STATE OF NEW JERSEY VS. WALTER TOWNSEND (02-01-0137, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2272-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER TOWNSEND,

Defendant-Appellant.
____________________________

Submitted October 23, 2018 – Decided November 26, 2018

Before Judges Geiger and Firko.

On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 02-01-0137.

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

Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Laura C. Sunyak, Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
 Defendant Walter Townsend appeals a December 6, 2017 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

We incorporate by reference the procedural history and facts set forth by

the Supreme Court in its opinion reversing the Appellate Division and

reinstating defendant's conviction and sentence on direct appeal. State v.

Townsend, 186 N.J. 473, 480-85 (2006).

On December 11, 1981, defendant lived with his girlfriend, Norma

Williams, and her two sons, seven-year-old Jason and three-year-old Brian.1

That evening, defendant entered the home and told the
two boys to go upstairs. The boys did so but stopped
on the staircase and watched as defendant repeatedly
struck their mother with a two-by-four with exposed
nails until she became motionless. Defendant then
picked her up and called the boys to accompany him to
the hospital.

[Id. at 480.]

At the hospital, a police officer briefly questioned Williams about the

assault. After she told the officer that she was struck by a car, she lost

consciousness. Several hours later, a detective questioned her again. When

1
Jason is Norma's son by another father. Brian is the son of Norma and
defendant.
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asked if defendant had hit her, Williams shook her head from side-to-side

indicating "no." She also shook her head "no" when asked if a truck had struck

her. When asked about the car, she nodded "yes." Williams died soon thereafter.

That night, Jason gave conflicting statements to the police about the

incident. Initially, he told police that his mother had been hit by a red truck and

"three men got out of the truck and beat her with sticks before leaving." Id. at

480-81. Later, Jason repeated his story about the red truck, but then said he did

not see the three men beat his mother. Id. at 481. After Williams died, defendant

and the boys were taken to the police station where Jason gave another statement

in which he accused defendant of fighting with his mother and striking her wit h

a board. Ibid. Jason told the officers that defendant ordered him to tell the story

about the red truck and the three men. Id. at 481-82. After waiving his Miranda

rights,2 defendant denied influencing Jason's statement and stated he never

threatened him. Defendant provided a vastly different version of events that

placed him in a corner bar at the time of the assault upon Williams. Id. at 482.

Mercer County Medical Examiner Dr. Raafat Ahmad performed an

autopsy on Williams's body and listed the manner of death as "undetermined."

2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Id. at 484. The police completed their investigation without filing any charges

against defendant. Id. at 482.

In 2001, Jason and Brian contacted the Mercer County Prosecutor's Office

and requested that the case be reopened. Id. at 483. In August 2001, the

prosecutor reopened the investigation. Ibid. Additional witnesses were

interviewed and gave statements. Ibid. When Dr. Ahmad reviewed the autopsy

results again in May 2002, she concluded that Williams's injuries were more

consistent with having been beaten to death than having been hit by a vehicle.

Id. at 484.

On August 10, 2001, Brian gave a formal statement providing his version

of the incident. He stated he observed defendant repeatedly strike his mother

with a board containing exposed nails while she was on the couch.

On January 30, 2002, a Mercer County grand jury indicted defendant for

first-degree murder, N.J.S.A. 2C:11-3(a)(2). A nine-day jury trial commenced

in October 2002. Defendant did not testify at trial. The jury found defendant

guilty of murder. The trial court imposed an extended sentence of "thirty years

to life imprisonment" with five years of parole supervision.

In his direct appeal to this court, defendant argued that the admission of

Williams's dying declaration did not justify the State's use of expert testimony

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on battered women and battered woman's syndrome. He further argued that the

State's twenty-year delay in prosecuting him violated his due process rights. We

concluded that the State's delay did not offend due process, but reversed his

conviction, holding the admission of the victim's dying declaration did not

justify permitting expert testimony on battered women and battered woman's

syndrome (BWS), and finding the failure to provide a jury instruction on the

limited purpose for which the State could use such expert testimony was plain

error. State v. Townsend, 374 N.J. Super. 25, 57 (App. Div. 2005).

