State v. Norris

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARKITA A. NORRIS, a/k/a MARKITA ANITA NORRIS, MAKITA A. NORRIS, and MONROE ZYIRE QURAN NORRIS, Defendant-Appellant.

No. A-3045-20

Superior Court of New Jersey, Appellate Division

December 22, 2023

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Submitted December 11, 2023

On appeal from the Superior Court of New Jersey, Law Division Union County, Indictment No. 10-07-0774.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs, Designated Counsel, on the briefs).

William A. Daniel, Union County Prosecutor, attorney for respondent (Michele C. Buckley, Assistant Prosecutor, of counsel and on the brief).

Before Judges Sabatino, Marczyk, and Chase.

PER CURIAM

Defendant Markita Norris appeals from a February 25, 2021 order denying both her petition for post-conviction relief ("PCR") and motion for a new trial. We affirm substantially for the reasons set forth by Judge Regina Caulfield in her well-reasoned ninety-six-page written opinion.

I.

We incorporate the facts leading to defendant's May 30, 2012 convictions from our decision on defendant's direct appeal, State v. Norris, No. A-1561-12, (App. Div. Nov. 30, 2015), 2ertify. denied, 226 N.J. 213 (2016), where we previously affirmed defendant's conviction but remanded for resentencing, and State v. Norris, No. A-3008-15, (App. Div. May 15, 2017), where we again remanded for resentencing. The facts underlying defendant's conviction are detailed in our previous opinions and need not be repeated in their entirety. Rather, we recount the facts relevant to defendant's petition and motion.

The State established at trial that in March 2010, during a fundraiser at the Black United Fund in Plainfield, the victims were dancing when defendant "bumped shoulders" with decedent. When the parties saw each other outside, defendant and her uncle instigated another verbal altercation with the surviving victim and decedent. The verbal altercation became physical when defendant's uncle punched the surviving victim.

At trial, the State called five eyewitnesses who saw defendant attack the victims during the fight. Four of the eyewitnesses' testimony collectively established that defendant was the only one who fought with and stabbed the decedent, who collapsed on the sidewalk. The testimony of these witnesses also established that while defendant's uncle fought with the surviving victim, defendant stabbed the surviving victim twice in the left arm and once in the back. The surviving victim suffered a collapsed lung and other injuries. Defendant then went back and kicked the decedent in the head before leaving in her uncle's car.

The fifth and final eyewitness, Mahalia Frieda Fowler-Stewart, testified she saw decedent prior to the fight standing by a tree when defendant "just swung on him, hit him in his stomach." She watched them fight for "a minute and then he just fell, and the tree came out of the ground." Fowler-Stewart ran over to decedent and saw that he had a stab wound in his chest. Fowler-Stewart also saw defendant kick decedent after he fell to the ground. She testified defendant then went over to the surviving victim and "hit him in the back." The surviving victim then walked to a wall, called to Fowler-Stewart, and said, "I think she stabbed me." Fowler-Stewart testified that she attempted to help the decedent by holding him in her arms. The decedent spoke to her and said, "why she stab me? [P]lease don't let me die." Decedent repeatedly said he could not breathe. Fowler-Stewart testified that the paramedics arrived and put decedent in an ambulance.

The surviving victim also testified about the initial bump, the beginning of the fight, and his fight with defendant's uncle. He testified that at some point during the fight he began to "feel weak and didn't know why." He saw defendant dance in the middle of the street before she and her uncle drove away in his car.

Plainfield Police Officer Candis Grant testified that she responded to the scene before the victims were taken to the hospital. An individual in the crowd yelled to her and pointed in the direction of defendant's uncle's car. Officer Grant attempted to stop the car; however, she failed, and a pursuit ensued. During the five-minute pursuit, Officer Grant observed a handgun thrown out of the passenger window of the vehicle. When the vehicle finally stopped, defendant and her uncle were arrested. Defendant had $234 in cash on her, and the police found thirty-four bags of cocaine in the backseat of the patrol car where defendant had been sitting. At trial, the parties stipulated that the gun thrown from the car belonged to defendant's uncle, and he pled guilty to possessing it. Defendant did not testify.

On May 30, 2012, the jury found defendant guilty of murder, N.J.S.A. 2C:11-3a(1); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a (1); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1); possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

Initially, defendant's convictions were affirmed, but her eighty-year sentence was remanded for resentencing. She then appealed her second sentence, which was also remanded. Defendant was eventually sentenced to forty years of incarceration and a consecutive fifteen-year term of incarceration, both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 with an additional five-year term to run concurrently for possession of CDS with the intent to distribute within 1,000 feet of a school.

II.

In March 2019, defendant filed a petition for PCR and a motion for new trial. Defendant argued she was entitled to post-conviction relief due to several errors committed by her trial attorney constituting ineffective assistance of counsel, and she was entitled to a new trial due to the fabricated testimony provided by Fowler-Stewart.

First, in regard to her PCR, defendant alleged her counsel was ineffective for allowing the State to present evidence related to her uncle's guilty plea to possession of a handgun; for failing to make a pretrial motion to sever the unrelated drug counts into separate trials; for allowing the admission of certain hearsay statements in violation of the evidentiary rules and her right to confrontation; and for failing to properly investigate and cross-examine a witness with respect to their claim that an unknown male was involved in the altercation. Defendant further contended the cumulative errors established her claim of ineffective assistance of counsel. As these arguments were decided on direct appeal, the court declined to revisit them.

Regarding the motion for a new trial, the court heard testimony from November 2019 to February 2020. First, the court heard the testimony of Shohin Ghaffari, a family friend of defendant. Ghaffari testified defendant was a "friend of the family" and was his "fiancé's cousin." Ghaffari did not believe defendant committed the alleged offenses, and he began conducting his own investigation. Ghaffari spoke to ten people as part of his investigation, but only Fowler-Stewart was cooperative. Ghaffari decided to take further action after Fowler-Stewart "broke out and started crying in tears" when asked about defendant's case. Ghaffari brought Fowler-Stewart to PCR counsel's office on two occasions. He denied making any threats or promises to Fowler-Stewart in exchange for meeting with PCR counsel. Ghaffari explained, to his understanding, Fowler-Stewart met with PCR counsel freely and voluntarily. Ghaffari had no training in the practice of law, legal research, law enforcement, security, or investigations.

The trial court determined Ghaffari was not a credible witness due to his inability to recall key information, his refusal to provide names of individuals from whom he obtained information regarding defendant's innocence, and his noted recollection of only information he felt was important to the case. The court also noted Ghaffari's body language and hesitation when answering certain questions posed by the State. Further, the court found Ghaffari was "often inconsistent and non-responsive, was often evasive and, at other times defensive, and insisted he could not recall certain information when pressed . . . ." The court ultimately rejected Ghaffari's testimony as being mostly untrue, particularly as it related to his conversations with Fowler-Stewart and his contact with certain alleged witnesses during his investigation.

Following Ghaffari, Fowler-Stewart testified intermittently before the PCR court over several months. Fowler-Stewart testified that upon meeting with Ghaffari, she confessed she fabricated decedent's dying declaration. Fowler-Stewart explained when she ran over to decedent as he was lying bleeding on the ground, he had not made the declaration to her. When asked why she previously lied about the statement, Fowler-Stewart said she felt compelled to do so due to a detective on the case harassing her and threatening to remove her from Recovery Court if she did not testify. Fowler-Stewart thought she should "tell them what they wanted to hear." Fowler-Stewart denied seeing defendant swing at decedent's stomach, and insisted she did not see anything besides defendant kick decedent and swing towards the surviving...