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State v. Wilson

August 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH E. WILSON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-10-3652.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 27, 2010

Before Judges Sapp-Peterson and Espinosa.

Defendant appeals from the denial of his motion for a new trial. We affirm.

Defendant was convicted by a jury in August 1993 of first-degree purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).*fn1 He was sentenced to an aggregate term of thirty years without parole, consecutive to a term he was then serving, on September 30, 1993.

On direct appeal, defendant's conviction was affirmed and his judgment of conviction was modified to correct a VCCB penalty but otherwise affirmed. State v. Wilson, No. A-3884-93 (App. Div. May 25, 1995). The Supreme Court denied certification. Defendant filed a petition for post-conviction relief in 1997, alleging that he was denied the effective assistance of trial, appellate and post-conviction relief counsel. The trial court denied the petition without an evidentiary hearing. We affirmed the denial of his petition for post-conviction relief in an unpublished opinion, State v. Wilson, No. A-2164-00 (App. Div. May 30, 2002). The Supreme Court denied certification as to that appeal as well. State v. Wilson, 174 N.J. 547 (2002).

In May 2003, defendant filed a pro se motion for a new trial. Defendant contended that he was entitled to a new trial based upon the following "newly discovered evidence": (1) that the State failed to accurately disclose its plea agreement with co-defendant Samuel Dugger, who testified for the State at trial, and (2) that Dugger was taking anti-psychotic medication at the time of trial that could have affected his ability to correctly recall the events. In a lengthy written opinion, the trial court set forth the facts regarding the underlying offense, which need not be repeated here, and denied the motion.

Defendant presents the following issues in this appeal:

POINT I DEFENDANT SHOULD BE ACCORDED A NEW TRIAL IN WHICH THE JURY IS APPRISED OF MR. DUGGER'S CHRONIC, SERIOUS MENTAL ILLNESS AND THE TRUE NATURE OF MR. DUGGER'S PLEA BARGAIN TO THE EFFECT THAT HE WOULD SERVE LITTLE MORE THAN A YEAR IN CUSTODY IF HE HELPED SECURE DEFENDANT'S CONVICTION.

POINT II ALTERNATIVELY, THIS MATTER SHOULD BE REMANDED FOR A HEARING ON THE EXTENT TO WHICH THE TRUE NATURE OF DUGGER'S PLEA BARGAIN WAS CONCEALED FROM THE DEFENDANT AND FOR A HEARING ON THE NATURE AND EXTENT OF DUGGER'S MENTAL ILLNESS.

After carefully reviewing the record and briefs, we are satisfied that neither of these arguments have any merit.

Defendant's motion for a new trial represents his second request for post-conviction relief and is governed by the three pronged test set forth in State v. Carter, 85 N.J. 300, 314 (1981). Defendant "must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting Carter, supra, 85 N.J. at 314). All three prongs of that test must be satisfied before a new trial is warranted. Ibid.

The purportedly new evidence that Dugger suffers from serious mental illness is based upon an interview with a defense investigator in 2001. The investigator's affidavit ...


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