Opinion
Civil Action No. 98-4039 (NHP).
August 26, 1999
Mr. Charles Swain, East Jersey State Prison, Lock Bag "R", Rahway, NJ, Plaintiff Pro Se.
Debra G. Lynch, Assistant Prosecutor, Director of Appellate Section, OFFICE OF ESSEX COUNTY PROSECUTOR, Essex County Courts Bldg., Newark, NJ, Anne C. Paskow, Assistant Attorney General, JOHN J. FARMER, ATTORNEY GENERAL STATE OF NEW JERSEY, Division of Criminal Justice, Trenton, NJ, Attorneys for Defendants.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on the petition of Charles Swain to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter was resolved without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons outlined herein, the petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 is DENIED.
STATEMENT OF PROCEDURAL HISTORY
Petitioner, Charles Swain (hereinafter "petitioner"), and two co-defendants were charged by an Essex County Grand Jury on April 1, 1982, under Indictment Number 3202-81 and Number 3203-81 with two separate robbery-murders. Under Indictment Number 3202-81, petitioner was charged with conspiracy to commit robbery, murder, first degree robbery, third degree aggravated assault, unlawful possession of a weapon, possession of a weapon fro an unlawful purpose, and hindering apprehension, which occurred at the Toast of the Town Tavern in Orange on March 24, 1982. Petitioner was also charged under Indictment Number 3203-81 with conspiracy to commit robbery, murder, armed robbery, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose, which occurred at Eley's Lounge in Newark on February 27, 1982.Petitioner was tried before Judge Julius A. Feinberg, J.S.C., and a jury on November 5, 1982, concerning the Toast of the Tavern incident (Indictment Number 3202-81). Petitioner was found guilty of murder and armed robbery as charged. On December 1, 1982, petitioner was sentenced to life imprisonment for the murder and to consecutive terms of five and ten years for aggravated assault and second degree possession of a weapon for an unlawful purpose. The conviction for armed robbery and the conviction for third degree possession of a weapon without a permit were merged and concurrent terms were imposed on the remaining convictions for conspiracy, hindering and third degree unlawful possession of a weapon. In addition, an aggregate mandatory minimum of 32 1/2 years was imposed.
On February 24, 1983, petitioner was tried before Judge Feinberg on the Eley Tavern incident (Indictment Number 3203-81). Subsequently, petitioner was convicted for murder and the lesser included offense of second degree robbery. On April 6, 1983, petition received a life sentence for murder with a mandatory minimum of 25 years, to be served consecutively to the life sentence impose under Indictment number 3202-81. Petitioner also received concurrent terms of five and ten years for third degree possession of a prohibited weapon and second degree possession of a weapon for an unlawful purpose. In addition, the convictions for conspiracy, second degree robbery and third degree unlawful possession of a weapon were vacated and merged. The Appellate Division in a single opinion decided on May 19, 1986, affirmed both sets of convictions. On October 6, 1986 certification was denied and on May 5, 1988, a federal petition for a writ of habeas corpus was denied. Following, petitioner sought post conviction relief in the New Jersey Superior Court, Law Division, but was denied on June 15, 1993. This appeal follows.
STATEMENT OF FACTS
Indictment 3202-81
On March 24, 1982, Andrew Saporito, owner of Toast of the Town Tavern in Orange was murdered in his establishment during a robbery planned by petitioner. Prior to the incident, petitioner learned from employees of a beverage company which serviced the tavern that large amounts of cash were kept on the premises. Petitioner and his co-defendant Charles Norton questioned a driver for the beverage company about cash payments made for deliveries.
On March 24, 1982, petitioner remained outside as the getaway driver while co-defendants Leon Singletary and Charles Norton, both armed, entered the Toast of the Town. While inside the establishment, Norton and Singletary demanded money from Andrew Saporito and his wife Eunice. After the cash register was emptied, there was an exchange of gunfire. Mrs. Saporito was struck in the arm, Mr. Saporito was shot three times in the chest and Norton was also wounded. Subsequently, both Andrew Saporito and Charles Norton died as a result of there wounds.
Following the robbery, petitioner borrowed a car and took Norton to the hospital. Petitioner told Norton's girlfriend that he and Norton were robbed and that Norton was shot during the robbery. Petitioner was taken into custody on April 23, 1982, and gave a written statement describing his role in the homicide.
Indictment Number 3202-81
On February 27, 1982, petitioner and co-defendants Leon Singletary and Charles Norton, along with an unidentified co-conspirator, held up Eley's Lounge in Newark. The robbery and the results followed the same pattern as the one which occurred at the Toast of the Town. Singletary and Norton, both armed, entered Eley's Lounge while petitioner waited outside in the getaway car. As the bartender, Antonio Lopez, attempted to trip the alarm, Norton shot and killed him. After taking approximately $1500 from Wilbur Eley, the owner of the bar, the petitioner, Singletary and Norton fled.
LEGAL DISCUSSION Petitioner did not receive an unfair trial in violation of the Due Process Clause of the Fifth Amendment
Petitioner argues that he received an unfair trial in violation of the Due Process Clause of the Fifth Amendment resulting from errors committed by the trial court during the course of his trial. In his petition, petitioner asserts the following claims with respect to his contention that he was denied a fair trial:
I Defendant has established by a preponderance credible evidence in the trial of Essex County Indictment No. 3202-81 trial court's supplementary jury instruction that elements of statutory affirmative defense to felony murder prosecution under N.J.S.A. 2C:11-3(a)-(d) must be satisfied beyond a reasonable doubt violated his right to due process of law under the Fourteenth Amendment of the United States Constitution.
II Defendant was denied fair trial as the result of prejudicial testimony relating to other crimes in violation of his constitutional right under Sixth and Fourteenth Amendments.
A. On Indictment Number 3202-81 (murder of Andrew Saporito) other crimes were introduced through prosecutorial misconduct in violation of Evidence Rule 55.
A. On Indictment Number 3203-81 (murder of Antonio Lopez) other crimes were introduced by specific reference to defendant's unrelated arrest and lack of proper instruction to the jury as to limited purpose of testimony relating to the recovery of the.32 caliber handgun.
III Defendant's consecutive sentences and lack of merger for possession of weapons for unlawful purpose are illegal and a violation of due process of law (U.S. Const. amend XIV).
IV The evidence used to convict defendant as principal in aggravated assault was insufficient as a matter of law.
V The trial judge's instruction on possession of a weapon without a permit violated defendant's federal and state constitutional rights to due process.
The Constitution guarantees a fair trial through the Due process Clause of the Fifth and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). The Supreme Court of the United States in Lisenba v. California, held:
[a]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such a quality as necessarily prevents a fair trial. Lisenba v. California, 314 U.S. 219, 236 (1941).
In the instant case, even if we were to assume that the trial court committed error in reaching its decisions, the alleged errors do not rise to the extraordinary level of "fundamental unfairness" as articulated by the Supreme Court.
First, petitioner claims that he is entitled to a reversal of his felony murder conviction based on an alleged error in the trial judge's charge on the affirmative defense to felony murder. Petitioner, however, failed to demonstrate any error in the charge. Petitioner complains that the trial judge shifted the burden of proof to him by providing the jury with improper instructions. Thus, petitioner argues that this error constitutes plain and prejudicial error in violation of petitioner's due process rights under the Fourteenth Amendment.
Due process, however, is not violated by requiring the defendant to bear the burden of proof with regard to the felony murder affirmative defense. See State v. Sette, 259 N.J. Super. 156, 182 (App.Div. 1992), citing Humanik v. Beyer, 871 F.2d 432, 443 (3rd Cir.), cert denied, 493 U.S. 812 (1989). The jury charge accurately instructed the jury to consider all of the evidence, including that which the petitioner produced by in connection with the State's duty to prove every element of the offense. The judge further instructed the jury that evidence of an affirmative defense must be disproved by the State beyond a reasonable doubt and that the jury must "consider all the evidence" in deciding if the State has met its burden to prove guilt. Thus, these additional instructions adequately conveyed the controlling law. See id. at 184-85. It follows that the affirmative defense to felony murder was therefore not viable and should not have been available to petitioner. Accordingly, any error in charging the defense can only be deemed harmless. See United States v. Hastings, 461 U.S. 499 (1983).
Second, petitioner asserts that the admission of other crime evidence violated his constitutional rights. Petitioner contends that the prosecutor acted improperly when he brought to the jury's attention the fact that petitioner was arrested on other charges. "The improper admission of evidence however does not raise federal constitutional issue cognizable in a federalhabeas corpus proceeding. . . . Federal courts may not promulgate rules of evidence for state courts under the guise of preserving due process." United states ex rel Saunders v. Myers, 276 F.2d 790, 791 (3rd Cir 1960).
Third, petitioner contends that his convictions for various weapons offenses under both indictments should have merged with the convictions for felony murder. However, the Appellate Division in its opinion on petitioner's appeal from the denial of post-conviction relief, granted petitioner this claim. That court specifically stated, "the conviction for possession of a weapon for an unlawful purpose on Indictment No. 3202-81 is merged into the murder conviction and the consecutive sentence imposed on the possession of a weapon for an unlawful purpose conviction is vacated." New Jersey v. Charles Swain, ___ N.J. Super. 1, 5-6 (App.Div. 1996).
Fourth, petitioner disputes the sufficiency of the evidence underlying his conviction for the aggravated assault of Mrs. Saparito. Specifically, petitioner contends that he was improperly convicted of aggravated assault based on an accomplice liability theory to felony murder. "A claim that evidence is insufficient to support a conviction as a matter of due process depends on `whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'." Wright v. West, 505 U.S. 277, 284 (1992) (quoting, Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis on original). During trial, however, the jury was presented with all the necessary evidence to determine petitioner's guilt or innocence. Furthermore, the jury was informed that petitioner may be found guilty of an offense if he assisted, supported, or supplemented the efforts of another. Regardless, the credibility of the State's witnesses is entrusted to the jury for determination of petitioner's claim. See United States v. Rockwell, 781 F.2d 985, 990 (3rd Cir. 1986) (quoting, Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 35 (1944)).
Finally, petitioner claims that the trial judge erred by failing to correctly charge the jury that the absence of a permit is an element of the offense defined under N.J.S.A. 2C:39-5(b). This assertion is made with respect to Count 5 of Indictment Number 3202-81 and Count 4 of Indictment Number 3202-81. Petitioner was not sentenced on either of his convictions for carrying a weapon with a permit. At the time of sentencing, both convictions were vacated and merged, therefore, eliminating any prejudice by virtue of the judge's charge.
CONCLUSION
For all the foregoing reasons, petitioner's request for relief pursuant to 28 U.S.C. § 2255 is DENIED.
An appropriate Order accompanies this Letter Opinion.
There is no probable cause for appeal.