Opinion
DOCKET NO. A-3157-13T4
04-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWARD MCDONALD, Defendant-Appellant.
Joseph A. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jonathan Carrillo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-10-1460. Joseph A. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jonathan Carrillo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from an October 10, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
This case arises out of a "home invasion during which a family of four . . . were bound with duct tape and stabbed to death." State v. McDonald, A-0747-08 (App. Div. May 13, 2011) (slip op. at 2). The victims lived in the first-floor apartment of a two-story, two-family house located at Oakland Avenue in Jersey City. On January 13, 2005, relatives went to the first floor apartment and knocked on the door, after they had been unable to contact the family by telephone. Receiving no response, the relatives contacted the police at midnight. Police secured entry to the apartment and discovered the four dead bodies. Both the front and rear doors of the apartment were locked with a dead-bolt, with no signs of forced entry. However, the police found closet doors and drawers open.
After discovering the bodies, the police knocked on the locked door of the second-floor apartment. Receiving no response, the police kicked in the door, where
they found defendant, his girlfriend, [S.T], and three young children, who all lived there. Defendant was "very calm" as the police questioned him and [S.T.], both of whom said they had not heard or seen anything unusual. Cavanaugh described defendant's demeanor as "just surprisingly not excited about us kicking in his door," never inquiring why the police had kicked in his door in the early morning hours or what had happened downstairs.
[Id. at 5.]
Additional police investigation in the following weeks determined that the victims' Bank of America ATM card had been used in transactions or attempted transactions twenty-one times between January 12, 2005, and March 3, 2005, resulting in total withdrawals of $2907. Video surveillance photographs at a Bank of America drive-through near Oakland Avenue showed that the driver of a 1990 Buick LeSabre used Hossam's ATM card on January 12, 2005, at 8:45 a.m. Motor vehicle registration records indicated that defendant's mother owned a 1990 Buick LeSabre. Additionally, the images of the individual seen on the bank transaction videos were consistent with photographs of defendant.
On the morning of March 3, 2005, the police stopped defendant on the street and he agreed to accompany them for additional questioning. Defendant was transported to FBI headquarters in Newark, where the police read defendant his Miranda rights at 9:35 a.m., and he agreed to waive them. We set forth in detail the relevant facts and circumstances of the interview in our earlier opinion:
Defendant initially was interviewed by Detectives Kenneth Kolich and Jeffrey
Marsella. When asked about the ATM transactions, defendant first said he knew nothing about them. But when confronted with a video photograph that showed his mother's car at the bank drive-throughs, defendant admitted that he had used [the] ATM card. He claimed that, several days prior to the murders, he had intercepted the [victims'] mail and found the card, and that he had a friend who hacked into the bank's computer and obtained the pin number.
However, after being shown additional bank photographs of the car and an individual using the card after the murders, defendant gave yet another account, telling police that his friend Hamilton Sanchez had given him the card. He further explained that on Tuesday, January 11, 2005, he had arranged with Sanchez that he would unlock the front door at 7:30 or 8:00 p.m. and return upstairs so that Sanchez could rob the [victims]; that Sanchez called him later that night and told him where to meet the next morning so Sanchez could give him the pin number; and that defendant's job was to withdraw as much money as possible from the ATM machines.
That interview, which was not recorded, continued until 3:00 p.m., when detectives took a formal audio and videotaped statement wherein defendant reiterated what he had told police that morning. The day of the murders, he went to work and met Sanchez at lunchtime, when Sanchez told defendant he intended to rob the family that night. As planned, defendant went home and, at 6:00 p.m., unlocked the front door, checking it again at 7:30 p.m. Although defendant did not know the exact time Sanchez entered the apartment, Sanchez called him later that night and they arranged to meet the next morning. When they met at 8:30 a.m. on January 12, 2005, Sanchez handed defendant "a card and a pin number" and said "use
this." Defendant was to give some of the money to Sanchez and keep some.
Because Kolich "was not totally convinced [defendant] was telling the truth," he arranged for defendant to be interviewed by special agent Edward Holloman of the Federal Bureau of Investigation, who "ha[d] a lot of experience interviewing people." That interview lasted a couple of hours and, in accordance with FBI policy, it was not recorded and Hollomon took no notes.
Defendant told Holloman that he had assisted Sanchez in robbing the [victims] because defendant owed money to a loan shark. Defendant initially claimed that he left when the robbery "went bad" . . . .
When Hollomon expressed disbelief, defendant eventually admitted killing [one of the victims] after she had loosened her blindfold because he was afraid she would recognize him. He also admitting killing [another victim] by stabbing him in the neck with a knife from the apartment, but denied torturing him. Defendant also said he had a handgun that was secreted in a dryer at his residence.
Kolich observed Holloman's unrecorded interview of defendant from another room. At 8:30 that evening, the detectives took a second videotaped statement from defendant . . . .
. . . .
Contradicting his [prior] statement . . . defendant now told the detectives that Sanchez killed . . . three people. Defendant said he took a small knife from the house and, after the killings, went upstairs to his home and went to bed. He had "[a] little bit" of blood on his clothes and threw them and the knife into the
garbage at his grandmother's house. He told his girlfriend he had robbed a store. Sanchez kept a hundred dollars that they found in Hossam's pocket and defendant kept the ATM card.
On March 3, 2005, the police also searched the apartment defendant had moved into . . . in Jersey City. There, inside the control panel of the clothes dryer, they found a [nine] millimeter semi-automatic pistol with one bullet in the chamber, a sock with nine bullets inside, and a black knit cap. The magazine area of the gun was empty and its serial number was scratched out.
[Id. at 7-11 (fourth, fifth, and sixth alterations in original).]
On March 20, 2008, after eleven days of trial and eleven days of deliberations, the jury found defendant guilty of three counts of felony murder (burglary), N.J.S.A. 2c:11-3a(3); four counts of felony murder (robbery), N.J.S.A. 2c:11-3a(3); three counts of armed robbery, N.J.S.A. 2C:15-1; one count of armed burglary, N.J.S.A. 2C:18-2; four counts of possession of a handgun for unlawful purpose, N.J.S.A. 2C:39-4a; one count of possession of a handgun without permit, N.J.S.A. 2C:39-5b; four counts of possession of a knife under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5d; one count of attempted theft by deception, N.J.S.A. 2C:5-1, 2C:20-4; one count of theft by deception, N.J.S.A. 2C:20-4; and one count of wrongful impersonation, N.J.S.A. 2C:21-17a(1). The jury acquitted defendant on three counts of murder and lesser included offenses, N.J.S.A. 2C:11-3a(1) and (2), and three counts of possession of a knife for unlawful purposes, N.J.S.A. 2C:39-4d. The jury hung on one count of felony murder (robbery), N.J.S.A. 2c:11-3a(3); one count of armed robbery, N.J.S.A. 2C:15-1; one count of murder and lesser included offenses, N.J.S.A. 2C:11-3a(1) and (2); and one count of possession of a knife for unlawful purposes, N.J.S.A. 2C:39-4d.
Defendant waived a jury trial as to the charge of certain persons not to have a weapon, and the trial court found defendant guilty of that offense. On June 16, 2008, the court sentenced defendant to an aggregate sentence of four consecutive life sentences, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed and we affirmed the convictions and sentences imposed. McDonald, supra, slip op. at 41. Thereafter, defendant filed a petition for certification with our Supreme Court. The Court denied the petition. State v. McDonald, 208 N.J. 372 (2011).
On December 5, 2012, defendant filed a pro se petition for PCR, arguing, in pertinent part, that his trial counsel provided ineffective assistance of counsel by failing to object to the testimony of interviewing detectives who allegedly destroyed their interview notes. On October 10, 2013, Judge Frederick J. Theemling, Jr., issued an order and written opinion denying the petition without holding an evidentiary hearing. Judge Theemling determined that defendant had not established a prima facie case in support of PCR, and therefore an evidentiary hearing was not required. Specifically, the judge found that defendant's argument rested on new precedent that did not apply retroactively to defendant's trial.
Defendant raises the following point on appeal:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT REQUESTING AN ADVERSE-INFERENCE CHARGE DUE TO THE STATE'S PREJUDICIAL DISCOVERY VIOLATION.
After carefully considering defendant's contention, we conclude that his argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Theemling in his cogent written opinion. We add the following comments.
To establish a claim of ineffective assistance of counsel a defendant must show, first, "'that counsel's performance was deficient[,]'" and, second, that "'the deficient performance prejudiced the defense'" such that "there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98 (1984)). "[O]nce a defendant presents a prima facie claim, an evidentiary hearing should ordinarily be granted to resolve any ineffective assistance of counsel claims." State v. Porter, 216 N.J. 343, 354 (2013) (citation omitted).
To establish a prima facie claim, a defendant must "must allege specific facts and evidence supporting his [or her] allegations." Id. at 355. The PCR court may dispense with an evidentiary hearing if, in the court's discretion, it finds that "holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to [PCR], or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
In State v. W.B., 205 N.J. 588, 608-09 (2011), our Supreme Court held that the pre-indictment destruction of police interview notes may entitle a defendant to an adverse inference charge. However, the Court deferred application of this new rule, providing that it would only have prospective effect beginning thirty days from the Court's opinion. Ibid. Then, in State v. Dabas, 215 N.J. 114, 138 (2013), the Court reiterated that "the note-retention requirement would apply prospectively to pre-indictment cases beginning after the thirty-day grace period[,]" and did not retroactively apply to govern a preexisting case.
Prior to W.B., our Supreme Court indicated disapproval of the common police practice of destroying interview notes, but never found such destruction constituted a discovery violation. See, e.g., State v. Cook, 179 N.J. 533, 542 n.3 (2004); State v. Branch, 182 N.J. 338, 367 n.10 (2005). Court rules prohibited post-indictment destruction of evidence, but not the pre-indictment destruction of interview notes. R. 3:13-3(b); see Dabas, supra, 215 N.J. at 138 ("Cook, Branch, and W.B. addressed a problem not covered by Rule 3:13-3(b) and (c) — the retention of notes until indictment when the prosecutor's obligation of disclosure becomes mandatory and self-executing.").
Here, defendant alleges that police destroyed notes from his March 3, 2005 interview prior to his indictment. Even assuming that his allegations are true, defendant's trial predated the new rule established in W.B., supra, 205 N.J. at 608-09. W.B. clearly lacks retroactive effect. Ibid. Accordingly, defendant's allegations fail to establish that his trial counsel's performance was deficient.
Defendant contends that the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462 (1992). Therefore, Judge Theemling correctly dismissed defendant's PCR petition without holding an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).