STATE OF NEW JERSEY v. SEAN KENNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2821-07T42821-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN KENNEY f/k/a

RICHARD FEASTER,

Defendant-Appellant.

____________________________________________

 

Submitted January 4, 2010 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

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

Yvonne Smith Segars, Public Defender, attorney for appellant (Roy B. Greenman, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Michelle Resha Jeneby, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sean Padraic Kenney, formerly known as Richard Feaster, 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.

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.

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 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 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. 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. The prosecutor produced some information on these charges, but not all of the available information.

Pursuant to Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The purpose of the Brady rule is "to ensure that a miscarriage of justice does not occur," and that the defendant receives a fair trial. Bagley, supra, 473 U.S. at 675, 105 S. Ct. at 3379-80, 87 L. Ed. 2d at 489. "Impeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule." Id. at 676, 105 S. Ct. at 3380, 87 L. Ed. 2d at 490; State v. Knight, 145 N.J. 233, 245-46 (1996). Impeachment evidence includes any evidence tending to discredit a witness or reveal possible biases, prejudices, or ulterior motives. See Banks v. Dretke, 540 U.S. 668, 675, 698, 124 S. Ct. 1256, 1263, 1276, 157 L. Ed. 2d 1166, 1180, 1194 (2004); State v. Spano, 69 N.J. 231, 234-35 (1976). It is well-settled that prosecutors are responsible for producing all Brady evidence possessed by the State or any of its agents, including police officers. Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490, 508-09 (1995); State v. Nelson, 155 N.J. 487, 498-500 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). There is no requirement that a specific or even a general request be made by the defense. United States v. Agurs, 427 U.S. 97, 106-07, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342, 351-52 (1976); Knight, supra, 145 N.J. at 245.

There are three elements to a Brady violation: (1) "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 302 (1999); State v. Nelson, supra, 155 N.J. at 497.

Judge Tomasello explicitly credited the State's witnesses testimony that no offers of consideration were made other than those disclosed before trial. These findings are entitled to our deference. State v. Harris, 181 N.J. 391, 415-16 (2004). We perceive no error in that ruling.

Sadlowski Issues

Defendant contends that he is entitled to a new trial due to issues regarding Sadlowski's recantation and Brady violations with respect to this witness. He also agues that the PCR court improperly allowed Sadlowski to assert the attorney-client privilege. We reject these arguments.

Decisions on new trial motions are a matter of discretion with the trial court and we should not reverse absent a clear abuse of that discretion. State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959). That is, defendant must show that the evidence is 1) material and not "merely" cumulative, impeaching, or contradictory; 2) discovered after completion of the trial and "not discoverable by reasonable diligence beforehand"; and 3) "would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981).

Recantations are perceived as an inherently suspect and unreliable form of newly discovered evidence. State v. Hogan, 144 N.J. 216, 239 (1996). The test for evaluating a recantation upon a motion for a new trial is whether: it casts serious doubt upon the truth of the testimony given at the trial; and "if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice." State v. Puchalski, 45 N.J. 97, 107-08 (1965).

Here, Sadlowski's recantation of his trial testimony does not warrant reversal and a new trial because it lacks credibility. Twice the judge carefully considered Sadlowski's recantation testimony pursuant to a grant of use immunity. The judge found Sadlowski's trial testimony to have been true and the recantation to have been a fabrication intended to help defendant avoid the death penalty. We find no abuse of discretion and we defer to the judge's credibility findings. Harris, supra, 181 N.J. at 415-16.

Regarding the alleged Brady violations, defendant first argues that the State withheld from the defense its threat to prosecute Sadlowski for conspiracy to commit murder and subsequent promise not to prosecute him on that charge. To find a Brady violation, the judge had to credit Sadlowski's claim that any such threat or promise was made. However, the PCR judge rejected that claim and instead credited the testimony of the State's witnesses who denied it. These findings of fact are well-grounded in the record and entitled to deference on appeal. Harris, supra, 181 N.J. at 415-16.

Defendant next argues that the State's failure to disclose a drug charge pending against Sadlowski in Camden County at the time of defendant's trial constituted a Brady violation. The prosecutor claims that this charge was disclosed.

The record includes a letter from the prosecutor to defense counsel, dated February 13, 1996, enclosing a criminal history summary for Sadlowski. Presumably, the drug charge would have been referenced in that enclosure because it predated the letter. However, the record does not contain the actual criminal history summary.

Nonetheless, the charge was disclosed by another branch of State government. By letter dated February 21, 1996, responding to a subpoena duces tecum served by defense counsel, the Camden County Assistant Criminal Records Supervisor advised defense counsel of the charge. Indeed, counsel questioned Sadlowski about it at trial and Sadlowski claimed that it was his brother who had possessed the drugs. This contention lacks merit.

Defendant contends that a third alleged Brady violation occurred when the State withheld information about a theft/joyriding charge that was pending against Sadlowski at the time of trial. However, this charge was disclosed to the defense in a letter to defense counsel dated February 21, 1996, from the Camden County Assistant Criminal Records Supervisor.

Further, the record reflects no Brady violation with respect to the prosecutor's failure to advise defense counsel that he expected Sadlowski to be a difficult witness who might not testify truthfully at trial. A prosecutor's opinions about a witness are not evidentiary. See R. 3:13-3(e). They are not exculpatory evidence, nor are they evidence with which defense counsel could have impeached Sadlowski's testimony. State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000). Therefore, they could not be considered Brady material.

Defendant's final argument in relation to Sadlowski is that Judge Tomasello incorrectly allowed Sadlowski's attorney to assert the attorney-client privilege in response to questions posed by his PCR counsel on the second remand from the Supreme Court. Specifically, Sadlowski's attorney invoked the privilege when questioned about his involvement in the plea negotiations for his client and if he considered his client to be a suspect.

In New Jersey, the attorney-client privilege is codified by statute, N.J.S.A. 2A:84A-20. The statute provides that communications between lawyer and client "in the course of that relationship and in professional confidence, are privileged." Ibid. The client holds the privilege. N.J.S.A. 2A:84A-20(1); see also State v. Toscano, 13 N.J. 418, 424 (1953).

Here, the factual issue presented on the second remand from the Supreme Court was whether Sadlowski had been threatened with prosecution for conspiracy to commit murder or whether he had was promised non-prosecution for such a crime. Sadlowski answered all questions regarding this issue, as did Warburton and the investigators who interviewed Sadlowski.

We find no error here. There was no reason for the judge to compel disclosure of the attorney-client communication. There was no showing of need, relevance, and materiality, and that the information sought could not be obtained through any less intrusive means. Payton v. N.J. Turnpike Auth., 148 N.J. 524, 552 (1997).

Jury Selection Issues

Defendant challenges the effective assistance of his trial counsel in selecting a jury and his appellate counsel in addressing alleged deficiencies in jury voir dire. We agree with the State's response that these issues should have been raised on direct appeal. R. 3:22-4. The voir dire issues could have and should have been raised on direct appeal. We are convinced, however, that the claims are without merit.

Defendant argues that his trial counsel erred by not challenging for cause three prospective jurors, who had been the victims of attempted murders or whose life had been threatened. We are not persuaded. Based upon the totality of these prospective jurors' voir dire, defense counsel reasonably could have concluded that they would be favorable jurors for the defense.

Defendant next argues that his trial counsel erred by not challenging five other jurors, who ultimately deliberated on the ground that they voiced attitudes supportive of the death penalty. He further argues that Judge Lisa erred by failing to excuse these jurors for cause.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). That test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). We are mindful that prior to the abolition of the death penalty, L. 2007, c. 204, the Strickland/Fritz standard applied to capital trials, although "with some adjustment." State v. Chew, 179 N.J. 186, 204 (2004). As to both phases of capital trials, the first prong of the Strickland/Fritz standard, deficiency of counsel's performance, was adjusted to account for the expectation that capital counsel would have expertise in the unique issues presented in capital cases. State v. Cooper, 410 N.J. Super. 43, 58-59 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

We perceive no ineffective assistance of counsel and no abuse of discretion on the part of the trial judge. Each of the prospective jurors about which defendant now complains initially expressed attitudes about the death penalty that were inconsistent with the governing law. However, they also expressed an ability to put aside their personal views and follow the law as instructed by the court.

