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State v. Marshall

March 5, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT O. MARSHALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Atlantic County.

The opinion of the Court was delivered by Stein, J. Justices Pollock, Garibaldi, and Coleman join in Justice STEIN's opinion. Justice O'hern has filed a separate opinion Concurring in part and Dissenting in part. Justice Handler has filed a separate Dissenting opinion.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Robert O. Marshall (A-38-95)

Argued January 16, 1996 -- Decided March 5, 1997

STEIN, J., writing for the Court.

Defendant was convicted of murdering and conspiring to murder his wife, and sentenced to death. The State's theory at trial was that defendant had hired another to kill his wife. This Court affirmed the convictions and sentence, and concluded that the death sentence was not disproportionate to sentences imposed in similar cases.

Defendant obtained a stay of execution from the Law Division and filed with that court a petition for post-conviction relief (PCR). Defendant's amended petition contained a total of 548 grounds for reversal. Many of the claims involved discovery violations by the State and ineffective assistance of counsel. The PCR court dismissed the vast majority of the claims on procedural grounds under R. 3:22-4 (could have been but not raised in prior proceeding), and R. 3:22-5 (prior adjudication on merits). The PCR court further determined that defendant was not entitled to a complete evidentiary hearing at which live testimony would be taken except on five claims involving defense counsel's representation in opening statement that defendant would testify, and defendant's competence to take part in the penalty-phase proceeding after a post-verdict physical collapse. As to the other remaining claims, the court permitted defendant to present documentary evidence only.

The court denied defendant's petition for PCR, finding defendant's legal arguments to be without merit and concluding that the evidence presented by the State at trial remained intact and undiminished in weight. Defendant appeals to this Court as of right, presenting the first PCR application by a defendant sentenced to death under the New Jersey Code of Criminal Justice. Defendant's execution has been stayed pending his appeal to this Court.

HELD : The PCR court's reliance on the R. 3:22-4 and -5 procedural bars to dismiss most of defendant's claims is overruled. The Court affirms the denial of defendant's petition for post-conviction relief based on a Disposition of defendant's claims on the merits.

1. The voluminous size of the petition and its constituent documents, combined with the 548 claims of error on which it relies, present the Court with an appellate record of gargantuan size. The Court questions both the wisdom and necessity for so massive a presentation. The Court infers that the vastness of the petition reflects, in part, a strategy to avoid the imposition of procedural bars, given the effect of the federal practice to deny habeas corpus review of state court judgments that rest on adequate independent state grounds, whether substantive or procedural. The Court intends, however, that its Disposition of the procedural bar issue will discourage the artificial fragmentation of claims for PCR purposes, even in capital cases. The Court questions the PCR court's broad-brush application of the R. 3:22-4 and -5 procedural bars. Many, if not most of those rulings overstate the effect of this Court's direct appeal opinion or underestimate the significance of the enhanced factual basis for the claims asserted in the PCR petition. Moreover, the analysis required for Disposition of a claim on the merits is, in most instances, less intricate than that required to decide whether a claim should be precluded because of a procedural bar. (Pp. 14-30).

2. In respect of defendant's claims that the State improperly withheld exculpatory evidence from defendant (Brady violations), the Court applies the unitary "materiality" test of United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) (nondisclosure is material if there is a reasonable probability that, had the evidence been disclosed, the result would have been different), whether or not defendant had specifically requested the documents before trial. Defendant's ineffective-assistance-of-counsel claims are evaluated under the standards set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (defendant must show that counsel's performance was deficient and that there is a reasonable probability that but for the deficiency, the result would have been different). A PCR court ordinarily should grant an evidentiary hearing if a defendant has presented a prima facie case (a reasonable likelihood that the claim will ultimately succeed on the merits), although an evidentiary hearing need not be granted if the court perceives that it will not aid the court's analysis or defendant's allegations are too vague, conclusory, or speculative. An evidentiary hearing should not be granted for the purpose of permitting a defendant to investigate whether the State has failed to deliver discoverable materials. (Pp. 30-37).

3. A small number of defendant's claims are subject to the bar of R. 3:22-5, since they were adjudicated on direct appeal. Reviewing in detail the merits of defendant's remaining claims, the Court determines that no relief is warranted. As to alleged Brady violations, the Court finds that any undisclosed information or documents are immaterial. In respect of the ineffective-assistance-of-counsel-claims, the Court finds that defendant has failed to show either that there were any deficiencies, or a reasonable probability that but for any deficiencies, the result would have been different. (Pp. 38-159).

4. Defendant raises a multitude of claims concerning trial counsel's ineffectiveness in preparing for and conducting the penalty-phase proceeding. This is the first case where the Court has had occasion to comprehensively discuss and apply the Strickland standard to the penalty phase of a capital case. Strict application of the Strickland prejudice prong to the penalty phase poses a high obstacle to the successful assertion of ineffective assistance of counsel claims, because of the difficulty faced by an appellate court in deciding whether the jury would have ruled differently on the sentence. An adaptation of the Strickland prejudice test to capital case penalty-phase proceedings that more faithfully reflects the Court's appellate function would require courts to determine whether there is a reasonable probability that, but for counsel's unprofessional errors, the jury's penalty-phase deliberations would have been "affected substantially." Defendant's claims here, however, do not satisfy this adaptation of the Strickland standard. (Pp. 159-181).

5. The Court Rules do not explicitly authorize discovery in PCR proceedings. Nonetheless, a PCR court has the inherent right to compel discovery, although that will be an unusual case. A defendant seeking to inspect State files in PCR proceedings should identify the specific documents sought for production. The Court concludes that the PCR court here did not abuse its discretion in ruling on defendant's discovery motions. In addition, the common-law right to inspect public documents may not be invoked in a pending criminal case by a defendant seeking discovery rights, whether the case is at trial, on direct appeal, or on PCR review. (Pp. 196-206).

6. The Court finds defendant's other claims involving the fairness of the PCR proceedings to be without merit. (Pp. 207-221).

The judgment of the Law Division denying defendant's petition for post conviction relief is AFFIRMED.

Justice O'HERN, Concurring in part and Dissenting in part, agrees with the majority's dismissal of defendant's petition, but Dissents from the denial of a hearing on the claims of ineffective assistance of counsel and the denial of access to the State's investigative file.

JUSTICE HANDLER, Dissenting, cannot join in the Conclusion that defendant can be lawfully and constitutionally executed, given the failings of his trial counsel in the penalty phase, the absence of a death-qualified jury, the State's abrogation of its discovery obligations, and the many other errors that infected this case. Justice Handler agrees with the majority's finding that the trial court's dismissal of most of defendant's claims on procedural grounds was improper, but is of the view that a remand is required for findings of fact and law before the claims can be addressed on the merits.

JUSTICES POLLOCK, GARIBALDI, and COLEMAN join in JUSTICE STEIN'S opinion. JUSTICE O'HERN filed a separate opinion Concurring in part and Dissenting in part. JUSTICE HANDLER filed a separate Dissenting opinion.

The opinion of the Court was delivered by

STEIN, J.

Defendant, Robert Marshall, was tried before a jury and convicted of murdering and conspiring to murder his wife, Maria Marshall. After a penalty-phase hearing, defendant was sentenced to death. This Court upheld the convictions and sentence, 123 N.J. 1, 586 A.2d 85 (1991), and concluded that defendant's death sentence is not disproportionate to the sentences imposed in similar cases. 130 N.J. 109, 613 A.2d 1059 (1992).

After obtaining a stay of execution from the Law Division, defendant filed with that court a petition for post-conviction relief (PCR), see Rule 3:22-1, alleging more than 500 grounds for the reversal of his convictions and sentence. In an unreported opinion, the Law Division denied defendant's PCR application. Defendant appeals to this Court as of right, see Rule 2:2-1(a)(3), presenting to this Court the first PCR application by a defendant sentenced to death under the New Jersey Code of Criminal Justice.

I

FACTS AND PROCEDURAL HISTORY

A detailed recounting of the evidence adduced at defendant's guilt- and penalty-phase trials is set forth in our first Marshall opinion. See State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991) (Marshall I), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). We reproduce here "a general outline of the facts that the jury could have found as drawn from the State's brief," State v. Marshall, 130 N.J. 109, 120, 613 A.2d 1059 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), to facilitate the reader's understanding of our Disposition of this appeal.

Defendant, a Toms River insurance agent, began an extramarital affair with Sarann Kraushaar, a married woman, in June 1983. As early as December 1983, defendant mentioned to Kraushaar the idea of killing his wife, Maria. In May 1984, defendant met Robert Cumber of Louisiana and questioned him about hiring an "investigator." Defendant later telephoned Cumber, who referred defendant to Billy Wayne McKinnon, a former sheriff's officer from Louisiana. Defendant agreed to pay McKinnon $5,000 to meet him in Atlantic City, New Jersey.

Defendant met McKinnon at Harrah's Casino in Atlantic City on June 18, 1984, and offered to pay him $65,000 to kill his wife. In addition to the $5,000 that McKinnon had already received, defendant agreed to pay him $10,000 up front and $50,000 from the expected insurance proceeds on his wife's life. At that meeting defendant paid McKinnon $7,000 and gave him a picture of his wife. Defendant told McKinnon to kill her that evening, when defendant would be present. In preparation for the killing, defendant and McKinnon discussed various ways to kill Maria. Defendant believed that he would not be considered a suspect because he was considered an outstanding citizen with influence in the community.

McKinnon did not carry out the murder at that time, but instead returned to Louisiana. Defendant communicated with him on numerous occasions and sent him additional money. Under pressure from defendant to complete the job, McKinnon returned to Atlantic City on July 19, 1984, and met with defendant, who proposed a second plan for the killing to take place that evening. Defendant told McKinnon that he would leave his wife in their car to be executed while defendant went into a restaurant under the pretense of using the bathroom facilities. However, McKinnon did not commit the murder at that time either.

Defendant, persistent in his efforts to have his wife killed, offered McKinnon an "extra fifteen" ($15,000) if he would return to New Jersey a third time to do the "job" before Labor Day. McKinnon agreed, and, on September 6, 1984, he and defendant met at a service area parking lot located south of Toms River. Together they selected a spot on the Garden State Parkway to carry out Maria's murder and made final plans for the slaying, which was to occur that evening. The plan was to make the murder look like a robbery.

Defendant took his wife to Harrah's Casino in Atlantic City on the night of September 6, 1984, under the pretext of an evening of dining and gambling. He met McKinnon outside Harrah's at approximately 9:30 p.m. and told him that he and Maria would be leaving the casino at about midnight. Defendant also asked McKinnon for the return of the photographs of Maria and of their home that he had given him in June.

As previously arranged with McKinnon, defendant pulled into the Oyster Creek picnic area at milepost seventy-one on the Garden State Parkway at about 12:30 a.m. on September 7. While his wife lay sleeping on the front seat, defendant got out of the car under the ruse of needing to repair a flat tire. Defendant squatted down to prepare himself for being hit on the head as part of the simulated robbery. Maria Marshall was shot in the back twice. She died immediately.

When the police arrived on the scene, defendant continued to make the murder look like a robbery. The State argues that defendant showed no remorse after the crime, but pretended to join his three sons in grieving over the loss of their mother. The State argued at the trial level that he even staged a suicide attempt. Defendant protested his innocence then and continues to do so now in explanation of his conduct.

Defendant's claims of innocence soon unraveled. Telephone records traced him to McKinnon, who turned State's evidence. In exchange for a plea to conspiracy to commit murder, McKinnon implicated Marshall and identified a Louisiana man, Larry Thompson, as the triggerman.

Investigation disclosed that during his planning, defendant had been increasing the insurance policies on his wife's life. At the time of her death, Maria Marshall's life was insured for about $1,400,000. Defendant had been paying his wife's premiums while neglecting his own. Defendant hastened to complete an application for a policy for a home mortgage before the murder. On the last day of her life, Maria underwent a physical examination for that policy. The State offered proof that defendant could have been motivated to kill by rising debts incurred in his business, including a $128,000 home-equity loan and a short-term bank debt in excess of $40,000. While amassing those large insurance policies, defendant also continued his relationship with Sarann Kraushaar, with whom he had intended to live after the murder.

A jury acquitted Thompson of the murder but accepted McKinnon's version of defendant's role and found him guilty of conspiracy to commit his wife's murder and of murder-by-hire. The only aggravating factor submitted to and found by the jury was that defendant had hired another to commit murder. N.J.S.A. 2C:11-3c(4)(e). The two mitigating factors submitted to and found by the jury were that defendant had no history of criminal activity, [N.J.S.A. 2C:11-3]c(5)(f), and the catch-all mitigating factor, [N.J.S.A. 2C:11-3]c(5)(h). At the time of the offense defendant was forty-four years of age, and had been involved in charitable and community activities. The jury unanimously found beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors. The trial court sentenced defendant to death.

[ 131 N.J. at 121-24.]

This Court affirmed defendant's convictions and sentence on direct appeal, rejecting his thirty-nine proffered grounds for reversal, which included allegations of ineffective assistance of counsel, improper jury instructions, prosecutorial misconduct, and discovery violations. See Marshall I, (supra) , 123 N.J. 1. In respect of defendant's discovery-related contentions on direct appeal, the State had conceded that it had breached its pretrial discovery obligations by failing to turn over to defendant various documents relevant to his case. See 130 N.J. at 172. Those documents included letters discussing expenditures made by the State on behalf of Billy Wayne McKinnon and a promise of immunity made to Sarann Kraushaar by the Ocean County Prosecutor. Id. at 171, 205. This Court concluded that the undisclosed items were not "'material' to defendant's guilt or punishment," id. at 204-05, and thus that the nondisclosures did not require the reversal of defendant's convictions or sentence. Id. at 205, 207.

Believing that there were additional discoverable items that the State had failed to turn over, defendant, after filing a petition for PCR in the Law Division, moved to compel the State to permit defendant to inspect the State's entire file. The Law Division denied the motion, but informed defendant that he was entitled to file discovery applications for specific items. The court explained that "before the State should be compelled to turn over items . . ., there should be some preliminary showing of the reasonable likelihood of the existence of specific items."

Based on information obtained from, among other sources, interviews conducted with witnesses, testimony adduced at defendant's trial, documents previously handed over by the State, and statements made by state officials at another trial and on "The Phil Donahue Show," defendant made numerous requests for specific discoverable materials that, defendant believed, were in the State's possession. Without conceding that its discovery obligations applied to the documents in question, the State voluntarily made available to defendant some of the requested items. Concerning the balance of the requested items, the State submitted the documents to the PCR court for a determination of whether defendant was entitled to the documents. In some instances, the court required the State to provide defendant with the documents in question. In other instances, the court found the documents to be work product or of no probative value and thus not subject to the State's discovery obligations.

The documents received by defendant after his initial PCR discovery motions alerted him to the existence of additional, pertinent documents, and led him to make further specific requests for discovery materials. Through the specific-request procedure, defendant received from the State approximately one hundred documents. Those documents form the foundation of defendant's PCR claim that reversal of his convictions is required because of the State's failure to fulfill its pretrial discovery obligations, see Rule 3:13-3, and its nondisclosure of evidence favorable to defendant, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

Defendant's amended petition for PCR contained a total of 548 grounds for reversal, each of which was placed by defendant into one of nine separate categories. The following chart displays the categories used by defendant and the number of claims within each category.

Category Number of Claims

A. Issues Relating to Discovery 102

and Violations of Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)

B. Issues Relating to Ineffective 267

Assistance of Trial Counsel

C. Issues Relating to the Jury 74

Selection

D. Issues Relating to State's 11

Procurement from Best Western Motel

and Examination of Envelope

Addressed to Joseph Dougherty, Esq.,

Containing Defendant's "Suicide Tape"

and Tape's Admission into Evidence

E. Issues Relating to the Conduct 27

of the New Jersey State Police, the

Ocean County Prosecutor's Office

and the New Jersey Office of the

Attorney General as they Affected

Defendant's Rights to a Fair Trial,

Appeal and Post-Conviction Proceedings

F. Miscellaneous Issues 24

G. Issues Pertaining to Appellate 9

and Post-Conviction Review and the

Effective Assistance of Trial Counsel

H. Issues That Were Not Adequately 16

Raised or Reviewed on Appeal Due to

Page Restrictions Imposed by Supreme

Court

I. Issues Pertaining to Proportionality 19

Review

Defendant requested a complete evidentiary hearing to support the claims raised in the petition through the presentation of testimonial and documentary evidence. He planned to amend the petition based on the evidence adduced at the hearing. In response, the State moved to dismiss the petition in its entirety, asserting that defendant had failed to set forth his claims with sufficient specificity, see R. 3:22-8, and that the claims were all procedurally barred, see R. 3:22-4 (providing, with exceptions, that any claim that could have been, but was not, raised in prior proceeding is barred on post-conviction review); R. 3:22-5 (providing that prior adjudication upon merits of claim precludes raising claim on post-conviction review).

The PCR court granted in part and denied in part the State's motion to dismiss the petition. On procedural grounds, the court dismissed approximately three-quarters of defendant's Category B claims, all of the Category C claims, all of the Category D claims, all but one of the Category E claims, all but one of the Category F claims, all but one of the Category G claims, all of the Category H claims, and all of the Category I claims. The court found that each of those claims was barred by either Rule 3:22-4 or Rule 3:22-5.

Turning to defendant's request to present witnesses and documents to develop his petition, the court determined that defendant was entitled to a complete evidentiary hearing on only five of the remaining 174 claims. Those five claims pertained to defense counsel's opening-statement representation that defendant would testify, and to defendant's competence to take part in the penalty-phase proceeding after a post-verdict physical collapse.

The PCR court stated that, on the other 169 claims, defendant would be entitled only to a "non-evidentiary hearing," at which he could present documentary evidence but not live testimony. The court explained:

The rules of court do not require that evidentiary hearings be conducted on post-conviction relief applications. The hearing court has discretion to conduct evidentiary hearings when appropriate, an evidentiary hearing meaning a hearing at which witnesses will testify . . . . [In this case, t]here's been no showing that the hearing will necessarily involve the resolution of disputed questions of fact material to constitutional violations which can only be resolved in an . . . evidentiary hearing. In fact, it is apparent that for the court and for the litigants to undertake such a hearing on the basis of the allegations in the amended petition for post-conviction relief application would be to venture into a legal morass essentially in the nature of a discovery proceeding with no ascertainable parameters and limits.

The court heard four days of testimony and received 177 defense exhibits in support of the petition for PCR. During the hearings, defendant moved to add nine more claims to his petition. The court denied the motion to amend "at this very late date," and further noted that the additional claims were without merit.

At the Conclusion of the hearings, the court denied defendant's petition. The court found his legal arguments to be without merit and concluded that "despite the undeniably prodigious efforts of [defense] counsel in this proceeding, [the evidence presented by the State at trial] remains intact and undiminished in weight."

Defendant's execution has been stayed pending his appeal to this Court as of right.

II

THE INTERRELATIONSHIP OF POST-CONVICTION RELIEF, THE CAPITAL PUNISHMENT ACT, AND

This is the first appeal taken to this Court from the denial of a post-conviction relief application seeking to set aside a murder conviction and death sentence imposed pursuant to this State's Capital Punishment Act. L. 1982, c. 111 (codified at N.J.S.A. 2C:11-3). The voluminous size of the petition and its constituent documents -- including a forty-five volume appendix and fifteen volume supplemental appendix, together encompassing in excess of 8000 pages -- combined with the 548 claims of error on which it relies, presents the Court with a gargantuan appellate record. The issues presented initially were addressed in the Public Defender's 215 page primary brief and answered by the Attorney General's primary brief of comparable dimension. The Public Defender filed a supplemental brief, at the Court's request, consisting of 250 pages and accompanied by an eleven volume index setting forth record and brief citations in support of each of the post-conviction relief claims. The State's responding supplemental brief comprises 244 pages.

