Opinion
DOCKET NO. A-2177-13T1
01-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EARIC BILLUE, Defendant-Appellant.
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-01-0009. Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Earic Billue appeals from an October 4, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In connection with the shooting death of Jermaine Glasco, in 2004 defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to thirty-years imprisonment with an eighty-five-percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, plus a concurrent ten-year term for the weapons conviction. On defendant's direct appeal, we affirmed his conviction but remanded to require merger of the weapons possession conviction with the aggravated manslaughter conviction, and for resentencing. State v. Billue, No. A-4087-04 (App. Div. Oct. 5, 2006) (slip op. at 3), certif. denied, 189 N.J. 430 (2007).
In order to place the appellate issues in context, our opinion on direct appeal addressed the trial evidence in great detail. That discussion need not be repeated here. To summarize, the State presented evidence that on January 3, 2001, defendant and Glasco left a Camden bar and had a conversation about "a fair one," following which defendant fired gunshots and Glasco fell to the ground. One of the State's witnesses saw defendant flee, and then saw a white car run over the victim lying in the street. The witness recognized defendant as a bartender at the Camden bar, whom he had observed through the window. The witness also made an in-court identification of defendant.
Defendant's automobile was seized pursuant to a search warrant, and blood matching the victim was recovered from the A-frame splash guard of the front passenger tire. The State's coroner opined the cause of death was multiple gunshot wounds. Glasco's clothes were extremely torn and battered, and laced with bullet holes. However, Glasco's injuries unrelated to the shooting were extensive, and most likely occurred while the victim was either dead or dying.
On his direct appeal, defendant raised the following issues:
POINT I
THE TRIAL COURT'S FAILURE TO CLARIFY THE JURY'S REQUEST TO SEE EVIDENCE FROM THE AUTOPSY SHOWING WHERE THE BULLETS ENTERED AND EXITED THE VICTIM'S BODY WAS HIGHLY PREJUDICIAL, DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
POINT II
THE JUDGE'S RESPONSE TO THE JURY'S INQUIRY, WHICH ASKED WHY IT HAD RECEIVED INSTRUCTIONS ON THE LESSER-INCLUDED OFFENSES TO MURDER, IMPROPERLY SUGGESTED THAT HE BELIEVED THAT THERE WAS EVIDENCE TO CONVICT DEFENDANT OF MANSLAUGHTER, IN GROSS VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT III
THE ADMISSION OF A GRUESOME PHOTOGRAPH OF THE DECEDENT DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PAR. 9, 10.
POINT IV
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED INTO THE CONVICTION FOR AGGRAVATED MANSLAUGHTER. (Not Raised Below).
POINT V
THE IMPOSITION OF THE MAXIMUM TERM, 85% TO BE SERVED WITHOUT PAROLE, IS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT IMPROPERLY FOUND AND GAVE UNDUE WEIGHT TO THE AGGRAVATING FACTORS.
POINT VI
THE SENTENCE MUST BE REMANDED FOR RESENTENCING.
Defendant also filed a separate pro se brief, raising the following additional issues:
POINT I
DEFENDANT WAS DENIED HIS RIGHT TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION, TOGETHER WITH ARTICLE 1, PARAGRAPH 8, ARTICLE 1, PARAGRAPH 9, AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY STATE CONSTITUTION, BASED UPON THE TRIAL COURT ERRONEOUSLY FAILING TO CHARGE THE JURY WITH RESPECT TO THE STATE'S BURDEN OF PROOF CONCERNING N.E.R.A., AN ESSENTIAL ELEMENT OF THE OFFENSE.
POINT II
DEFENDANT WAS DENIED HIS RIGHT TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION, TOGETHER WITH ARTICLE 1, PARAGRAPH 8, ARTICLE 1, PARAGRAPH
9, AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY STATE CONSTITUTION, BASED UPON THE TRIAL COURT ERRONEOUSLY FAILING TO CHARGE THE JURY WITH RESPECT TO THE STATE'S BURDEN OF PROOF CONCERNING THE GRAVES ACT, AS AN ESSENTIAL ELEMENT OF THE OFFENSE.
In our 2006 opinion, we considered defendant's arguments, and with the exception of the sentencing issue mentioned earlier, we were not persuaded by defendant's appellate arguments. Billue, supra, slip op. at 3-4.
On February 28, 2011, defendant filed a pro se petition for PCR, wherein he alleged that he was denied the effective assistance of counsel. Appointed PCR counsel filed a supplemental brief on defendant's behalf, raising a wide array of ineffective assistance of trial counsel arguments. Specifically, defendant claimed that his counsel failed to investigate certain evidence. He also contended that his counsel on the direct appeal had rendered ineffective assistance in failing to raise several issues.
In a thorough oral opinion issued on October 4, 2013, Judge Michele M. Fox, who did not preside over defendant's 2004 trial, rejected defendant's PCR claims. In her opinion, the judge first concluded defendant's petition, which was filed on February 8, 2011 — approximately one-and-one-half years after the five-year time period concluded — was time-barred. The judge found that defendant's judgment of conviction was entered on August 20, 2004, and that under R. 3:22-12, defendant had until August 20, 2009, to file a timely petition for PCR, absent exceptional circumstances. The judge rejected defendant's contention that the bar should be relaxed based on his claim that his former counsel had advised him that a petition had been timely filed and that he had reasonably relied on counsel's representation. The judge did not find this unsupported claim persuasive, "particularly in light of the extensive legal proceedings that took place in this case of which the defendant was well aware."
Specifically, Judge Fox reached the following conclusions on this issue: defendant's petition was filed approximately one-and-one-half years late which would require the State to retry the case seven years after the first trial, resulting in a heavier burden for defendant; defendant failed to submit specific allegations that demonstrated a serious question about guilt, but rather only provided a certification from himself dated one day before PCR counsel submitted his supplemental brief; defendant's bare allegation that counsel failed to file a PCR petition was insufficient to establish exceptional circumstances; and the State would be prejudiced if required to prosecute crimes that had occurred so long ago. In addition, the judge noted that defendant's various theories of ineffective assistance of counsel were without merit and unlikely to succeed. Finding no basis for relaxing the filing deadline, the judge found that defendant's petition was time-barred under R. 3:22-12.
Nonetheless, the judge addressed the merits of defendant's claims of ineffective assistance of trial and appellate counsel, and whether defendant was entitled to an evidentiary hearing. The judge first rejected defendant's contention that trial counsel failed to perform pre-trial investigation which would have revealed the drug use of State eyewitnesses Gregory Williams and Jessie Walls. In particular, the judge noted that no valid reason existed pre-trial to interview the State's two eyewitnesses; rather, counsel had the opportunity to question them on cross-examination. She found this case demonstrated sound strategy: trial counsel thoroughly cross-examined the State's witnesses; trial counsel elicited the amount of crack cocaine they used that night and how well they were able to recognize defendant; trial counsel extensively cross-examined the medical examiner to contradict the witness's testimony about the location of the gunshot wounds on the victim to discredit his testimony; and trial counsel's summation emphasized the drug use of the State's material witnesses.
The judge also rejected defendant's argument that trial counsel failed to perform pre-trial investigation which would have revealed the poor eyesight of Williams. Again, defendant failed to show that any valid reason existed pre-trial to believe that Williams had a problem with his eyesight. However, trial counsel cross-examined Williams on the conditions of the dimly lit intersection, and attacked Williams' visual perceptions of the incident. Furthermore, defendant failed to demonstrate a reasonable probability that the result of the trial would have been different if trial counsel had conducted such a pre-trial interview.
The judge next addressed defendant's argument that defense counsel failed to perform pre-trial investigation which would have shown that Williams assumed part of the information to which he testified. The judge rejected this argument and found that trial counsel elicited from Williams on cross-examination that he did not actually see defendant shoot Glasco, but rather he assumed defendant shot Glasco because the two exited the bar and there was no one else around. Moreover, in his statement to police, Williams said that he "saw the fire coming out of the gun," which was a statement based on his personal observations and similar to how Williams testified at trial. Much like the issues of Williams' eyesight and both witness's drug use, there was no reason for counsel to interview these witnesses pre-trial, and all of these issues were addressed on cross-examination and in summation.
The judge also rejected defendant's argument that defense counsel failed to adequately explore the issue of the victim's gunshot wounds because there were contradictions between the testimony of the medical examiner and Williams. In particular, defendant contends that Williams testified that the victim and defendant were facing each other when defendant shot him, while the medical examiner testified that the victim had been shot from behind. The judge rejected defendant's argument, noting that trial counsel explored these supposed contradictions through cross-examination of the medical examiner and during summation, and in doing so, counsel attempted to cast doubt on Williams' reliability and observation that defendant was the shooter.
Judge Fox next addressed defendant's argument that trial counsel was ineffective for failing to locate a purported exculpatory witness, Tyrone Graves, prior to trial. Defense counsel submitted Graves' statement in the motion for new trial, and Graves testified at a subsequent hearing that defendant could not have committed the shooting "as I had seen the shooting and I knew he did not do it." On the motion for new trial, the original trial judge found that neither Graves' statement nor his testimony was credible due to "numerous contradictions of an extremely substantial nature" between Graves' statements and testimony and that of defendant. Judge Fox subsequently rejected defendant's argument, specifically noting that trial counsel could not have been aware of Graves' presence at the shooting before the verdict in January 2004, and that after learning about Graves' presence at the shooting, he advocated on defendant's behalf by filing a motion for a new trial based on newly-discovered evidence. Furthermore, the judge concluded that Graves' testimony would not have changed the jury's verdict in a new trial, given the trial judge's findings about Graves' contradictory and unreliable testimony; rather, Graves' testimony may have instead damaged defendant's case more than it could potentially have helped.
The judge also rejected defendant's contention that the cumulative effect of trial errors warranted an evidentiary hearing. Rather, she found that defendant was ably represented by trial counsel who thoroughly cross-examined the State's witnesses, impeached their credibility where possible, and emphasized this in summation, resulting in defendant's acquittal of first-degree murder.
Finally, the judge found no merit in defendant's contention that his appellate counsel was ineffective. She found that defendant's assertions of trial counsel's alleged errors involve evidence and testimony that lie outside the trial record; thus, appellate counsel's failure to raise the claims on appeal do not fall below an objective standard of reasonableness. The judge also found no merit in defendant's argument that appellate counsel's failure to address the trial court's denial of defendant's post-verdict motions, deprived defendant of competent representation. The judge noted that appellate counsel is not obligated to advance every possible argument, and ultimately concluded that defendant failed to demonstrate ineffective assistance of counsel regarding these claims.
Finding no prima facie case of ineffective assistance of counsel, the judge denied defendant's request for an evidentiary hearing and denied the PCR petition.
In appealing the denial of his PCR petition, defendant raises the following points for our consideration:
POINT ONE
THE COURT BELOW ERRED IN FINDING THAT DEFENDANT DID NOT DEMONSTRATE GOOD CAUSE FOR THE LATE FILING OF HIS APPLICATION FOR POST-CONVICTION RELIEF.
POINT TWO
THE COURT BELOW ERRED IN DENYING DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial counsel failed to perform pre-trial investigation which would have revealed the drug use of the witnesses.
B. Trial counsel failed to perform pre-trial investigation which would have revealed the poor eyesight of Mr. Williams.
C. Trial counsel failed to perform pre-trial investigation which would have shown that Mr. Williams assumed part of the information to which he testified.
D. Trial counsel failed to develop the details of the gunshot wounds which would have served to demonstrate that the testimony of Mr. Williams was incredible.
E. Trial counsel failed to present an exculpatory witness.
F. The cumulative effect of the trial errors warrant an evidentiary hearing.
G. Appellate counsel rendered ineffective representation by failing to raise the issues presented in the Motion for New Trial/Judgment of Acquittal.
POINT THREE
THE INEFFECTIVE PERFORMANCE OF BOTH TRIAL AND APPELLATE COUNSEL MET THE [STRICKLAND] STANDARD.
Defendant also filed a reply brief, raising the following additional issues:
POINT ONEHaving reviewed the record, we conclude that, except as we address below, these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Fox's comprehensive oral opinion. We add the following comments.
DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF FELL WITHIN THE EXCEPTION FOR GOOD CAUSE FOR THE DELAY IN FILING BEYOND THE FIVE YEAR LIMITATION PERIOD.
POINT TWO
THE COURT BELOW ERRED IN DENYING DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL.
II.
We analyze ineffective assistance of counsel claims by using the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). See State v. Preciose, 129 N.J. 451, 463 ( 1992); State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland test requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see Fritz, supra, 105 N.J. at 60-61.
In determining whether counsel was ineffective, we will not second-guess the trial attorney's reasonable trial strategy. We review counsel's performance with extreme deference and "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Fisher, 156 N.J. 494, 500 (1998) (quoting Fritz, supra, 105 N.J. at 52). Moreover, even if counsel was ineffective, under the second Strickland prong, prejudice is not presumed and must be proven by the defendant. Ibid.
We reject defendant's contention that because he relied on counsel throughout the proceedings to timely file any necessary PCR paperwork, he should be excused from having failed to timely file his PCR petition.
It appears from defendant's brief that he no longer argues that the re-sentencing proceedings extended the five-year PCR filing period; rather, he relies entirely on the excusable neglect provision of Rule 3:22-12(a((1). --------
Rule 3:22-12(a)(1) explains:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being
challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.The time limit contained in Rule 3:22-12(a) recognizes "the difficulties associated with a fair and accurate reassessment of the critical events" years after their occurrence, and "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Mitchell, 126 N.J. 565, 575-76 (1992). "The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice." Id. at 576.
"When determining whether to relax the time bar . . . a court should consider 'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting Mitchell, supra, 126 N.J. at 580). "[A] court should only relax the bar of Rule 3:22-12 under exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). A "[d]efendant's assertion that he lacks sophistication in the law does not satisfy the exceptional circumstances." State v. Murray, 162 N.J. 240, 246 (2000).
Applying these standards, we agree that defendant's PCR petition is time-barred. Defendant's PCR was filed one year and six months after the five-year time bar. This is an extensive delay and thus raises defendant's burden. See Mitchell, supra, 126 N.J. at 580 (noting that "the burden of justifying a petition filed after the five-year period will increase with the extent of the delay"). Furthermore, defendant's November 27, 2012 certification in support of this PCR provides only a bare allegation of his counsel's failure to file a PCR petition, with no supporting documentation and no allegations that would call into question his guilt. See ibid. ("If the petitioner articulates facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and is prepared to provide factual evidence to support it, then sufficient grounds for relaxing the Rule might exist."). The record supports the judge's determination that the State would be prejudiced by granting a re-trial after this lengthy delay.
Moreover, we agree with Judge Fox that defendant's various ineffective assistance of trial and appellate counsel claims lacked merit and thus were unlikely to succeed, even if they had been timely filed. Accordingly, denial of defendant's petition would not result in an injustice sufficient to warrant a relaxation of Rule 3:22-12. See State v. Dugan, 289 N.J. Super. 15, 21-22 (App. Div.) ("[D]efendant's ineffective assistance of counsel claims relate essentially to matters of trial strategy which would have been unlikely to succeed even if pursued in a timely manner . . . [t]herefore, the denial of defendant's petition as untimely does not result in [a sufficient injustice].") (footnote omitted), certif. denied, 145 N.J. 373 (1996). Thus, we agree with the judge that defendant's PCR petition was not timely filed, and that the time bar of Rule 3:22-12 should not be relaxed, based upon defendant's failure to show "a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).
The record also fully supports Judge Fox's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel, and that the existing record provided an adequate basis for resolution of defendant's claim. R. 3:22-10(b). Therefore, an evidentiary hearing was not required. See State v. Jones, 219 N.J. 298, 311 (2014) (noting that an evidentiary hearing on a PCR petition is only required when the alleged facts, "when viewed in the light most favorable to [defendant], are sufficient to demonstrate a reasonable likelihood of success on [the] PCR claim").
To the extent we have not specifically addressed any of defendant's arguments, we find them to be without sufficient merit to warrant discussion in a written 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