STATE OF NEW JERSEY v. BRIAN WYATT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2547-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN WYATT,

Defendant-Appellant.

________________________________________________________________

February 22, 2011

Submitted January 24, 2011 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-11-0483.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Brian Wyatt, appeals from the November 4, 2009 order denying his petition for post-conviction relief (PCR). Defendant was convicted of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1),(2), and other offenses. On June 14, 2004, Judge Paul J. Vichness, who had presided over the trial, sentenced defendant to an aggregate term of thirty years in prison without parole. In an unpublished opinion, we affirmed defendant's conviction, State v. Wyatt, No. A-0048-04 (App. Div. April 3, 2008), and the Supreme Court denied defendant's petition for certification. State v. Wyatt, 195 N.J. 524 (2008). In his PCR petition, defendant asserted ineffective assistance of his trial and appellate counsel. Based upon his review of the written submissions of both parties and oral argument, Judge Vichness denied defendant's petition without granting an evidentiary hearing.

In the appellate brief filed by defendant's attorney, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL AND APPELLATE LEVELS.

A. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

B. APPELLATE COUNSEL WAS REMISS BY FAILING TO RAISE THE IMPROPER NATURE OF THE PROSECUTOR'S SUMMATION ON APPEAL.

In a supplemental pro se brief, defendant presents the following additional arguments:

POINT I

TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, HOLDING AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT'S TRIAL ATTORNEY'S FAILURE TO EFFECTIVELY OBJECT TO THE TRIAL COURT'S ERRONEOUS APPLICATION OF INFORMER PRIVILEGE, UTTERLY DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND, ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, HOLDING AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT'S TRIAL ATTORNEY'S FAILURE TO INVESTIGATE OBVIOUS SIGNIFICANT AVENUES OF DEFENSE, INCLUDING THE CALLING OF WITNESSES WHO WOULD HAVE DIRECTLY EXCULPATED DEFENDANT, UTTERLY DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, IN VIOLATION OF THE SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND, ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON PROCEDURAL GROUNDS, WHERE AS HERE, DEFENDANT'S CLAIMS SHOULD HAVE BEEN DECIDED SOLELY ON THE MERITS OF CLAIMS, UTTERLY DEPRIVED THE DEFENDANT OF HIS STATE CONSTITUTIONAL RIGHT, IN VIOLATION OF ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.

Defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion, see R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Vichness in his oral decision of November 4, 2009. For the sake of completeness, we add the following:

In our prior opinion, we set forth the underlying facts, and we now repeat them verbatim:

During an evening cookout on June 23, 2002, the victim, Clydell Leakes, attempted to hold a conversation with a woman identified only as defendant's niece. Apparently, the conversation soured quickly and developed into an argument. Defendant's niece called Leakes a "crackhead" and he called her a foul name. Defendant then interceded and told Leakes he could not "disrespect" his niece in that fashion. The two men stepped into the street as if to engage in a fistfight and Leakes swung at defendant but did not connect.

The two men then walked away from the quarrel and nothing further occurred until the following night, June 24, 2002, while another cookout was ending in the same alley. Terrence Sheffield appeared at the cookout in order to sell drugs and actually sold three bags of crack cocaine to Leakes. Shortly afterwards defendant approached Leakes and told him that "he was not allowed to be around anymore." Sheffield intervened, and told defendant that it was not up to him to decide who did and did not come into the area to buy or sell drugs. Defendant left, saying "I be right back." Minutes later, defendant returned to the alley and walked toward Leakes until he was standing approximately three feet away from him. Defendant's hand was covered by a white rag; he raised his arm to chest height. According to Sheffield, at that point four shots rang out. Leakes grabbed his chest and fell to the ground; he died before the authorities arrived.

When Leakes was shot, everyone in the area fled before the police responded. Sheffield was the only eyewitness who eventually came forward. Shortly after midnight on the night of the shooting, Sheffield called an Essex County Prosecutor's Office detective who was a longtime friend, Wilson Carter. Sheffield told Detective Carter about the murder and identified defendant as the shooter. That same night defendant visited the home of his child's mother, Tiheisha Liggins, and told her, as she testified at trial, "that somebody had got shot or whatever and they thought he did it."

Two neighborhood residents, Sean Bell and Martin Kemp, also testified at trial. Bell testified that he owned two guns for "protection" that he shared with Kemp, Sheffield and others from the neighborhood, including defendant. One of the guns was a .357 revolver, and the other a chrome .380 semi-automatic. Bell had seen a man he identified as "Malik," with the .380 semi-automatic on the day before the shooting. Bell admitted at trial that Malik's real name was Brian Wyatt, but refused to identify defendant as the person he knew as Malik. Kemp also placed defendant, Sheffield and Leakes at the cookout on the day of the murder, although he claimed that he left prior to the shooting.

Sheffield, Kemp and Bell all had charges pending when they testified at trial and all had prior criminal histories. Although the three men denied having received any consideration in exchange for their testimony, they were awaiting sentence. Bell admitted that he was hoping he would get some sentencing benefit in exchange for his testimony.

Despite extensive forensic testing of the items found in the alley, only an empty food container with defendant's fingerprints tied defendant to the scene. Bullets recovered from Leakes's body and spent shell casings discovered at his feet came from a .380 semi-automatic.

[State v. Wyatt, No. A-0048-04, supra, (slip op. at 2 4).]

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987). This test applies equally to trial and appellate counsel. State v. Bray, 356 N.J. Super. 485, 498 (App. Div. 2003).

In the appellate brief filed by his attorney, defendant claims that his trial counsel was deficient for failing to object to two summation comments made by the prosecutor. In the first, defendant claims the prosecutor committed misconduct by expressing a motive for the crime that was not supported by the evidence, namely that defendant killed Leakes due to a power struggle between defendant and Sheffield. In the second, defendant argues the prosecutor improperly suggested that Bell was quiet and timid on the witness stand because he feared defendant.

We agree with Judge Vichness that there was no impropriety in the prosecutor's statements. The inferences the prosecutor urged the jury to draw were based upon trial evidence. Any objection would have been rejected by the trial court. Likewise, appellate counsel was not deficient for failing to raise this argument on appeal, and had it been raised, it would have been rejected.

In his supplemental pro se brief, defendant attempts to relitigate an issue that was raised, considered and rejected on direct appeal, namely whether the State should have been required to disclose the identity of the confidential informant. More particularly, at trial defendant sought to establish that Sheffield was indeed a confidential informant. Judge Vichness precluded defendant from doing so, and we affirmed that determination on direct appeal. Therefore, in the PCR proceeding, Judge Vichness correctly rejected this previously adjudicated issue pursuant to Rule 3:22-5.

In his pro se brief, defendant also argues that his trial counsel was deficient for failing to call Detective Carter as a witness or, at the very least, failing to interview Detective Carter to ascertain whether other potentially helpful witnesses or evidence might be available. We agree with Judge Vichness that defendant proffered no reasonable basis for which Detective Carter should have been called as a defense witness. Detective Carter would have been precluded from testifying as to what the confidential informant told him because such testimony would constitute inadmissible hearsay. Detective Carter would also have been precluded from identifying the confidential informant under Judge Vichness' ruling that disclosure was not warranted, a ruling which we affirmed on direct appeal. Finally, in the PCR proceeding, defendant did not produce an affidavit or certification from Detective Carter or anyone else to make a prima facie showing that interviewing Detective Carter would have revealed the identity of any other witness who might have been helpful to the defense and what that witness would have testified to. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999).