The Court acknowledges the enormous effort and professional dedication reflected by the Public Defender's submissions, as well as the burden it imposed on the remaining resources of that office. Similarly, the Court acknowledges the comparable effort and dedication reflected by the Attorney General's submissions.

An appeal based on so vast a record and implicating so many distinct issues obviously imposes an enormous institutional burden on this Court, diverting time and resources from the Court's other adjudicative and administrative responsibilities. We know that defendant faces the death penalty. Nevertheless, we question both the wisdom and the necessity for so massive a presentation.

We assume that the vastness of the petition and its supporting documents reflects strategic considerations. We infer that one of those strategic considerations was the desire to avoid the very procedural bars to the petition imposed by the trial court pursuant to Rule 3:22-4 and -5. Rule 3:22-4 essentially bars all grounds for post-conviction relief that reasonably could have been raised in a prior proceeding. Rule 3:22-5 bars all grounds for relief that previously were adjudicated on the merits. Presumably, the Public Defender's office reasoned that dividing the post-conviction relief claims into discrete and narrow components would dissuade the post-conviction relief court from categorically imposing the Rule 3:22-4 and -5 procedural bars, and would add weight to the argument that the cumulative effect of all claims required that the petition be granted.

That strategy was unsuccessful in the post-conviction relief court, and we intend that our Disposition of this appeal emphatically will discourage the artificial fragmentation of claims for post-conviction relief purposes, even in capital cases. Such fragmentation elevates form over substance, and unduly burdens the litigants, the post-conviction relief court, and this Court. Post-conviction relief issues should be categorized broadly but coherently, and to the extent necessary illustrated by pertinent examples. No valid purpose is served when every minute example of trial counsel's alleged ineffectiveness is offered as a separate ground for post-conviction relief.

We do not underestimate the potential significance of a post-conviction relief strategy that is designed to avoid the imposition of procedural bars to post-conviction relief. In State v. Preciose, 129 N.J. 451, 464-78, 609 A.2d 1280 (1992), we explored in detail the effect of the federal practice to deny habeas corpus review of state court judgments that rest on adequate or independent state grounds, whether substantive or procedural. See Wainwright v. Sykes, 433 U.S. 72, 81-87, 97 S. Ct. 2497, 2503-07, 53 L. Ed. 2d 594, 604-08 (1977). In Harris v. Reed, the Supreme Court established the principle that a state court's imposition of a state procedural bar would not preclude federal habeas review unless the state court's Disposition expressly stated its reliance on the state procedural bar. 489 U.S. 255, 266, 109 S. Ct. 1038, 1045, 103 L. Ed. 2d 308, 319 (1989). In decisions subsequent to Harris, however, the Court clarified that the Harris presumption against finding a procedural default "'applies only . . . where a federal court has good reason to question whether there is an independent and adequate state ground for the decision.'" Preciose, (supra) , 129 N.J. at 471 (quoting Coleman v. Thompson, 501 U.S. 722, 739, 111 S. Ct. 2546, 2559, 115 L. Ed. 2d 640, 662 (1991)). Thus, defendant's efforts to avoid the procedural bar imposed by the post-conviction relief court with respect to 374 claims can be understood in part as a strategy designed to obtain substantive review of his claims in federal habeas corpus proceedings.

Another factor that may have influenced defendant to present such an extensive number of individual post-conviction relief claims is the exhaustion doctrine, pursuant to which a state prisoner must normally exhaust state judicial remedies before a federal court will entertain that prisoner's petition for habeas corpus. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438, 443 (1971). Codified by Congress in 1948, see 28 U.S.C. § 2254, the exhaustion doctrine contemplates that federal claims have been fairly presented to the state courts. Thus, a federal court should inquire "whether, on the record and argument before it, the [state court] . . . had a fair opportunity to consider the . . . claim and to correct the asserted constitutional defect in respondent's conviction." Picard, (supra) , 404 U.S. at 276, 92 S. Ct. at 513, 30 L. Ed. 2d at 444. In Rose v. Lundy, the Supreme Court held that the exhaustion principle mandated that a federal district court dismiss a petition for a writ of habeas corpus that contained both exhausted and unexhausted claims for relief. 455 U.S. 509, 510, 102 S. Ct. 1198, 1199, 71 L. Ed. 2d 379, 382 (1982). The Court offered this guidance to potential habeas litigants: "before you bring any claims to federal court, be sure that you first have taken each one to state court." Id. at 520, 102 S. Ct. at 1204, 71 L. Ed. 2d at 388.

Despite the preclusive effect of the exhaustion doctrine, it does not mandate presentation to a state court of every claim that conceivably might be asserted in the anticipated habeas petition, but only presentation to the state court of claims intended to be asserted in the habeas petition. Selectivity in the presentation of claims on post-conviction relief is not precluded by the exhaustion rule. If certain claims are obviously without merit and highly unlikely to succeed in the habeas petition, no purpose is served or interest advanced by including those claims in support of either the state post-conviction relief petition or the federal habeas petition. Thus, the exhaustion doctrine neither requires nor excuses the indiscriminate assertion of meritless claims in a post-conviction relief petition.

The principle bears repeating that post-conviction relief proceedings are "not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605, 397 A.2d 671 (1979). As our opinion discloses, we find numerous claims to be totally lacking in merit. Apart from defense counsel's purpose in avoiding the imposition of a procedural bar, we consider the inclusion of many such claims to constitute an unjustified burden on the post-conviction relief process. Based on our Disposition of the procedural bar issue, we anticipate that that imposition will not be repeated in future post-conviction relief proceedings, even in capital cases.

In State v. Mitchell, 126 N.J. 565, 589, 601 A.2d 198 (1992), we emphasized that the procedural bars contained in the rules governing post-conviction relief are "imposed for a purpose." Although not "endorsing their rigid, mechanical application," we expressed our expectation that the procedural rules and their exceptions will "be conscientiously applied to the unique circumstances of each case . . . ." Ibid.

In the unique circumstances of this case, however, we question the wisdom and the practicality of the PCR court's broad-brush application of the Rule 3:22-4 and -5 procedural bars. In view of the substantial number of claims dismissed under Rule 3:22-5's admonition that "a prior adjudication upon the merits of any ground for relief is conclusive . . .," a question fairly raised by defendant is whether the adjudication by this Court on direct appeal or proportionality review concerned the "same ground for relief" now asserted in the post-conviction relief petition. Similarly, dismissal of claims on the ground that they could reasonably have been raised on direct appeal, see R. 3:22-4, raises the question whether the additional facts disclosed in the post-conviction relief record sufficiently augment the scope of such claims to preclude the Conclusion that a substantially similar claim could have been advanced on the basis of the trial record. The issue of reliance on the procedural bars is made more complex by the recognition that the claims now raised invariably are as readily resolved on their merits as by application of the procedural bar.

We illustrate the problem by considering the PCR court's Disposition of post-conviction relief claims of ineffective assistance of trial counsel in the context of the ineffectiveness issues raised on direct appeal and our Disposition of those issues. The PCR court essentially relied on this Court's Disposition of the ineffectiveness challenge asserted on direct appeal, Marshall I, (supra) , 123 N.J. at 164-65, noting that "this contention was raised before the Supreme Court on the appeal," and concluding: "Except for the claims not dismissed it may be said that all claims are barred under R. 3:22-5 as having been previously adjudicated. If any claims are viewed as not having been previously adjudicated because not raised in specific terms on the appeal, then the claims are barred under R. 3:22-4."

However, the specific allegations of ineffective assistance of counsel asserted in defendant's direct appeal brief include only a fraction of the claims asserted on post-conviction relief. In his direct appeal brief defendant raised only the following ineffectiveness claims relating to the guilt phase:

Specifically, Mr. Marshall was prejudiced by counsel's failure to pursue the possibility that Maria Marshall was sitting up and awake when shot through cross-examination of the medical examiner, independent investigation and summation; his failure to call his tire expert to testify about the inconclusiveness of the State's chemist's findings, his failure to request an adequate remedy for the tire's destruction and failure to object to the prosecutor's summation remarks about the tire; his failure to call as witnesses the individuals flagged down for aid by Marshall just after the murder; counsel's failure to attempt to obtain the September 6th medical report for Mr. Marshall through N.J.S.A. 2A:81-18, et seq, ; counsel's failure to object to the prosecutor's blatantly improper questions of Oakleigh DeCarlo; his withdrawal of his objection to Maria Marshall's statement, "What's this for?"; his failure to object to Zillah Hahn's inadmissible hearsay testimony discrediting defense witness Paul Rakoczy; his failure to seek a remedy for the prosecutor's informing the jury and relying on the fact of Kraushaar's father's death; counsel's failure to object to most of the prosecutor's summation; and counsel's failure to request an opportunity to interview McKinnon upon learning he placed a call to Cumber after testifying. . . . The cumulative effect of the foregoing errors was a trial that was fundamentally unfair and unreliable from start to finish.