In any event, defendant has shown no harm because, although he used peremptory challenges to remove these individuals from the jury, and he exhausted his peremptories, he has not shown that any of the jurors who ultimately heard his case were impermissibly partial. Thus, we conclude that the PCR court correctly rejected defendant's claim that he was denied the effective assistance of trial and appellate counsel with regard to selection of the jury.

Alleged Prosecutorial Misconduct

Defendant contends that the magnitude and number of acts of prosecutorial misconduct warrant the vacation of his conviction and sentence. We disagree.

With respect to the guilt-phase summation, on direct appeal, defendant alleged misconduct based upon the prosecutor's having drawn inferences not supported by the factual record. Feaster, supra, 156 N.J. at 56-65. Defendant raised these same issues in his first PCR petition. The Supreme Court found some of the comments improper but also found that, when viewed in the context of the trial as a whole, the comments did not have the capacity to deprive defendant of a fair trial. Feaster, supra, 156 N.J. at 59-60. In particular, the Court found prosecutors are "expected to make vigorous and forceful" arguments to the jury. State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway . . . as long as their comments are reasonably related to the scope of the evidence presented." Ibid. If prosecutors overstep the bounds of propriety, it may constitute grounds for reversal, but only if their comments were so egregious that they deprived defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007); Frost, supra, 158 N.J. at 83.

We are bound by the Supreme Court's holding. Feldman v. Lederle Labs., 125 N.J. 117, 132 (1991); State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div. 2009). Moreover, defendant is barred from re-litigating the same issues on PCR as were raised on direct appeal. R. 3:22-5.

On PCR, defendant makes only a few new allegations of prosecutorial misconduct that were not raised on direct appeal, including the alleged: (1) "undisclosed consideration extended by the State to Kaighn and Wrigley/Bock, as well as Sadlowski's recantation"; (2) improper direct examination of a witness, Sergeant O'Brien; and (3) denigration of defendant's expert witnesses and counsel. However, the PCR court correctly determined that these alleged instances of prosecutorial misconduct did not warrant relief.

Ineffective Assistance For Not Objecting To Hearsay

Defendant next contends that his trial counsels were ineffective because they did not object to O'Brien's testimony that Mills told him where to find the murder weapon and that his appellate counsel was ineffective for not raising the issue on direct appeal. He further contends that the prosecutor's eliciting such hearsay testimony should be viewed as an act of prosecutorial misconduct.

The issue of Mills's out-of-court statements was raised prior to trial. The judge concluded that he would have to rule on a question-by-question basis. At trial, O'Brien's testimony was extremely brief, with no objections made by defense counsel at any point. O'Brien testified that he received a call from Shiplee's attorney. As a result he contacted Shiplee.

The following day, he was instructed to drive Mills home in order to retrieve a bag. When O'Brien began to describe how Mills "directed us to his location," the prosecutor immediately cautioned him that he could not repeat anything Mills had said. O'Brien stated that en route to Mills's home, he stopped his car on the White Bridge. Thereafter, he proceeded to Mills's home, where he retrieved the bag that he brought back to the office and turned over to the crime scene investigator. Later, O'Brien returned to the bridge with an underwater rescue team "as a result of speaking with Mr. Mills the day before."

The next witnesses, Anthony Garbarino and Anthony Horneff, were employed on the underwater search and recovery team. They testified as to the recovery of a shotgun from Woodbury Creek, near the White Bridge.

In summation, defense counsel used certain evidence, including O'Brien's testimony, to suggest that Mills was guilty of murder, rather than defendant. On direct appeal, defendant's appellate counsel did not argue that the admission of hearsay evidence during O'Brien's testimony was erroneous. However, appellate counsel claimed error in the prosecutor's guilt-phase summation to the extent the prosecutor "brought forth the ghost of Michael Mills" by informing the jury of facts that could have been known only by Mills. Feaster, supra, 156 N.J. at 58.

The Supreme Court, however, found no error warranting reversal. Id. at 58-66. In reaching that conclusion, the Court noted that several statements to which defendant objected, including "the prosecutor's comment regarding the shotgun being discarded in the creek" were "fair and logical" inferences that could be drawn from the evidentiary record. Id. at 61. The Court noted that the prosecutor's comments regarding Mills "were a response to the defense portrayal of Mills as principal, and were designed to advance the State's theory that defendant was the shooter." Id. at 64. Similarly, the Court found no error in the trial court's admission of information regarding Mills's suicide in the State's opening statement or through the testimony of Kaighn and Wrigley. Id. at 67-70. The Court held that the evidence was relevant and it did not unduly prejudice defendant. Id. at 65-70.

