Opinion
DOCKET NO. A-0201-10T4
02-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT HILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the briefs). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief). Appellant filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-218.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the briefs).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).
Appellant filed pro se supplemental briefs. PER CURIAM
Defendant Robert Hill appeals from the April 8, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Sometime between 10:00 p.m. on May 17, 2002 and 2:00 a.m. on May 18, 2002, defendant killed his fiancée, Gwendolyn Boyd, by strangling her with a bungee cord. Defendant's cousin, Michael Scott, attempted to help defendant dispose of Boyd's body.
On February 8, 2005, defendant and Scott were indicted by an Ocean County grand jury and charged with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one), and first-degree murder, N.J.S.A. 2C:11-3a (1), (2) (count two). Scott agreed to plead guilty and testify against defendant.
Following a jury trial, defendant was convicted of both counts. At sentencing, the judge merged count one and count two and sentenced defendant to life, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Hill, No. A-4536-05 (App. Div. July 28, 2008). The Supreme Court denied defendant's petition for certification on October 31, 2008. State v. Hill, 196 N.J. 601 (2008).
Defendant filed a pro se PCR petition on December 19, 2008, followed by an amended petition on October 22, 2009, after he was assigned counsel. During oral argument on March 3, 2010, the first PCR judge summarized defendant's claims: (1) there was a conflict of interest between the court and the prosecutor; (2) the racial and sexual composition of the jury was unfair; (3) trial counsel was ineffective for (a) informing the jury that he advised defendant not to testify; (b) failing to retain a forensic expert; (c) failing to move for a mistrial after an investigator violated a sequestration order by speaking with Michael Scott; (d) failing to move to dismiss the indictment; (e) failing to strike three jurors; and (f) failing to call numerous defense witnesses. Defendant also claimed he was denied effective assistance of appellate counsel.
In an oral decision, the first PCR judge found that the record did not support defendant's claims. The court also found that even when the alleged errors were considered in the aggregate, defendant failed to show that his attorney's performance was deficient or that he was prejudiced by his attorney's conduct. The PCR judge also rejected defendant's claim that his appellate counsel was ineffective.
The judge reserved decision as to defendant's claim that his attorney was ineffective for refusing to dismiss certain jurors for cause. In a written decision on April 8, 2010, the judge concluded there was no merit to defendant's claim that his attorney was ineffective during jury selection.
After defendant filed a notice of appeal from the April 8, 2010 order, he moved to supplement the record with two certifications claiming that some jurors may have seen that he was shackled during the trial and that Michael Scott wore prison garb and was also shackled when he testified. We denied the motion to supplement the record but entered an order for a limited remand to allow the PCR judge to consider the certifications.
On remand, a different judge conducted a hearing where defendant and the two prosecutors who tried the case testified. The second PCR judge filed a written memorandum containing extensive and detailed findings of facts.
The judge rejected defendant's claim that he was wearing leg shackles during trial as not believable. The judge credited the testimony and certifications of both prosecutors who recalled that defendant was not wearing leg irons during trial. The judge also noted both of defendant's trial counsel submitted certifications and neither could remember him wearing leg shackles. Defendant testified that he had two different suits to wear for trial with a variety of shirts and ties. The trial record indicates that when some of defendant's civilian clothes were missing, the trial judge ordered the warden to investigate the matter. Given the "great lengths" that defendant's counsel and the trial court went to protect his rights, the second PCR judge found defendant's claim that he appeared in court wearing leg shackles to be "incredulous."
The judge also rejected defendant's claim, raised for the first time at the PCR hearing, that a juror tapped him on the shoulder and spoke to him as the juror was leaving the courtroom and another time when defendant was reading the Bible. The judge found this testimony not credible, noting that defendant never disclosed the juror contacts to his trial counsel; could not remember what was discussed; and did not recall these contacts until December 14, 2011, almost six years after the trial.