The Supreme Court affirmed in part and reversed in part, ruling the trial

court properly admitted expert testimony concerning the common characteristics

of battered women and BWS, and the failure of the trial court to give a limiting

instruction on the use of the expert's testimony was harmless error. Townsend,

186 N.J. 473. The Court further held the twenty-year delay between the date of

the crime and the date defendant was indicted did not violate defendant's due

process rights. The Court remanded the case to the trial court to reinstate the

judgment of conviction and to correct the sentence.3 Id. at 500.

3
Resentencing was required because the sentence of thirty years to life
imprisonment was unlawful. Id. at 485 n.2. When the crime was committed in
1981, "the version of N.J.S.A. 2C:43-7 in effect provided that the extended-term

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 Defendant appealed after the resentencing, and subsequently filed for

PCR. The trial court dismissed the PCR petition without prejudice because of

the pending sentencing appeal. We affirmed the judgment on an Excessive

Sentence Oral Argument (ESOA) calendar on October 27, 2008, but remanded

for recalculation of gap-time credits and for modification of defendant's fines.

On January 9, 2009, defendant reinstated his PCR petition. He was

appointed PCR counsel. Through counsel, defendant argued ineffective

assistance of trial counsel because: (1) trial counsel failed to zealously

investigate the claims made by Brian and Jason Williams; (2) trial counsel failed

to call an expert witness to rebut the testimony of the State's medical examiner;

and (3) trial counsel failed to raise the issue of the court's failure to give the jury

limiting instructions on the proper use of expert testimony elicited at trial with

respect to the characteristics shared by battered women and women suffering

from battered woman's syndrome.

In his pro se petition, defendant raised the following additional points:

I. THE INADEQUATE REPRESENTATION THAT
PETITIONER RECEIVED AT TRIAL FELL BELOW
AN OBJECTIVE REASONABLE STANDARD,
THUS VIOLATING HIS RIGHT TO EFFECTIVE

sentence for a conviction of murder was a specific term of years between thirty
years and life imprisonment." Ibid.

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ASSISTANCE OF COUNSEL UNDER THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS.

A. Trial counsel's failure to investigate whether
the owner of Al's auto body shop (Tony
Leopardi) was responsible for the death of Ms.
Norma Williams (victim), served to deny
defendant effective assistance of counsel.

B. Trial counsel's failure to obtain a copy of Ms.
Norma Williams['s] statement made to the
Trenton Police Department prior to her death,
regarding the break-in at Al's auto body shop,
served to deny defendant effective assistance of
counsel.

C. Trial counsel's failure to investigate Ms.
Norma Williams "Dying Declaration" i.e., that a
red car had hit her, served to deny defendant
effective assistance of counsel.

D. Trial counsel was ineffective in his assistance
through his failure to thoroughly pursue and
present the D.N.A. evidence that were taken from
Ms. Norma Williams['s] finger nails.

E. An evidentiary hearing is required w[h]ere the
defendant asserts a Prima Facie case involving
facts which are not part of the record.

II. Trial counsel was ineffective for failing to suppress
the arrest warrant, as it was obtain[ed] in violation of
defendant's Fourth Amendment right.

III. This court should grant the defendant a new trial
based on the newly discovered evidence.

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 IV. Trial counsel failed to explain all factor[s] of the
Trial case, and also available legal action options that
were available to this defendant during trial, to the
point necessary so that this defendant could have made
a[n] informed decision(s).

V. Grand Jury Indictment(s) were Insuf[f]icient
Indictments. Mr. Brian Williams and also Mr. Jason
Williams both gave knowing and willing false
statements to the Trenton Homicide Unit, Cold Case
Squad Detective Mr. Albert DiNatale, for a wrongful
purpose to gain financial benefits from their mother Ms.
Norma Williams['s] death, by way of insurance funds.

[VI.] Grand Jury Indictments were based upon the fruit
of this poisonous tree.

[VII.] Brian Williams later confessed this defendant[']s
innocence in a letter to this defendant. Brian Williams
also claimed, that, "he (Brian Williams) did not see this
defendant kill his mother Ms. Norma Williams."

On October 7, 2011, the PCR judge issued a written opinion addressing

the arguments raised in PCR counsel's brief. The court found defendant failed

to state a prima facie case for ineffective assistance of counsel and issued an

order denying defendant's petition without an evidentiary hearing. Defendant

appealed, raising the following claims:

I. PCR COUNSEL VIOLATED RULE 3:22-6(d)
DURING HIS REPRESENTATION OF
[DEFENDANT].

A. PCR Counsel Failed to Meaningfully
Communicate with [Defendant].

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 B. PCR Counsel Failed to Investigate and
Evaluate [Defendant's] Claims.

(1) PCR Counsel Failed to Investigate
[Defendant's] Claim for a New Trial Based
on Newly Discovered Evidence.

(2) Other Claims PCR Counsel Failed to
Investigate.

C. PCR Counsel Failed to List and/or Incorporate
by Reference [Defendant's] Pro Se Claims.

II. THE PCR COURT ABUSED ITS DISCRETION
BY DENYING [DEFENDANT'S] REQUEST FOR AN
EVIDENTIARY HEARING.

A. [Defendant] Established a Prima Facie Case
of Ineffective Assistance of Trial Counsel for
Failure to Call an Expert Witness to Rebut the
State's Medical Examiner.

B. [Defendant] established a Prima Facie Case
of Ineffective Assistance of Trial Counsel for
Failure to Investigate the Motives of the
Prosecution's Only Eyewitnesses.

C. [Defendant] Established a Prima Facie Case
of Ineffective Assistance of Trial Counsel for
Failure to Request a Limiting Jury Instruction
Regarding BWS, Past-Acts Testimony and
Dying Declaration Testimony.

The appellate panel affirmed the PCR court's denial of the points the PCR

court addressed, but remanded those issues raised by defendant in his pro se

PCR brief that were left unaddressed. State v. Townsend, No. A-4830-11 (App.

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9
Div. July 16, 2015). Specifically, the panel remanded two issues: (1) whether

initial PCR counsel failed to investigate defendant's claim for a new trial based

on newly discovered evidence, which consisted of an alleged recantation letter

from a trial witness; and (2) whether trial counsel's performance was deficient

by: (a) failing to call an expert witness to rebut the State's medical examiner; (b)

failing to investigate the motives of the prosecution's only eyewitnesses; and (c)

trial counsel's failure to request a limiting jury instruction regarding BWS, past

acts testimony, and dying declaration testimony.

The alleged recantation letter by trial witness Brian Williams is dated July

22, 2003. In pertinent part, the version submitted by defendant states: "I did

not see you kill my mother, I told Jason. He said he already knew." Brian

Williams denies he made this statement, asserting defendant altered the letter by

inserting those two sentences.

On remand, the PCR court issued a comprehensive written opinion

denying defendant's petition without an evidentiary hearing. This appeal

followed. Defendant was appointed appellate counsel.

In this appeal, defendant argues:

THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE THE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF INITIAL PCR COUNSEL'S

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 INEFFECTIVENESS FOR FAILING TO MOVE FOR
A NEW TRIAL BASED ON NEWLY DISCOVERED
EVIDENCE; IN THE ALTERNATIVE, THIS
MATTER MUST BE REMANDED FOR THE PCR
COURT TO ASSESS THE RECANTER'S
CREDIBILITY. (PARTIALLY RAISED BELOW)

A defendant is entitled to effective and competent assistance of counsel

when counsel is appointed for a PCR petitioner. State v. McIlhenny, 333 N.J.

Super. 85, 87 (App. Div. 2000). To be effective:

PCR counsel must communicate with the client,
investigate the claims urged by the client, and
determine whether there are additional claims that
should be brought forward. Thereafter, counsel should
advance all of the legitimate arguments that the record
will support. If after investigation counsel can
formulate no fair legal argument in support of a
particular legal claim raised by defendant, no argument
need be made on that point. Stated differently, the brief
must advance the arguments that can be made in
support of the petition and include defendant's
remaining claims, either by listing them or
incorporating them by reference so that the judge may
consider them.

[State v. Webster, 187 N.J. 254, 257 (2006).]

The current version of Rule 3:22-6(d) requires PCR counsel to "advance

all of the legitimate arguments requested by the defendant that the record will

support." The rule further provides: "If defendant insists upon the assertion of

any grounds for relief that counsel deems to be without merit, counsel shall list

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such claims in the petition or amended petition or incorporate them by reference.

Pro se briefs can also be submitted." R. 3:22-6(d). "To meet this mandate, PCR

trial counsel must 'communicate with his client and investigate the claims' and

'then must fashion the most effective arguments possible.'" State v. Hicks, 411

N.J. Super. 370, 375 (App. Div. 2010) (quoting State v. Rue, 175 N.J. 1, 18-19

(2002)).

The remedy for PCR counsel's failure to meet the requirements imposed

by Rule 3:22-6(d) is a new PCR proceeding. Hicks, 411 N.J. Super. at 376

(citing Rue, 175 N.J. at 4). "This relief is not predicated upon a finding of

ineffective assistance of counsel" under Strickland v. Washington, 466 U.S. 668

(1984). Ibid. Rather, "Rule 3:22-6(d) imposes an independent standard of

professional conduct upon an attorney representing a defendant in a PCR

proceeding." Ibid.

The record reveals PCR counsel raised, briefed and argued the grounds

asserted by defendant, including the demand for a new trial based on newly

discovered evidence. As noted by the appellate panel, PCR counsel met the

requirements imposed by Rue, Webster, and Rule 3:22-6(d):

As to Point I, with the exception of the claims in
subparagraph B that PCR counsel failed to investigate
defendant's claims including newly discovered
evidence, we affirm substantially for the reasons stated

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by the PCR court. Defendant's claim that his PCR
counsel failed to communicate with him and failed to
present all the points that he requested be argued before
the trial court lack merit, and are not supported by the
record.

At the outset, we agree with the trial court that
PCR counsel was aware of his obligation under State v.
Rue, 175 N.J. 1 (2002), Webster, 187 N.J. at 257, and
Rule 3:22-6(d). He attempted to present claims which
enjoyed record support, and he incorporated
defendant's pro se claims by reference. Moreover, PCR
counsel acknowledged that defendant prepared a
thorough submission, and did nothing to disparage any
of the pro se arguments. See Rue, 175 N.J. at 4.
Though PCR counsel may choose to stand on his or her
brief at the PCR hearing, and is not required to further
engage in expository argument, id. at 19, counsel "[is
not] empowered to denigrate or dismiss the client's
claims, to negatively evaluate them, or to render aid and
support to the [S]tate's opposition. That kind of
conduct contravenes our PCR rule." Ibid. Indeed,
counsel did none of those things. Rather, at oral
argument counsel expounded on one of defendant's
claims, arguing that the filing of the Williams sons'
civil lawsuit against the Trenton Police department,
asserting improper investigation of their mother's
death, lent credibility to defendant's alternative defense
theory and claim of innocence. We conclude from the
foregoing that PCR counsel appropriately presented
defendant's claims for the trial court's consideration.

We also find that the trial court properly rejected
defendant's claim asserting a lack of communication.
Counsel asserted that he met with defendant three times
to discuss the case, the evidence, and the claims to be
raised in the petition. Although defendant later wrote
to counsel expressing displeasure with those meetings

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 specifically, and with counsel's representation
generally, defendant acknowledged to the court that
two or three meetings occurred, and that all the points
he wanted to raise were submitted between counsel's
brief and his own.

