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N.J.S.A. 2C:11-4(a)(1), a lesser-included offense of knowing or purposeful murder, and second degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3. We affirmed the conviction on defendant's direct appeal. Defendant was ultimately sentenced, as a persistent offender, N.J.S.A. 2C:43-7.2(b), to forty years in prison with twenty years of parole ineligibility. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5071-07T45071-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. KAREEM WILSON, Defendant-Appellant.

Submitted November 18, 2009 - Decided Before Judges Stern and J.N. Harris. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-10-04206. Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Kareem Wilson was convicted of first degree aggravated manslaughter, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3. We affirmed the conviction on defendant's direct appeal. Defendant was ultimately sentenced, as a persistent offender, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997). Would the jury have come to a different result had it known that defendant was a drug dealer with a long criminal record who executed one of his drug sellers in a neighborhood playground because Billups took drugs from defendant and did not pay him? Would a jury have found passion/provocation murder when it learned that defendants had been looking for Billups for a long period of time? The jurors were already aware that defendants ambushed and murdered Billups and none of the eyewitness observed Billups with a gun. Only a toy gun was found tucked in Billups's clothing and he could not have brandished it at defendants. The police observed defendant shoot Billups again while he was lying on the ground and defendant's proffer of additional

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evidence would have done no more than to establish the motive for the cold-blooded killing. [(State v. Rose, No. A-5286-04 (App. Div. June 26, 2008) (slip op. at 20) (emphasis added).] Defendant also asserts that his appellate counsel neglected to argue that the jury had been falsely told that there was no plea agreement between Johnson and the State, thereby denying defendant the effective assistance of counsel. Rose's appellate counsel, in the separate direct appeal, extensively argued the issue of Johnson's supposed plea agreement. It surfaced again in Rose's unsuccessful PCR. On the appeal from the denial of Rose's PCR, we found both versions of the argument unavailing, concluding: We reject defendant's argument he is entitled to a new trial because his right to due process of law was violated when "the jury was falsely told that there was no plea agreement between Aaron J. Johnson and the State." Defendant claims that Johnson was induced to testify for the State by a "secret deal" between the prosecutor and Johnson. Defendant speculates that the prosecutor agreed not to seek an extended term sentence in connection with unrelated drug charges against Johnson, in exchange for Johnson's statement inculpating defendant in the shooting death of Billups. We have carefully reviewed the record and conclude the argument lacks sufficient merit to justify a new trial. [(State v. Rose, No. A-3440-99 (App. Div. July 12, 2002) (slip op. at 14).] *** [B]ased on all the evidence at trial, that an irrefutable demonstration that Johnson was not a credible witness and that he was in fact lying would not have affected the outcome of the trial[.] [(State v. Rose, No. A-5286-04 (App. Div. June 26, 2008) (slip op. at 9).] Moreover, defendant claims an entitlement to an evidentiary hearing to explore, with Johnson's attorney, the alleged true contours of the supposed plea arrangement between Johnson and the State. Lastly, defendant's appellate counsel is criticized for not challenging the trial judge's imposition of an extended term sentence in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000). II. A. Rule 3:20-1 governs motions for a new trial. It provides: The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law. In State v. Carter, 85 N.J. 300, 314 (1981), the Supreme Court established the standard for a new trial based on newly discovered evidence: [T]he new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.

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In State v. Ways, 180 N.J. 171, 188 (2004), the Court articulated the meaning of "material" evidence under the Carter test. In a criminal case, "[m]aterial evidence is any evidence that would `have some bearing on the claims being advanced[]'" by the defense. Ibid. (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)). Any evidence tending to support a defense clearly constitutes "material" evidence, including third-party guilt or a general denial of guilt because it "relates directly to the focal issue at trial." Ibid. Defendant's motion for new trial is bottomed upon newly discovered evidence, based on the availability of Rose because his conviction was affirmed, and his matter became final. Moreover, Rose testified at his own PCR thereby waiving the Fifth Amendment privilege against self-incrimination. See State v. Allen, 398 N.J. Super. 247 (App. Div. 2008); State v. Robinson, 253 N.J. Super. 346 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992). Because the Fifth Amendment would have precluded access to Rose's testimony before the co-defendant's case was disposed, it may appear at first blush that defendant is entitled to an evidentiary hearing. Pursuant to Allen, supra, 398 N.J. Super. at 258-259, an evidentiary hearing was warranted where an affidavit of a witness who did not testify at trial was filed in support of PCR petition alleging newly-discovered evidence. In Robinson, supra, 253 N.J. Super. at 367, we strongly recommended that motion judges "should almost always grant an evidentiary hearing and treat the application most seriously." But here, unlike in Allen and Robinson, the evidence that defendant seeks to adduce under the guise of newly discovered evidence has already been tested in the crucible of an evidentiary hearing----Rose's PCR----and was found to not have any capacity to change the result already achieved. We remain thoroughly unconvinced that defendant's situation is distinguishable from Rose's. We recognize that the proof linking Rose to the murder of Billups was markedly stronger than the evidence that implicated defendant. Nevertheless, by some accounts, there was an indication of an argument between Billups and Rose, Rose left and came back with defendant, and then they ambushed Billups and killed him. This was not a spontaneous, unplanned occurrence. It was an assassination. It took enough time to execute that the police actually witnessed part of the slaughter. None of the witnesses testified that Billups had a gun and no such firearm was on the ground when the police arrived. Defendant and Rose simply shot Billups as he was running and then repeatedly shot him as he was lying on the ground dying. Rose's testimony supported a passion/provocation manslaughter theory neither for him nor for defendant. We recognize that this case does not implicate traditional lesser-included offense issues. Nevertheless, we note that passion/provocation manslaughter is considered a lesser-included offense of murder. State v. Robinson, 136 N.J. 476, 482 (1994). However, unlike aggravated and reckless manslaughter, it is an intentional crime. Id. at 486. Passion/provocation manslaughter is established when "[a] homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." 174 N.J. 44, 85 (2002).

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The crime has four elements: (1) "the provocation must be adequate; [(2)] the defendant must not have had time to cool off between the provocation and the slaying; [(3)] the provocation must have actually impassioned the defendant; and [(4)] the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid. An objective, or reasonableness standard applies to the first two elements; the last two elements are subjective. Id. at 411-12. If the court finds that the first two objective elements may be supported by the evidence, a passion/provocation manslaughter charge should be given, because as a general rule the subjective elements raise questions for the jury. Robinson, supra, 136 N.J. at 491. When determining whether to charge passion/provocation manslaughter, a trial judge must view the evidence in the light most favorable to the defendant. Mauricio, supra, 117 N.J. at 412. Moreover, the court should consider the State's burden to prove the absence of adequate provocation beyond a reasonable doubt. Ibid. "[I]n determining whether a manslaughter charge should have been given, courts must look at the inferences that can be properly drawn from the proofs contained in the record. '[T]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.'" State v. Hammond, 338 N.J. Super. 330, 337 (App. Div.) (quoting State v. Powell, 84 N.J. 305, 314 (1980)), certif. denied, 169 N.J. 609 (2001). "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." 172 N.J. 374, 396 (2002). It follows that a defendant is entitled to "a charge on all lesser-included offenses that are supported by the evidence." Ibid. (quoting State v. Short, 131 N.J. 47, 53 (1993). "That said, 'sheer speculation does not constitute a rational basis.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Brent, 137 N.J. 107, 118 (1994)). Here, the record fails to support defendant's request for a new trial that would include a passion/provocation manslaughter charge. Viewing the evidence in the light most favorable to defendant, the alleged prior relationship between Rose and Billups and the events that immediately preceded the crime were not so severe that they would cause an ordinary person to lose control and commit an intentional homicide. See Mauricio, supra, 117 N.J. at 412 (stating the question of reasonableness is whether the loss of self-control in response to the provocation is a reasonable reaction). To the extent that defendant implies that the dispute between Rose and Billups constituted reciprocal combat, warranting a passion/provocation manslaughter charge, this argument is equally unavailing. Generally, for mutual combat to reduce a murder charge to manslaughter, "the contest must be waged on equal terms." State v. Viera, 346 N.J. Super. 198, 215-16 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). Here Rose and defendant possessed weapons and Billups was unarmed. See State v. Crisantos, 102 N.J. 265, 274-75 (1986). Under the lens of Carter and its progeny, we are unable to conclude that even if defendant had Rose's testimony available to him it would not have made a material difference in the jury's verdict. We say this without irony and without applying

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the diluting effect of our observation in Robinson, that a co-defendant, who had already been sentenced, "had nothing to lose by exonerating [the defendant,] and his testimony is therefore 'inherently suspect.'" Id. at 367 (internal quotations and citation omitted). B. In a PCR, to succeed on an ineffective assistance of counsel claim, defendant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland approach has been adopted by the New Jersey Supreme Court and is fully operational in this state. State v. Fritz, 105 N.J. 42 (1987). The first prong of the Strickland standard requires defendant to demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether counsel's conduct fell below an objective standard of reasonableness. Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant challenging counsel's performance must overcome a strong presumption that counsel exercised "reasonable professional judgment." Id. at 690, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. This deference requires that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ibid. The second prong of the Strickland test requires defendant to show that the deficient performance was prejudicial to the extent that defendant was deprived of a fair proceeding. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Unless a defendant makes both showings under Strickland, a finding of ineffective assistance of counsel cannot be made. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant contends that appellate counsel committed error when counsel failed to "argue[] that the jurors were wrongly told that no plea agreement had been made between Aaron Johnson and [the] State" in the direct appeal brief. Whether this omission was deficient within the meaning of Strickland is debatable. Even if it was, the omission is not so significant that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Had the weaknesses in Johnson's testimony been raised on appeal through the argument that it was tainted by the supposed plea arrangement, we would nonetheless have concluded, as we did in Rose's direct appeal and PCR, that "an irrefutable demonstration that Johnson was not a credible witness and that he was in fact lying would not have affected the outcome of the trial." There is no

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probability that but for the omission of the illusory plea deal argument on the direct appeal, the result of the proceeding would have been different. An evidentiary hearing is wholly unnecessary under these circumstances and would be an exercise in futility. Simply stated, defendant failed to establish a prima facie claim of ineffective assistance of trial or appellate counsel. As for defendant's other claims of ineffective assistance of appellate counsel, we find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We further affirm substantially for the reasons expressed by Judge Lester in her written opinion of March 26, 2008. Affirmed. State v. Wilson, No. A-3897-99 (App. Div. July 12, 2002), certif. denied, 175 N.J. 76 (2002). State v. Rose, No. A-3440-99 (App. Div. July 12, 2002), certif. denied, 175 N.J. 76 (2002). State v. Rose, No. A-5286-04 (App. Div. June 26, 2008), certif. denied, 197 N.J. 13 (2008). (continued) (continued) 2 A-5071-07T4 December 22, 2009 0x01 graphic

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