December 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREEM WILSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-10-04206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Stern and J.N. Harris.
Defendant Kareem Wilson was convicted of first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), a lesser-included offense of knowing or purposeful murder, and second degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3. We affirmed the conviction on defendant's direct appeal.*fn1 Defendant was ultimately sentenced, as a persistent offender, N.J.S.A. 2C:43-7.2(b), to forty years in prison with twenty years of parole ineligibility.
In this application for post conviction relief (PCR), defendant seeks a new trial on the grounds of newly discovered evidence and because he suffered the ineffective assistance of appellate counsel on the direct appeal. In the Law Division, defendant's application was denied without an evidentiary hearing. This appeal followed.
Following a review of the extensive record (even in the absence of an evidentiary hearing), we are left with an abundance of confidence that the result reached by Judge Betty
J. Lester was correct. We affirm.
This PCR has its genesis in the separate PCR of co-defendant, Andre Rose. Rose and defendant were tried together; the jury convicted Rose of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); third-degree possession of two handguns without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of handguns for an unlawful purpose, N.J.S.A. 2C:39-4(a). Rose's direct appeal resulted in treatment similar to defendant's outcome: the convictions were affirmed, but the sentence was modified after a remand.*fn2
Several years later, Rose filed a PCR. At an evidentiary hearing, Rose waived his privilege against self-incrimination and testified that he was denied the effective assistance of counsel by his attorney's failure to present evidence that the crime was actually passion/provocation manslaughter. Rose also asserted that his due process rights were violated during trial when the jury was falsely told that that there was no plea agreement between the State and an important witness, Aaron J. Johnson. Rose was unsuccessful both in the Law Division and with this court in obtaining post conviction relief.*fn3
Defendant seeks to utilize Rose's post-trial PCR testimony in order to obtain a new trial. He claims that Rose's testimony, gleaned for the first time at Rose's PCR evidentiary hearing, would support--on defendant's behalf--a passion/provocation manslaughter theory. The underlying facts, in brief, are the following.
On June 8, 1998, Newark police officers responded to the vicinity of the Felix Fuld Housing Project after receiving a report of there being a man with a gun. Upon their arrival, the officers heard several gunshots and observed two men holding firearms over the motionless body of the victim, Jamil Billups. Later, upon examination by a medical team, Billups' body was found riddled with eight gunshot wounds, subsequently revealed to have been inflicted by two different guns. The two men fled the scene upon the arrival of the police. Billups was transported to University Hospital, where he died of the gunshot wounds shortly thereafter.
Employing their tools of the trade--interviews, investigation, and identification techniques--the police were able to ascertain the names of the persons believed to have shot and killed Billups. Defendant and Rose were located in Florida, some two months after the shooting, and were returned to New Jersey. Subsequently, they were both indicted for second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); third-degree possession of two handguns without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of handguns for an unlawful purpose, N.J.S.A. 2C:39-4(a). A joint trial resulted in defendant's convictions for conspiracy and aggravated manslaughter as previously noted. He was acquitted of the weapons offenses.
In Rose's PCR, Rose testified that he and Billups had a history of animosity. Two weeks prior to the Billups murder, Billups supposedly robbed Rose at gunpoint, taking money and heroin. Rose contended that Billups made his living robbing people. Then, on the day of Billups' shooting, Billups was said to have demanded money from Rose and threatened to shoot Rose when he refused.
Based upon Rose's statements, defendant argues that he is now entitled to present this evidence to a second jury, which would consider--among other things--a passion/provocation manslaughter claim. We note that this nearly identical argument was made previously by Rose, albeit not upon the ground of newly discovered evidence. In our opinion disposing of Rose's PCR, we rejected the proffered theory:
We are satisfied that defendant has not demonstrated a reasonable likelihood that, had he testified, he would have succeeded on the merits of his passion/provocation murder claim in the face of all of the facts relevant to the relationship between defendant and Billups, particularly including those that were redacted from witness testimony. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
Would the jury have come to a different result had it known that defendant was a drug dealer with a long criminal record who executed one of his drug sellers in a neighborhood playground because Billups took drugs from defendant and did not pay him?
Would a jury have found passion/provocation murder when it learned that defendants had been looking for Billups for a long period of time? The jurors were already aware that defendants ambushed and murdered Billups and none of the eyewitness observed Billups with a gun. Only a toy gun was found tucked in Billups's clothing and he could not have brandished it at defendants. The police observed defendant shoot Billups again while he was lying on the ground and defendant's proffer of additional evidence would have done no more than to establish the motive for the cold-blooded killing. [(State v. Rose, No. A-5286-04 (App. Div. June 26, 2008) (slip op. at 20) (emphasis added).]