As to defendant's claim that Michael Scott testified at trial wearing prison apparel, the judge found that defendant's counsel's failure to object to Scott's dress was a tactical decision intended to have the jury "consider this incarcerated witnesses' testimony in an unfavorable manner." The judge noted that, while State v. Artwell, 177 N.J. 526 (2003), prohibited defense witnesses from appearing at trial in prison garb, Scott was called by the State. The judge also noted that trial took place in January 2006, prior to our decision in State v. Russell, 384 N.J. Super. 586 (App. Div. 2006), where we held that a witness can never testify in prison garb. The judge concluded that there was no reliable evidence that defendant was prejudiced by Scott appearing in prison clothing.
The PCR judge referenced but did not discuss the Supreme Court's decisions in State v. Kuchera, 198 N.J. 482 (2009), which rejected the holding in Russell, and State v. Dock, 205 N.J. 237 (2011), holding that Artwell could not be given full retroactive effect.
On appeal, defendant raises the following points for our consideration:
POINT I
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PRECLUDING HIM FROM BEING PHYSICALLY PRESENT AT SIDEBAR CONFERENCES DURING JURY VOIR DIRE.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE VARIOUS STATEMENTS TAKEN FROM THE DEFENDANT BY THE POLICE SINCE THEY WERE OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA.
POINT III
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY BEING FORCED TO PROCEED WITH AN UNDESIRABLE JURY WHEN THE COURT REFUSED TO
DISMISS VARIOUS JURORS FOR CAUSE, THEREBY REQUIRING THE DEFENSE TO UTILIZE AND EXHAUST ALL PEREMPTORY CHALLENGES.
POINT IV
THE TRIAL COURT ERRED BY PRECLUDING THE DEFENSE FROM ELICITING TESTIMONY REGARDING THE RESULTS OF A VOICE STRESS ANALYZER TEST ADMINISTERED TO THE DEFENDANT BY THE POLICE.
POINT V
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In addition, defendant presented the following points in a supplemental pro se brief:
POINT IConflict of Interest
PROSECUTOR WHO CREATED A CONFLICT OF INTEREST AND PARTOOK IN CUMULATIVE MISCONDUCT (INCLUDING THE VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, DESTRUCTION OF EXCULPATORY EVIDENCE, VIOLATION OF SEQ[UE]STRATION, AND TAMPERING WITH A WITNESS) DEPRIVED THE DEFENDANT-APPELLANT OF HIS RIGHT TO A FAIR TRIAL.
POINT II
BIAS AND ABUSE OF DISCRETION CAUSED BY A CONSIDERABLE CONFLICT OF INTEREST RESULTED IN AN AGGREGATE OF PLAIN ERROR, RENDERING A REVERSAL OF CONVICTION.
POINT III
BECAUSE THE JURY WAS CHARGED WITH AN AMBUSH CATCH-ALL THEORY BY THE JUDGE AND ALLOWED TO DELIBERATE BEFORE BEING FULLY CHARGED, THE
GUILTY VERDICT WAS INEVITABLE, AND THUS MUST BE REVERSED.
POINT IV
THE PROSECUTOR'S OPENING REMARK THAT THE JUDGE HAD "TALKED ABOUT THE FACT THAT [THE APPELLANT] CONSPIRED . . ." WAS IMPROPER AND LED THE JURY TO BELIEVE THE COURT HAD CONSIDERED THE CONSPIRACY A FACT.
POINT V
THE DEFENDANT-APPELLANT WAS SUBJECTED TO EXTENSIVE UNDUE PREJUDICE RESULTING FROM THE INTRODUCTION OF EXCESSIVE INADMISSIBLE OTHER-CONDUCT EVIDENCE THAT SHOULD NOT HAVE BEEN ADMITTED PRIOR TO COFIELD/MARRERO TESTS, AND IF ADMITTED SHOULD HAVE BEEN SANITIZED AND FOLLOWED BY MANDATORY LIMITED-USE INSTRUCTIONS TO PREVENT THE JURY FROM CONVICTING DUE TO THE APPELLANT BEING A "BAD PERSON."
