Opinion
DOCKET NO. A-2582-11T2
03-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS PARKER, Defendant-Appellant.
Thomas Parker, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-04-1390.
Thomas Parker, appellant pro se.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Thomas Parker appeals from the trial court's January 5, 2012 order denying his third petition for post-conviction relief ("PCR"). We affirm.
After a jury trial, defendant was convicted in 1993 of numerous crimes arising out of car thefts, robberies, and a fatal shooting, which occurred over the course of two days at various locations in Irvington, East Orange, and Newark. A jury found defendant guilty of first-degree felony murder, four first-degree robberies, a second-degree robbery, second-degree conspiracy to commit robbery, two counts of second-degree possession of a firearm for an unlawful purpose, simple assault, three counts of third-degree theft, and two counts of unlawful possession of a firearm. Defendant was sentenced to an aggregate custodial term of life in prison plus thirty years, with a forty-five-year period of parole ineligibility.
On direct appeal, this court affirmed defendant's convictions and his sentence, in a consolidated opinion that also sustained the separate convictions of two other defendants. State v. Parker, No. A-6493-93 (App. Div. Feb. 10, 1997). Certification was denied. 149 N.J. 410 (1997). Thereafter, defendant filed his first PCR application, alleging ineffective assistance of counsel. The trial court denied that initial PCR application in 2000, a ruling which we sustained. State v. Parker, No. A-5455-99 (App. Div. July 2, 2002). Certification was again denied. 175 N.J. 76 (2002).
Defendant then filed a second PCR petition, this time alleging that he was entitled to relief because several witnesses for the State had recanted their trial testimony. After an evidentiary hearing, the Law Division judge (who also had presided over the trial) dismissed the petition, concluding that the recanting witnesses lacked "any grain of credibility" and did "not cast at all any serious doubt on the truth of the testimony given at trial." We upheld that dismissal, and the Supreme Court again denied certification. State v. Parker, No. A-2464-05 (App. Div. Aug. 26.), certif. denied, 197 N.J. 16 (2008).
In August 2009, the United States District Court denied defendant's application for a writ of habeas corpus, which was based upon many of the contentions he had unsuccessfully raised in the state court. Parker v. Hendricks, Civ. Action No. 03-cv-914 (D.N.J. Aug. 21, 2009). In the federal district judge's initial written decision, he noted that "[d]espite the recantations of the six witnesses, there still remains overwhelming evidence justifying [defendant's] conviction." Id. at 6.
Among other things, the federal judge noted the trial testimony of a female robbery victim who had positively identified defendant, as well as a receipt of hers that had been found on the floor of the car defendant had emerged from before attacking her. Ibid. The judge also cited testimony from another State witness who had linked defendant to an incriminating boot print left on the hood of a car that the perpetrators used. Ibid. Moreover, black paint, similar to the paint from defendant's own car, had been found on the car owned by the homicide victim. Ibid.
The district judge thereafter denied reconsideration in a second written opinion, rejecting defendant's claims of ineffective assistance of counsel, assorted errors in evidentiary rulings made at trial, and other alleged deficiencies. Parker v. Hendricks, Civ. Action No. 03-cv-914 (D.N.J. June 24, 2010). The Third Circuit Court of Appeals likewise denied relief, finding that defendant had not made a "substantial showing of the denial of a constitutional right" as required by 28 U.S.C.A. § 2253(c)(2). Parker v. Hendricks, C.A. No. 10-3014 (3d Cir. Nov. 12, 2010). After the Third Circuit denied rehearing, (3d Cir. Jan. 31, 2011), the United States Supreme Court denied certiorari. Parker v. Ricci, ___ U.S. ___, 131 S. Ct. 1828, 179 L. Ed. 2d 784 (2011).
Defendant then filed a third PCR petition in the Law Division in May 2011. Essentially, defendant made two arguments: (1) his trial counsel was ineffective in failing to object to trial testimony concerning the boot print evidence and to request a limiting instruction concerning that evidence; and (2) he is entitled to a new trial because of the recantation of a prosecution witness, Al Fuquan Maing.
The PCR judge's January 2012 opinion mistakenly and inconsequently refers to the 2011 petition as a second petition, rather than as the third.
In a written opinion dated January 5, 2012, the Law Division rejected this latest PCR petition. Among other things, the court ruled that the petition was untimely, in violation of Rule 3:22-12(a)(1), and procedurally defective under Rule 3:22-5 as an attempt to relitigate previously-decided issues. The court also discerned no merit to any of defendant's contentions.
On his present appeal, defendant argues:
POINT I
THE LAW DIVISION ABUSED ITS D[ISCRE]TION WHEN IT ERRONEOUSLY APPLIED AND ENFORCED RULE 3:22-5 IN DENYING PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AS BEING CLAIMS PREVIOUSLY ADJUDICATED ON THE MERITS WHEN IN FACT THEY WERE NOT
a.) The Law Division's Decision Denying Petitioner's Request For Second PCR Under Rule 3:22-5 Regarding [the] Claim That Trial Counsel Was Ineffective For Failing To Object To Impermissible Expert Testimony, Is Misapplied And Should Be Reversed.
b.) The Law Division's Decision Failed To Determine Whether If The Petitioner's Ineffective Assistance Of Counsel Claims Met The Two Prong Analysis In Strickland v. Washington.
c.) The Law Division Abused Its Discretion When It Erroneously Found That The Court's Rulings In Both State v. McLean and
Bullcoming v. United States Were Distinguished From The Petitioner's Claims.
d.) The Law Division's Mis-application Of Rule 3:22-5 Prevented The Court From Making Determinations On The Fundamental Injustice Aspect Of The Petitioner's Claims And That Trial Counsel Erred In Not Requesting An Instruction On Polyniak's Witness Status.
e.) The Law Division's Decision Enforcing Rule 3:22-12 Dismissing The Petitioner's Polyniak Claims As Being Time-Barred Should Be Relaxed Based On Excusable Neglect and Because The Interests of Justice Demands It.
POINT II
THE LAW DIVISION'S DECISION DENYING SECOND POST CONVICTION RELIEF BASED ON NEWLY DISCOVERED EVIDENCE IS AN ABUSE OF DISCRETION AND A CONTINUAL DENIAL OF THE PETITIONER'S 6TH AND 14TH AMENDMENT RIGHTS TO A FAIR TRIAL
a.) The Law Division Abused Its Discretion When It Erroneously Applied And Enforced Rule 3:22-4(b)(1), 3:22-5 and 3:22-12(a)(1) In Time-Barring Petitioner's Request For [A] New Trial Based On Newly Discovered Evidence.
b.) The Law Division's Mis-application Of Rule 3:22-4, 3:22-5 and 3:22-12(b)(1) Prevented The Court From Making Determinations On The Fundamental Injustice Aspect Of The Newly Discovered Maing Affidavit.
c.) The Law Division's Decision Enforcing Rule 3:22-12 Dismissing [The] Newly Discovered Evidence Claim Should Be Relaxed Based On Excusable Neglect and Because The Interests Of Justice Demands It.
POINT III
AN EVIDENTIARY HEARING IS REQUIRED TO ESTABLISH A RECORD BASED ON THE CONTENTS OF MAING'S RECANTING AFFIDAVIT AND TRIAL COUNSEL'S DEFICIENCIES
Having considered these contentions, we affirm the trial court's denial of this most recent collateral attack upon defendant's conviction, substantially for the procedural and substantive reasons expressed in the trial court's letter opinion of January 5, 2012.
We offer a few brief comments with respect to the testimony of the State's forensic chemist, Joyce Polyniak, who testified that footprints on top of one of the cars involved in the crimes matched those of a pair of boots the police seized from defendant's residence. Although Polyniak was not qualified as an expert in footprint matching, her testimony on the subject was nevertheless permissible as lay opinion under N.J.R.E. 701. See also State v. Johnson, 120 N.J. 263, 295 (1990) (noting that footprint identification may acceptably be proven through the testimony of a non-expert). We perceive nothing in State v. McLean, 205 N.J. 438, 443 (2011) (finding inadmissible a police officer's non-expert testimony that he had witnessed a drug transaction), even if that decision were applied to defendant's 1993 trial, which overrules Johnson or categorically invalidates the admission of lay opinion about matching footprints.
Moreover, defendant was not denied confrontation of the chemist, who was cross-examined by defense counsel at trial. See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1368-89, 158 L. Ed. 2d 177, 197 (2004) (noting that no Confrontation Clause violation occurs when defense counsel is afforded the chance to cross-examine a hearsay declarant at trial); see also State v. Nyhammer, 197 N.J. 383, 413, cert. denied sub nom. Nyhammer v. New Jersey, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).
In addition, defendant can derive no benefit from his citation to Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (requiring exclusion of a blood-alcohol report, where the report's author did not testify and where the government's witness who did testify at trial concerning the report had not taken part in the testing, nor had he performed his own analysis). By contrast here, the testifying witness, Polyniak, personally made the footprint comparison. We concur with the State that it is immaterial that another person had taken the photographs of the footprints, which Polyniak duly compared with defendant's boots.
Furthermore, although the United States Supreme Court's decisional law in Crawford and its progeny (including opinions such as Bullcoming) have expanded prevailing concepts of confrontation rights under the Sixth Amendment, those decisions do not apply retroactively to previously-imposed criminal convictions that were not on direct appeal when Crawford was decided in 2004. See Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). By 2004, defendant's 1993 conviction had long become final, and all of his direct avenues of appeal had already been exhausted. Hence, he cannot invoke these newer, post-Crawford confrontation cases to gain collateral relief through his serial PCR filings.
Lastly, State v. Nash, 212 N.J. 518 (2013), which defendant has cited to us in a supplemental submission, does not affect the outcome in this case. Although our Supreme Court in Nash rightly observed that PCR functions as "a defendant's last chance" in our state courts to contest the fairness and reliability of one's conviction, id. at 540, that generic observation is hardly novel. Nor is the observation availing to defendant in the particular circumstances presented here.
In Nash, the defendant presented newly-discovered evidence having a strong potential to exonerate him of the commission of sexual assault upon a minor at her school. The evidence consisted of confirmed proof that the child had been assigned a full-time aide to accompany her during the school day, thereby negating the State's claim that the defendant had been alone with the child in the school building and had attacked her there. Id. at 532-34. In fact, the trial court in Nash found that this proof of a full-time aide was the sort of evidence that "'would probably change the jury's verdict if a new trial [were] granted.'" Id. at 548. No such finding of decisive materiality has been made here. Indeed, even if Maing's belated recantation affidavit and the other recantations are all assumed to be truthful, there remains, as the federal judge aptly phrased it, "overwhelming evidence" elsewhere in the record to support defendant's conviction. Lastly, Nash is also distinguishable from the present case because the defendant there, as the result of a "gag order" from the school principal, was denied access to exculpatory witnesses until after his trial. By contrast, defense counsel in the present case had the opportunity to cross-examine Maing at trial and to attempt to impeach his testimony.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION