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State v. Kenney

August 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SEAN KENNEY F/K/A RICHARD FEASTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 94-05-00254.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2010

Before Judges Rodríguez, Yannotti and Chambers.

Defendant Sean Padraic Kenney, formerly known as Richard Feaster,*fn1 appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with the October 6, 1993 shooting murder of Keith Donaghy, a gas station attendant and related offenses: purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and/or (2); felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; possession of a weapon (shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon (sawed-off shotgun), N.J.S.A. 2C:39-3b.*fn2

Judge Joseph F. Lisa presided at trial. At the conclusion of the guilt phase, defendant was found guilty of all charges. After the penalty phase, the jury voted in favor of imposing the death penalty. Judge Lisa denied defendant's motion for a new trial and imposed the death sentence on the conviction for purposeful or knowing murder, merged the non-capital counts, and imposed a consecutive twenty-year term with ten years of parole ineligibility on the robbery conviction and a five-year concurrent term on the conviction for possession of a sawed-off shotgun.*fn3

On appeal, the Supreme Court affirmed the conviction and sentence and denied reconsideration. State v. Feaster, 156 N.J. 1 (1998), cert. denied sub. nom., Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). Defendant sought proportionality review. The Supreme Court found no disproportionality and denied reconsideration. State v. Feaster, 165 N.J. 388 (2000).

The facts relevant to this offense are fully set forth in the Supreme Court's opinion. We briefly outline them here to provide a context. On October 6, 1993, defendant went to the Columbia Cafe. There he spent time with a circle of friends, including Michael Mills, Michael Sadlowski, and Daniel Kaighn. Tina Shiplee, Sadlowski's girlfriend, and defendant's girlfriend, Kelly Zuzulock, were also at the Columbia Cafe.

Several weeks before, defendant borrowed a sawed-off twenty-gauge shotgun from Kaighn. Defendant promised to pay $100 for one day's use of the gun. Kaighn acquiesced.

Defendant placed the weapon in a blue gym bag and approached Shiplee to ask if he could keep the bag in her car. Shiplee agreed.

Shiplee and Zuzulock arrived at the Columbia Cafe sometime between 6:30 and 7:30 p.m. Defendant, Mills, Sadlowski and others were already there. Shiplee approached defendant, and without revealing her concern that the gym bag contained a gun, requested that he remove the bag from her car. Defendant agreed to remove the bag before leaving that night.

Renee Burkhardt was also at the Columbia Cafe that night. After speaking with defendant, Mills approached Burkhardt and asked to borrow her car. She agreed and handed the keys to Mills. Burkhardt saw Mills and defendant leave the Columbia Cafe and enter her car, with Mills in the driver's seat. This occurred around 8:00 p.m.

On the night of the murder, Donaghy was the only attendant working at the Family Texaco in Deptford Township. Between 8:20 and 8:25 p.m., a customer at the gas station pulled in to purchase gasoline. When no attendant came to wait on her, she pulled her car nearer to the office window and peered inside. She saw Donaghy's body on the floor. Another customer also saw Donaghy lying on the floor inside. He walked to the nearby 7-Eleven and requested that someone call the police.

Roughly thirty to forty-five minutes after leaving the bar, defendant called Zuzulock at the Columbia Cafe from a pay telephone. Shortly thereafter, Mills returned to the bar. Five to ten minutes after Mills returned, defendant also returned. According to Zuzulock, defendant appeared to have been using drugs. She noticed white powder around his nose.

Defendant, Zuzulock, Shiplee and Sadlowski had agreed that they would all return to Shiplee's and Sadlowski's apartment after leaving the Columbia Cafe. The group left at around 10:00 p.m. As Shiplee was getting ready to leave, she overheard defendant say to Mills and Sadlowski that he could not "believe he killed the guy and didn't get any money."

At Shiplee's apartment, defendant insisted on watching the eleven o'clock news. When the coverage describing the murder of Donaghy aired, defendant requested the volume be raised and told Sadlowski to "check this one part out." After the segment was over, Sadlowski saw that defendant had become sweaty and "fidgety." Defendant said, "I can't believe I did this shit. I can't believe this. Why me? You know." After the news broadcast, defendant again told Sadlowski, "I can't believe I did this shit." Sadlowski did not press defendant for additional details.

Sadlowski drove defendant home. As defendant and Sadlowski entered the car, defendant volunteered that he "blew the dude's head off." Defendant also lamented to Sadlowski that he "screwed up tonight." Defendant added, "I can't believe I did this." During the ride home, defendant tearfully explained that "his brains went all over the place" and repeated that "I can't believe I did this shit." Sadlowski dropped defendant off, vowing not to become involved in any way and to avoid defendant after that night.

Initially the investigation into Donaghy's murder proceeded without much success. On October 31, 1993, Ronald Pine, an attendant at an Amoco station, was stabbed to death.

Shortly after Pine's murder, Shiplee suspected that defendant committed the second murder and contacted a lawyer, who contacted Richard O'Brien of the Franklin Township Police Department. O'Brien called Shiplee. She gave a statement implicating defendant in both murders. Then, an investigator contacted Mills and arranged an interview. Mills met with the police. However, his statement was not admitted at trial because Mills committed suicide prior to trial. Before his death, Mills led authorities to the murder weapon, which was at the bottom of Woodbury Creek.