POINT VI
APPELLATE COUNSEL'S POINT REGARDING SIDE BAR PRESENCE DURING JURY SELECTION MUST BE SUPPLEMENTED TO INCLUDE THE JUDGE'S FRANK ADMITTANCE.
POINT VII
THE APPELLANT WAS PREJUDICED BY VARIOUS MISCELLANEOUS ISSUES.
POINT VIII
THE CUMULATIVE IMPACT OF THE ISSUES RAISED IN APPELLATE COUNSEL'S BRIEF AND HEREIN CAUSED AN UNFAIR OUTCOME.
Defendant argues that the first PCR judge erred in deciding that the conflict of interest claim was procedurally barred and, in the alternative, that it was without merit. On direct appeal, defendant claimed that he was denied a fair trial because of a "special relationship" between the trial judge and one of the assistant prosecutors who tried his case. The trial judge served as County Prosecutor before his appointment to the bench and hired the trial prosecutor during that time. Defendant also noted that after the trial ended, both the judge and the trial prosecutor began working for the same law firm. We rejected these claims, finding that they lacked sufficient merit to warrant discussion in a written opinion.
Defendant raised the same conflict of interest claim in his PCR petition and urges that this issue is not precluded because our decision on his direct appeal was not an adjudication on the merits. We disagree.
"Post-conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an opportunity to relitigate cases already decided on the merits." State v. Preciose, 129 N.J. 451, 459 (1992). We agree with the PCR judge that the claim raised in defendant's PCR petition "is identical, or substantially similar to the issue raised on direct appeal." As such, it is procedurally barred. Id. at 476.
Ineffective Assistance Claims
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Defendant claims his trial counsel was ineffective when he told the jury on summation that he advised defendant not to testify:
[COUNSEL]: We have chosen not to put Mr. Hill on the stand. That's the beauty of our system. Mr. Hill has the right not to testify, or to testify if he so desires. And the [trial judge] will charge you in a couple of minutes that you cannot draw any adverse inference from the fact that Mr.From this standard and rather typical method of explaining to a jury why a defendant does not testify at trial, defendant argues that "[t]he only conclusion that the jury could draw from defense counsel's statement is that defense counsel had knowledge that Mr. Hill was guilty and that is why he advised him not to testify." This argument is entirely speculative and it is just as likely that counsel made these remarks as part of his trial strategy. The strong presumption that these remarks might be considered sound trial strategy has not been overcome. See Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697 ("Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.").
Hill did not testify. You can't do that. That's his right. Those are the rules. One of the hardest things, and I have been doing this for 23 years, the hardest thing that you can do as a defense attorney is to advise somebody whether to take the stand or not take the stand.
[The State's objection is sustained.]
[COUNSEL]; In this case, members of the jury, I advised Mr. Hill - -
[The State objects again.]
Defendant next argues that his trial counsel was ineffective for failing to retain a forensic expert to analyze a ripped rubber glove found at the scene, to determine if the bungee cord used to strangle Boyd caused the glove to tear. He claims that such an analysis "would have established that co-defendant Scott committed the murder."
When a defendant accuses an attorney of rendering ineffective assistance, "[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. Consequently, to satisfy the two-prong Strickland test, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As to the second prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In fact, defendant's counsel called several witnesses at trial, including two forensic experts. Philip Beesley, an employee of the New Jersey State Police Office of Forensic Science (OFS), testified as an expert in the field of biological stain analysis, and Joseph Petersack, a forensic scientist, also employed by OFS, testified that DNA samples of defendant and Scott were compared with swabs from the bungee cord and the gloves. Both witnesses provided testimony that was helpful to defendant and enabled his counsel to argue to the jury that Scott, not defendant, had killed Boyd. Defendant's claim that reasonable doubt would have been created in the minds of the jurors if another forensic expert been retained is purely speculative and finds no support in the record.
Defendant also argues that he was entitled to an evidentiary hearing on his petition. The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. Because defendant failed to present a prima facie case of ineffective assistance of counsel or conflict of interest, an evidentiary hearing was not required. Ibid.
We find defendant's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION