STATE OF NEW JERSEY v. SEAN WASHINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4730-02T44730-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN WASHINGTON,

Defendant-Appellant.

____________________________

 

Argued September 27, 2005 - Decided

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, 1950-08-95.

Brian M. Duncan, Designated Counsel, argued the

cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Duncan, on the brief).

Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Vincent P. Sarubbi, Camden

County Prosecutor, attorney for respondent; Ms.

Hamett, on the brief).

Defendant filed a pro se supplemental brief.

PER CURIAM

Defendant Sean Washington appeals from an order of April 3, 2003, denying his petition for post-conviction relief (PCR). Following a jury trial, defendant and his co-defendant, Kevin Baker, were found guilty of conspiracy to commit murder (N.J.S.A. 2C:5-2), two counts of purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)) and possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a). The trial court sentenced Washington to consecutive terms of life imprisonment with a parole disqualifier of thirty years on each conviction. The remaining convictions were merged for purposes of sentence. We affirmed on direct appeal, State v. Washington, No. A-3943-96, (App. Div. March 17, 1999), but pursuant to State v. Preciose, 129 N.J. 451, 460-61 (1992) we left defendant's argument of ineffective assistance of trial counsel for a PCR application. Certification was denied by the Supreme Court on June 8, 1999. State v. Washington, 161 N.J. 150 (1999).

In summary, the trial testimony was that minutes before 6 a.m. on January 28, 1995, Camden police were dispatched to the Roosevelt Manor housing project following a report of gunshots fired. On arrival they saw the bodies of Rodney Turner and Margaret Wilson on the street in front of 1 822 South 8th Street. Both victims had been shot in the head at close range. The police recovered three 9mm shell casings, which tests revealed were fired by the same gun. No gun was ever found.

The State eyewitness was Denise Rand. She testified that about 6 a.m. on January 28, 1995, she was with her cousin Tyrone Moore outside the Roosevelt Manor housing project to purchase crack cocaine. She admitted that she used cocaine two hours earlier. Rand heard two to three gunshots. She said that while Moore ran off, she remained. She then saw Sean Washington and Kevin Baker run past her. She knew Washington since he was a small child and Baker for a few years. She added that before the two defendants ran by her, she saw the two victims "get shot." At first she said she was not certain which defendant committed the homicides, but after reviewing an earlier statement, she recalled that Baker shot Turner and Washington shot Wilson. Neither Baker nor Washington testified. No witnesses or evidence was adduced by the defense.

On January 4, 2000, defendant filed a PCR petition in which he raised the following arguments for ineffective assistance of trial counsel: (1) failing to fully investigate and present the testimony of Tyrone Moore for the purpose of discrediting the testimony of the State's central witness, Denise Rand; failing to call Dwight Collins for alibi testimony; and failing to call Michele Reardon who would provide an alibi for the co-defendant. On November 17, 2000, the PCR application was heard by the same judge who presided at trial. Defendant's counsel submitted an investigator's report which indicated that Moore said that he was with Rand, and that she could not have observed the shootings and other events to which she testified, and that he saw defendant standing on a corner near the scene after the murder. The trial judge found that Moore's statement placed defendant at the scene of the crime and would harm not help his case and, furthermore, Moore's proffered testimony would not have changed the result of the trial. As to Michele Reardon and Dwight Collins, the trial court noted that no affidavit or certification had been filed setting forth the alleged exculpatory testimony. The trial judge then denied the PCR application. Counsel for defendant moved for reconsideration, supplying the court with the certification of Dwight Collins stating that he was with the defendant at the approximate time of the murders. This motion was denied by the trial judge because it was untimely under R. 1:7-4(b), and on a determination that the Law Division lacked jurisdiction because a notice of appeal had been filed.

On appeal, we agreed with the PCR judge that the investigator's report of the interview of Moore was not sufficient to establish a prima facie case of ineffective assistance of counsel. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Preciose, supra, 129 N.J. at 462. We reaffirmed our earlier holding of State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), that when a petitioner claims inadequate investigation by his trial counsel, he must assert the facts that an investigation would have disclosed as supported by affidavits or certifications based on personal knowledge. We further found that the PCR judge could reasonably have concluded that Moore's uncertified and unverified account was unreliable and could be damaging to defendant since it placed him at the scene at or about the time of the murder. We also determined that nothing indicated Reardon would have been a favorable witness or the defendant.

However, we reached a slightly different conclusion as to Collins. We remanded to afford counsel the opportunity to call Collins in order that the PCR judge could assess his credibility and make a more informed decision as to whether trial counsel was derelict in failing to call Collins as a witness and whether Collins' testimony created a reasonable probability that the jury verdict would have been different.

