February 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CONDELL WOODSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 99-4-0562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010 -- Decided
Before Judges Rodriguez and Grall.
Defendant Condell Woodson appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
Pursuant to an agreement with the State, defendant pleaded guilty to the felony murder of Orange Police Officer Joyce Carnegie, N.J.S.A. 2C:11-3a(3); three counts of first-degree armed robbery, N.J.S.A. 2C:15-1a(2); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A.2C:39- 4a; and fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f. The State agreed to recommend concurrent sentences and the dismissal of three unrelated charges.
Prior to the sentencing date, defendant moved to withdraw his guilty pleas. He alleged he had been continually threatened while in custody and coerced into providing an incriminating statement. Defendant maintained his innocence and alleged that his attorneys pressured him to accept the plea to avoid the death penalty.
Judge Betty J. Lester found that defendant's statement to the police had been voluntary and that the evidence against him was overwhelming. The judge also found that defendant's contentions lacked credibility. Noting defendant had not offered any potential defense, the judge denied the motion to withdraw.
At the sentencing hearing four days later, the judge merged the robbery conviction into the felony murder conviction and imposed a life imprisonment term without the possibility of parole. The judge also imposed concurrent terms on the remaining convictions. We affirmed on direct appeal. State v. Woodson, No. A-6285-99T4 (App. Div. March 4, 2002), certif. denied, 174 N.J. 38 (2002).
In less than an hour on April 8, 1999, defendant robbed seven people at gunpoint. At 8:40 p.m., Officer Carnegie stopped defendant. During an ensuing struggle, the defendant fatally shot Carnegie several times. Defendant threw his weapon into a resident's backyard and took a taxi home. He told those present at his home, including his cousin, Desi Shields, that he had shot a police officer earlier that evening.
Later that night, investigators discovered a TEC 9 handgun. Ballistics testing confirmed that the TEC 9 was the firearm used to kill the officer. Investigators traced the weapon to Benjamin F. Walker, a Georgia resident. In an interview, Walker told the investigators that defendant had stolen the gun from him two months earlier.
Police arrested defendant the following day. After receiving Miranda*fn1 warnings, defendant met with Essex County Prosecutor's Office investigators. When Beverly Woodson, In his formal statement, defendant described in detail the robberies he committed before his encounter with Carnegie.
Defendant stated that when Carnegie attempted to arrest him, he tried to throw away the gun and it "accidentally" fired twice, striking the officer in the body and in the head. As defendant fled, he threw the weapon into a backyard. He acknowledged telling persons at his house about committing the murder. Shields also gave a formal statement. She indicated that on the night of the murder, defendant returned home in an agitated state and paced from room to room. After a television program referenced the murder, defendant told Shields that he had done "something wrong." He admitted killing Carnegie and threatened to kill Shields if she told anyone.
At the plea hearing, the Assistant Prosecutor referenced defendant's statement to the police, the autopsy and ballistics reports and the statements of Benjamin Walker, Beverly Woodson and Desi Shields. Defendant gave a detailed factual basis for the three robberies and the shooting of Carnegie, confirming the facts in his formal statement. He also acknowledged having obtained the TEC 9 from Walker.
Judge Lester denied defendant's PCR petition in its entirety on January 26, 2009. In a written opinion, the judge explained:
Ordinarily, a [PCR] court should grant an evidentiary hearing to a defendant who has presented a prima facie case in support of his application. State v. Marshall, 148 N.J. 89, 158 (1997) [, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997),] (citing State v. Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. (citing Preciose, supra, 129 N.J. at 463). "Moreover, in determining whether to grant an evidentiary hearing, the [PCR] court must consider the facts in the light most favorable to defendant to determine whether a defendant has established a prima facie claim." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citing Marshall, supra, 148 N.J. at 89; Preciose, supra, 129 N.J. at 462-63; State v. Garcia, 320 N.J. Super. 332, 338 (App. Div. 1999)). A [PCR] hearing should be conducted if disputed issues as to material facts exist regarding a defendant's entitlement to relief. Ibid. (citing State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1999), certif. denied, 158 N.J. 72 (1999)).
