NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1990-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN WILSON, a/k/a BRIAN W. WILSON, PAUL MCKNIGHT, and PAULMCKNIGHT,
Defendant-Appellant. ________________________
Submitted November 17, 2021 – Decided December 9, 2021
Before Judges Hoffman, Whipple and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-11-2454.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Cary Shill, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/Acting Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following his 2012 conviction of reckless manslaughter, defendant filed
a pro se petition for post-conviction relief (PCR). The PCR court denied
defendant's petition without an evidentiary hearing. Defendant now contends
that his trial and appellate counsel provided ineffective assistance in violation
of his Sixth Amendment rights. Defendant bases his claim on trial and appellate
counsel's failure to pursue the trial court's alleged erroneous inclusion of jury
instructions for lesser charges of aggravated manslaughter and reckless
manslaughter, in addition to murder. We affirm.
I.
Having already considered and affirmed defendant's conviction and
sentence, we recite the facts as summarized in State v. Wilson, No. A-5607-12
(App. Div. June 25, 2015) (slip op.) (Wilson II). In 1984, defendant and William
Parker lived in New York City. Whenever Parker would visit Atlantic City, he
would stay at his grandmother's house. On occasion, defendant would
accompany Parker to Atlantic City. On August 11, 1984, Parker's cousin,
Derrick Ingram, was shot in the back in Atlantic City and spent over a month in
a hospital recovering from his injuries.
A-1990-18 2 On September 13, 1984, Parker, defendant, and Jeffrey Simpson visited
Ingram in the hospital. Parker was angry that Ingram had been shot and upset
that someone sold his mother narcotics that had made her ill. Ingram testified
that Parker, defendant, and Simpson believed Zebedee Newmones was present
when Ingram was shot and was also responsible for giving Parker's mother the
narcotics.
Ingram testified that the three men discussed killing Newmones. That
night, Richard Barber visited Parker at his grandmother's house. At the time,
Barber was driving a red Renault Alliance, which he had borrowed from his
girlfriend.
Around 3 a.m., Barber, Parker, and Simpson left Parker's grandmother's
house to go to a local bar. Barber drove. On their way to the bar, Parker
observed Newmones walking with Rodney McNair. Parker asked Barber to turn
around and drive back to his grandmother' s apartment. Parker then got on a
bicycle and told Barber and Simpson to meet him at the Lincoln Hotel. At the
hotel, Parker and defendant got into the car and Barber drove back to the area
where they had seen Newmones. Barber parked the car, where he remained in
the car while Parker, defendant, and Simpson walked toward the area where they
had seen Newmones.
A-1990-18 3 Barber recalled defendant saying that he would be "taking care of Zebedee
Newmones." Shortly thereafter, Barber heard approximately five gunshots.
Parker, Simpson, and defendant ran up the street and returned to the car.
Barber testified that defendant was carrying a Smith and Wesson .38
caliber gun under his clothing. The three men told Barber to drive. As they
drove away, defendant said, "I got him, I unloaded the gun on him . . . . [I] shot
him in the face." Parker added, [T]hat's good, that was for my cousin[.]"
Pamela Lamb testified that, during the early morning hours of September
14, 1984, she observed Newmones, McNair, and Michael Bailey outside a bar
at the corner of Arctic and Kentucky Avenues. Lamb knew Newmones because
he was the father of her sister's children. Lamb testified that she gave
Newmones two cigarettes and she went back inside the bar. Moments later, she
heard a commotion out on the street and left the bar. She followed a crowd
toward Indiana and Arctic where she saw Newmones lying on the ground. Lamb
recalled that Newmones had been shot in the shoulder and it looked like "his
bottom lip was shot off."
At approximately 4 a.m., officers of the Atlantic City Police Department
were traveling in a marked police car in the area of Arctic Avenue when they
were flagged down by McNair, who reported that someone had just been shot.
A-1990-18 4 One police officer ran down toward Indiana Avenue and found Newmones,
bleeding from his mouth and back. Newmones was transported to the hospital,
where he died.
Later that morning, Tracy Vance, Barber's sister, saw defendant bicycling
near her apartment. Defendant approached Vance, asked her to hold a "piece"
for him, and said that he would be "right back to get it." She agreed, and
defendant gave her a large gun. Shortly thereafter, Vance learned that
Newmones had been shot and became concerned that the gun she was holding
might have been used in the shooting. She called Barber for help.
Barber testified that he went to Vance's apartment, where she showed him
the .38 caliber Smith and Wesson in her closet. Barber believed that this was
the same gun that defendant had in the car on the night of the shooting. Barber
took the gun from Vance's home and threw it in the bay.
That same morning, Ingram received a call from Simpson, who told him
that they killed Newmones. That afternoon, Parker and defendant visited Ingram
at the hospital. During this visit, defendant told Ingram that they found
Newmones and that defendant had "shot him in the face" and "tried to blow his
[fucking] head off.''
A-1990-18 5 Timothy Bunch, a friend of Newmones, testified that, after Newmones
was killed, he was playing basketball when defendant pulled up in a car driven
by Parker. Defendant told Bunch he had "shot [Newmones] in the eyes." Bunch
observed defendant carrying a .38 caliber firearm in his waistband.
Although an arrest warrant was initially issued in 1984 for defendant in
the name "Brian Doe," he was not arrested until October 21, 2002, in New York.
A 2004 trial resulted in a hung jury. A second trial resulted in a mistrial. A
third trial in 2006 resulted in a murder conviction. We reversed this conviction
in September 2009 due to discovery violations and the failure of the trial judge
"to instruct the jury as to lesser-included offenses." State v. Wilson, No. A-
4588-05 (App. Div. September 1, 2009) (slip op.) (Wilson I). In December
2012, after a fourth trial, a jury convicted defendant of reckless manslaughter
but acquitted him of murder and aggravated manslaughter. At defendant's fourth
trial, he testified that he was "probably" in Atlantic City in September of 1984,
but he denied involvement in the shooting.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1990-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN WILSON, a/k/a BRIAN W. WILSON, PAUL MCKNIGHT, and PAULMCKNIGHT,
Defendant-Appellant. ________________________
Submitted November 17, 2021 – Decided December 9, 2021
Before Judges Hoffman, Whipple and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-11-2454.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Cary Shill, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/Acting Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following his 2012 conviction of reckless manslaughter, defendant filed
a pro se petition for post-conviction relief (PCR). The PCR court denied
defendant's petition without an evidentiary hearing. Defendant now contends
that his trial and appellate counsel provided ineffective assistance in violation
of his Sixth Amendment rights. Defendant bases his claim on trial and appellate
counsel's failure to pursue the trial court's alleged erroneous inclusion of jury
instructions for lesser charges of aggravated manslaughter and reckless
manslaughter, in addition to murder. We affirm.
I.
Having already considered and affirmed defendant's conviction and
sentence, we recite the facts as summarized in State v. Wilson, No. A-5607-12
(App. Div. June 25, 2015) (slip op.) (Wilson II). In 1984, defendant and William
Parker lived in New York City. Whenever Parker would visit Atlantic City, he
would stay at his grandmother's house. On occasion, defendant would
accompany Parker to Atlantic City. On August 11, 1984, Parker's cousin,
Derrick Ingram, was shot in the back in Atlantic City and spent over a month in
a hospital recovering from his injuries.
A-1990-18 2 On September 13, 1984, Parker, defendant, and Jeffrey Simpson visited
Ingram in the hospital. Parker was angry that Ingram had been shot and upset
that someone sold his mother narcotics that had made her ill. Ingram testified
that Parker, defendant, and Simpson believed Zebedee Newmones was present
when Ingram was shot and was also responsible for giving Parker's mother the
narcotics.
Ingram testified that the three men discussed killing Newmones. That
night, Richard Barber visited Parker at his grandmother's house. At the time,
Barber was driving a red Renault Alliance, which he had borrowed from his
girlfriend.
Around 3 a.m., Barber, Parker, and Simpson left Parker's grandmother's
house to go to a local bar. Barber drove. On their way to the bar, Parker
observed Newmones walking with Rodney McNair. Parker asked Barber to turn
around and drive back to his grandmother' s apartment. Parker then got on a
bicycle and told Barber and Simpson to meet him at the Lincoln Hotel. At the
hotel, Parker and defendant got into the car and Barber drove back to the area
where they had seen Newmones. Barber parked the car, where he remained in
the car while Parker, defendant, and Simpson walked toward the area where they
had seen Newmones.
A-1990-18 3 Barber recalled defendant saying that he would be "taking care of Zebedee
Newmones." Shortly thereafter, Barber heard approximately five gunshots.
Parker, Simpson, and defendant ran up the street and returned to the car.
Barber testified that defendant was carrying a Smith and Wesson .38
caliber gun under his clothing. The three men told Barber to drive. As they
drove away, defendant said, "I got him, I unloaded the gun on him . . . . [I] shot
him in the face." Parker added, [T]hat's good, that was for my cousin[.]"
Pamela Lamb testified that, during the early morning hours of September
14, 1984, she observed Newmones, McNair, and Michael Bailey outside a bar
at the corner of Arctic and Kentucky Avenues. Lamb knew Newmones because
he was the father of her sister's children. Lamb testified that she gave
Newmones two cigarettes and she went back inside the bar. Moments later, she
heard a commotion out on the street and left the bar. She followed a crowd
toward Indiana and Arctic where she saw Newmones lying on the ground. Lamb
recalled that Newmones had been shot in the shoulder and it looked like "his
bottom lip was shot off."
At approximately 4 a.m., officers of the Atlantic City Police Department
were traveling in a marked police car in the area of Arctic Avenue when they
were flagged down by McNair, who reported that someone had just been shot.
A-1990-18 4 One police officer ran down toward Indiana Avenue and found Newmones,
bleeding from his mouth and back. Newmones was transported to the hospital,
where he died.
Later that morning, Tracy Vance, Barber's sister, saw defendant bicycling
near her apartment. Defendant approached Vance, asked her to hold a "piece"
for him, and said that he would be "right back to get it." She agreed, and
defendant gave her a large gun. Shortly thereafter, Vance learned that
Newmones had been shot and became concerned that the gun she was holding
might have been used in the shooting. She called Barber for help.
Barber testified that he went to Vance's apartment, where she showed him
the .38 caliber Smith and Wesson in her closet. Barber believed that this was
the same gun that defendant had in the car on the night of the shooting. Barber
took the gun from Vance's home and threw it in the bay.
That same morning, Ingram received a call from Simpson, who told him
that they killed Newmones. That afternoon, Parker and defendant visited Ingram
at the hospital. During this visit, defendant told Ingram that they found
Newmones and that defendant had "shot him in the face" and "tried to blow his
[fucking] head off.''
A-1990-18 5 Timothy Bunch, a friend of Newmones, testified that, after Newmones
was killed, he was playing basketball when defendant pulled up in a car driven
by Parker. Defendant told Bunch he had "shot [Newmones] in the eyes." Bunch
observed defendant carrying a .38 caliber firearm in his waistband.
Although an arrest warrant was initially issued in 1984 for defendant in
the name "Brian Doe," he was not arrested until October 21, 2002, in New York.
A 2004 trial resulted in a hung jury. A second trial resulted in a mistrial. A
third trial in 2006 resulted in a murder conviction. We reversed this conviction
in September 2009 due to discovery violations and the failure of the trial judge
"to instruct the jury as to lesser-included offenses." State v. Wilson, No. A-
4588-05 (App. Div. September 1, 2009) (slip op.) (Wilson I). In December
2012, after a fourth trial, a jury convicted defendant of reckless manslaughter
but acquitted him of murder and aggravated manslaughter. At defendant's fourth
trial, he testified that he was "probably" in Atlantic City in September of 1984,
but he denied involvement in the shooting. He also denied speaking to Bunch
about the shooting, visiting Ingram in the hospital, owning or carrying a .38
caliber handgun, or giving a handgun to Vance. On March 1, 2013, the trial
court sentenced defendant to ten years imprisonment. On appeal, we affirmed
defendant's conviction. Wilson II, slip op. at 17.
A-1990-18 6 In May 2016, defendant filed a pro se petition for PCR. In November
2018, Judge Patricia M. Wild denied the petition, after hearing oral argument.
This appeal followed, with defendant raising the following argument:
POINT I
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL AND APPELLATE COUNSELS' INEFFECTIVENESS FOR FAILING TO PURSUE THE ERRONEOUS INCLUSION OF JURY INSTRUCTIONS AS TO LESSER-INCLUDER MANSLAUGHTER CHARGES; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THIS CLAIM.
II.
Defendant contends that his trial and appellate counsel provided
ineffective assistance of counsel by failing to challenge the trial judge's decision
to charge the jury as to the lesser-included charges of aggravated manslaughter
and reckless manslaughter. Defendant asserts that if the jury instructions for the
lesser included offenses had not been given, there was a reasonable probability
that he would have been found not guilty. This argument lacks merit.
PCR is New Jersey's analogue to the federal writ of habeas corpus. State
v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992).
A-1990-18 7 It is the vehicle through which a defendant may, after conviction and sentencing,
challenge a judgment of conviction by raising issues that could not have been
raised on direct appeal. State v. McQuaid, 147 N.J. 464, 482 (1997). Pursuant
to Rule 3:22-2(a), a criminal defendant is entitled to PCR if there was a
"[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution[s] of the United States and . . . the State of New Jersey." A
defendant must establish the denial of such a right by a "preponderance of the
credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden," a
defendant must articulate "specific facts" that "provide the court with an
adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992).
