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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...