Defendant also asserts that his appellate counsel neglected to argue that the jury had been falsely told that there was no plea agreement between Johnson and the State, thereby denying defendant the effective assistance of counsel. Rose's appellate counsel, in the separate direct appeal, extensively argued the issue of Johnson's supposed plea agreement. It surfaced again in Rose's unsuccessful PCR. On the appeal from the denial of Rose's PCR, we found both versions of the argument unavailing, concluding:
We reject defendant's argument he is entitled to a new trial because his right to due process of law was violated when "the jury was falsely told that there was no plea agreement between Aaron J. Johnson and the State." Defendant claims that Johnson was induced to testify for the State by a "secret deal" between the prosecutor and Johnson. Defendant speculates that the prosecutor agreed not to seek an extended term sentence in connection with unrelated drug charges against Johnson, in exchange for Johnson's statement inculpating defendant in the shooting death of Billups. We have carefully reviewed the record and conclude the argument lacks sufficient merit to justify a new trial. [(State v. Rose, No. A-3440-99 (App. Div. July 12, 2002) (slip op. at 14).]
[B]ased on all the evidence at trial, that an irrefutable demonstration that Johnson was not a credible witness and that he was in fact lying would not have affected the outcome of the trial[.] [(State v. Rose, No. A-5286-04 (App. Div. June 26, 2008) (slip op. at 9).]
Moreover, defendant claims an entitlement to an evidentiary hearing to explore, with Johnson's attorney, the alleged true contours of the supposed plea arrangement between Johnson and the State.
Lastly, defendant's appellate counsel is criticized for not challenging the trial judge's imposition of an extended term sentence in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).
Rule 3:20-1 governs motions for a new trial. It 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.
In State v. Carter, 85 N.J. 300, 314 (1981), the Supreme Court established the standard for a new trial based on newly discovered evidence:
[T]he 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.
In State v. Ways, 180 N.J. 171, 188 (2004), the Court articulated the meaning of "material" evidence under the Carter test. In a criminal case, "[m]aterial evidence is any evidence that would 'have some bearing on the claims being advanced'" by the defense. Ibid. (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)). Any evidence tending to support a defense clearly constitutes "material" evidence, including third-party guilt or a general denial of guilt because it "relates directly to the focal issue at trial." Ibid.
Defendant's motion for new trial is bottomed upon newly discovered evidence, based on the availability of Rose because his conviction was affirmed, and his matter became final. Moreover, Rose testified at his own PCR thereby waiving the Fifth Amendment privilege against self-incrimination. See State v. Allen, 398 N.J. Super. 247 (App. Div. 2008); State v. Robinson, 253 N.J. Super. 346 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992).
Because the Fifth Amendment would have precluded access to Rose's testimony before the co-defendant's case was disposed, it may appear at first blush that defendant is entitled to an evidentiary hearing. Pursuant to Allen, supra, 398 N.J. Super. at 258-259, an evidentiary hearing was warranted where an affidavit of a witness who did not testify at trial was filed in support of PCR petition alleging newly-discovered evidence. In Robinson, supra, 253 N.J. Super. at 367, we strongly recommended that motion judges "should almost always grant an evidentiary hearing and treat the application most seriously." But here, unlike in Allen and Robinson, the evidence that defendant seeks to adduce under the guise of newly discovered evidence has already been tested in the crucible of an evidentiary hearing-- Rose's PCR--and was found to not have any capacity to change the result already achieved. We remain thoroughly unconvinced that defendant's situation is distinguishable from Rose's.
We recognize that the proof linking Rose to the murder of Billups was markedly stronger than the evidence that implicated defendant. Nevertheless, by some accounts, there was an indication of an argument between Billups and Rose, Rose left and came back with defendant, and then they ambushed Billups and killed him. This was not a spontaneous, unplanned occurrence. It was an assassination. It took enough time to execute that the police actually witnessed part of the slaughter. None of the witnesses testified that Billups had a gun and no such firearm was on the ground when the police arrived. Defendant and Rose simply shot Billups as he was running and then repeatedly shot him as he was lying on the ground dying. Rose's testimony supported a passion/provocation manslaughter theory neither for him nor for defendant.
We recognize that this case does not implicate traditional lesser-included offense issues. Nevertheless, we note that passion/provocation manslaughter is considered a lesser-included offense of murder. State v. Robinson, 136 N.J. 476, 482 (1994).
However, unlike aggravated and reckless manslaughter, it is an intentional crime. Id. at 486. Passion/provocation manslaughter is established when "[a] homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). Thus, murder is reduced to manslaughter if the murder is committed in the heat of passion in response to a reasonable provocation. State v. Josephs, 174 N.J. 44, 85 (2002).
