STATE OF NEW JERSEY v. DAVID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID WILDER,

Defendant-Appellant.

April 3, 2014

Submitted March 25, 2014 Decided

Before Judges Reisner and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-07-0949.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant David Wilder appeals from a February 17, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant was indicted in connection with the March 25, 2002, death of Kevin McGuire and charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or -3(a)(2) (count one), and third-degree endangering an injured victim, for causing bodily injury and "leaving the scene of the injury knowing or reasonably believing the [victim was] physically helpless," N.J.S.A. 2C:12-1.2a (count two). Following a jury trial, defendant was convicted of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and endangering an injured victim. On October 1, 2004, defendant was sentenced to twenty-three years imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter conviction, and a consecutive five-year term on the helpless victim charge.

Defendant appealed, and in an unpublished opinion we affirmed the conviction of leaving a helpless victim, but reversed the aggravated manslaughter conviction. State v. Wilder, No. A-1799-04 (App. Div. November 1, 2006). On cross-petitions for certification, the Supreme Court reinstated defendant's manslaughter conviction, but remanded for consideration of sentencing issues. State v. Wilder, 193 N.J. 398 (2008). On March 20, 2008, the panel remanded to the trial court for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005).

On April 11, 2008, defendant was re-sentenced to thirteen-and-a-half years imprisonment on the aggravated manslaughter conviction, with an eighty-five percent parole ineligibility period under NERA. A consecutive three-year prison term was imposed on the helpless victim conviction. We affirmed the sentence on our excessive sentence calendar. State v. Wilder, No. A-4706-07 (App. Div. December 20, 2009).

On December 23, 2008, defendant filed a pro se PCR petition, alleging ineffective assistance of counsel. Assigned counsel thereafter supplemented the petition with certifications from defendant and his wife, Della Wilder. Defendant certified that trial counsel failed to: (1) keep him apprised of his case; (2) adequately review discovery with him; and (3) inform him that he could testify despite his counsel's advice to the contrary. Della Wilder, who had testified at trial, certified that counsel failed to discuss in advance the testimony that he intended to elicit from her. As a result, she "felt apprehension and anxiety" which "undoubtedly impacted negatively on [her] demeanor" during her husband's trial.

On February 17, 2012, after hearing oral argument of counsel, Judge Raymond A. Reddin denied defendant's PCR petition. Judge Reddin supplemented his oral decision with a comprehensive written opinion that carefully addressed each of defendant's claims of ineffective assistance of counsel, and found them to lack merit. This appeal follows.

On appeal, defendant raises the following points for our consideration:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS

A. Trial Counsel Failed To Pursue An Exculpatory Witness

B. Trial Counsel Failed To Keep Defendant Apprised As To The Status Of His Case, Failed To Adequately Review Discovery With Defendant, Failed To Advise Him Of His Right To Testify, And Failed To Prepare Defendant's Wife For Her Testimony

We recount the Supreme Court's recitation of the facts of the case to lend context to defendant's arguments and the PCR court's findings:

The prosecution of defendant arose from an incident in which he used a heavy-duty construction boot to stomp on the head of the prostrated Kevin McGuire, killing him. At trial, the State presented the following facts leading up to McGuire's death.

On March 25, 2002, an unsettled drug transaction prompted an altercation involving Kathleen Lewis, McGuire, and a group of juvenile drug dealers. During that dispute, McGuire was punched in the face. When the juveniles fled, Lewis used her car to chase them. Her boyfriend, McGuire, was in the passenger seat. During the chase Lewis lost control and crashed her vehicle into the storefront of Wilder's shoe store in Paterson. Enraged by the damage, Wilder rushed from his store, yelling and cursing, and stopped Lewis from leaving the accident scene before police could arrive.

Wilder then directed the brunt of his anger towards McGuire. Witnesses heard Wilder and co-defendant Nasheem Benjamin talking about McGuire, saying that they were going to "f*** him up" after the police left. Once a police officer had come and gone from the accident scene, Benjamin chased McGuire to a nearby street and punched him in the face. The single blow knocked McGuire to the ground between two vehicles parked on the street.

McGuire was attempting to get up, using his hands and arms to push himself off the pavement, when Wilder ran up to him. While McGuire's head was inches above the ground, Wilder raised his knee and drove his foot down on the temple portion of McGuire's head. Wilder was wearing heavy-duty construction boots. The direct downward force of the blow slammed McGuire's skull into the street pavement. A loud smacking noise could be heard as McGuire's head struck the pavement. Blood appeared to flow from every orifice of Wilder's head -- his nose, mouth, and ears. Even his eyes appeared to discharge blood and to roll up into the back of his head.

Appearing to be shocked by Wilder's act, Benjamin attempted to help McGuire to his feet. Wilder, however, shouted at Benjamin to "leave him there; [he's] still breathing." Nevertheless, Benjamin remained with McGuire after Wilder left and attempted aid while an ambulance was called for assistance. McGuire somehow remained conscious after the accident, but he continued to bleed, could not recall what happened to him, and had difficulty standing or attempting to walk. Emergency medical technicians immobilized McGuire and transported him to a hospital where he died hours later.

Autopsy evidence revealed that McGuire died from the blow to his temple, which fractured his skull and led to brain herniation. The blow fractured a temporal bone as well as the petrous bone, described as the thickest in the human skull. The force of the blow caused a fracture, four-and-one-half inches in length, which extended into the base of McGuire's skull.

On June 16, 2004, Wilder was tried for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. The State produced testimony from Shanica Mosley, Tyshon Adams, Montel Mosley, and other eyewitnesses. Shanica Mosley observed the entire incident involving Benjamin, Wilder, and McGuire and described it as set forth herein. She also heard Wilder tell a shocked Benjamin to "leave him there; [he's] still breathing" after Wilder stomped on McGuire's head. And, she testified to watching Wilder leave the area after McGuire began to bleed and to observing Benjamin try to aid McGuire. Tyshon Adams corroborated most of Shanica's testimony. Montel Mosley saw Wilder quickly walk away from the scene and heard someone in the crowd say that Wilder stomped McGuire "in his face."

In addition to the eyewitness testimony directly implicating Wilder in McGuire's injuries, the prosecution's medical expert testified that McGuire's death resulted from injuries sustained from Wilder's stomp or kick to McGuire's temple area. The medical expert further opined that McGuire's wounds were consistent with a stomp to the head, rather than an accelerated fall.

[Wilder, supra, 193 N.J. at 403-05.]

The PCR court first addressed defendant's argument that trial counsel was ineffective in failing to call a potentially exculpatory witness, James Davis, on the basis that Davis had identified another individual, Bucky Jones, as the perpetrator. After referring to the standard set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed 2d 674, 698 (1984), Judge Reddin concluded:

As to [d]efendant's first and second arguments, being denied effective assistance of counsel and being deprived his constitutional right to present a defense, [d]efendant argues that trial counsel's failure to investigate James Davis' alleged identification of Bucky Jones as "the guy," amounted to ineffective assistance of counsel. However, [d]efendant only provides some assertions that James Davis identified Bucky Jones from a photo array as being "the guy."

James Davis was a frequent drug user. As shown in a Police Report dated March 26, 2002, Mr. Davis was arrested, during an undercover operation in a "drug area," because he had a home made crack pipe on his person. Therefore, Mr. Davis' testimony would have lacked credibility and his prior drug use would have been attacked by the prosecution. Additionally, the potential testimony of Mr. Davis may have undermined the testimony of more credible witnesses, such as Della McCall and Vera Ames. Therefore, it was imperative for trial counsel to avoid Mr. Davis' potentially damaging testimony.

Furthermore, our [c]ourts have stated that when a defendant accepts representation by counsel, that counsel has the authority to make the necessary decisions as to trial strategy and the management of the case. State v. Pratts, 145 N.J. Super. 79, 89 (App. Div. 1975). This [c]ourt opines that refusing to call Mr. Davis as a witness was a sound strategic decision, and one which was for trial counsel to make.

Moreover as the State sets forth in its brief, seventeen witnesses who were on the street the night Kevin McGuire was killed testified at this trial. Some of which were police officers, and in more than 1000 pages of transcript, neither the name of "James Davis" nor "Buck[]y Jones" was mentioned. In accord with these facts, this [c]ourt finds it extremely dubious that the testimony of James Davis would have altered the outcome of the trial, as required under Strickland.

Additionally, we note the absence of any affidavit from Davis that would support defendant's contention that, if called, Davis would have provided exculpatory testimony. When claiming that trial counsel inadequately investigated the case, a defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial. We agree with the PCR court that defendant failed to make such showing.

On the next claim, Judge Reddin determined that defendant's allegations that trial counsel failed to keep him apprised of the status of his case, failed to adequately review discovery with him, and failed to advise him of his right to testify, were "consistently contradicted" by the record. The judge reviewed the trial transcript and noted the following exchanges between defendant, trial counsel, and the court:

[Defense Counsel]: Mr. Wilder, have you and I discussed the matters regarding this trial and this case?

[Mr. Wilder]: Yes.

[Defense Counsel]: Okay. And have we discussed the possibility of you testifying on your own behalf?

[Mr. Wilder]: Yes, we have.

[Defense Counsel]: And . . . how long have we discussed that possibility?

[Mr. Wilder]: In great length. A couple of days, maybe, we have been talking about it.

[Defense Counsel]: And you and I have had an opportunity to go through the discovery together?

[Mr. Wilder]: Yes.

[Defense Counsel]: Okay. And what is your decision as to whether or not you wish to testify at your trial?

[Mr. Wilder]: I wish not to testify at my trial.

. . .

[The Court]: And you understand that this is your personal decision, not [defense counsel's] decision?

[Mr. Wilder]: Yes . . . I understand.

The PCR court similarly found Della Wilder's claims that counsel had failed to properly prepare her for her testimony belied by the trial record.

We have carefully considered the record and discern no reason to disturb the PCR court's decision. We therefore affirm substantially for the reasons set forth in Judge Reddin's cogent oral and written opinions. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 52, 67 (1987) (adopting the Strickland standard in New Jersey). We are satisfied that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test. As a result, there was no basis to hold an evidentiary hearing on his claims. See State v. Preciose, 129 N.J. 451, 462-63 (1992).