To establish a prima facie case of ineffective assistance of counsel,
defendant must show: (1) counsel's performance was objectively deficient; and
(2) counsel's deficient performance prejudiced defendant to the extent that he
was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the United States Supreme Court's two-prong test from Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Prejudice means "a reasonable
probability" the deficient performance "materially contributed to defendant's
conviction." Ibid.
A-1990-18 8 The first prong of Strickland requires that a petitioner show that counsel's
performance was deficient as measured by an objective standard of
reasonableness. Strickland, 46 U.S. at 687-88. This objective standard is
measured according to a standard of reasonable competence, which does not
mandate "the best of attorneys but certainly not one so ineffective as to make
the idea of a fair trial meaningless." State v. Davis. 116 N.J. 341, 351 (1989).
Moreover, there is a strong presumption that counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at 690. Consequently, a petitioner
must identify specific acts or omissions of counsel that fall outside reasonable
professional judgment. Ibid. The court then decides whether these acts fell
"outside the wide range of professional competent assistance." Ibid.
Complaints of matters relating to trial strategy will not establish a valid
ineffective assistance claim. Fritz, 105 N.J. at 54 (quoting State v. Williams, 39
N.J. 471, 489 (1963)). Mere improvident strategy, mistakes or bad tactics will
not amount to ineffective assistance. State v. Bonet, 132 N.J. Super. 186, 191
(App. Div. 1975). A strategy that does not work, which seems ill -conceived to
a defendant in hindsight, must be examined through the lens of the time it was
undertaken. Strickland, 466 U.S. at 689.
A-1990-18 9 This court uses a deferential standard of review in reviewing a PCR court's
factual findings based on live testimony so long as they are supported by
"sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576
(quoting State v. Nash, 212 N.J. 518, 540 (2013)). However, this court affords
no deference to a PCR court's interpretation of the law and applies a de novo
standard. State v. Harris, 181 N.J. 391, 415-16 (2004). "[F]or mixed questions
of law and fact, [this court] give[s] deference . . . to the supported factual
findings of the trial court, but review[s] de novo the lower court's application of
any legal rules to such factual findings." Ibid. (internal citation omitted).
Trial and appellate counsel did not render constitutionally ineffective
assistance of counsel. Defendant cannot satisfy the either prong of the
Strickland/Fritz test.
Trial counsel's decision to withhold objection to the court's including
instructions for aggravated manslaughter and reckless manslaughter appears
wise, both in-the-moment and in hindsight. Importantly, several witnesses had
testified that defendant admitted killing Newmones before the court instruc ted
the jury. It is thus well within the "wide range of professional competence" to
allow the jury to consider a lesser crime of manslaughter when the state has
presented a strong case for murder. Strickland, 466 U.S. at 690.
A-1990-18 10 The record does not indicate that defendant requested appellate counsel
raise the lesser-included crimes instruction on appeal. Had defendant prevailed
on this issue on appeal, he may have received another new trial. Another new
trial without a jury instruction on the lesser-included crimes of aggravated
manslaughter and reckless manslaughter would have exposed defendant to
liability for murder. Given the numerous witnesses who testified that defendant
admitted to killing Newmones, appellate counsel's decision not to raise the tria l
court's instruction on aggravated manslaughter and reckless manslaughter on
direct appeal was an objectively reasonable exercise of professional judgment.
Defendant's argument that appellate counsel rendered ineffective assistance of
counsel clearly lacks merit.
Nor can defendant satisfy the second prong of the Strickland/Fritz test.
As noted, several witnesses testified that defendant admitted to killing
Newmones by "[shooting] him in the face." Barber testified that defendant
admitted to "unloading the gun on [Newmones]." Tracy Vance testified that
defendant asked her to hide the suspected murder weapon. Timothy Bunch
testified that defendant admitted to "[shooting Newmones] in the eyes." Ingram
testified that he, Parker, and defendant discussed killing Newmones the night
before the shooting.
A-1990-18 11 The conduct of trial counsel (in not objecting to lesser included offenses)
and the conduct of appellate counsel (in not pursuing such a claim on direct
appea1) cannot be viewed as ineffective, as defendant asserts; instead, the record
clearly reflects "strategic choices made after thorough investigation of law and
facts relevant to plausible options," rendering the conduct of trial and appellate
counsel "virtually unchallengeable." Strickland, 466 U.S. at 690-91.
Affirmed.
A-1990-18 12