State of New Jersey v. Keshawn McNeil

NOT FOR PUBLICATION WITHOUT THE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-0975-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KESHAWN MCNEIL,

Defendant-Appellant.

________________________

Submitted September 24, 2024 – Decided October 15, 2024

Before Judges Perez Friscia and Bergman.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Indictment No. 07-10-3548.

Jennifer Nicole Sellitti, Public Defender, attorney for

appellant (Andrew R. Burroughs, Designated Counsel,

on the briefs).

Theodore N. Stephens, II, Essex County Prosecutor,

attorney for respondent (Lucille M. Rosano, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keshawn McNeil appeals from an October 31, 2022 Law

Division order denying his motion for a new trial based on newly discovered

evidence. Having reviewed the record, parties' arguments, and applicable legal

principles, we affirm.

I.

We summarize the salient facts and procedural history as set forth in our

prior opinions affirming defendant's conviction and sentence, State v. McNeil

(McNeil I), No. A-0856-09 (App. Div. Oct. 21, 2011) (slip op. at 1-29), and

affirming the denial of his petition for post-conviction relief (PCR), State v.

McNeil (McNeil II), No. A-2614-13 (App. Div. Sept. 7, 2016) (slip op. at 1-22).

We provide only the pertinent facts relevant to this appeal.

Defendant's girlfriend, Staci Marshall, resided in a rental apartment in

Newark owned by Fabio Borges and Luciane Nunes. McNeil II, slip op. at 2.

On February 23, 2007, Marshall received an eviction notice addressed to another

tenant. Ibid. After calling Nunes, Marshall "learned that eviction proceedings

had been instituted against her as well." Ibid. She "agreed to pay her overdue

rent the next day." Ibid.

On February 24, while driving defendant, "an [a]spiring rapper," to a

music studio for a video shoot, Marshall told defendant her "funds would be low

A-0975-22

2

for the rest of the week" after paying rent. "Defendant told her not to worry and

that he would 'get the money back.'" Ibid. "A plan was made that defendant

would rob Borges after Marshall had paid her rent, and then she and defendant

would go to Atlantic City." Ibid. Marshall understood and agreed defendant

would rob Borges.

After requesting Borges to come collect $1,250 in overdue rent, Marshall

"contacted defendant, who robbed Borges and, during the robbery, shot him,

causing his death from a single gunshot wound to the [abdomen]." Id. at 2-3.

Thereafter, defendant and Marshall met in East Orange, where he discarded

Borges's wallet in a trash can and credit cards in a sewer. Id. at 3. They "then

took the 10:30 p.m. bus to Atlantic City, where defendant gave Marshall $400

as gambling money." Ibid. Defendant kept the remaining monies stolen from

Borges. Marshall maintained she initially thought defendant only robbed

Borges. She later learned from defendant he had shot Borges "where he kn[ew]

Borges [would] be okay" because "he felt like shooting his gun that day." They

subsequently "returned to Marshall's residence by the first morning bus." Ibid.

On February 26, "[f]ollowing a police interrogation, and despite threats of

harm from defendant, Marshall implicated defendant in the robbery and

shooting" in two separate police statements. See ibid. She also revealed "the

A-0975-22

3

location of Borges's wallet and credit cards," which the police recovered. Ibid.

The police arrested Marshall that day.

On October 19, defendant and Marshall were charged in an Essex County

indictment with: first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2

and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count

two); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three).

Defendant was separately charged with: first-degree murder, N.J.S.A. 2C:11-

3(a)(1), (2) (count four); third-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a handgun

for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six).

On January 30, 2008, Marshall entered a negotiated plea agreement with

the State. In exchange for the State recommending no greater than a fifteen-

year sentence subject to an eighty-five percent period of parole ineligibility

under the No Early Release Act (NERA), N.J.S.A. 2:43-7.2, Marshall agreed to

testify against defendant. She pleaded guilty to first-degree conspiracy to

commit robbery and robbery.

Beginning in May 2009, the trial judge presided over an eleven-day trial

with multiple expert and fact witnesses, including Marshall. Defendant was

represented at trial and did not testify. During defense counsel's cross-

A-0975-22

4

examination of Marshall, he sought to impeach her credibility. For example,

regarding her employment status, he elicited Marshall's acknowledgment that

she had wrongly testified to being laid off from her employer two days before

the murder, when in fact, she was terminated approximately three months earlier

for her poor job performance. Further, on cross-examination, she admitted

telling the police in her second statement she saw defendant's gun before the

shooting but omitted details about allegedly driving defendant to purchase

bullets. Defense counsel also questioned Marshall on her negotiated plea

bargain, eliciting that she hoped to receive the minimum of a ten-year sentence

with an eighty-five percent period of parole ineligibility:

[Defense counsel:] Now you cut that plea agreement

with the Prosecutor's Office and there's gonna come a

day when you're gonna go for sentencing, right?

