Opinion
DOCKET NO. A-3415-13T4
06-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TARON ANTHONY HILL, a/k/a P-NUT and TARON G. HILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-09-3492. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals a June 28, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We previously related the facts in detail in our affirmance of defendant's conviction on direct appeal See State v. Hill, No. A-2662-07 (App. Div. June 17, 2010), certif. denied, 204 N.J. 42, (2010). We briefly summarize facts relevant to this appeal.
Defendant was convicted of two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), and third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b), after a jury found him guilty of firing shots into a crowd of people, killing two women. He was sentenced to an aggregate term of sixty years, with a sixty-year-term of parole ineligibility. The State's case relied heavily on identification testimony of two eyewitnesses, including W.S., who saw defendant fleeing the scene, and two jail inmates, who testified that defendant told them he had murdered the two women. W.S., who knew defendant from the neighborhood, testified that on the night in question she heard gunshots and identified defendant as the man she saw running from the scene with a gun. During the trial, W.S. was confronted by defense counsel with a notarized letter that she signed, recanting her identification. She denied the recantation, indicating she was pressured to sign it by defendant's father and had difficulty reading and writing and had not read the letter before signing it.
We use the initials to protect the identity of the witness.
The defense called W.S.'s sister, D.A., in an attempt to refute W.S.'s testimony. D.A. gave similar testimony, namely, that she signed a letter that she had not written and that she, like her sister, could not read. Following his conviction, defendant moved for a new trial asserting newly discovered evidence, and after an evidentiary hearing, the trial judge denied defendant's motion.
Defendant filed a petition for PCR on December 15, 2010. Defendant supplemented the petition with an amended verified petition for PCR on August 21, 2012. In those petitions, defendant alleged that his trial counsel failed to object to an impermissibly suggestive photographic identification; failed to adequately investigate the case and witnesses prior to trial; and failed to object when the State's witnesses testified in prison uniforms and restraints.
The PCR judge heard argument on June 28, 2013 and denied defendant's request for an evidentiary hearing, as well as defendant's petition in its entirety. The PCR judge concluded that defendant's arguments were barred by Rules 3:22-4 and -5. This appeal followed.
Defendant raises the following arguments for our consideration:
I. THE PCR COURT COMMITTED ERROR [BY] DENYING THE DEFENDANT'S CLAIM UNDER R. 3:22-5 BECAUSE HIS CLAIM [THAT] TRIAL COUNSEL WAS INEFFECTIVE DURING CROSS EXAMINATION OF THE EYEWITNESS WAS [NOT] PREVIOUSLY HEARD ON THE MERITS IN THE DIRECT APPEAL.
II. THE PCR COURT COMMITTED ERROR [BY] DENYING THE DEFENDANT'S CLAIM THAT IT WAS INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND [APPELLATE] COUNSEL NOT TO RAISE THAT IT WAS ERROR TO ALLOW THE STATE'S WITNESS TO APPEAR IN PRISON CLOTHING AND RESTRAINTS. (NOT RAISED BELOW).
III. THE PCR COURT COMMITTED ERROR [BY] DENYING THE DEFENDANT'S CLAIM THAT IT WAS INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOT TO REQUEST A WADE HEARING.
IV. THE PCR COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S PCR PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
PCR courts allow petitioners the opportunity for an evidentiary hearing when a defendant presents a prima facie case in support of the petition for PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). In this case, because he alleges ineffective assistance of counsel, defendant must establish a prima facie case for such a claim.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[State v. Fritz, 105 N.J. 42, 52 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).]
Defendants seeking PCR must establish these elements by a preponderance of the evidence. State v. Pennington, 418 N.J. Super. 548, 553 (App. Div. 2011) (citing State v. Preciose, 129 N.J. 451, 459 (1992)), certif. denied, 209 N.J. 595 (2012). On appeal, we defer to the fact-finding and credibility determinations of the PCR court, so long as they are supported by adequate, credible evidence in the record. State v. Nash, 212 N.J. 518, 540 (2013). We are not, however, bound by the PCR court's legal conclusions. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). Further, absent a showing of fundamental injustice, Rule 3:22 bars litigants from arguing issues that were, or could have been, raised in previous proceedings. R. 3:22-4, -5.
Defendant asserts that the judge erroneously relied upon Rule 3:22-5, arguing that he was not challenging the credibility of W.S., but rather, his trial attorney's ineffective preparation for cross-examination of W.S., which entitles him to relief. We disagree.
Defendant asserts that, because his trial attorney was unprepared for the examinations of W.S. and D.A. during trial, his trial attorney was ineffective. Specifically, defendant asserts that his trial counsel was ineffective because, rather than have an investigator interview W.S., his attorney told defendant's family members to have W.S. write her statement. Because she was illiterate, the written recantation was easily discredited. Defendant argues that, had defendant's trial counsel interviewed W.S. in advance of trial, he would have been prepared for her testimony.
The PCR judge determined, with respect to W.S.'s testimony, that it was "understandable that [trial] counsel, strategically, chose not to[] actively[] pursue [W.S.] as a defense witness but, instead, chose to impeach [W.S.]'s credibility by questioning her about the recantation." The PCR judge further explained that if trial counsel had "called her she would've been the subject of cross-examination by the [S]tate, who could have delved deeply into the source of the statement; the circumstances under which it was given and that could've reflected very badly on the defense and the defendant." Defendant has further failed to demonstrate that he was prejudiced by his counsel's alleged errors. Absent evidence that, if interviewed by a defense investigator, W.S. would have recanted her prior statement inculpating defendant, there is no proof that defense counsel's strategy prejudiced the defense.
In particular, defendant has failed to establish how the use of the recantation letter was prejudicial to his case. Defense counsel used the letter to impeach W.S.'s credibility, however, W.S. had already been confronted with and explained the recantation during direct examination. Contrary to defendant's argument, the disclosures made during cross-examination did not materially contribute to defendant's conviction, because the jury had already heard W.S.'s testimony about how she had signed the letter. --------
The PCR judge correctly stated that defendant's argument regarding W.S.'s credibility was barred by Rule 3:22-5 because it was previously heard on his motion for new trial. The PCR judge did not state that defendant's argument regarding trial counsel's strategy during trial was barred by Rule 3:22-5. Instead he rejected defendant's argument because it was a strategic decision which was not so deficient as to meet the requirements of the Strickland/Fritz test.
Moreover, defendant did not raise the issue of D.A.'s testimony in his petition for PCR; accordingly, the issue has not been preserved on appeal and we decline to consider it. See State v. Robinson, 200 N.J. 1, 19 (2009).
Defendant also argues that the PCR judge erred in barring additional assertions of counsel's ineffectiveness because those issues were ripe for disposition on direct appeal. Defendant asserts his counsel was ineffective for failing to object when witnesses testified while wearing prison uniforms and restraints. The trial record does not indicate that the witnesses testified in prison garb and shackles, and defendant's bald assertion that they did so is insufficient to create a prima facie case. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, in this case, the jury already knew these prosecution witnesses were jail inmates because that was the context in which they allegedly had the incriminating conversations with defendant. Hence, even if the witnesses did appear in prison garb and shackles, and even if a timely objection might have caused the judge to let them testify in street clothes, any error would have been harmless.
Finally, defendant asserts that his trial counsel rendered ineffective assistance of counsel by failing to request a Wade hearing because W.S. was shown only one photo rather than an array. A review of the record indicates no basis to conclude that defense counsel was ineffective for not requesting a hearing. This argument lacks sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
The PCR judge did not err in concluding that defendant was not entitled to a plenary hearing. A court reviewing PCR petitions based on claims of ineffective assistance of counsel should grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the relief requested. Preciose, supra, 129 N.J. at 462; R. 3:22-10(e). Because he failed to make a prima facie showing of ineffective assistance of counsel, defendant was not entitled to such a 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