel Cann appeals from a September 18, 2013 order denying his motion for a new trial. We affirm. At his 1992 trial, defendant was convicted of purposeful and knowing murder, felony murder, attempted murder, kidnapping, aggravated sexual assault, and other related offenses. The charges arose from a 1986 incident in which a male victim was murdered, and a female victim, M.T., was gang-raped and shot bu
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Samuel Cann appeals from a September 18, 2013 order denying his motion for a new trial. We affirm. At his 1992 trial, defendant was convicted of purposeful and knowing murder, felony murder, attempted murder, kidnapping, aggravated sexual assault, and other related offenses. The charges arose from a 1986 incident in which a male victim was murdered, and a female victim, M.T., was gang-raped and shot but..
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Samuel Cann appeals from a September 18, 2013 order denying his motion for a new trial. We affirm.
At his 1992 trial, defendant was convicted of purposeful and knowing murder, felony murder, attempted murder, kidnapping, aggravated sexual assault, and other related offenses. The charges arose from a 1986 incident in which a male victim was murdered, and a female victim, M.T., was gang-raped and shot but survived. In January 1993, defendant was sentenced, after merger, to life in prison with fifty years of parole ineligibility. On his direct appeal defendant raised the following issues:
POINT I
THE TRIAL COURT'S CHARGE ON ACCOMPLICE LIABILITY DENIED DEFENDANT A FAIR TRIAL IN THAT IT FAILED TO ADVISE THE JURORS THAT AN ACCOMPLICE COULD BE GUILTY OF A LESSER OFFENSE THAN THE PRINCIPAL, BUT INSTEAD TOLD THEM THAT "THEY ALL HAVE THE SAME CRIMINAL STATE OF MIND, FOLKS," AND "THEY'RE ALL IN IT TOGETHER." (Not Raised Below).
POINT II
THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS DENIED WHEN THE PROSECUTOR CLAIMED IN SUMMATION THAT [M.T.] HAD TESTIFIED THAT A PHOTOGRAPH OF DEFENDANT "LOOKED LIKE THE SMALLEST INDIVIDUAL INVOLVED," WHEN IN FACT SHE HAD NEVER IDENTIFIED ANY PICTURE OF MR. CANN.
POINT III
THE TRIAL COURT VIOLATED THE RULE OF STATE V. TRENT WHEN, AFTER SUBSTITUTING A JUROR AND TELLING THE JURY TO BEGIN DELIBERATING ANEW, IT DID NOT SEND THEM BACK TO RECOMMENCE THEIR DELIBERATIONS, BUT INSTEAD ANSWERED QUESTIONS ASKED BY THE JURY PRIOR TO THE SUBSTITUTION. (Not Raised Below).
POINT IV
IN SENTENCING DEFENDANT TO THREE CONSECUTIVE MAXIMUM SENTENCES, THE TRIAL COURT VIOLATED THE GUIDELINES OF THE CODE AND THE RULE OF STATE V. YARBOUGH.
Defendant raised the following contentions in his pro se letter brief:
POINT I
THE TRIAL COURT INCORRECTLY CHARGED THE JURY ON THE THEORY OF ACCOMPLICE LIABILITY, AND THE USE OF EVIDENCE OF INTOXICATION AS A DEFENSE; THUS DENYING DEFENDANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND HIS RIGHT TO A FAIR TRIAL UNDER NEW JERSEY CONSTITUTION (1947) ART. I, PAR. I, 9, 10. (Not Raised Below).
A) THE TRIAL COURT INCORRECTLY CHARGED THE JURY ON THE THEORY OF ACCOMPLICE LIABILITY.
B) THE TRIAL COURT INCORRECTLY CHARGED THE JURY ON THE USE OF EVIDENCE OF INTOXICATION AS A DEFENSE TO ALL CRIMES CHARGED.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE OR CASE LAW. (Partially Raised Below).
We found those issues to be without merit, except for the challenge to defendant's conviction for purposeful and knowing murder. We reversed that conviction based on charging errors and remanded for either a retrial on the murder charge or to permit the court to unmerge the felony murder conviction and sentence defendant on that conviction. State v. Cann, No. A-3878-92 (App. Div. Mar. 6, 1996), certif. denied, 145 N.J. 375 (1996). On remand, the State elected not to retry defendant, and the court unmerged and imposed sentence on the felony murder conviction; defendant received the same aggregate sentence. Defendant once again appealed, and we affirmed. State v. Cann, No. A-4669-95 (App. Div. Nov. 10, 1997), certif. denied, 153 N.J. 48 (1998).
Defendant filed his first post-conviction relief (PCR) petition in 1998. It was denied, and we affirmed the denial. State v. Cann, 342 N.J.Super. 93 (App. Div.), certif. denied, 170 N.J. 208 (2001). Thereafter, defendant filed two more PCR petitions as well as a petition for habeas corpus, all of which were denied.1
Defendant filed the new trial motion which gave rise to this appeal in June 2012, more than nineteen years after his conviction. He contended that the rape victim, M.T., made an October 2, 1986 statement to the police which the State failed to disclose in discovery, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963). Defendant also attested that "at no time was [he] made aware of the statement." Judge Alphonse J. Cifelli rejected those arguments, noting that the statement was marked for identification at defendant's trial, and it was more inculpatory than the witness's trial testimony was.2
On this appeal, defendant raises the following issue:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL FOR DEFENDANT'S RELIANCE ON THE WRONG COURT RULE AND IN FAILING TO TREAT DEFENDANT'S MOTION AS A PETITION FOR POST CONVICTION RELIEF AND AFFORD DEFENDANT A HEARING ON THE ISSUES RAISED BY DEFENDANT NOT HAVING BEEN GIVEN [THE VICITM'S] OCTOBER 2, 1986 STATEMENT IN PRETRIAL DISCOVERY.
His contentions are without sufficient merit to warrant discussion, beyond the following comments. See R. 2:11-3(e)(2). Defendant argues for the first time that the trial judge should have sua sponte treated his filing as a PCR petition. However, even if considered as a PCR petition, defendant's filing would be untimely under the standards set forth in Rule 3:22-12(a)(2). Defendant's claim is not based on a newly recognized constitutional right. See R. 3:22-12(a)(2)(A). The alleged new evidence was known at the time of defendant's trial. See R. 3:22-12(a)(2)(B). While this PCR petition was filed less than one year after the May 2012 dismissal of defendant's most recent previous PCR petition, there is no allegation of ineffective assistance of counsel with respect to that prior PCR filing. See R. 3:22-12(a)(2)(C).
Affirmed.