The police executed search and arrest warrants at defendant's home. Defendant was given Miranda*fn4 warnings. Defendant signed a waiver form and agreed to submit to police questioning. However, when the interrogator confronted defendant with incriminating information, defendant then expressed a desire to speak with counsel. The interview ended.

At trial, the State presented the testimony of Kevin Wrigley, a/k/a Kevin Bock. Wrigley alleged that he briefly shared the same holding cell with defendant and another individual while defendant was awaiting trial. While in the cell, Wrigley heard defendant, who had identified himself as Rich Feaster, describe how he shot someone in the head at point-blank range. Wrigley testified that "[defendant] said he threw it in a lake or something like that, threw it away, got rid of it." Additionally, Wrigley testified that defendant described "a guy named Mike" who was also involved in the crime: "[Defendant] says [Mike] was a witness and his dad had him taken care of." He thought he committed suicide or something like that.

Defendant did not testify at trial. The defense supplemented its impeachment of certain State's witnesses by producing an alleged admission of Herrill Washington that he committed the crime. According to Barrick Wesley, a defense witness, he and Washington "cased" the Texaco during the summer of 1993 in preparation for a possible return to rob the establishment. While in the Salem County jail, Wesley spoke with Washington by telephone on October 5, 1993.

A few days later, Washington allegedly told Wesley that he planned to rob the Texaco station. A few days later, Wesley spoke again to Washington. Wesley testified that during the conversation, Washington said he committed the robbery and shot the attendant in the face. Washington testified at trial and denied the facts about which Wesley had testified. The guilt phase ended with the convictions mentioned above.

In March 2001, defendant filed a first petition for PCR. One year later, defendant moved for a new trial based upon allegations that: two trial witnesses (Sadlowski and Wrigley) recanted or substantially revised their trial testimony and prosecutorial misconduct in the handling of these witnesses. Judge John Tomasello held hearings on the PCR petition and new trial motion. During the course of the hearings, defendant moved to compel continued testimony from Sadlowski, who had renounced his trial testimony in a post-trial certification. However, at the PCR hearing, Sadlowski retracted his certification and refused to testify, invoking his Fifth Amendment privilege against self-incrimination. Judge Tomasello denied the motion to compel Sadlowski to testify and ordered the New Jersey State Police to release records to defendant pertaining to Wrigley allegedly having provided information to the State authorities.

Judge Tomasello issued an oral opinion on the PCR petition and the various outstanding motions. He denied PCR and the motion for a new trial.

Defendant appealed. The Supreme Court remanded to the PCR judge for a hearing to determine the truthfulness of Sadlowski's certified statement recanting his trial testimony. State v. Feaster, 184 N.J. 235, 262-65 (2005).

On remand, Sadlowski was compelled to testify under a grant of testimonial use immunity. Judge Tomasello again denied defendant's new trial motion, finding that Sadlowski's post-trial certification was not credible. The judge found that it had been given solely in an attempt to assist defendant and it had been recanted freely. With respect to the newly alleged Brady*fn5 violation, the judge found that, although there had been charges pending against Sadlowski at the time of his trial testimony, and not all of those charges were revealed to the defense, the error appeared inadvertent because the prosecutor was not aware of the undisclosed charges. The judge also found that disclosure of the undisclosed charges would not have affected the outcome of the trial.

Defendant appealed again. On May 1, 2007, the Supreme Court "remanded to the PCR court for an expedited hearing to review Sadlowski's assertion that he was threatened with a charge of conspiracy to commit murder, made by an unnamed representative of the State, unless he cooperated [at trial]." On remand, Judge Tomasello conducted hearings. The judge again denied defendant's petition for PCR and motion for a new trial.

After the repeal of the death penalty, the Supreme Court found that, based upon the Governor's commutation of defendant's sentence to life in prison without parole, "all issues relating to defendant's death sentence have been rendered moot." Therefore, the Supreme Court remanded the matter to us for consideration on the merits the denial of PCR and motion for a new trial. Feaster, supra, 84 N.J. at 264-65.

Alleged Brady Violations (Kaighn and Wrigley)

On appeal, defendant contends that he should be granted PCR and a new trial because the State withheld impeachment evidence with respect to witnesses Kaighn and Wrigley. The State concedes that some impeachment evidence was improperly withheld. However, the State argues that Brady was not violated because the evidence was not material.*fn6 We agree with the State, concluding that a new trial was not necessary because the violations with respect to these two witnesses were so insignificant that they could not have affected the outcome of the trial.

The record reflects that the State withheld information about the favorable treatment Kaighn received on a violation of probation charge. Judge Lisa ordered that the prosecutor reveal any deals made for Kaighn's testimony. The prosecutor revealed only that a deal was made on weapons charge; he stated that Kaighn received no benefit on the violation of probation charge, which was untrue. As to Kaighn's December 3, 1995 arrest, however, the record reflects no Brady violation. The prosecutor informed defense counsel of this arrest before trial and produced a nineteen-page discovery package on the issue. At trial, Kaighn testified about the arrest, stating that he had not requested any consideration on the charges nor did he expect any. Kaighn also testified that the charges were downgraded and returned to municipal court.

As to Wrigley, the record reflects that the prosecutor did not provide complete files with respect to an August 4, 1995 arrest for domestic violence, a September 4, 1995 arrest for burglary and theft, a November 30/December 1, 1995 arrest for domestic violence, a December 27, 1995 arrest for aggravated assault and malicious damage, and a January 13, 1996 arrest for domestic violence. ...


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