Responding to the specific allegations of ineffectiveness in defendant's direct appeal brief, this Court observed:

The contention that defendant was denied effective assistance of counsel in the guilt phase is utterly without merit. Defense counsel, a certified criminal trial attorney, see Rule 1:39, provided a zealous and conscientious defense of his client throughout this protracted trial. Counsel was obviously well-prepared, thoroughly familiar with the record, and persistently and forcefully advocated his client's interests throughout the guilt-phase proceedings. The examples of the deficiencies relied on by defendant represent no more than a fraction of the strategic decisions with which counsel was confronted in the course of this lengthy and sharply-contested proceeding. With hindsight, it is not difficult to suggest different trial strategies that counsel might have pursued, but the law is settled that "in assessing the adequacy of counsel's performance, 'strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Burger v. Kemp, 483 U.S. 776, 819, 107 S. Ct. 3114, 3139, 97 L. Ed. 2d 638, 673 (1987) (Powell, J., Dissenting) (quoting Strickland [v. Washington],[], 466 U.S. [668,] 690, 104 S. Ct. [2052,] 2066, 80 L. Ed. 2d [674,] 695 [(1984)]). Nor can the quality of counsel's effectiveness fairly be assessed by focusing on a handful of issues, while ignoring the totality of counsel's performance in the context of the State's compelling evidence of defendant's guilt. Based on our close scrutiny of the entire record, we reject defendant's contention that counsel's performance was deficient under the Strickland /Fritz standard.

[ 123 N.J. at 164-65.]

We cannot accurately discern from the PCR court's abbreviated Disposition of the post-conviction relief ineffectiveness claims the extent to which the court simply accorded preclusive effect to this Court's Disposition of the issue on direct appeal. Although our resolution of the issue on direct appeal reflected our familiarity with the entire record, our Disposition should not have been understood to extend beyond the issues specifically raised in defendant's direct appeal brief. Our direct appeal opinion reflects our impression, based on the record, that trial counsel was skilled, diligent, and thorough, but our Disposition could not fairly be understood to encompass an evaluation on the merits of numerous claims of ineffectiveness of which this Court was then completely unaware.

Scant caselaw exists on the question of whether a prior adjudication of an issue should be considered an adjudication "on the same ground" as that asserted in support of a subsequent post-conviction relief claim. In State v. Bontempo, 170 N.J. Super. 220, 406 A.2d 203 (Law Div. 1979), the trial court in a murder prosecution employed an unusual and unauthorized procedure, permitting the defendant to make an unsworn statement before the jury after the Conclusion of the summations by the attorneys. Following the defendant's statement, the prosecutor was allowed a second summation during which he referred to the defendant's failure to deny specifically his complicity in the crimes charged. On direct appeal, the defendant argued that his Fifth Amendment right to remain silent was violated by the unusual procedure authorized by the trial Judge, including allowing the prosecutor to rebut his statement, thus denying him his right to a fair trial. The defendant's argument on direct appeal was held to be "clearly without merit." Id. at 234. Noting that he did not "expressly articulate the manner in which the procedure was said to be violative of the Fifth Amendment [in his appellate brief]," and finding that the thrust of his direct appeal argument was that the structure of the process was the root of the Fifth Amendment violation, Judge Baime ruled that the defendant's post-conviction claim of a Fifth Amendment violation resulting from the prosecutor's rebuttal to defendant's statement had not been raised on direct appeal. Ibid. Thus, Rule 3:22-5 did not bar petitioner's claim.

Judge Baime explained:

Under these circumstances, it would be unfair to bar defendant from advancing the Fifth Amendment claim presented in his petition. To be sure, the argument advanced here and that presented in defendant's Appellate Division brief are similar. Nevertheless, the United States Supreme Court has held in a somewhat related context that federal judicial review of constitutional questions on habeas corpus should be denied only where it is clear that the identical issues or "substantially equivalent" arguments were not presented initially in the state courts. See Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). See also United States ex rel. Trantino v. Hatrack, 563 F. 2d 86 (3d Cir. 1977), cert. den. 435 U.S. 928, 98 S. Ct. 1499, 55 L. Ed. 2d 524 (1978); Zicarelli v. Gray, 543 F. 2d 466 (3d Cir. 1976). By analogy, that rule should be applied with equal force here. Preclusion of consideration of an argument presented in post-conviction relief proceedings should be effected only if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal. Applying that standard, defendant's oblique reference in his Appellate Division brief to the prosecutor's rebuttal to his unsworn statement should not bar judicial resolution of the issue presented in his petition for post-conviction relief.

[Bontempo, (supra) , 170 N.J. Super. at 234.]

Judge Baime then rejected the defendant's post-conviction relief claim on the merits, concluding that he had waived his Fifth Amendment right by electing to address the jury. Id. at 238-49.

Similarly, in State v. Rosen, 110 N.J. Super. 216, 265 A.2d 152 (App. Div. 1969), aff'd, 56 N.J. 89, 265 A.2d 142 (1970), an issue raised on direct appeal of the defendant's burglary conviction was whether the fact that his retained trial counsel had been appointed to a Judgeship before the trial deprived him of his opportunity to be represented by counsel of his choice, a contention rejected by the Appellate Division. In a post-conviction relief application, the defendant for the first time asserted that he had permitted the substitute trial counsel to represent him against his will because counsel had warned him that his bail would be revoked if he requested an adjournment to seek new counsel. Although the PCR court dismissed the post-conviction relief petition, the Appellate Division majority concluded that an evidentiary hearing on the claim should have been held, but that the failure to do so was harmless. 110 N.J. Super. at 219. Dissenting, Judge Conford concluded that the lack of an evidentiary hearing was reversible error because the claim asserted on post-conviction relief had not previously been adjudicated:

The decision of the Appellate Division on the appeal from the conviction did not decide the issue presented to the post-conviction court. On that appeal the record as it then stood precluded any determination of more than whether the trial transcript demonstrated deprivation of defendant's right to counsel of his choice. While the remarks of the trial Judge were of a coercive tenor, the record seemingly demonstrated unequivocal acquiescence by defendant in the directions of the court. Defendant did not, nor could he properly, argue to the appellate court on that appeal that Mr. Kmiec's representations to him during the recess combined with the trial court's initial strictures made his agreement to go to trial involuntary, since the former facts were not in the record then before the court. Consequently the adjudication in the prior appeal was not a "prior adjudication upon the merits" of the specific grounds for relief asserted in the instant post-conviction petition, within a proper application of R. R. 3:10A-5.

[ 110 N.J. Super. at 223 (Conford, J.A.D., Dissenting).]

The question whether a ground for relief in a post-conviction relief petition constitutes the "same ground" as was adjudicated on direct appeal takes on added significance because it implicates the strict application of the exhaustion doctrine by federal courts considering habeas applications. Thus, in Santana v. Fenton, 685 F. 2d 71 (1982), cert. denied, 459 U.S. 1115, 103 S. Ct. 750, 74 L. Ed. 2d 968 (1983), the Third Circuit rejected the defendant's habeas petition on exhaustion grounds. The court concluded that the defendant's habeas contention that the state PCR court's refusal to reopen the case had denied him his constitutional right to testify on his own behalf had not been asserted before the state courts. On direct appeal, the defendant had argued only that the trial court had abused its discretion in refusing to allow his testimony. Relying on Bontempo, (supra) , the Third Circuit concluded that "the argument presented to the state courts was not the substantial equivalent of the constitutional argument he now poses in federal court . . . ." Santana, (supra) , 685 F. 2d at 75.

Similarly, in Gibson v. Scheidemantel, the Third Circuit also denied the defendant's habeas petition on exhaustion grounds, concluding that "to the extent that Gibson's claim of ineffective assistance of counsel is now considered by him to encompass also a contention that trial counsel failed to protect his juvenile status, that aspect of his claim [is not a ground for relief that has been] previously adjudicated." 805 F. 2d 135, 140 n.2 (1986); see also Zicarelli v. Gray, 543 F. 2d 466 (3d Cir. 1976) (en banc) (holding that defendant's habeas claim that jury had not represented a fair cross-section of community was not fairly presented to state courts that considered and adjudicated other jury-related issues).

We do not imply that the federal exhaustion doctrine constitutes a mirror image of the Rule 3:25-5 bar based on prior adjudications on the merits, but simply observe that both doctrines seek to vindicate the State's interest in the finality of its criminal judgments. Moreover, both doctrines are applied on the basis of an inquiry into whether a ground for relief has fairly been adjudicated by or presented to the state courts. That potential interrelationship suggests that we modify our dicta in Preciose, (supra) , when we observed in a different but related context that the use of post-conviction relief procedural bars "should not be shaped or influenced in the slightest by the federal court's restrictive standards for allowing or disallowing habeas review." 129 N.J. at 477. Obviously, neither state nor federal interests would be served by so broad an application of our procedural bars as to deny a defendant post-conviction relief on the ground that a claim previously had been adjudicated and, as a result of that ruling, also preclude habeas relief because of the defendant's inability to satisfy the exhaustion doctrine.

Moreover, the PCR court's blanket reliance on Rule 3:22-4 as a ground for dismissal of all dismissed ineffectiveness claims not previously adjudicated appears to be overbroad. In its letter brief of April 26, 1994, to the post-conviction relief court, defendant offered numerous examples of ineffective assistance of counsel claims neither specifically adjudicated on direct appeal nor based solely on facts and evidence contained in the trial record. In addition, numerous items of documentary evidence were obtained for the first time in the post-conviction relief proceeding, and ineffective-assistance-of-counsel claims implicating those documents cannot fairly be characterized as claims that could have been raised on direct appeal. Finally, we noted in Mitchell, (supra) , that Rule 3:22-4(c) "has been interpreted to allow courts to consider petitions for post-conviction relief when the defendant alleges that his constitutional rights were seriously infringed during the conviction proceedings." 126 N.J. at 585-86. Because defendant's post-conviction relief petition relies heavily on the contention that trial counsel's ineffectiveness deprived him of his constitutional rights, aggressive application of the Rule 3:22-4 bar to those claims appears to be unwarranted.

Our familiarity with the record and the proceedings on direct appeal facilitates our Disposition on the merits of virtually all of defendant's post-conviction relief claims. To eliminate the concerns about ambiguous state court rulings addressed in Ylst v. Nunnemaker, 501 U.S. 797, 802-04, 111 S. Ct. 2590, 2594-95, 115 L. Ed. 2d 706, 716-17 (1991), we expressly overrule the post-conviction relief court's reliance on the Rule 3:22-4 and -5 procedural bars to dismiss defendant's claims. We are satisfied that many, if not most, of those rulings overstate the effect of our direct appeal opinion or underestimate the significance of the enhanced factual basis for the claims asserted in the PCR petition. Moreover, the question whether a claim buttressed by added facts fairly could have been raised on direct appeal often involves an analysis that is peculiarly subjective. Ironically, in most instances the analysis required for Disposition on the merits is less intricate than that required to decide whether a claim should be precluded because of a procedural bar. Moreover, a state court adjudication on the merits of a federal constitutional claim generally assures that that claim will qualify for federal habeas review, and as we stated in Preciose, (supra) , we do not "deem federal habeas review an undesirable intrusion on our adjudications." 129 N.J. at 475. That observation has special force in the context of habeas corpus petitions to review death sentences imposed pursuant to our Capital Punishment Act. Finally, we reiterate that "when meritorious issues are raised that require analysis and explanation, our traditions of comprehensive Justice will best be served by decisions that reflect thoughtful and thorough consideration and Disposition of substantive contentions." 129 N.J. at 477-78.

III

LEGAL STANDARDS GOVERNING DEFENDANT'S CLAIMS

Most of defendant's claims allege either that the State improperly withheld exculpatory evidence from defendant or that defense counsel did not adequately represent defendant at trial. Accordingly, we proceed to discuss the legal standards that will be applied to those two types of allegations.

In State v. Knight, 145 N.J. 233, 678 A.2d 642 (1996), we summarized the scope of the State's constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession:

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Subsequent Supreme Court cases significantly expanded the scope of the Brady rule. For example, in United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342, 351-52 (1976), the Court stated that the rule applies where the defendant has made only a general request for all "Brady material" and even where the defendant has not made any request at all. In United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985), the Court confirmed that Brady encompasses evidence that the defendant might have used to impeach government witnesses. . . . Most recently, in Kyles v. Whitley, 514 U.S. 419, , 115 S. Ct. 1555, 1560, 131 L. Ed. 2d 490, 498 (1995), the Court emphasized that where multiple items of evidence have been suppressed, the prosecution's Brady obligation "turns on the cumulative effect" of such evidence. Thus, courts are obligated to consider the State's non-disclosures "collectively, not item-by-item." Id. at , 115 S. Ct. at 1567, 131 L. Ed. 2d at 507.

[ 145 N.J. at 245-46.]

The focus of the Brady analysis often is whether evidence is sufficiently "material" to the defendant's case to come within the State's Brady obligation. In Knight, (supra) , we recounted the evolution of the test used by the United States Supreme Court to determine whether suppressed evidence is "material" for Brady purposes:

In Agurs, (supra) , 427 U.S. at 104-112, 96 S. Ct. at 2398-2402, 49 L. Ed. 2d at 350-55, the Court stated that the standard for ascertaining whether suppressed evidence is material depends on the specificity of the defendant's initial request for the evidence in question. In cases where a specific request has been made, reversal would be required if the suppressed evidence "might have affected the outcome of the trial." Id. at 104, 96 S. Ct. at 2398, 49 L. Ed. 2d at 350. If the defendant has made only a general request for "Brady material" or no request, reversal would be necessary "if the omitted evidence creates a reasonable doubt that did not otherwise exist." Id. at 112, 96 S. Ct. at 2402, 49 L. Ed. 2d at 355. However, the Court subsequently abandoned the distinction set forth in Agurs, and held that, regardless of the specificity of the defendant's request, evidence is material for Brady purposes "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, (supra) , 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494 (plurality opinion of Blackmun, J.); id. at 685, 105 S. Ct. at 3385, 87 L. Ed. 2d at 496 (White, J., Concurring); see Kyles, (supra) , 514 U.S. at , 115 S. Ct. at 1565, 131 L. Ed. 2d at 505.

[ 145 N.J. at 246.]

In respect of whether New Jersey state law calls for a "materiality" test less demanding than that set forth in United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), we have stated:

We look to the standard set forth in Bagley, (supra) , to resolve th[e materiality] issue. In State v. Marshall , 123 N.J. 1, 199-200, 586 A.2d 85 (1991), this Court declined to apply the Bagley materiality test where the defendant had made a specific request for the suppressed evidence, applying instead the specific-request standard found in Agurs. See also State v. Florez, 134 N.J. 570, 593, 636 A.2d 1040 (1994) (noting, in dicta, two-tier approach that this Court has taken in Brady cases). However, the record in this case indicates that [the defendant] made no specific request for the Brady materials at issue. Accordingly, we need not resolve whether, as a matter of state law, we will continue to apply the less demanding Agurs test to the State's non-disclosures in a specific-request context. We recognize, however, that Bagley 's unitary standard is simpler to apply and that the difference between the Agurs and Bagley materiality standards may not be sufficiently substantial to justify retention of two different materiality tests for Brady violations. To the extent that Marshall is inconsistent with that recognition, Marshall may be understood to reflect our view that the defendant in that case had not established the materiality of the Brady violation even under the less demanding standard imposed by Agurs in specific-request situations.

[Knight, (supra) , 145 N.J. at 247.]

We continue to adhere to the views we expressed in Knight concerning the advantages of the unitary Bagley standard, and we perceive no state-law basis on which to depart from the use of that standard in Brady cases. Thus, in this case we apply the Bagley test to all of the State's nondisclosures, including those that relate to documents that defendant had specifically requested before trial. In all instances, evidence is material for Brady purposes "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, (supra) , 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494 (plurality opinion of Blackmun, J.); id. at 685, 105 S. Ct. at 3385, 87 L. Ed. 2d at 496 (White, J., Concurring).

Defendant's ineffective-assistance-of-counsel claims are evaluated under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In that case, the United States Supreme Court explained that a "convicted defendant's claim that counsel's assistance was so defective as to require a reversal of a conviction or death sentence has two components." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Ibid. ; see State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987) (adopting Strickland test and "recognizing the soundness and efficacy of both the substance and formulation" of that test in defining state constitutional guarantee of effective assistance of counsel).

To establish that defense counsel was constitutionally "deficient," the defendant must persuade the court that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, (supra) , 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. More specifically, the defendant must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland Court emphasized that "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A court evaluating a claim of ineffective assistance of counsel must avoid second-guessing defense counsel's tactical decisions and viewing those decisions under the "distorting effects of hindsight." Ibid. Because of the inherent difficulty in evaluating defense counsel's performance solely on the basis of the circumstances existing at the time of trial, the Strickland Court admonished courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Ibid.

The second prong of a meritorious Strickland claim, the prejudice component, "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Specifically, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 80 L. Ed. 2d at 694, 108 S. Ct. at 2068, 80 L. Ed. 2d at 698. In making that evaluation, the court must consider the quantum and quality of evidence. As the Strickland Court noted, "a verdict or Conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696, 108 S. Ct. at 2068, 80 L. Ed. 2d at 699.

Before turning to the merits of the claims raised in defendant's petition for PCR, we also address the preliminary showing that a defendant must make to obtain an evidentiary hearing on PCR claims. Although no PCR rule requires that evidentiary hearings be held on PCR petitions, Rule 3:22-10 recognizes that the PCR court may exercise its discretion to conduct evidentiary hearings at which oral testimony is taken. See Preciose, (supra) , 129 N.J. at 462. Post-conviction relief "courts ordinarily should grant evidentiary hearings . . . if a defendant has presented a prima facie [case] in support of post-conviction relief." Ibid. To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits. See id. at 463.

Thus, in determining the propriety of an evidentiary hearing, the PCR court should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed "in the light most favorable to defendant." See id. at 462-63. If that inquiry is answered affirmatively, then the defendant generally is entitled to an evidentiary hearing in order to prove the allegations. We observe, however, that there is a pragmatic dimension to the PCR court's determination. 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, see State v. Flores, 228 N.J. Super. 586, 590, 550 A.2d 752 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, see Preciose, (supra) , 129 N.J. at 462-64; State v. Odom, 113 N.J. Super. 186, 192, 273 A.2d 379 (App. Div. 1971), then an evidentiary hearing need not be granted.

In response to an argument made by defendant in this case, we further note that an evidentiary hearing should not be granted for the purpose of permitting a defendant to investigate whether the State has failed to deliver discoverable materials to the defendant. The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief. In Section V, (infra), we explain the proper means for obtaining discovery in PCR proceedings.

IV

THE MERITS OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF

A.

ALLEGED ERRORS RELATING TO THE TESTIMONY OF BILLY WAYNE MCKINNON

We observed in Marshall I, (supra) , that the testimony of co-defendant Billy Wayne McKinnon "was the most incriminating evidence against Marshall," 123 N.J. at 28, and that McKinnon's credibility was the "most critical issue at trial," 148 N.J. at 156. McKinnon directly contradicted Marshall's claim of innocence by testifying that Marshall had hired him not to investigate his wife but to kill her. McKinnon's testimony provided a detailed account of his dealings with Marshall and the prearranged plan to kill Maria Marshall under circumstances that would create the appearance of a robbery gone awry. See id. at 28-30, 41-49. We determined that "the evidence at trial indisputably established that McKinnon, who had been hired and paid by Marshall and had met with Marshall at Harrah's on the night of the murder, had been present at the crime scene and had participated in the murder of Marshall's wife." Id. at 30. Defendant now raises thirty-two claims that allege errors relating to McKinnon's testimony and defense counsel's impeachment of that testimony.

1. McKinnon's Plea Agreement

(A.72, A.76-77, A.83, B.5, E.23)

The six claims in this subcategory include four alleged Brady violations consisting of the State's failure to disclose certain documents concerning expenses incurred by the State on behalf of McKinnon or his family. Also included is one claim of ineffective assistance of counsel relating to counsel's failure to renew, prior to McKinnon's testimony, defendant's motion for discovery after the State had failed to disclose any discovery concerning financial accommodations made on McKinnon's behalf. The final claim addressed in this subcategory alleges that McKinnon's plea agreement itself violated defendant's constitutional rights, because it gave McKinnon "irresistible reasons to provide perjured testimony against his co-defendants."

As we recounted in Marshall I, McKinnon, indicted for conspiracy to murder Maria Marshall and for purposely or knowingly causing the death of Maria Marshall as an accomplice, pled guilty only to conspiracy to commit murder, and was sentenced to five years imprisonment in exchange for his testimony at trial. See 123 N.J. at 27, 41.

The [plea] agreement was introduced in evidence and read to the jury. McKinnon agreed to give a full statement identifying everyone involved in the murder of Maria Marshall, to waive immunity, and to testify before a grand jury and at the ensuing trial. In return, McKinnon would be permitted to plead guilty to conspiracy to commit murder, stipulated to be a non-Graves Act offense, the State would recommend a term not in excess of five years without parole ineligibility to be served for security purposes at the State Prison in Clinton, and the prosecutor's office would recommend that he be paroled at the earliest possible date. The State also agreed to relocate his family to a safe location for their protection, and to support their entry into the witness-protection program.

[ 123 N.J. at 41.]

We also observed that

McKinnon was subjected to extensive cross-examination, defense counsel emphasizing particularly the generous terms of his plea bargain, which would allow McKinnon to be paroled soon after the completion of the trial. [Co-defendant] Thompson's counsel pressed McKinnon to concede that the State would not have offered McKinnon such generous terms if he had been the "shooter," and McKinnon acknowledged that no evidence other than his testimony implicated Thompson in the murder. Thompson's counsel questioned McKinnon persistently about his explanation of Thompson's role in the homicide, implying that McKinnon himself had murdered Mrs. Marshall and had fabricated Thompson's involvement in order to negotiate a favorable plea bargain.

[ Id. at 49.]

In Marshall I, we considered the materiality of the nondisclosure of certain documents concerning expenses incurred by the State on behalf of McKinnon's family and determined that "there was no reasonable possibility that the further impeachment of McKinnon by reference to the financial support his family received from the State would have affected the verdict." 123 N.J. at 207. We briefly recount the circumstances leading to our adjudication of that issue on direct appeal to provide context for our consideration of defendant's similar claims before us on PCR review.

Defendant's pretrial discovery motion included a demand that the State disclose

any and all considerations or promises of consideration given to or on behalf of the witnesses or expected or hoped for by the witnesses. By "consideration", defendant refers to absolutely anything, whether bargained for or not, which arguably could be of value or use to a witness or to persons of concern to the witness, including but not limited to * * * criminal, civil or tax immunity grants; and anything else which could arguably reveal an interest, motive or bias in the witness in favor of the plaintiff or against the defense or act as an inducement to testify or color testimony.

[ 148 N.J. at 171.]

Approximately three years after the trial concluded, we granted defendant's motion for a hearing to determine whether the State's failure to disclose certain documents had violated the strictures of Brady, (supra) . See Marshall I, (supra) , 123 N.J. at 171-72. During the course of that hearing, the trial court ordered that the State produce its entire correspondence file for inspection. Defense counsel reviewed the file and discovered what appeared to be additional Brady material concerning expenses incurred by the State on behalf of McKinnon and his family. See id. at 181, 188-89, 205. Specifically, counsel found two letters in which the Ocean County Chief of Detectives had requested reimbursement from the New Jersey State Police for monies to house and to otherwise assist McKinnon's family during the trial (the "McKinnon letters"). See id. at 205. Defendant argued that had the letters been produced prior to McKinnon's testimony, they could have been used to impeach his credibility, which conceivably could have affected the outcome of the trial. See ibid.

We determined that

there was no reasonable possibility that the further impeachment of McKinnon by reference to the financial support his family received from the State would have affected the verdict. McKinnon's fundamental interest in testifying was to obtain a reduction of charges against him from capital murder to conspiracy, thereby reducing his maximum possible punishment from a death sentence to a five-year prison term with no parole disqualifier. Those facts were clearly conveyed to the jury during defense counsel's cross-examination of McKinnon. Any possible incremental effect on McKinnon's credibility from the additional revelation that financial accommodations were made to support his family would have been merely cumulative. . . . McKinnon's plea bargain included an undertaking by the prosecutor to recommend McKinnon's acceptance in the Federal Witness Protection program, see 18 U.S.C.A. §§ 3521 to -28, which specifically authorizes the payment of basic living expenses for an immediate family member of a protected witness. 18 U.S.C.A. § 3521(b)(1)(D). We conclude that there was no reasonable possibility that a different verdict would have arisen had the letters been disclosed. We therefore reject defendant's claim that the State's failure to have disclosed the McKinnon letters requires reversal of defendant's conviction. See [State v. ] Carter, . . . 91 N.J. [86,] 114-15 [(1982)].

[ 123 N.J. at 207.]

As noted above, defendant's petition for post-conviction relief includes four Brady claims relating to the nondisclosure of certain documents concerning expenses incurred on behalf of McKinnon and his family. Two of those claims allege the nondisclosure of the McKinnon letters; those claims are dismissed under Rule 3:22-5. The remaining two claims allege the nondisclosure of an internal memorandum from State Investigator Susan Brandt to Prosecutor Edward Turnbach concerning lodging and meals provided to McKinnon's family on May 23 and 24, 1985 (the "Brandt memorandum"), and an accounting of the expenses incurred by Investigator Brandt on those dates and referred to in the Brandt memorandum. We reject those two claims for the same reasons that we rejected, in Marshall I, (supra) , defendant's claims based on the nondisclosure of the McKinnon letters: "There is no reasonable possibility that a different verdict would have arisen had the [documents] been disclosed." 123 N.J. at 207. As we explained in Marshall I, "any possible incremental effect on McKinnon's credibility from the additional revelation that financial accommodations were made to support his family would have been merely cumulative." Ibid.

Defendant also argues, based on the belated discovery of the McKinnon letters and the Brandt memorandum, and the fact that the State has never provided the expense accounting referred to in the Brandt memorandum, that he is entitled to an evidentiary hearing at which he "can subpoena the testimony of [Ocean County Prosecutor's Office] representatives . . . [to] establish the extent of benefits McKinnon received which were hidden by the State." We reject defendant's claim as speculative, and we note that the alleged nondisclosure would be immaterial. See ibid. We also reject defendant's claim of ineffective assistance of counsel based on counsel's failure to renew defendant's discovery motion seeking disclosure of financial accommodations made on behalf of McKinnon after the State failed to furnish any such discovery to defendant prior to McKinnon's testimony. We conclude that any failure by counsel in that regard was immaterial to the outcome of the trial, in view of the immateriality of the nondisclosure of such information.

The final claim in this subcategory contends that the State's plea agreement with McKinnon violated defendant's due-process rights because it allegedly "provided McKinnon irresistible reasons to provide perjured testimony against his co-defendants." We determine that that claim is wholly without merit. That McKinnon may have been motivated to lie does not establish that McKinnon in fact perjured himself concerning material aspects of his testimony against Marshall. In addition, defendant cites no legal precedent that would preclude the State from entering into a plea agreement with one co-defendant in exchange for his or her truthful testimony against other co-defendants, nor are we aware of any. In that regard, we note that the State's plea agreement with McKinnon was conditioned on McKinnon's "truthful cooperation . . . and . . . truthful testimony."

2. Other Claims Relating to McKinnon's Credibility

(A.14, A.75, A.80, A.82, A.99-101, B.6, B.10, B.41, B.74-77, B.84-88, E.15, F.6, F.23-24)

Defendant raises a myriad of other claims alleging that various errors precluded the effective impeachment of McKinnon's credibility. The twenty-three claims in this subcategory include seven alleged discovery violations, one claim of prosecutorial misconduct, twelve allegations of ineffective assistance of counsel, and three "miscellaneous" claims. We determine that all of the claims lack merit.

Defendant's Brady claims include an allegation that the State failed to disclose information in its possession concerning McKinnon's cooperation with federal law-enforcement authorities in connection with unrelated criminal investigations in other jurisdictions. Defendant argues that the fact of McKinnon's cooperation with federal authorities, whether or not based on charges filed against him, was discoverable and improperly suppressed. We disagree. We conclude that such information, if it existed, would have been immaterial to the outcome of the trial. We also note that Lieutenant James Churchill, who supervised the investigation into the murder of Maria Marshall, stated in an affidavit prepared at the direction of the PCR court that he was "not aware that there were any charges or criminal investigations pending against McKinnon at the time of his cooperation with the FBI, or at the time of his entry into the federal witness program." We are satisfied, therefore, that the State did not suppress other-crimes evidence that could have been used to impeach McKinnon. We therefore reject defendant's claim and related request for an evidentiary hearing. We also reject as speculative defendant's claim that the State suppressed evidence that McKinnon was dangerous, and we observe that such evidence would not have affected the outcome of the trial in view of the jury's knowledge that McKinnon was a co-conspirator in a plot to commit murder.

Defendant also alleges that the State failed to produce the "original notes" prepared by Lieutenant Churchill and Detective John Petracca during their interrogations of McKinnon in December 1984. In view of the State's certification to the PCR court that Churchill and Petracca did not take contemporaneous notes while interrogating McKinnon and that such notes therefore do not exist, we dismiss defendant's claim as wholly without merit. We likewise reject defendant's suggestion that trial counsel was remiss in not seeking production of the original interrogation notes prior to cross-examining McKinnon, because defendant cannot have been prejudiced by a failure of counsel to request what did not exist.