The crime has four elements: (1) "the provocation must be adequate; [(2)] the defendant must not have had time to cool off between the provocation and the slaying; [(3)] the provocation must have actually impassioned the defendant; and [(4)] the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid.
An objective, or reasonableness standard applies to the first two elements; the last two elements are subjective. Id. at 411-12. If the court finds that the first two objective elements may be supported by the evidence, a passion/provocation manslaughter charge should be given, because as a general rule the subjective elements raise questions for the jury. Robinson, supra, 136 N.J. at 491.
When determining whether to charge passion/provocation manslaughter, a trial judge must view the evidence in the light most favorable to the defendant. Mauricio, supra, 117 N.J. at 412. Moreover, the court should consider the State's burden to prove the absence of adequate provocation beyond a reasonable doubt. Ibid. "[I]n determining whether a manslaughter charge should have been given, courts must look at the inferences that can be properly drawn from the proofs contained in the record. '[T]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.'" State v. Hammond, 338 N.J. Super. 330, 337 (App. Div.) (quoting State v. Powell, 84 N.J. 305, 314 (1980)), certif. denied, 169 N.J. 609 (2001).
"The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). Stated differently, "[i]n order to justify a lesser-included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002). It follows that a defendant is entitled to "a charge on all lesser-included offenses that are supported by the evidence." Ibid. (quoting State v. Short, 131 N.J. 47, 53 (1993). "That said, 'sheer speculation does not constitute a rational basis.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Brent, 137 N.J. 107, 118 (1994)).
Here, the record fails to support defendant's request for a new trial that would include a passion/provocation manslaughter charge. Viewing the evidence in the light most favorable to defendant, the alleged prior relationship between Rose and Billups and the events that immediately preceded the crime were not so severe that they would cause an ordinary person to lose control and commit an intentional homicide. See Mauricio, supra, 117 N.J. at 412 (stating the question of reasonableness is whether the loss of self-control in response to the provocation is a reasonable reaction).
To the extent that defendant implies that the dispute between Rose and Billups constituted reciprocal combat, warranting a passion/provocation manslaughter charge, this argument is equally unavailing. Generally, for mutual combat to reduce a murder charge to manslaughter, "the contest must be waged on equal terms." State v. Viera, 346 N.J. Super. 198, 215-16 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). Here Rose and defendant possessed weapons and Billups was unarmed. See State v. Crisantos, 102 N.J. 265, 274-75 (1986).
Under the lens of Carter and its progeny, we are unable to conclude that even if defendant had Rose's testimony available to him it would not have made a material difference in the jury's verdict. We say this without irony and without applying the diluting effect of our observation in Robinson, that a co-defendant, who had already been sentenced, "had nothing to lose by exonerating [the defendant,] and his testimony is therefore 'inherently suspect.'" Id. at 367 (internal quotations and citation omitted).
In a PCR, to succeed on an ineffective assistance of counsel claim, defendant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). The Strickland approach has been adopted by the New Jersey Supreme Court and is fully operational in this state. State v. Fritz, 105 N.J. 42 (1987).
The first prong of the Strickland standard requires defendant to demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The test is whether counsel's conduct fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A defendant challenging counsel's performance must overcome a strong presumption that counsel exercised "reasonable professional judgment." Id. at 690, 104 S.Ct. at 2065, 80 L. Ed. 2d at 694-95. Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. This deference requires that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ibid.
The second prong of the Strickland test requires defendant to show that the deficient performance was prejudicial to the extent that defendant was deprived of a fair proceeding. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. This requires a showing that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Unless a defendant makes both showings under Strickland, a finding of ineffective assistance of counsel cannot be made. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
Defendant contends that appellate counsel committed error when counsel failed to "argue that the jurors were wrongly told that no plea agreement had been made between Aaron Johnson and [the] State" in the direct appeal brief. Whether this omission was deficient within the meaning of Strickland is debatable. Even if it was, the omission is not so significant 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, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Had the weaknesses in Johnson's testimony been raised on appeal through the argument that it was tainted by the supposed plea arrangement, we would nonetheless have concluded, as we did in Rose's direct appeal and PCR, that "an irrefutable demonstration that Johnson was not a credible witness and that he was in fact lying would not have affected the outcome of the trial." There is no probability that but for the omission of the illusory plea deal argument on the direct appeal, the result of the proceeding would have been different. An evidentiary hearing is wholly unnecessary under these circumstances and would be an exercise in futility.
Simply stated, defendant failed to establish a prima facie claim of ineffective assistance of trial or appellate counsel. As for defendant's other claims of ineffective assistance of appellate counsel, we find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We further affirm substantially for the reasons expressed by Judge Lester in her written opinion of March 26, 2008.