[Marshall:] That is correct.

[Defense counsel:] And on that day, you're hoping to

get the minimum allowed under the law. Right?

[Marshall:] Yes, sir.

[Defense counsel:] And the minimum --

....

[Defense counsel:] -- you stated is ten years. Right?

[Marshall:] Yes, sir.

A-0975-22

5

[Defense counsel:] And you know, based on your

research, that ten years is not ten years without parole;

it's ten years at eighty-five percent. Right?

[Marshall:] That is correct, sir.

[Defense counsel:] So really, what ten years would

be . . . eight-and-a-half years in prison?

[Marshall:] I believe so, yes.

....

[Defense counsel:] Which you're hoping for.

[Marshall:] Yes, sir.

On June 3, the jury convicted defendant on count four of first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a), instead of first-degree murder,

and on all remaining counts. See McNeil II, slip op. at 4. Following merger,

the judge sentenced defendant on count three to life imprisonment with a

thirty-year period of parole ineligibility under N.J.S.A. 2C:11-3(b), subject to

NERA, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6(c), and to a

concurrent five-year sentence on count five. The judge sentenced Marshall to

ten years with an eighty-five percent period of parole ineligibility for her

convictions on first-degree conspiracy to commit robbery and robbery.

Defendant appealed, and we affirmed his conviction and sentence on October

21, 2011. McNeil I, slip op. at 1-29.

A-0975-22

6

After the PCR judge denied defendant's June 2012 PCR petition, McNeil

II, slip op. at 5, defendant filed a self-represented motion for reconsideration,

which a second PCR judge denied "treat[ing it] . . . as a second petition for

PCR." We affirmed the denial of the PCR petition and reconsideration motion.

Id. at 1-22.

In April 2019, the United States District Court for the District of New

Jersey denied defendant's petition for a writ of habeas corpus brought under 28

U.S.C. § 2254. See McNeil v. Johnson, No. 18-10003, 2019 WL 1650283, at

*1-13 (D.N.J. Apr. 17, 2019).

In January 2020, defendant filed a self-represented motion for a new trial

based upon newly discovered evidence. Appointed PCR counsel filed a

supplemental brief, asserting the newly discovered evidence was Marshall's

"[v]iolation of [p]robation [(VOP)] . . . from a 2005 disorderly persons

conviction for simple assault" that was pending before Marshall entered her plea

agreement and favorably resolved by dismissal. On December 20, 2005, a

Special Remand judge had sentenced Marshall to a one-year term of probation

for committing simple assault in an unrelated matter. On November 28, 2006,

Marshall was charged with violating probation for failing to pay

"[c]ourt[-]imposed financial obligations" and "undergo anger management

A-0975-22

7

counseling." On January 22, 2007, Marshall's probation was extended until June

30. On June 14, Marshall was again charged with violating probation because

she failed to pay "[c]ourt[-]imposed financial obligations," "failed to undergo

anger management counseling," and was arrested for the offenses at issue on

appeal—"conspiracy, robbery[,] and homicide." On July 16, Marshall's

probation was terminated. Notably, Marshall's presentencing report, dated April

23, 2009, delineated Marshall's prior criminal history but did not include her

disorderly persons simple assault conviction.

On September 27, 2022, the motion judge held an evidentiary hearing.

Defense counsel testified the State's theory relied on Marshall's testimony that

defendant "robbed . . . and killed" Borges after she paid the overdue rent. He

testified defendant's defense was he did not commit the robbery and killing.

Counsel explained "the heart of [defendant's] defense" was to demonstrate

Marshall was a liar because she "was practically the sole witness against him."

He further testified that, to his recollection, he was not provided discovery

regarding Marshall's VOP, which was pending from her arrest in this case until

the VOP's resolution "at some point . . . prior to trial." Defense counsel

maintained he would have used the VOP "to show [Marshall] was motivated"

by her own self-interest to fabricate and to impeach her credibility. He

A-0975-22

8

acknowledged, however, that "[i]f it was a disorderly persons adjudication, [he]

could[] [not] have cross-examined on it."

On October 31, the motion judge issued an order denying defendant's

motion for a new trial. In his accompanying statement of reasons, the judge

found defendant satisfied the first prong of a Brady1 violation claim because "the

evidence [of Marshall's VOP] [wa]s clearly favorable to the accused." The

judge, however, found the second element was not satisfied because the facts

failed to demonstrate that the State purposefully or inadvertently suppressed the

evidence. Regarding the third element, he determined the evidence was not

material. The judge reasoned:

In this case, Marshall had a pending VOP for a

disorderly persons conviction that was disposed of

nearly [six] months after the murder in February 2007.

However, at that time, Marshall was also charged with

first-degree murder, first-degree robbery, and

conspiracy. She had exponentially more significant

charges hanging over her head than a pending VOP for

a disorderly persons conviction from 2005 or a

[controlled dangerous substance] charge as in [State v.

Spano, 69 N.J. 231 (1976), or State v. Rodriguez, 262

N.J. Super. 564 (App. Div. 1993)]. Marshall eventually

pled to first-degree robbery and conspiracy, and her

first-degree murder charge was dismissed. The defense

was able to cross-examine Marshall on her cooperation

with law enforcement and the resulting favorable

1

Brady v. Maryland, 373 U.S. 83, 87 (1963).

A-0975-22

9

disposition of her murder [c]harges. However, even

with such substantial impeachment evidence, the jury

ultimately rejected [trial] counsel's claims that Marshall

was incredible and found [d]efendant guilty. If a

favorable disposition of a first-degree murder charge

did not sway the jury, the [c]ourt cannot find that there

is even a "reasonable probability" that a pending VOP

for a disorderly persons conviction would.

In considering defendant's newly discovered evidence claim, relying on

the three-prong test set forth in State v. Carter, 85 N.J. 300 (1981), the judge

found defendant satisfied prong one because Marshall's pending VOP was

proper impeachment evidence that defense counsel could have used to attack

Marshall's credibility. The judge also found defendant satisfied prong two

because Marshall's pending VOP was not discoverable through defense

counsel's exercise of reasonable diligence. Similar to his materiality findings

regarding defendant's Brady violation claim, the judge determined Marshall's

pending VOP was not material for prong three and de minimis in "the context

of the case as a whole."

On appeal, defendant presents the following point for our consideration:

A-0975-22

10

POINT I

AS THE NEWLY DISCOVERED EVIDENCE THAT

THE STATE'S PRIMARY WITNESS, . . .

MARSHALL, HAD A PENDING MATTER FOR [A

VOP] THAT HAD NOT BEEN DISCLOSED TO THE

DEFENSE WAS MATERIAL AND WOULD HAVE

UNDERMINED HER CREDIBILITY BEFORE THE

JURY, THE MOTION COURT ERRED WHEN IT

DENIED DEFENDANT'S MOTION FOR A NEW

TRIAL

(1) The fact that . . . Marshall had a pending

matter that involved the Essex County

Prosecutor's Office was material newly

discovered [evidence] that warranted a new

trial.

(2) The failure by the Essex County

Prosecutor's Office to disclose that . . .

Marshall had a pending VOP matter

violated defendant's Sixth Amendment

[d]ue [p]rocess rights.

II.

We begin our analysis by acknowledging the legal principles governing

motions for a new trial. Rule 3:20-1 provides:

The trial judge on defendant's motion may grant the

defendant a new trial if required in the interest of

justice. . . . The trial judge shall not, however, set aside

the verdict of the jury as against the weight of the

evidence unless, having given due regard to the

opportunity of the jury to pass upon the credibility of

the witnesses, it clearly and convincingly appears that

there was a manifest denial of justice under the law.

A-0975-22

11

"A trial court's ruling on a motion for a new trial 'shall not be reversed

unless it clearly appears that there was a miscarriage of justice under the law.'"

State v. Armour, 446 N.J. Super. 295, 305 (App. Div. 2016) (quoting R. 2:10-1).

"[A] motion for a new trial is addressed to the sound discretion of the trial judge,

and the exercise of that discretion will not be interfered with on appeal unless a

clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App.

Div. 2000). A defendant is permitted to seek a new trial on the ground of newly

discovered evidence at any time. State v. Szemple, 247 N.J. 82, 99 (2021).

A. Newly Discovered Evidence

We first address defendant's contention that the judge erred in denying his

motion for a new trial based on newly discovered evidence. Our consideration

of this argument is guided by well-established principles. In Carter, 85 N.J. at

314, our Supreme Court set forth the standard for granting a new trial based on

newly discovered evidence:

[T]o qualify as newly discovered evidence entitling a

party to a new trial, the new evidence must be (1)

material to the issue 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.

A-0975-22

12

The movant must satisfy all three prongs before a court grants a new trial. State

v. Ways, 180 N.J. 171, 187 (2004). "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.

