April 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MANUEL WISPE, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 87-02-0224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Carchman, Lihotz & Ashrafi.
Defendant Manuel Wispe, Jr. appeals from an order denying his second petition for post-conviction relief (PCR). In support of this appeal, defendant argues:
THE PROCEDURAL BAR SHOULD NOT BE ENFORCED DUE TO THE EXCEPTION PROVIDED BY RULE 3:22-4(A), (B), (C) AND RULE 3:22-12.
PROSECUTORIAL MISCONDUCT, OF WILLFUL NONDISCLOSURE OF BRADY MATERIAL. APPELLANT/WISPE, JR. WAS NOT INDITED BY AN INDEPENDENT AND INFORMED GRAND JURY IN VIOLATION OF THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND INEFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL.
THE TRIAL [JUDGE] HON. THOMAS P. OLIVIERI'S UNINTENTIONALLY OBSTRUCTING OF GOVERNMENTAL OPERATI[O]NS, BY HIS PREJUDIC[E] OF THE JURY THEREBY, VIOLATING APPELLANT/WISPE, JR.'S RIGHT TO AN IMPARTIAL JURY.
APPELLANT/WISPE, JR., WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY THE HON. THOMAS P. OLIVIERI. AND APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL IN VIOLATION OF STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984).
THE STATEMENT TAKEN BY MANUEL, JR. ON JUNE 3 OR 4, 1986, VIOLATED HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS AND SHOULD HAVE BEEN SUPPRESSED AT TRIAL AND APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
APPELLANT/MANUEL WISPE, JR. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BECAUSE OF COUNSEL'S FAILURE TO OBTAIN A BALLISTICS EXPERT TO EXAMINE THE BALLISTICS AND WEAPONS EVIDENCE ON BEHALF OF MANUEL WISPE, JR. AND PROSECUTORIAL MISCONDUCT DURING THE SUMMATION.
We have thoroughly reviewed the record in consideration of the arguments raised on appeal. In light of our standard of review and the applicable law, we reject defendant's arguments and affirm substantially for the reasons expressed in Judge Kracov's bench opinion, rendered on June 30, 2008. We add these limited additional comments.
Defendant is serving a life sentence with a thirty-year period of parole ineligibility after a 1995 conviction for murder and weapons offenses.*fn1 The underlying facts presented at defendant's jury trial and the subsequent procedural history are detailed in our unpublished opinion denying defendant's first PCR petition and need not be set forth at length. State v. Wispe, No. A-6592-00 (App. Div. Dec. 30, 2002).
Defendant, who appears self-represented, proffers the trial court erred by denying his request for appointed counsel. After review, Judge Kracov found defendant's PCR petition deficient, as the claims raised were procedurally barred by Rule 3:22-4 (addressing grounds not raised on direct appeal or in a prior petition). The judge also considered the claims that attacked the validity of the indictment; asserted the trial judge prejudiced the jury; contended, for the first time, that the police violated his Miranda*fn2 rights; asserted professional errors by trial counsel, who failed to obtain a ballistics report regarding the murder weapon; challenged defense counsel's trial strategy; and, couched as a discovery violation, alleged defendant's father was "working undercover" for the prosecutor's office. After finding defendant had not presented good cause warranting the assignment of counsel, R. 3:22-6(b), the court denied relief, characterizing defendant's PCR petition as: a venting against a verdict that was fully supported by the evidence.
In this... application, [defendant] is simply grasping at straws, complaining of things that should have been done that are not new, and that could have been raised earlier... by his experienced counsel if they had any merit. They were not raised earlier because they lacked merit then, and they lack merit now.
The final bizarre aspect of this second [PCR] application alleges that [defendant's] father who, of course, is now deceased, was an informant against him for the police or the prosecutor.... His allegations are based on speculation and make no sense, and most of all, show no violation of any of his rights.
In short, a careful review of [defendant's] second [PCR] application shows that [he] has not shown any good cause for the assignment of counsel to aid him. His petition is a confusing melange of mixed[-] up facts, a rehashing of points, many of which were raised earlier on appeal, or in his first [PCR] motion, or points which could have been raised. Nothing in his second pro se petition indicate[s] that any of his constitutional rights were violated or that his trial was unfairly conducted, nor does his petition show any Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)] violations [that] would have made any difference [in] the final verdict.
Post-conviction relief is not a substitute for direct appeal. State v. Echols, 199 N.J. 344, 357 (2009). As he could have raised the issues on direct appeal but failed to do so, defendant's request for relief is barred. R. 3:22-4. To promote finality of judicial decisions, the Supreme Court has "emphasized that it is important to adhere to our procedural bars." Echols, supra, 199 N.J. at 357 (citing State v. Goodwin, 173 N.J. 583, 594 (2002)).
Only the alleged discovery violation can be said to result from newly discovered material. Defendant states that after his father's 2005 death, he found "evidence" among his father's papers that confirmed his father was working with the police and the County Prosecutor "to arrest and convict" him. Defendant further asserts police obtained information from his father to locate him while he was living in the Dominican Republic, because "there is no way that anybody could have known this kind of information about another person, living in another [c]ountry and living under a different name."
Defendant concludes his father was a confidential informant for the police based upon his discovery of a form letter from the Hudson County Prosecutor's Victim-Witness Coordinator that "express[ed] appreciation... for the help and cooperation you gave in presenting this case" and advising that defendant was sentenced to death. Defendant further notes he found a copy of defendant's father's reply demanding an apology for "the horrible letter you had sent[.]" This letter states: "you tried to make me a witness for the State, against my [s]on, [i]nstead of Officer Cordero, because you were afraid of him as a witness, and you know why." From these two documents, defendant surmises Officer Cordero could not testify because he would be asked where the information came from linking defendant to the murder and would "have had to expose [defendant's father] as the source."
Defendant's speculative conclusions do not sustain the assertion that his father was an undisclosed confidential informant and are insufficient to support a claim that the State did not disclose exculpatory material, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).
Finally, any new contentions of the professional insufficiency of trial counsel are time-barred pursuant to Rule 3:22-12(a) and lack substantive merit. Following our review, we conclude defendant has neither proved counsel's performance fell below an objective standard of reasonableness nor that a reasonable probability existed that counsel's errors changed the outcome of his trial. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; State v. Allah, 170 N.J. 269, 283-84 (2002).
Defendant cannot support the contention that he was deprived of a fair trial. He presents no error that is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). We conclude Judge Kracov properly analyzed each contention and the order denying defendant's request for PCR relief will not be disturbed. State v. Johnson, 42 N.J. 146, 162 (1964).