The remand hearing was held on March 25, 2003. Dwight Collins testified through a video tie-in from the Federal prison in Fort Dix, where he was serving a sentence for conspiracy to distribute cocaine and unlawful use of a weapon. Collins testified at the hearing that defendant was his uncle and was living "on and off" at Collins' mother's house at South 8th Street. He said that at about 5 a.m. on January 18, 1995, he was sleeping on a couch when the defendant entered and woke him up. He said defendant went to the kitchen and cooked some chicken, but as he started to eat, he received a page. He told Collins he had to make a call from a nearby pay phone. Collins explained that defendant could not use his mother's phone because it was "limited to local calls" or that "he was maybe calling somebody he didn't want to call from my mother's house." Collins watched defendant as he left the apartment walked down 8th Street and then out of sight in the direction of the pay phone located at 8th Street and Central Avenue. Collins said that he remained in the doorway for about five to seven minutes when defendant returned "crying and upset" saying that he had seen two people lying on the ground. One of them was wearing a jacket similar to one worn by Collins' brother. Defendant got a closer look and discovered it was not his nephew. Collins said that defendant then made a call for an ambulance from inside the apartment. Collins added that he would have heard shots fired that morning while standing in the doorway of his apartment but not if he had been inside with the front door closed.

On cross-examination Collins was confronted with statements he gave to a defense investigator and in a previous certification in support of defendant's PCR application which said that defendant had arrived at 5 a.m. but left to make a phone call at 5:30 a.m. Collins said he did not recall his earlier statements and repeated he was sure that defendant did not leave the apartment until 6 a.m.

The PCR judge found Collins' testimony "less than credible" as to the time defendant left his apartment. He also noted that Collins' testimony placed defendant across the street from where the bodies were found. The judge concluded:

I do not find that Mr. Collins' testimony would be credible, I do not find it would have affected the jury determination in any way. It wouldn't have convinced them that [defendant] is innocent of these offenses. I do not see how it would create any reasonable doubt. It would not change the outcome of the trial.

Subsequently, new PCR counsel petitioned the court to consider defendant's claim of ineffective assistance of prior PCR counsel in not submitting the following certifications or witnesses for consideration: (1) certification of trial counsel of his failure to investigate Collins and Moore as witnesses; (2) Public Defender Michael Friedman's certification stating he advised trial counsel to retain an expert on identification; (3) certification of Anna Griffin in which she said she heard Rand telling others after the trial that she did not see the murders and was not present when they occurred; (4) Investigator Harold Reubel's certification of statements made by Keith Sartin that defendant was seen approaching the scene of the shooting after the shots were fired and made a phone call before leaving the area; (5) certifications of Investigator Janet Levey and Harry Reubel that the crime scene could not be observed from where Rand claimed to have been standing; (6) July 25, 1996 statement of Tyrone Moore to the same effect; and (7) certification of Michele Redden that co-defendant Baker was not at the crime scene.

The PCR judge correctly noted that the remand was limited to hearing the testimony of Dwight Collins. He stated that the additional certifications and arguments constituted a new filing for PCR relief outside of the five year period prescribed by R. 3:22-12 and without a showing of excusable neglect. The court emphasized that Collins had lived with the defendant, that Reubel's certification was hearsay and that Anna Griffin's affidavit related to allegations of statements made by Rand after trial. With regard to certifications as to the point of observation of the crime by Rand, the judge emphasized that the testimony related to the location of Rand according to Moore conflicted with Rand's trial testimony, which the judge found credible. Therefore, in addition to denying the application to consider certifications or testimony in addition to Collins as outside the time limitation of R. 3:22-12, the PCR judge held that the factual assertions in the certifications were insufficient to set forth a prima facie showing of ineffective assistance of counsel.

On this appeal defendant makes the following arguments:

POINT I - DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. THE TESTIMONY OF DWIGHT COLLINS, IN CONJUNCTION WITH CERTIFICATIONS PRESENTED BY COUNSEL AT THE POST-CONVICTION RELIEF HEARING, MAKE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.

B. THE LOWER COURT IMPROPERLY DISREGARDED THE CERTIFICATION OF TYRONE MOORE WITH THE CORROBORATING CERTIFICATIONS OF DEFENSE INVESTIGATORS HARRY REUBEL AND JANET LEVEY.

C. THE LOWER COURT IMPROPERLY DISREGARDED THE CERTIFICATION OF ANNA GRIFFIN.

D. THE LOWER COURT IMPROPERLY DISREGARDED THE CERTIFICATION AND REPORT OF HARRY REUBEL REGARDING KEITH SARTIN.

E. THE LOWER COURT IMPROPERLY DISREGARDED THE CERTIFICATION OF MICHAEL FREIDMAN.

F. THE LOWER COURT IMPROPERLY DISREGARDED THE CERTIFICATION OF TRIAL COUNSEL.

In a supplemental pro se brief, defendant raises these contentions:

POINT I - PCR COURT ERRED IN ITS RULING BY NOT APPLYING THE PROPER FACTS AND LAW.

A. LOWER COURT IMPROPERLY DISREGARDED THE TESTIMONY OF DWIGHT COLLINS.

B. THE LOWER COURT ERRED IN NOT RE-OPENING THE PCR SO HE COULD PROPERLY ADJUDICATE THE HEARING ON ITS MERITS.

POINT II - DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, BOTH PCR PROCEEDINGS AND FROM THE OFFICE OF THE PUBLIC DEFENDER.

A. THE OPD FAILED IN THEIR STATUTORY OBLIGATION TO REPRESENT APPELLANT.

B. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY COUNSEL'S OWN ADMISSION.

C. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO OBJECT TO BRADY VIOLATION.

D. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO INVESTIGATE.

E. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL FAILING TO FILE AN APPEAL.

F. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL ON HIS FIRST (1ST) PETITION AND ON REMAND.

We first consider the Law Division's determination as to Collins' testimony at the remand hearing. Basing our remand on State v. Petrozelli, 351 N.J. Super. 14, 23-24 (App. Div. 2002), we directed that the trial judge consider the evidence in the certification of Collins through direct and cross-examination for the trial judge to consider how the jury might have reacted had the alleged exculpatory testimony of Collins been presented and whether the testimony engendered a "reasonable probability that the results of the proceeding would have been different, or that the evidence presented at the hearing was sufficient to undermine confidence in the outcome of the initial trial." Ibid., quoting from State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). The PCR judge found to the contrary, finding Collins' testimony did not provide a believable alibi for defendant, that his testimony was tainted by bias and that his statement that defendant left the apartment at 6 a.m. was not credible.

In his pro se supplemental brief defendant argues that the judge's credibility finding was contaminated by error since he stated that had Collins been called at the trial, his credibility would have been impeached by his testimony with his Federal drug and firearms convictions when, in fact, these convictions occurred after defendant's trial. While defendant is correct as to the inability of the State to assert the conviction of Collins for impeachment purposes at the time of defendant's trial, the judge was entitled to consider Collins' convictions in assessing his credibility at the remand hearing. Moreover, the judge made separate factual findings to conclude Collins' projected testimony would not have affected the outcome of the trial because of his bias and his contradictory statements of when defendant left his apartment. As noted, the hearing judge was the trial judge. He had the opportunity to observe and hear the witnesses who testified at trial as well as consider the testimony of Collins at the remand hearing. See Carrino v. Novotny, 78 N.J. 355, 360 (1979); Petrozelli, supra, 351 N.J. Super. at 23. Giving proper deference to the findings of the PCR judge and based on the record, we concur that defendant did not establish a prima facie case of ineffective assistance of trial counsel or prior PCR counsel.

The additional certifications supplied by new PCR counsel were in effect a new petition for PCR relief and subject to the five year time bar of R. 3:22-12(a), as well as outside the scope of our limited remand.

Moreover, we concur with the judgment of the PCR judge that the additional certifications were insufficient. In the prior PCR appeal we rejected a claim of ineffective assistance of counsel based upon the fact that Moore was not called as a witness. Any testimony based on the certification of Anna Griffins as to alleged post-trial statements of Rand was subject to exclusion as inadmissible hearsay, and, in any event, the alleged remarks of Rand were post-trial. See State v. Carter, 85 N.J. 300, 314 (1981); R. 3:20-1. The certification of Investigator Harry Reubel is insufficient since no certification by Sartin of his observations was submitted and the observations do not contradict Rand. Michael Friedman's certification that he advised trial counsel to obtain an identification expert is without merit since there is no showing as to what any such expert would testify to and no basis shown for admissibility at trial. The certification of trial counsel that he did not adequately consider the admissibility of Moore's statements and did not exhaustively investigate the facts is similarly insufficient to reasonably infer that the outcome of the trial would have been affected since, as earlier noted, both Moore and Collins would place defendant at the scene of the crime within the time of the murders. Finally, Janet Levey's certification that Moore's testimony as to the observation point was flawed is of little value since Ms. Levey viewed the scene years after the murders. Finally, defendant's argument that Levey's inability to locate a videotape of her observations constitutes a basis for further hearing is totally without merit. Obviously such evidence would not have affected the outcome of the trial since it was not in existence at that time.

All other arguments of defendant in his pro se brief and the brief of defense counsel are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

 

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A-4730-02T4

November 9, 2005