On PCR, the judge found no ineffective assistance of counsel in defendant's trial counsel's failure to object to O'Brien's testimony. The judge noted that the choice not to object at any particular time could have been "a tactical decision," "a matter of style," and "trial strategy." We agree. Moreover, O'Brien's testimony was properly admitted because it did not include any inadmissible hearsay. N.J.R.E. 801. O'Brien did not testify to any statements made by Mills. Instead, O'Brien testified to the substance of his communications with Mills, which did not provide an inference that Mills gave the police evidence of defendant's guilt. See State v. Bankston, 63 N.J. 243, 271 (1973).

Advice on Right to Testify

Defendant additionally contends that his trial attorneys were ineffective and he was denied his right to testify because they incorrectly informed him that "whether or not he would testify was counsel's decision." According to defendant, his trial counsel advised him that, "should he testify, he would be cross-examined on a different charge [the second murder] when, in fact, the trial judge had already ruled that he would not permit such cross-examination by the State." Defendant contends that: he would have testified that he did not kill the victim; he would have denied making the admissions claimed by other witnesses; and his "silence in the face of the testimony of Kevin Wrigley/Bock, Michael Sadlowski and Tina Shiplee could only have been interpreted by the jurors as an admission of guilt." We are not persuaded.

Criminal defendants have the right to testify on their own behalf. Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708, 97 L. Ed. 2d 37, 44-45 (1987); State v. Daniels, 182 N.J. 80, 97-98 (2004). Defense counsel must advise their clients of this right, including the advantages and disadvantages of exercising it. State v. Bey, 161 N.J. 233, 269-70 (1990). Although the decision whether to testify is a strategic one, the decision ultimately belongs with the defendant. Id. at 269. Defense counsel may not rely on their own trial strategy, but must advise defendants of their right to testify. Id. at 270.

Here, at trial, defense counsel represented to the court that, if defendant chose to testify, his testimony would be extremely limited. He previewed the anticipated testimony and asked for a ruling that it did not open any doors to questioning about the second murder. Judge Lisa reaffirmed his earlier ruling that evidence of the second murder was inadmissible unless necessary to respond to some issue that was raised or introduced by the defense. The next day, defendant stated that it was his "decision after consulting with [trial counsel] on a number of occasions to elect not to testify before this jury."

On PCR, the judge rejected the claim of ineffective assistance of counsel, finding that defendant's decision to not testify was a strategic one. On the record presented, we perceive no error in the judge's ruling. There is no evidence to support the claims made in defendant's PCR brief. He has not provided a certification to that effect and there was no such testimony from his trial counsel.

Testimony Regarding Defendant's Prior Bad Acts

Defendant argues that his trial attorneys were ineffective for failing to object to the State's eliciting prejudicial, irrelevant testimony regarding his prior bad acts, including that: (1) he was a drug addict; (2) he was a thief, rumored to have stolen his mother's wedding ring as well as the jewelry of his girlfriend's mother; (3) he was violent by nature and generally the sort of person who would commit the crime charged; (4) he was chronically unemployed and without money; (5) his own parents had thrown him out of their home; and (6) he had Mills killed in order to keep him from testifying. He further argues that his appellate counsel were ineffective for failing to raise these issues on appeal. He argues that this sort of prejudicial testimony occurred with such frequency that the State must have engaged in misconduct, coaching its witnesses "to intersperse their answers with inadmissible information damning to [d]efendant's character."

We are convinced that the record supports the PCR judge's finding that defendant was not denied the effective assistance of counsel because his trial attorney did not object to his testimony. We affirm the judgment of the PCR judge, who found no ineffective assistance of trial or appellate counsel. We also find no prosecutorial misconduct.

Under N.J.R.E. 404(b):

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

A four-pronged test is used to determine the admissibility of evidence under this rule:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citations omitted).]

Where other bad acts evidence is admissible, trial courts should "sanitize the evidence when appropriate." State v. Barden, 195 N.J. 375, 390 (2008). Moreover, the trial court should issue a limiting instruction to the jury, both when the evidence is admitted and in the final charge. Ibid.

Furthermore, N.J.R.E. 404(b) is not implicated if evidence is admissible as res gestae, meaning that it is "part and parcel" of the crime charged, and "paint[s] a complete picture of the relevant criminal transaction." State v. Martini, 131 N.J. 176, 240-42 (1993), overruled on other grounds, State v. Fortin, 178 N.J. 540, 646 (2004); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Res gestae evidence is admissible even if an interval of time separates it from the crime, and "even in factual situations that pose a risk of prejudice to the defendant," State v. Long, 173 N.J. 138, 155 (2002), although a balancing analysis must be conducted under N.J.R.E. 403. Long, supra, 173 N.J. at 155. Unlike evidence admitted under N.J.R.E. 404(b), no limiting instruction is necessary for evidence admitted as res gestae. Long, supra, 173 at 156.

Testimony about defendant's drug use and his friends' drug use that occurred throughout the trial was part of the res gestae. Defendant's drug use was relevant to establish the full context of the crime charged and it was not unfairly prejudicial. Moreover, defendant's attorneys used defendant's alleged intoxication and drug use on the night of the murder as a possible explanation for his incriminating comments.

Defendant complains about the failure of his counsel to object to testimony suggesting that he was a thief. During the guilt phase, Zuzulock testified that her relationship with defendant was rocky at the time of the murder and they argued frequently. On cross-examination, defense counsel elicited testimony that on the night of the murder Zuzulock thought she was pregnant, and defendant argued with her because he did not want her to drink while pregnant.

On re-direct, the prosecutor elicited testimony as to another reason why Zuzulock and defendant were at odds at the time of the murder. Namely, defendant had been at Zuzulock's house on the day of her sister's wedding, and afterwards her mother noticed she was missing her wedding ring and other jewelry. Zuzulock confronted defendant. He denied responsibility. She never found out if he did it. Defense counsel did not object to this testimony. However, he asked for a limiting instruction that defendant was never charged with the alleged theft. The prosecutor argued that the instruction was unnecessary because Zuzulock admitted she never found out if defendant had been responsible and the court rejected the request.

We do not address testimony about defendant's suspected theft of his mother's wedding ring and other jewelry because it came during the penalty phase of the trial. It could not have had an impact on the jury's verdict in the guilt phase.

Defendant complains about his counsel's failure to object to the introduction of evidence about his violent and assaultive nature. On this record, we perceive no ineffective assistance of either trial or appellate counsel. The objections made by trial counsel were properly overruled and any appeal from those rulings would have been unsuccessful. The statements were relevant and admissible because they showed defendant's state of mind shortly after he committed the crime, and it was arguable that this state of mind existed at the time of the crime as well. N.J.R.E. 401-403; N.J.R.E. 803(c)(3); State v. Smith, 84 N.J. Super. 452, 459-60 (App. Div.), certif. denied, 43 N.J. 270 (1964).

Defendant argues that his attorneys failed to object to the admission of testimony showing his chronic unemployment. Moreover, the record does not support his claim of ineffective assistance of counsel. However, evidence of defendant's unemployment was not evidence of a prior bad act.

Defendant also asserts that his trial attorneys erred by failing to object to testimony that he had been kicked out of his parents' home. However, defendant having been kicked out of his home is not evidence of a prior bad act. Therefore, trial counsel did not err in failing to object to the admission of this evidence and appellate counsel did not err in failing to raise admission of the evidence as plain error.

Mill's Suicide

Defendant additionally complains that his counsel erred by failing to object to testimony that suggested Mills's suicide was actually a homicide for which defendant was responsible. Defendant's complaints about this testimony, however, have already been resolved. Therefore, they cannot be reconsidered on PCR. R. 3:22-5. On direct appeal, the Supreme Court considered whether repeated mention of Mills's suicide deprived defendant of a fair trial. Feaster, supra, 156 N.J. at 65-70. The Court rejected defendant's arguments, finding that Mills's suicide was relevant, particularly in light of Wrigley's testimony. Id. at 67-68.

Finally, the record does not support defendant's allegation that the testimony about his prior bad acts was so pervasive that the prosecutor must have acted inappropriately in encouraging witnesses to testify to these matters. The prosecutor did not commit misconduct by forcefully pursuing the case. The PCR record contains a certification from Sadlowski, in which he claimed that he was encouraged by Alvarado and Warburton "to work into [his] testimony as many bad things about [defendant] as [he] could think of." However, the PCR judge rejected that certification after hearing testimony from Sadlowski because it lacked credibility. These findings are entitled to deference. Harris, supra, 181 N.J. at 415-16.

Defendant's Representation By Public Defender

Defendant argues that, in the guilt phase of the trial, the prosecutor improperly informed the jury that defendant was being represented by the Public Defender's Office. According to defendant, the judge improperly denied defense counsel's motion for a mistrial.

The prosecutor cross-examined defense witness Shirleen Firman, the deputy warden of the Gloucester County Jail, about defendant's time in the jail and in particular about whether defendant ever spent an overnight in the jail. During the course of that testimony, the prosecutor showed Firman "a report by Jose Delgado, an investigator in the public defender's office," and asked whether Firman recalled being interviewed by Delgado.

Defense counsel immediately requested a side bar, at which he moved for a mistrial because the prosecutor had referred to the public defender's office as being defendant's representative, at least inferentially. The trial court denied the motion but offered to issue a curative instruction. Defendant's two attorneys consulted and decided they did not want an instruction, but instead "just to move on." The court acceded to that request and warned the prosecutor. Defendant's trial counsel did not pursue the issue any further. Appellate counsel did not raise the issue on direct appeal. The PCR court did not address the issue in its oral opinion.

We find no ineffective assistance of counsel. The prosecutor's reference to the public defender's office was fleeting. Viewed in context, it was not prejudicial to defendant. See Martini, supra, 131 N.J. at 265-67. State v. Moore, 111 N.J. Super. 528, 533 (App. Div.), certif. denied, 57 N.J. 210 (1970).

We find no error in the court's denial of a mistrial. On the record presented, the court did not abuse its discretion. See, e.g., State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Finally, because any appeal of the court's mistrial ruling would have been rejected as without merit, defendant cannot establish a claim for ineffective assistance of appellate counsel.

Cumulative Effect Of Errors

Defendant argues that he is entitled to a new trial based upon the cumulative effect of errors that occurred during his trial. He relies solely upon the alleged errors previously addressed in this opinion.

The court must take into account the cumulative effect of any trial errors. Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698-99; Feaster, supra, 156 N.J. at 84-85. "[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." Wakefield, supra, 190 N.J. at 538. Here, we perceive no accumulation of errors warranting reversal and a new trial in defendant's case. See Martini, supra, 160 N.J. at 275; State v. Marshall, 148 N.J. 89, 257-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Issues Related To Death Penalty

Defendant argues that he is entitled to further proportionality review of his death sentence, as well as other issues related to the death penalty, i.e., trial counsel's ineffectiveness in the penalty phase the jury's failure to find a stipulated mitigating factor, the court's refusing to consider residual doubt as a mitigating factor, and the death sentence violates defendant's constitutional rights to equal protection and to be free from cruel and unusual punishment. We do not address these contentions because they are moot by virtue of: the repeal of the death penalty by the Legislature; the commutation of defendant's death sentence by the Governor; and the Supreme Court's February 7, 2008 order, which provided in pertinent part that all issues relating to defendant's death sentence have been rendered moot and, which entailed a repeal of the statutory provision allowing for proportionality review. N.J.S.A. 2C:11-3(e) (repealed by P.L. 2007, c. 204).

 
Affirmed.

In 1999, defendant legally changed his name from Richard Feaster to Sean Padraic Kenney.

Defendant was also charged with the stabbing murder and robbery of Ronald Pine, another gas station attendant, in a separate incident twenty four days after the first murder.

On April 1, 1996, pursuant to an agreement, defendant pled guilty to the second armed robbery and murder. He was sentenced to life imprisonment with thirty years of parole ineligibility on the murder and twenty years with a ten-year period of parole ineligibility on the robbery, both terms to run consecutively to each other and to the sentence in the present case.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

United States v. Bagley, 473 U.S. 667, 675-76, 105 S. Ct. 3375, 3379-80, 87 L. Ed. 2d 481, 489 (1985).

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A-2821-07T4

August 4, 2010