"[T]he test to be satisfied under a newly discovered evidence approach is more

stringent" than "the test of materiality for the granting of a new trial" under

Brady. Carter, 85 N.J. at 314.

Under prong one of the Carter test, "[m]aterial evidence is any evidence

that would 'have some bearing on the claims being advanced.'" Ways, 180 N.J.

at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)).

"Clearly, evidence that supports a defense, such as alibi, third-party guilt, or a

general denial of guilt would be material." Ibid. "Determining whether

evidence is 'merely cumulative, or impeaching, or contradictory,' and, therefore,

insufficient to justify the grant of a new trial requires an evaluation of the

probable impact such evidence would have on a jury verdict." Id. at 188-89.

The second prong "recognizes that judgments must be accorded a degree

of finality and, therefore, requires that the new evidence must have been

discovered after completion of trial and must not have been discoverable earlier

A-0975-22

13

through the exercise of reasonable diligence." Id. at 192. Lastly, the third prong

requires a reviewing court to "engage in a thorough, fact-sensitive analysis to

determine whether the newly discovered evidence would probably make a

difference to the jury." Id. at 191. "[P]rongs one and three are inextricably

intertwined"; "'evidence that would have the probable effect of raising a

reasonable doubt as to the defendant's guilt would not be considered merely

cumulative, impeaching, or contradictory.'" State v. Nash, 212 N.J 518, 549

(2013) (quoting Ways, 180 N.J. at 189). This requires assessing such evidence

in the context of the "'corroborative proofs' in th[e] record." See Szemple, 247

N.J. at 110 (quoting State v. Herrerra, 211 N.J. 308, 343 (2012)); Ways, 180

N.J. at 195 (determining "the newly discovered evidence, when placed in context

with the trial evidence, sufficiently implicate[d]" an individual other than

defendant "in the killing").

Defendant argues the State's failure to provide notice of Marshall's VOP

for her simple assault disorderly persons conviction warrants a new trial because

it foreclosed further impeachment of Marshall's credibility, which was central

to the case and vital to his defense. Defendant also contends the judge wrongly

presumed the resolution of the VOP was insignificant because Marshall had

entered a plea agreement with the State that contemplated her testimony and was

A-0975-22

14

facing sentencing on charges of conspiracy to commit robbery, robbery, and

felony murder at the time. We are unpersuaded.

Preliminarily, we note the judge correctly found defendant satisfied

prongs one and two of the Carter test. Marshall was indisputably a key witness

for the State and essential to the prosecution. The VOP was material to

defendant's defense because it was relevant information for impeachment.

Defendant maintained he did not commit the robbery and murder. Defendant

utilized available impeachment evidence to cross-examine Marshall, seeking to

demonstrate she fabricated facts regarding his culpability in her self-interests.

Cf. Spano, 69 N.J. at 235 (noting defendant "could have attacked [the witness's]

credibility by suggesting a possible motive for her testimony" if the State had

disclosed receipt of a favorable "conditional dismissal of a criminal charge

against her"). During closing argument, defense counsel contended Marshall

lied to the jury and "was caging th[e] whole thing." He asserted while it was

unclear the exact identity of the individual with whom Marshall committed the

crime, all that was known was that Marshall lied. At the evidentiary hearing,

defense counsel testified "the heart of [defendant's] defense" was to establish

Marshall lied. As the judge correctly found, prong two was satisfied because he

A-0975-22

15

did not know Marshall had the VOP and due diligence by defendant would not

have yielded the information as it was not in her presentence report.

Under the third prong, defendant failed to demonstrate that successfully

impeaching Marshall on her disorderly persons VOP, dismissed before she

entered into her plea agreement, would have probably changed the jury's verdict.

Here, defense counsel extensively cross-examined Marshall, eliciting

inconsistencies in multiple aspects of her testimony. Counsel successfully got

Marshall to concede discrepancies regarding her employment termination and

account of first witnessing defendant's gun when she drove him to purchase

bullets. Importantly, defense counsel elicited Marshall's admission she hoped

to receive the minimum sentence of ten years with an eighty-five-percent period

of parole ineligibility after testifying.

The judge correctly reasoned, "even with such substantial impeachment

evidence, the jury ultimately rejected [trial] counsel's claims that Marshall was

incredible and found [d]efendant guilty." The record amply supports the judge's

conclusion that a new trial was not warranted as defendant failed to fairly

substantiate the verdict would probably be different if the jury heard testimony

from Marshall regarding her VOP; thus, we discern no abuse of discretion in the

judge's denial of defendant's motion for a new trial.

