On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-1438.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
Defendant Michael Watson appeals from the denial of a petition for post-conviction relief. A jury found defendant guilty of kidnapping, N.J.S.A. 2C:13-1b(1); felony murder, N.J.S.A. 2C:11-3a(3); second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1b(4); terroristic threats, N.J.S.A. 2C:12-3b; four counts of criminal restraint, N.J.S.A. 2C:13-2; possession of a shotgun without a purchaser identification card, N.J.S.A. 2C:39-5c(1); and possession of a firearm with the purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4a. On direct appeal we affirmed defendant's conviction and sentence, and the Supreme Court denied his petition for certification. State v. Watson, No. A-0056-03 (App. Div. Oct. 7, 2004) (slip op. at 12), certif. denied, 182 N.J. 428 (2005).
The pertinent facts are stated in our prior opinion. Id. at 2-5. The crimes were committed in "two adjoining apartment units in Newark. The murder victim, Kailee Moses, his fifteen-year old cousin, Elijah Moses, and Michelle Paden [, who defendant had dated,] resided in one apartment. Natasha Smith resided in the other . . . . [Her] brother, Fred Smith, was staying [there], and Michelle Paden was visiting . . . ." Id. at 2-3.
The day before the crimes, defendant brought food to Paden in Smith's apartment. Ibid. In the early morning hours of the following day, Elijah Moses responded to a knock on the door of his apartment. Ibid. When he opened the door, "defendant, armed with a shotgun, and a masked confederate, armed with a handgun, entered the apartment." Ibid. They told Kailee and Elijah to get on the floor and asked "about the location of a 'bookbag with some guns in it.'" Ibid. After defendant and his companion threw things around the apartment and kicked Kailee, they handcuffed him and told him to take them to Smith's apartment where Paden was staying. Ibid. They took Elijah with them. Id. at 4.
At Smith's, defendant and his confederate repeatedly asked about the blue bag with guns while assaulting Kailee and threatening the others present. Ibid. They left only after defendant's shotgun discharged when he swung it at Kailee, inflicting the injuries that caused Kailee's death. Ibid.
Subsequently, Elijah, Natasha and Paden selected defendant's photograph from an array and identified him at trial. Id. at 6. Fred Smith, who could not be located at the time of trial, had told the police that he could not identify the man who had the shotgun because he was wearing a half-mask that exposed only the lower half of his face. Ibid.
When questioned by the police, defendant admitted that he and another man went to the apartment to "look for a bag full of guns" and to the adjoining apartment to question Paden about the bag after they were unable to find it. Id. at 4-5. Ayana Young, defendant's girlfriend at the time of the crimes, testified that defendant told her "'he shot someone by accident.'" Id. at 5. She also offered testimony to establish that defendant was with her and her mother on the day before the crimes and not delivering food to Paden at Smith's apartment.
In his petition for post-conviction relief, defendant sought reversal of his conviction and a new trial on two grounds. He asserted ineffective assistance of trial and appellate counsel based on their failure to raise objections to the complaints supporting the issuance of the arrest warrant, a defect in the indictment, the jury voir dire and the jury charge and failure to present the testimony of Young's mother corroborating Young's testimony about defendant's whereabouts on the day before the crime. Defendant also sought a new trial based on his recent discovery of Fred Smith's location. But, he acknowledged that Fred Smith would now contradict his earlier statement and testify that the shooter removed his mask, allowing him to recognize the shooter as a man who had visited his sister's apartment on the day before the crimes.*fn1
On appeal, defendant presents the following issues for our consideration:
I. THE PCR COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO THE DISCOVERY OF THE WHEREABOUTS OF WITNESS FRED SMITH.
II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL DUE TO THE FAILURE OF HIS TRIAL AND APPELLATE ATTORNEYS TO CHALLENGE AN ERROR IN ...