Based on the foregoing, we conclude the court
did not abuse its discretion in finding that defendant
failed to satisfy the first Strickland prong, that PCR
counsel's performance was deficient, on these two
matters. Preciose, 129 N.J. at 463. Therefore, no
evidentiary hearing was warranted.

[Townsend II, (slip op. at 18-20).]

While the panel remanded the issue of newly discovered evidence to the

trial court, it did so because the PCR court did not make specific findings as

required by Rule 1:7-4(a), and state its conclusions of law as required by Rule

3:22-11. Id. at 20. On remand, the PCR court engaged in a substantive analysis

of the purported newly discovered recantation evidence.

For claims that evidence is newly discovered and sufficient to warrant a

new trial, courts apply the following well-established standard:

[T]o qualify as newly discovered evidence entitling a
party to a new trial, the 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.
[State v. Carter, 85 N.J. 300, 314 (1981).]

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 "Material evidence is any evidence that would have some bearing on the

claims being advanced," and includes evidence which supports a general denial

of guilt. Ways, 180 N.J. 188 (citations omitted). "Moreover '[d]etermining

whether evidence is merely cumulative, or impeaching, or contradictory'

necessarily implicates prong three, 'whether the evidence is of the sort that

would probably change the jury's verdict if a new trial were granted.'" State v.

Nash, 212 N.J. 518, 549 (2013) (quoting State v. Ways, 180 N.J. 171, 188-89

(2004)). Furthermore, "evidence that would have the probable effect of raising

a reasonable doubt as to the defendant's guilt would not be considered merely

cumulative, impeaching, or contradictory." Ways, 180 N.J. at 189 (citation

omitted). Accordingly, "evidence [which] would shake the very foundation of

the State's case and almost certainly alter the earlier jury verdict" could not be

categorized as "merely cumulative." Ibid. "[U]nder the Carter analysis, prongs

one and three are inextricably intertwined." Nash, 212 N.J. at 549.

"Prong two requires that 'the new evidence must have been discovered

after completion of trial and must not have been discoverable earlier through the

exercise of reasonable diligence.'" Id. at 550 (quoting Ways, 180 N.J. at 192).

"The defense must 'act with reasonable dispatch in searching for evidence before

the start of trial.'" Ibid. (quoting Ways, 180 N.J. at 192). "[E]vidence clearly

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capable of altering the outcome of a verdict that could have been discovered by

reasonable diligence at the time of trial would almost certainly point to

ineffective assistance of counsel." Ibid. (alteration in original) (quoting Ways,

180 N.J. at 192).

The Supreme Court has cautioned such evidence "must be reviewed with

a certain degree of circumspection to ensure that it is not the product of

fabrication, and, if credible and material, is of sufficient weight that it would

probably alter the outcome of the verdict in a new trial." Ways, 180 N.J. at 187-

88.

The test to be applied by the trial court when evaluating an alleged

recantation upon a motion for a new trial is:

whether it casts serious doubt upon the truth of the
testimony given at the trial and whether, if believable,
the factual recital of the recantation so seriously
impugns the entire trial evidence as to give rise to the
conclusion that there resulted a possible miscarriage of
justice. His first duty is, therefore, to determine whether
the recanting statement is believable.

[State v. Carter, 69 N.J. 420, 427 (1976) (citing State v.
Puchalski, 45 N.J. 97, 107-108 (1965))].

"Courts generally regard recantation testimony as suspect and

untrustworthy," especially in cases of a post-trial recantation by a witness who

testified for the State at trial. Ibid. (citation omitted). "Consequently, the burden

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of proof rests on those presenting such testimony to establish that it is probably

true and the trial testimony probably false." Ibid. (citations omitted).

Defendant argues on appeal that he established a prima facie case of initial

PCR counsel's ineffective assistance for failing to move for a new trial based on

newly discovered evidence, and was therefore entitled to an evidentiary hearing.

Defendant asserts the Brian Williams' alleged recantation letter constituted

newly discovered evidence sufficient to warrant the grant of a new trial.

The PCR court accepted the supposed recantation letter as "newly

discovered," in light of a showing from defendant that he reached out to several

attorneys, as early as 2003, to look at the letter. However, the court found the

recantation letter failed as new evidence under the third Carter prong, because

significant and credible other evidence demonstrated petitioner's guilt. The PCR

judge noted the following, overwhelming evidence of defendant's guilt:

Jason was the primary eyewitness and testified to Brian
witnessing the beating as well; a neighbor testified to
hearing the victim scream for her life inside the house
and another neighbor saw petitioner ram his truck into
his fence, suggesting an attempt to stage the scene; one
of the victim's childhood friends testified petitioner
himself confessed his guilt to her a month and a half
after victim's death; after the victim had died, an officer
overheard petitioner telling Jason not to say anything to
the police; and finally, petitioner has given at least three
different accounts of how Norma Williams died. First,
when interviewed by police immediately after Norma's

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 death in 1981, petitioner told police a red truck hit her.
Second, as mentioned above, petitioner told a
childhood friend of Norma's that he was responsible.
Third, in 1996 petitioner told Norma's son Freddie that
Brian, who was three at the time of Norma's death, ran
over her with a truck. Furthermore, petitioner's first
story that a red truck hit Norma was neither supported
by the state of the crime scene nor Norma's injuries. In
light of this myriad other evidence, the [c]ourt cannot
find that the newly-discovered evidence would likely
change the jury's verdict if a new trial were granted.

Additionally, the PCR judge found the letter could not be viewed as

reliable recantation evidence because the declarant, Brian Williams, adamantly

denied making the recantation and consistently reaffirmed his trial testimony

that he witnessed defendant kill his mother throughout his lengthy deposition.

During his deposition in 2006, Brian testified in response to a question regarding

the alleged recantation letter: "This is a letter which was altered. This was the

letter the prosecutors presented to me when [petitioner] slipped in a sentence

and changed my handwriting. This is not the original letter." As the PCR judge

noted: "everything in [Brian's] deposition indicates he truly holds petitioner

responsible for the death of his mother, and nothing suggests he was motived by

financial gain."

Finally, the PCR judge explained:

where there are two different versions of the same
letter, it stands to reason at least one of them must have

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 been altered. This [c]ourt notes it is significantly easier
to add to a handwritten document than it is to take
something out without leaving clear signs of tampering.
There does not appear to be any such indications of
tampering on the letter Brian claims to have written,
which lacks the exculpatory line. . . . [T]he newly
discovered evidence lacks credibility and would be
unlikely to change the outcome of the trial.

The record amply supports the PCR judge's conclusion that the purported

recantation is not the sort of evidence which would probably alter the outcome

of a new trial, because it is inherently suspect, the declarant denies he recanted

his trial testimony, and there is overwhelming evidence of defendant's guilt

which is unaddressed by the letter.

A defendant is only entitled to an evidentiary hearing when a prima facie

case in support of post-conviction relief is established, the court determines

there are material issues of disputed fact that cannot be resolved by reference to

the existing record, and a determination that an evidentiary hearing is necessary

to resolve the claims for relief. Rule 3:22-10(b). A prima facie case is

established when defendant demonstrates a reasonable likelihood that his or her

claim, viewing the facts alleged in the light most favorable to the defendant, will

ultimately succeed on the merits. Ibid.

Defendant did not demonstrate ineffective assistance of PCR counsel or

establish a prima facie case for PCR based on the purported newly discovered

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recantation evidence. Accordingly, he was not entitled to an evidentiary

hearing, R. 3:22-10(b), and his petition was properly denied by the PCR court.

Affirmed.

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