This court is satisfied that an evidentiary hearing is not required as a precondition to this decision. Petitioner has not shown that a reasonable likelihood exists that he will succeed on the merits. [See] Marshall, supra, [148 N.J.] at 158. Furthermore, the facts necessary to an analysis of petitioner's claims are within the discovery, the record of his plea, and/or contained in documents supplied by the petitioner and his attorneys. The issues are not complicated.
Petitioner is procedurally barred from raising issues already decided in a prior proceeding, as well as issues that could have been raised on appeal [pursuant to R. 3:22-5].
The issues surviving the procedural bars argued [in] Petitioner's pro se brief are as follows. Trial counsel (1) improperly negotiated and misinformed petitioner of his plea agreement, in that he was under the impression that he would at some time in the future, be eligible for parole; (2) permitted client to plead to an accusation rather than permitting the case to proceed to the Grand Jury; (3) were not adequately prepared for trial; (4) did not investigate possible defenses; (5) failed to challenge the constitutionality of petitioner's confession.
(1) Trial counsels misinformed petitioner as to his plea agreement
It is counsel's ethical obligation to inform his client of any plea agreement offered by the prosecutor, and to record that fact in writing on forms supplied by the court prior to any plea being taken. The prosecutor's official plea offer provided in writing that petitioner's sentence would be life without any possibility for parole. The Plea Form signed by Petitioner and his attorneys clearly indicated that Mr. Woodson faced "Life without the possibility for Parole". [Trial counsel's ethical] obligation was clearly met. The best evidence that Petitioner knew the penal consequences of his plea is contained in a letter authored by him, and confiscated by a corrections officer in which he writes ". . . so then they got a plea, life without parole. Conho will be locked up for the rest of his life.
. . . Conho taking the plea so I still can see you all. . . . I'll be locked up for the rest of my life but I'll see the kids get older." Petitioner clearly understood he would not be eligible for parole, and that in pleading he was avoiding the death penalty.
It is the court's obligation to review the plea form with the defendant on the record to assure that a defendant has been properly advised of the penal consequences of his plea. During the plea colloquy, the plea bargain was read to the petitioner. Petitioner acknowledged under oath, in response to the court's questions, that he had reviewed his plea agreement with his attorneys. Th[e court's] obligation was clearly met.
(2) Trial Counsels permitted petitioner to plead to an accusation
As to the claim that counsel permitted petitioner to plead to an accusation rather than permitting the case to proceed to the Grand Jury, during the plea colloquy petitioner was advised by the court that he was waiving his constitutional right to a Grand Jury presentation, and a trial by a jury of his peers. Petitioner chose to waive his rights.
(3) Trial counsels were not adequately prepared for trial
(4) Trial counsels failed to investigate possible defenses
As to the claims that trial counsel was not adequately prepared for trial and failed to investigate possible defenses, the evidence was compelling and overwhelming. By April 14, 1999, and before Condell Woodson was identified as the prime suspect in the murder of Officer Carnegie, the [Essex County Prosecutor's Office (ECPO)] had obtained the following evidence: a) the projectiles from the decedent's body and bullet proof vest; b) a [TEC 9] hand gun and its serial number; and c) determined that the evidence recovered from the decedent matched this gun.
ECPO's Investigators traced the gun to Benjamin Walker Jr., a resident of Cordele, Georgia. On April 16, 1999, Mr. Walker was interviewed and informed the investigators that the petitioner had taken the gun from him two months earlier. According to Mr. Walker, petitioner at the time resided in Cordele, Georgia and was a co-worker/friend of Mr. Walker.
On April 17, 1999, petitioner was apprehended and taken to the ECPO. Petitioner was given and waived his Miranda rights. Later that day, prior to any statement being given, ECPO Investigators met with petitioner's mother, Beverly Woodson ("Woodson"), and explained the circumstances surrounding petitioner's arrest. Woodson requested to speak with her son. In response to his mother's questions while in the presence of ECPO investigators, petitioner admitted to the murder of Officer Carnegie and thereafter gave a sworn statement. In this statement petitioner admitted to [the] chain of robberies, to the murder of Officer Carnegie, to throwing the weapon onto someone's property, and disclosed telling people at his home about the incident.
The same day petitioner was arrested, Desi Shields (petitioner's cousin), Natasha Woodson (petitioner's sister), Shakirah Williams (petitioner's then girlfriend), and Sakeenah Pandleman gave statements. Each of these witnesses claimed that petitioner had confessed, in their presence, to the murder of a policewoman. Each also said that petitioner threatened to kill them if they made any statements.
Should there be any doubt of the truth of petitioner's confession, or the content of the admissions made to his mother, family members and friends, it is removed by the contents of a letter intercepted by correctional authorities addressed to Steve Sutton. The letter solicited the commission of crimes against the State's witness to silence them. It also constituted an additional written confession by defendant to the killing of Officer Carnegie. Clearly there was no defense available to petitioner in the face of this evidence, nor to date has any defense been offered. The fact that Leslie Clark (an eyewitness to the murder) might come forward and testify that she was mistaken in her identification of petitioner as the "person who most resembled the shooter" was not likely to overcome the strength of the State's case were this matter tried to a jury. Moreover, petitioner has not in any filing suggested what his defense might have been.
(5) Trial counsels failed to challenge [the] constitutionality [of] the confession
A guilty plea constitutes a waiver of allege[d] constitutional defect[s] either in the investigation leading to the charges or in the proceeding themselves. A knowing and voluntary guilty plea precludes the defendant from raising unpreserved non-jurisdictional claims of deprivation of constitutional rights in the proceedings resulting in the conviction. State v. Knight, 183 N.J. 449, 47[0-71] (2005).
Newly Discovered Evidence of a witness who would exonerate petitioner prior to the plea agreement Petitioner claims that Leslie Clark is a newly discovered witness.
In order for evidence to be considered newly discover[ed] it must have been material to the issue and not merely cumulative, discovered since the trial and not discoverable by reasonable diligence beforehand, and of a nature as to probably have affected the jury's verdict. State v. Carter, 85 N.J. 300, 314 (1981).
In this case, the [ESPO] provided trial counsel and petitioner with discovery, which included a document dated April 9, 1999, which memorializes a photographic identification by Leslie Clark, of the defendant as "the person who most resembled" the shooter. At best, Leslie Clark made an imperfect identification in that it lacked certainty. The document records the selection of photograph number 4 (petitioner's photo) and was signed by Leslie Clark. Leslie Clark's address and telephone number appear on the form. Under these circumstances, Leslie Clark does not qualify as a newly discovered witness. Clearly the Court, counsel and petitioner were aware of the photographic identification of defendant by Ms. Clark.
PCR counsel has now supplied the affidavits of two persons who claim that Leslie Clark informed them that a) she witnessed the shooting of Orange Police Officer Joyce Carnegie; b) that she went to school with petitioner; and c) that Leslie Clark is certain that the person who shot Officer Joyce Carnegie was not Condell Woodson. To date petitioner has not provided this court with an affidavit from Leslie Clark confirming petitioner is not the person who committed the offense. Leslie Clark has been located by PCR counsel, per the last filing, and, despite repeated request by PCR counsel, has failed to communicate.
Defendant appeals, raising the following arguments:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL WHILE NEWLY DISCOVERED EVIDENCE AFFORDED HIM A POTENTIALLY VIABLE DEFENSE WITH RESPECT TO INFORMATION RECEIVED REGARDING LESLIE CLARK.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For [PCR] As Well As A New Trial Based Upon Newly Discovered Evidence.
B. The Defendant Is Entitled To An Evidentiary Hearing To Fully Address His Contention That He Failed To Receive Adequate Legal Representation At The Trial Level Or, In The Alternative, That Newly Discovered Evidence Existed To Warrant Such A Hearing.
C. The Trial Court Erred In Denying The Defendant's Petition For [PCR] Without Affording Him An Evidentiary Hearing To Fully Address Trial Counsel's Failure To Adequately Represent His Interests Arising Out Of His Contention That His Statement To The Police Had Been Improperly Obtained From Him.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S PETITION FOR [PCR] ON THE WRITTEN DOCUMENTS SUBMITTED AND WITHOUT ORAL ARGUMENT FROM [PCR] COUNSEL.
We reject these contentions and affirm substantially for the
reasons expressed by Judge Lester in her January 26, 2009