A-0975-22

16

B. Brady Violation

We next turn to defendant's related contention that a new trial is warranted

because the State committed a Brady violation by failing to disclose evidence of

Marshall's VOP, thereby infringing on his due process rights. "[T]o determine

whether a Brady violation has occurred," a court must consider three elements:

"(1) the evidence at issue must be favorable to the accused, either as exculpatory

or impeachment evidence; (2) the State must have suppressed the evidence,

either purposely or inadvertently; and (3) the evidence must be material to the

defendant's case." State v. Brown, 236 N.J. 497, 518 (2019).

Regarding the first element, the United States Supreme Court has noted

the Brady rule encompasses both impeachment and exculpatory evidence. See

United States v. Bagley, 473 U.S. 667, 676 (1985). As to the second element,

the "disclosure rule applies only to information of which the prosecution is

actually or constructively aware." State v. Nelson, 155 N.J. 487, 498 (1998);

see also State v. Washington, 453 N.J. Super. 164, 184 (App. Div. 2018) ("[A]

prosecutor's constitutional obligation to provide exculpatory information

'extends to documents of which it is actually or constructively aware, including

documents held by other law enforcement personnel who are part of the

prosecution team.'" (quoting State v. Robertson, 438 N.J. Super. 47, 69 (App.

A-0975-22

17

Div. 2014))). Regarding the third element, the evidence is deemed material

"only if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different. A

'reasonable probability' is a probability sufficient to undermine confidence in

the outcome." Bagley, 473 U.S. at 682; see also State v. Landano, 271 N.J.

Super. 1, 36 (App. Div. 1994).

Again, defendant argues Marshall's VOP was favorable impeachment

evidence withheld by the State. He further contends the Essex County

Prosecutor's Office would have known of Marshall's pending VOP in Essex

County and its ultimate dismissal in her favor. He posits the judge erred in

finding Marshall's VOP was de minimis because it was material impeachment

evidence undermining Marshall's credibility, warranting reversal.

Under the first Brady element, the State cannot dispute it would have been

favorable for defendant to have knowledge of Marshall's VOP and its dismissal

after Borges's murder but before Marshall's negotiated plea agreement with the

State. Regarding the second element, we part ways with the motion judge and

conclude defendant sufficiently demonstrated the Essex County Prosecutor's

Office had constructive notice of Marshall's VOP. Notably, the VOP was in the

same county as defendant's case. The VOP and later dismissal were

A-0975-22

18

contemporaneous to the investigation and Marshall's plea agreement. The

State's constructive awareness and resulting inadvertent lack of disclosure

satisfies the second element. "A prosecutor's obligation to 'turn over material,

exculpatory evidence to the defendant' is well established and does not require

extended discussion." Nash, 212 N.J. at 544 (quoting State v. Morton, 155 N.J.

383, 413 (1998)). "The obligation extends as well to impeachment evidence

within the prosecution's possession." Ibid. (citing Strickler v. Greene, 527 U.S.

263, 280 (1999)).

While defendant established the first two elements, he falls short of

demonstrating the VOP was material to his case under the third element. The

record amply supports the motion judge's determination that Marshall "had

exponentially more significant charges hanging over her head than a pending

VOP for a disorderly persons conviction from 2005." In contrast to her

disorderly persons VOP, Marshall faced sentencing on charges of first-degree

conspiracy to commit robbery, robbery, and felony murder. As noted in our

discussion in the preceding section, defense counsel cross-examined Marshall

extensively on her plea agreement with the State, seeking to impeach her

credibility and demonstrate her motive to fabricate. Counsel questioned

Marshall on whether she "cut [a] plea agreement with the Prosecutor's Office"

A-0975-22

19

and was "hoping to get the minimum allowed under the law." Marshall

acknowledged her sentencing was postponed until after she testified against

defendant, and she hoped to secure a more favorable sentence serving fewer

years. But the jury nevertheless convicted defendant. We therefore reject

defendant's contention that Marshall's VOP was material evidence, as there was

no reasonable probability that disclosure to defendant would have produced a

different result in the proceeding. See Brown, 236 N.J. at 518, 520.

In summary, we concur with the motion judge that given the gravity of

Marshall's pending indictable charges and negotiated sentencing range at the

time of her testimony, her disorderly persons VOP was comparatively

insignificant and thus not material to defendant's case. We see no reason to

disturb the motion judge's determinations that defendant failed to demonstrate a

Brady violation, and a new trial was not warranted.

To the extent not addressed, defendant's remaining contentions lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-0975-22

20