Opinion
DOCKET NO. A-0196-09T2
08-11-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT PARKER, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 96-06-1372.
Yvonne Smith Segars, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert Parker appeals from an order dated December 3, 2008 denying his petition for post-conviction relief (PCR) and an evidentiary hearing. He asserts he made a prima facie showing that his constitutional rights were violated by the PCR court's rulings and that he was denied effective assistance of PCR counsel. We reject these arguments and affirm.
On June 26, 1996, Robert Parker was indicted, along with several co-defendants, on twenty-seven counts of a sixty-nine count indictment. Defendant's first trial, with co-defendant Roper Parker, was held on February 9, 1999. On February 11, 1999, the court granted defendants' motion for mistrial based on discovery violations by the State. After the second trial, conducted between January and February 2000, the jury found defendant guilty of first-degree criminal attempt, N.J.S.A. 2C:5-1 (count one); second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5(b)(1) and 2C:35-5(b)(3) (count twelve); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (counts ten, thirteen, and fourteen); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (counts five, eleven and fifteen); second-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1) (counts three, four, seven, eight, nine, thirteen, and fourteen); and first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1) (counts fifty-two and fifty-three). Defendant was sentenced to an aggregate term of eighteen years, with an eight year and two-month period of parole ineligibility. Defendant was acquitted of two additional charges of distribution of cocaine, two additional charges of possession of cocaine, and one charge of leading narcotics network.
In an unpublished opinion, State v. Parker, No. A-4942-99 (App. Div. June 3, 2003), we affirmed defendant's convictions. On January 31, 2006, defendant's petition for certification was granted, limited to sentencing issues under Natale. On April 7, 2006, defendant was re-sentenced to an aggregate of seventeen years, with a seven-and-one-half-year period of parole ineligibility. Thereafter, as a result of Parker's excessive sentencing appeal, an order was issued directing that the judgment of conviction be amended to reflect appropriate credits for time served and to address the illegal imposition of consecutive license suspensions.
State v. Natale, 184 N.J. 458 (2005).
Defendant's conviction and sentence arose out of a State Police investigation where an informant engaged in numerous drug transactions with defendant resulting in recordings of the drug-exchange transactions; authorized wiretaps; and a warrant-authorized search. Officer Robert Reilly, of the Atlantic City Police Department, was involved in the investigation into defendant's drug-activity. Shortly thereafter, Officer Reilly was the driver of the vehicle which struck another officer. Allegedly, Reilly was linked to a cover-up relating to the accident and encouraged others to cover up as well. On that premise, defendant requested Reilly's Internal Affairs file in discovery; however, after conducting an in-camera review, the court found the documents irrelevant and not discoverable.
A year later, Atlantic City Solicitor Jonathan Diego indicated that he accompanied Captain James Fair to court to deliver Reilly's file, and Capt. Fair removed certain documents from the file before turning it over. After Diego made this disclosure, he was fired as city solicitor.
Diego filed a civil lawsuit against Atlantic City under the Whistleblower Act, in connection with his termination of employment. He alleged that he was fired in retaliation for his disclosure of Capt. Fair's misconduct. The case went to trial and an award was entered in favor of Diego. The State also conducted an investigation against Capt. Fair, resulting in no charges.
Thereafter, Parker filed a pro se petition for PCR. Later, assisted by counsel, defendant submitted a supplemental petition for PCR. Following oral argument, Judge Albert J. Garofolo, issued a written opinion denying defendant's petition. Defendant filed this appeal and raises the following issues:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT II: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT
RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION.
We have considered these arguments in light of the facts and applicable law, and we affirm the order denying defendant's petition.
PCR provides a means for defendants to challenge their convictions on grounds "which could not have been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 482 (1997); State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999); R. 3:22-4(a)(1). State v. Preciose, 129 N.J. 451, 459 (1992) interprets Rule 3:22-4 as procedurally barring petitioners from PCR "if they could have, but did not, raise the claim in a prior proceeding, unless they satisfy one of the following exceptions[:]"
(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
[Id. at 459.]
Defendant first contends that his state and federal constitutional rights to due process were violated since Capt. Fair removed documents from Officer Reilly's Internal Affairs file which was court-ordered for production.
Spoliation of evidence "'occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001) (quoting Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364 (App. Div. 1998)); see also Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). The duty to preserve evidence arises when there is:
(1) pending or probable litigation involving the [State]; (2) knowledge by the [State] of the existence or likelihood of litigation; (3) foreseeability of harm to the [State], or in other words, discarding the evidence would be prejudicial to [State]; and (4) evidence relevant to the litigation.
[Manorcare, supra, 336 N.J. Super. at 226 (quoting Aetna Life and Cas. Co., supra, 309 N.J. Super. at 366-67).]
"'The spoliator's level of intent, whether negligent or intentional, does not affect the spoliator's liability. Rather, it is a factor to be considered when determining the appropriate remedy for the spoliation.'" Id. at 367 (quoting Aetna Life Ins. Co., supra, 309 N.J. Super. at 368).
In Rosenblit, the court acknowledged that there were various methods for dealing with spoliation of evidence, including a jury charge of adverse inference, discovery sanctions, or a new cause of action based on the tort of fraudulent concealment. Rosenblit, supra, 166 N.J. at 401-07. The purpose of these remedies "is to make whole, as nearly as possible, the litigant whose cause of action has been impaired by the absence of crucial evidence; to punish the wrongdoer; and to deter others from such conduct." Id. at 401.
Capt. Fair allegedly omitted documents included in "the internal affairs investigation [file] of Reilly who was accused of intentionally striking a fellow officer with a vehicle and then attempting to cover up the incident and encouraging others involved to do so." Defendant submits that the alleged spoliation of Reilly's file was significant since "Reilly provided the information relied upon in issuing the wiretap authorized in this matter. He was present during numerous recordings and observations of Robert Parker, and he was part of the team which ultimately executed the search warrant at the Parker residence."
In his petition for PCR, defendant argued that the prosecution was responsible for producing this alleged evidence. Considering this argument and applying the analysis of Brady v. Maryland, 373 U.S. 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the PCR court concluded:
In Brady, the United States Supreme Court outlined the elements to establish whether the prosecution violated the rule that the State must disclose to the defendant any and all evidence that is material to the defendant's guilt.
the Internal Affairs records reviewed pertained only to the allegation that Det. Reilly was untruthful as to his conduct or others regarding a motor vehicle accident he was involved in while on duty. There is no demonstrable link between this act and his conduct during the investigation of the defendant.
. . . .
Defendant has not, and cannot, describe[] the contents of the documents presented against him.
Most remarkably, the defense has done absolutely nothing of its own to determine what documents were removed from the Internal Affairs file. This notwithstanding that there is a body of information, if not evidence, as a result of the lawsuit filed by Jonathan Diego and the investigation conducted by the Atlantic County Prosecutor's Office in the alleged misconduct of Capt. Fair.
Ultimately though, it is the overwhelming evidence presented against Defendant that creates confidence in the jury's guilty verdict. It is difficult to see how one unexplained inference would create a reasonable probability that a different verdict would have resulted. Therefore, Defendant's petition for post-conviction relief on this ground must be denied.
Defendant urges that we should grant an evidentiary hearing for Capt. Fair to explain his actions to the court. In order to qualify for an evidentiary hearing, the defendant must present a prima facie case supporting the application. Preciose, supra, 129 N.J. at 462. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). Defendant has not established a prima facie showing in this regard. Defendant has failed to explain how any material that potentially was in the file could have brought about a different outcome to defendant's prosecution. Accordingly, no evidentiary hearing was warranted.
Defendant also asserts that PCR counsel was ineffective for failing to make a complete investigation into the spoliation of evidence by Capt. Fair. To maintain a prima facie claim of ineffective assistance of counsel, defendant must show that (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. That standard does not require "the best of attorneys," but rather requires that attorneys be not "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).
Defendant submits that the only effort his PCR counsel made at investigating the spoliation of evidence by Capt. Fair was submitting a one-page certification that an investigator took a statement from Diego on May 14, 2008, where he confirmed that he was in the presence of Capt. Fair when he removed "documents from the file belonging to Robert Parker or his co-defendants." Defendant now argues that this investigation was insufficient given that attorney M. Daniel Perskie advised Lieutenant Harry Leahy of the Atlantic County Prosecutor's Office, Criminal Investigation Unit, by letter, that Atlantic County Prosecutor Joel Mayer, had reported to Diego that Capt. Fair committed prior misconduct with documents. Defendant submits that the performance of PCR counsel was deficient for failing to make inquiry as to whether Capt. Fair was deposed during the Diego litigation, and failing to investigate the prosecutor's report that Capt. Fair may have "had problems with documents in the past." We disagree.
The record is unclear as to Perskie's role in the case, however, we deduce he represented Diego in the employment discrimination civil suit.
The record shows that Mayer was the prosecutor during the second trial of defendant.
Defendant has presented no competent evidence in support of his claim regarding PCR counsel's inadequate investigation. Defendant failed to provide certifications demonstrating that there was discoverable evidence prior to trial that would have had the likelihood of successfully rebutting the State's evidence against him. Even though defendant has pointed to measures PCR counsel could have taken, he fails to illustrate the existence of any potential exculpatory evidence.
[I]n order to establish a prima facie claim, a petitioner 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. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personalNo such showing was made in this case. There was no need to conduct an evidentiary hearing.
knowledge of the affiant or the person making the certification.
[Cummings, supra, 321 N.J. Super. at 170.]
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION