STATE OF NEW JERSEY v. KENNETH E. WILSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3347-07T43347-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH E. WILSON,

Defendant-Appellant.

________________________________________________________________

 

Argued January 27, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

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

Michael A. Priarone, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Priarone, of counsel and on the brief).

Raymond W. Hoffman, Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Mr. Hoffman, on the brief).

PER CURIAM

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). 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 We affirmed the denial of his petition for post-conviction relief in an unpublished opinion, State v. Wilson, No. A-2164-00 (App.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 described this "new" information as follows:

4. Mr. Dugger informed me that in 1990 he attempted to commit suicide and was placed in the East Orange Psychiatric Unit. He was treated by Dr. James Conway, a psychiatrist working out of the East Orange Hospital.

5. Mr. Dugger stated that from 1990 up until the time of his arrest for the murder of Matthew McDaniel (summer of 1992), he was taking 100 mg. of "Trivil" a psychiatric medication. He also admitted to smoking 10 bags of crack cocaine daily.

6. After his arrest, Mr. Dugger stated that he was given 100 mg. of Thorazine daily. Mt. Dugger confirmed that he would take the psychiatric medication nightly and took the medication the night before his testimony against Mr. Wilson.

To qualify as "newly discovered" evidence, the second prong of the Carter test requires that "the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand.'" Ibid.

At trial, Dugger testified that he went to a hospital crisis unit and was hospitalized because he was having nightmares about the murder and "because I was getting ready to commit suicide, I'm suicidal." It is undisputed that defendant had a copy of Dugger's medical records from East Orange Hospital. Those records reflect that his admitting diagnosis was "major depression w[ith] substance abuse disorder w[ith] suicidal ideation." The emergency services assessment form stated that he had overdosed on drugs on the prior night and noted that he abused cocaine and marijuana. The Crisis Intervention Unit form "description of present problem" states in part:

[Patient] presented self to MH/ER last night stating he had used "1 1/2 bowls" of cocaine wanted to kill himself this A.M.," PER RN/ER. [Patient] has hx of several suicide attempts and ideations, especially under the influence of drugs or alcohol. He has been admitted to MHCU [Mental Health Care Unit] x3 between 1990-12/91. He has been treated on RAFT. Today, [patient] states he has "messed up my life" and requests long-term Drug Tx.

[(Emphasis added).]

The assessment included in another record stated that while Dugger had suicidal ideation of using a razor to kill himself and was depressed, he did not have command hallucinations and was not suffering from psychosis. The general order sheet relects that defendant was administered "Triavil" as part of his treatment during his hospitalization. The discharge summary for July 27, 1992 reported that Dugger was not suicidal or homicidal; that he responded favorably to medication and that he was to seek additional care on an outpatient basis.

Therefore, defense counsel had the information regarding Dugger's suicide attempts, psychiatric hospitalizations and prescribed use of Triavil at the time of trial and cannot satisfy the second prong of the Carter test as to the purportedly new evidence of Dugger's psychiatric history. We also note that, without more, evidence that Dugger was prescribed Triavil does not demonstrate that he was suffering from any psychosis or other psychiatric disability that impaired his ability to testify reliably. This matter is, therefore, clearly distinguishable from State v. Henries, 306 N.J. Super. 512, 531-35 (App. Div. 1997).

In addition, as defendant acknowledges in his brief, Dugger admitted that he was taking Thorazine when he pled guilty, information that was clearly available through the exercise of reasonable diligence.

At trial, Dugger testified and was cross-examined at length about his drug use, specifically his drug use on the day of the murder. He admitted purchasing fifty vials of cocaine that day and testified that he and the defendants were smoking about twenty vials of free base cocaine for a period of two hours prior to the murder. He admitted that he "got pretty high" from the cocaine and from drinking wine and that he went to the victim's apartment "to get high" and have sex with him. He brought cocaine with him into the victim's bedroom to smoke with him before having sex and smoked more cocaine after leaving the victim.

Even if the admission regarding Dugger's habitual daily use of ten vials of cocaine were construed as "newly discovered evidence," his extensive admissions of heavy drug use, including on the day of the murder, rendered such information merely cumulative impeachment material that was not likely to result in a different verdict. See Ways, supra, 180 N.J. at 187; Carter, supra, 85 N.J. at 314.

Defendant's other contention, that Dugger's plea agreement was not accurately disclosed, is pure speculation. Dugger testified that he pled guilty to a charge of conspiracy to commit murder pursuant to a plea agreement. In exchange for his truthful testimony, the State agreed to dismiss the remaining charges in the indictment against him and recommend a custodial sentence that was not to exceed ten years. He testified to his understanding of his exposure as follows:

Q. And what is your understanding you could have received having pled guilty to conspiracy to commit murder?

A. Ten years in.

Dugger also testified that he had no agreement with the State when he gave a statement to the police that set forth what he and the defendants did on the night of the murder. The fact that Dugger was sentenced to time served after his testimony does not support any inference that the State had agreed that he should receive less than ten years as part of his plea agreement. In entering the plea agreement, the State's authority regarding sentence is limited to making a recommendation. The authority to determine the appropriate sentence rests exclusively with the court and the prosecutor cannot bind the court in reaching an agreement with a defendant. See State v. Warren, 115 N.J. 433, 442 (1989) ("[P]arties can agree only on a sentence that the prosecutor will 'recommend' to the court; they are not empowered to negotiate a sentence that can have any binding effect."). The agreement restricted the prosecutor's right to seek a sentence that exceeded ten years; it did not deprive the prosecutor of the option to recommend a more lenient sentence in the event that Dugger's cooperation merited it.

Moreover, even if Dugger's sentence could be construed as newly discovered evidence, knowledge of that sentence was available in 1993, before defendant filed his first petition for post-conviction relief. Therefore, any claim based upon such evidence that was not raised in defendant's 1997 petition is barred pursuant to Rule 3:22-4.

 
Affirmed.

Defendant's co-defendants, Eugene Jenkins and Clara Sloan, were also convicted of these charges.

Dugger's medical records reflect that he was prescribed Triavil.

"Triavil is used to treat anxiety, agitation, and depression. Triavil is a combination of a tricyclic antidepressant (amitriptyline) and a tranquilizer (perphenazine). Triavil can also help people with schizophrenia (distorted sense of reality) who are depressed and people with insomnia, fatigue, loss of interest, loss of appetite, or a slowing of physical and mental reactions." Physician's Desktop Reference Website - Triavil, http://www.pdrhealth.com/drugs/rx/rx-mono.aspx?contentFileName=

Tri1456.html&contentName=Triavil&contentId=5.

(continued)

(continued)

9

A-3347-07T4

August 19, 2010