Defendant's remaining discovery claims in this subcategory relate to the State's investigation of other co-conspirators and suspected co-conspirators. Defendant alleges that the State failed to disclose the Louisiana criminal records of co-defendant Larry Thompson's brother, Steven Thompson; its request to the FBI in October 1984 to compare the fingerprints of Steven Thompson and one James Otis Howard with latent fingerprints lifted from Marshall's car; and other information in the State's possession in October 1984 causing it to suspect the involvement of James Otis Howard in the Marshall murder. The essence of those claims is that the State allegedly suppressed information casting doubt on McKinnon's testimony that Larry Thompson was the triggerman, and that if defendant had possessed such information at trial, he could have demonstrated that McKinnon lied about Thompson's involvement in the murder, which would have cast doubt on McKinnon's testimony against Marshall. We determine that defendant's claims are patently without merit. The jury's acquittal of Thompson reveals that it did not accept McKinnon's account of Thompson's involvement in the murder. That disbelief, however, apparently did not lead the jury to reject McKinnon's account of Marshall's involvement. We are satisfied that further impeachment of McKinnon on the subject of Thompson's involvement would have been immaterial to the outcome of the trial.

We likewise dismiss defendant's claims of ineffective assistance of counsel relating to counsel's failure to move for severance of defendant's trial from that of co-defendant Larry Thompson, his failure to request full discovery from the State concerning Steven Thompson, his failure to conduct his own investigation into Steven Thompson, and his failure to elicit evidence concerning Steven Thompson's presence in New Jersey. We regard as meritless defendant's speculation that counsel's failure to move for severance was based on a desire not to interfere with Larry Thompson's defense strategy. We also find meritless defendant's argument that severance would have facilitated cross-examination of McKinnon concerning his relationship with other law-enforcement agencies and his information about Steven Thompson.

Defendant also claims that the State's suppression of the complete report of its interviews with Larry Thompson's alibi witnesses deprived defendant of information critical to his defense. Specifically, defendant alleges that the State improperly withheld information pertaining to the credibility of Thompson's alibi witness Angela Gallien. Defendant argues that he was entitled to such information on the theory that evidence discrediting Thompson's alibi witnesses had the effect of bolstering McKinnon's credibility, while evidence enhancing the credibility of alibi witnesses had the effect of discrediting McKinnon. Defendant therefore argues that the failure to provide such information deprived him of the ability to prepare his defense. We are satisfied that defendant's claim is without merit. As noted, the jury apparently rejected McKinnon's testimony against Thompson and accepted Thompson's alibi defense while convicting Marshall. Thus, the nondisclosure of additional information pertaining to the credibility of Angela Gallien or Thompson's other alibi witnesses would not have affected the outcome of the trial in respect of Marshall. For the same reasons, we dismiss defendant's related claims of prosecutorial misconduct and trial error in connection with the State's impeachment of Gallien.

Defendant asserts two claims of ineffective assistance of counsel alleging that counsel failed to cross-examine McKinnon adequately concerning McKinnon's preparation for trial and the length of McKinnon's interrogation prior to giving a taped statement to investigators. Defendant argues that those areas of inquiry would have demonstrated that McKinnon's taped statement to investigators and his trial testimony consisted of coached and rehearsed statements tailored to the State's theory of the case. We conclude that both claims should be dismissed on the merits without an evidentiary hearing. Direct and cross-examination of McKinnon established that McKinnon had met with State investigators on three or four separate occasions prior to giving his taped statement, and counsel for both defendant and Thompson cross-examined McKinnon at length concerning the circumstances leading up to his formal statement. In addition, Thompson's counsel questioned McKinnon specifically about the amount of time he had "spent with the law enforcement people going over the story and smoothing it out before it was finally reduced" to the form of a formal statement, and repeatedly suggested that the investigators had tailored McKinnon's statement by asking him leading questions. Concerning the extent of McKinnon's pretrial preparation, Marshall's counsel elicited that McKinnon had reviewed his plea agreement, taped statement, and grand jury testimony prior to testifying, and Thompson's counsel insinuated that McKinnon's testimony was well-rehearsed. Thus, the jury was informed of the circumstances of McKinnon's taped statement and the nature of his pretrial preparation.

Defendant also alleges that counsel's failure to request and obtain prior to trial the tape recording of McKinnon's taped statement, to compare it with the written version supplied in discovery, and to interview McKinnon prior to trial concerning his taped statement, demonstrate a lack of adequate preparation for trial. Defendant argues that had counsel listened to the nuances of speech on the tape recording, he would have been better prepared to cross-examine McKinnon and the State's investigators concerning whether McKinnon's statement was the product of prompting by the investigators. We are satisfied that any alleged ineffectiveness of counsel in that regard was immaterial to the outcome of the trial and we therefore dismiss the claims without an evidentiary hearing. As noted, counsel for both defendant and Thompson cross-examined McKinnon at length about his statement. Both lawyers inquired whether the State's investigators had supplied McKinnon with information prior to taking his statement or had coached or prompted him during that statement.

Four of defendant's claims concern the admission into evidence of the transcripts of McKinnon's taped statement and grand jury testimony. Defendant asserts that neither item of evidence was admissible and that counsel's failure to object to their admission prejudiced defendant because the transcripts improperly bolstered McKinnon's testimony and credibility. Defendant also asserts that he is entitled to an evidentiary hearing to establish that counsel had no strategic reason for failing to object to the admission of those items. Defendant's claims are without merit.

As we have noted, at various times throughout McKinnon's cross-examination counsel for both defendant and Thompson attempted to establish that McKinnon's taped statement, grand jury testimony, and trial testimony were coached. During questioning by Thompson's counsel, the prosecutor objected, arguing that if counsel sought to introduce portions of McKinnon's taped statement to demonstrate the leading nature of the investigators' questions, then the whole statement should be admitted. Although counsel for both Thompson and defendant objected to the statement being admitted into evidence as a defense exhibit, neither objected to admitting the statement into evidence at that time as a State exhibit. Similarly, when Thompson's counsel cross-examined McKinnon concerning his grand jury testimony, the State offered the transcript of that proceeding into evidence without objection by either defense counsel.

In our view, admitting into evidence McKinnon's grand jury testimony and taped statement was entirely proper because of the extent to which counsel for both defendants sought to elicit McKinnon's testimony at trial concerning parts of both of those documents. See State v. James, 144 N.J. 538, 554, 677 A.2d 734 (1996) ("When a witness testifies on cross-examination as to part of a conversation, statement, transaction or occurrence, under the doctrine of 'completeness' the party calling the witness is allowed to elicit on redirect examination 'the whole thereof, to the extent it relates to the same subject matter and concerns the specific matter opened up.'") (quoting Virgin Islands v. Archibald, 28 V.I. 228, 987 F. 2d 180, 188 (3d Cir. 1993)); United States v. Walker, 421 F. 2d 1298, 1299 (3d Cir.), cert. denied, 399 U.S. 931, 90 S. Ct. 2261, 26 L. Ed. 2d 799 (1970). We are therefore satisfied that defendant's claims of ineffective assistance of counsel in that regard are without merit and we also reject defendant's related claims that the admission of the documents constituted reversible error.

The last set of claims in this subcategory includes four allegations of ineffective assistance of counsel arising from counsel's alleged failure to investigate and obtain independent evidence impeaching McKinnon's testimony or credibility. We determine that all four claims are without merit.

One claim involves counsel's failure to produce at trial evidence demonstrating that McKinnon could not have purchased rubber gloves from a hardware store in the Atlantic City area late in the evening on the night of the murder, because such stores closed by 5:00 or 5:30 p.m. We note that McKinnon's testimony concerning the time and place of purchase of the gloves was vague. Thus, it is unlikely that investigation by counsel in that regard would have been useful. We also note that counsel for Thompson effectively cross-examined McKinnon regarding his purchase of the gloves and remarked in summation that McKinnon's story about the gloves was not believable. We are therefore satisfied that defendant has failed to establish a prima facie case of ineffective assistance in view of the clear lack of prejudice of any failure of counsel in regard to the gloves.

Defendant's second claim involves counsel's failure to present the testimony of James Rikeman, who had told State Police investigators that he observed a car bearing an out-of-state license tag exit the Oyster Creek Picnic Area at a high rate of speed on the night of the murder. Rikeman's statement to investigators contradicted McKinnon's testimony that McKinnon had pulled out of the picnic area slowly and then had proceeded onto the Garden State Parkway at "normal speed, 55 miles" per hour. Had Rikeman testified at trial, however, his testimony would have been merely cumulative, in view of the testimony of State's witness Christine Hilton indicating that she had observed a white Cadillac come "flying out of the rest area" at about 1:00 a.m. on September 7th. We note also that trial counsel relied on Hilton's testimony in summation to argue that McKinnon had lied, not only about the significant events in his story, but also about the less important facts. Thus, defendant's claim of ineffective assistance is without merit.

We also reject defendant's claim of ineffective assistance concerning counsel's attempt to cross-examine McKinnon about his alleged involvement in unrelated fraudulent acts. On direct appeal, we determined that the trial court properly had excluded counsel's cross-examination of McKinnon in that regard. See Marshall I, (supra) , 123 N.J. at 105. Defendant now argues that counsel's failure to establish an adequate foundation for the proposed cross-examination and his failure to provide discovery to the State concerning McKinnon's involvement in the alleged fraud constitutes ineffective assistance of counsel. We disagree. The proposed cross-examination was not excluded because of a failure of discovery or a failure of foundation; it was excluded because the alleged fraud was neither the subject of a criminal conviction nor part of a common plan or scheme involving the murder of Mrs. Marshall, and also because that line of questioning had the capacity to mislead the jury. See ibid. Defendant has presented no new information that would change our earlier determination.

Defendant's final claim in this subcategory alleges that counsel was ineffective for failing to obtain a statement from Ransdell Keene, attorney for co-conspirator Robert Cumber, concerning an alleged Discussion between Keene and McKinnon about immunity. Other than the fact that counsel elicited during cross-examination of McKinnon that McKinnon had met with Keene while in jail in Louisiana, defendant fails to present any documentation, such as a statement from Keene, to support defendant's claim. Thus, we conclude that defendant has failed to establish a prima facie case of ineffective assistance of counsel.

3. McKinnon's Telephone Call to Robert Cumber

(B.68, F.4)

After the Conclusion of McKinnon's testimony, counsel and the court learned that McKinnon had placed a telephone call to co-defendant Robert Cumber an hour or so after being excused from the witness stand. Cumber's counsel provided counsel and the court with an affidavit by Cumber setting forth the content of the conversation. According to Cumber's affidavit, a person identifying himself as Billy Wayne McKinnon had called Cumber and said that he "was sorry for all the trouble" he had caused, and encouraged Cumber to "make a deal." Cumber told the caller "that [Cumber] had been used and that McKinnon had told lies about [Cumber's] involvement." The caller "then said that he was sorry but that he was now telling the truth and he has already stated in Court that [Cumber] did not know anything" about the plan to kill Maria Marshall.

Counsel for both defendant and Thompson made a motion before the trial court to recall McKinnon to the stand for cross-examination concerning the call to Cumber. The court agreed with counsel that the telephone call was relevant to McKinnon's credibility, but declined to recall McKinnon for further cross-examination. Instead, the court ruled that defense counsel could call McKinnon as a witness at the Conclusion of the State's case. Counsel for both defendant and Thompson then sought a ruling concerning whether they would be permitted to ask McKinnon leading questions or treat him as a hostile witness. The court declined to make a prospective ruling about the manner of questioning on the ground that it was possible that the examination of McKinnon would proceed without objection. Neither defendant's counsel nor Thompson's counsel called McKinnon as a witness.

Defendant now raises two claims related to McKinnon's call to Cumber. First, defendant claims that counsel's failure to request a hearing to examine McKinnon concerning the call constituted ineffective assistance of counsel. Second, defendant claims that the trial court's failure to conduct such a hearing constituted reversible error. We regard those claims as wholly without merit in view of counsel's motion to recall McKinnon for further cross-examination, the court's ruling that counsel was free to call McKinnon as a witness, and counsel's failure to do so. We also note that Cumber's affidavit concerns only McKinnon's testimony about Cumber's involvement in the murder and is silent regarding the truthfulness of McKinnon's testimony concerning defendant's involvement. We are therefore satisfied that the failure to examine McKinnon either at trial or at a separate hearing regarding his call to Cumber was immaterial to the outcome of the trial.

4. Impact on the Penalty Phase

(E.10)

Defendant's final claim in this category alleges that the State's failure to disclose all of the evidence that could have been used to impeach State's witnesses McKinnon and Kraushaar violated defendant's right to a fair and reliable penalty-phase trial "because of the jury's inherent right to reject a death sentence on the basis of 'lingering' or 'residual' doubt." We have determined, both in this appeal and on direct appeal, that the State's suppression of evidence related to the impeachment of McKinnon, see supra at - (slip op. at -); Marshall I, (supra) , 123 N.J. at 205-07, and the impeachment of Kraushaar, see infra at 200-203; Marshall I, (supra) , 123 N.J. at 199-205, was immaterial to the outcome of defendant's trial. We are satisfied that that finding applies to the penalty phase of the trial as well as to the guilt phase.

B.

ALLEGED ERRORS RELATING TO DEFENSE INVESTIGATOR RUSSELL KOLINS

(A.10, B.12, B.70-73, B.80-83, B.143, B.183, B.195, B.212, B.223)

The fifteen claims in this category concern trial counsel's employment of Russell Kolins as a private investigator on behalf of defendant. Adjudicating the claims on the merits, we conclude that all of them should be dismissed without an evidentiary hearing. We recount the circumstances of Kolins's involvement in the case to provide context for our Discussion of defendant's claims.

Marshall testified on direct examination that Kolins had been retained by defendant's trial counsel, Glenn Zeitz, to conduct an investigation on Marshall's behalf. According to Marshall, "sometime after [September] 22nd it was decided that [Kolins] should go down to spend the day [in Louisiana] to, I guess, just investigate or to check around, see what was going on down there." Marshall testified that he had spoken with Kolins by telephone on September 26 and learned during that conversation that Robert Cumber had been arrested and that the person Marshall knew as "Jimmy Davis" was actually Billy Wayne McKinnon. In response to defense counsel's question whether "it [was] ever agreed or suggested by you or anyone that the purpose for [Kolins] being down there was to in any way, shape or form get together with McKinnon or anyone on McKinnon's behalf to create any kind of story," Marshall testified, "Absolutely not."

The State cross-examined Marshall about his telephone conversation with Kolins. The prosecutor suggested that Kolins had read Marshall a statement prepared by McKinnon that purported to explain McKinnon's activities in New Jersey without implicating either McKinnon or Marshall in Maria Marshall's murder. Marshall denied that Kolins had read McKinnon's statement to him during the September 26 telephone call.

Kolins testified on Marshall's behalf. According to Kolins, he had flown to Louisiana on September 26 for the purpose of interviewing the person Marshall had hired to investigate his wife. Kolins testified that he had met "Jimmy Davis" and had been informed that he was Billy Wayne McKinnon. Kolins spoke with Marshall by telephone at 6:30 p.m. on September 26 to inform him of the developments in the investigation and to request permission to extend his stay in Louisiana. According to Kolins, about an hour or two after he ended his conversation with Marshall, Kolins received from McKinnon's attorney the exculpatory statement prepared by McKinnon. Kolins testified on both direct and cross-examination that he had not discussed the contents of McKinnon's statement with either Marshall or Zeitz on September 26.

During the State's cross-examination of Kolins, Kolins read McKinnon's statement into evidence. According to the statement, Marshall hired McKinnon in April or May 1984 to conduct an investigation of his wife, and McKinnon travelled to New Jersey twice, once in June and once in September, to conduct the investigation. The statement related that Marshall had sent McKinnon two money orders totalling $5500 early in the investigation, and paid him $800 in cash at their last meeting, at which time Marshall told McKinnon that "things were fine" and that Marshall could not afford to pay McKinnon any more money. McKinnon left New Jersey the next day, and later learned that New Jersey law-enforcement authorities were in Louisiana investigating Maria Marshall's death. The final paragraph of McKinnon's prepared statement exculpated both McKinnon and Marshall:

Since the night I saw Rob Marshall at [Harrah's] Marina Casino in Atlantic City at approximately 8:30 or 9:00 o'clock p.m., I have not seen or heard from him since. At no time during any conversation that Rob Marshall and I had concerning his or her activities was it ever requested, suggested or intimated that he would like to dispose of his wife. He related to me quite the opposite. He appeared to me to be a well-organized, settled individual who is happy with his lifestyle and family ties but had a suspicion that his wife might have been having an affair which would cause [him] to seek someone outside of the community to conduct an unbiased and impartial investigation of her activities.

Following the admission into evidence of McKinnon's statement, counsel for co-defendant Thompson made an application to the court to recall McKinnon for cross-examination on the statement. The prosecutor objected on the ground that the State had not had an opportunity to conduct a direct examination of McKinnon concerning the statement. A lengthy colloquy ensued concerning the failure of Zeitz to produce the statement at an earlier point in the trial. Zeitz explained that he had not had the statement earlier and that "from the beginning, [he had] been making every effort to try and get it." The court declined to rule at that time on the application to recall McKinnon and ordered the State to continue its cross-examination of Kolins.

The State proceeded to question Kolins about the whereabouts of McKinnon's prepared statement from the time that Kolins had received the document in September 1984 until the time that Kolins testified at trial. Kolins testified that the document was kept in a box that had been misplaced when he moved from one residence to another in February or March 1985, and that he had not found it until a few days prior to his testimony. Kolins also stated that he did not recall giving a copy of McKinnon's statement to Zeitz after returning from Louisiana, although he acknowledged that counsel may have seen the statement. Kolins denied that he had intentionally hidden the statement.

At the close of all testimony, the court again heard argument on Thompson's application to recall McKinnon. The State argued that if Thompson were given the opportunity to cross-examine McKinnon on the statement, the State should be permitted to recall Marshall for further cross-examination concerning the similarity between McKinnon's statement and Marshall's "suicide tape." Zeitz objected to having either McKinnon or Marshall recalled, contending that whether McKinnon's statement and Marshall's tape were similar was a matter of argument and that the jury, having received both statements in evidence, could draw its own Conclusions.

Defense counsel also explained that Kolins had shown him McKinnon's prepared statement "a long time ago, over a year ago, and I've been asking him to locate the thing since then and I said it over and over again, and I don't think I have to continue defending myself about it." The prosecutor pointed out that even if that were true, Kolins had testified that he located the statement on the Monday prior to his testimony, which would have been when Marshall was testifying. The State therefore contended that Marshall's counsel had effectively withheld the statement until after Marshall was finished testifying. The court ruled that because Thompson's counsel and Thompson were faultless, they should have the opportunity to pursue further cross-examination of McKinnon on the subject of his prepared statement and that, in the interest of Justice, the State would be permitted to conduct further cross-examination of Marshall on that subject. Despite that ruling, however, neither Thompson's counsel nor the State recalled McKinnon or Marshall.

We address first defendant's claims involving defense counsel's failure to obtain and produce in a timely manner the statement that McKinnon gave to Kolins in September 1984. Defendant argues that counsel's failure to obtain the statement precluded a full and adequate cross-examination of McKinnon, and demonstrates his "pervasive lack of preparation" for trial. Defendant also argues that counsel's failure to provide the State a copy of the statement in timely fashion compromised counsel's integrity.

We conclude that defendant's claims are without merit and do not warrant an evidentiary hearing. In our view, any ineffectiveness of counsel in connection with the misfiling or misplacement of McKinnon's statement could not have had a material effect on the outcome of defendant's trial. The trial record reveals that, although a copy of McKinnon's statement was not produced by Zeitz until after both McKinnon and Marshall had testified, both Marshall's counsel and the State already knew of or had seen the statement. McKinnon had testified that after he learned that New Jersey law-enforcement authorities were in Louisiana investigating the murder, he fabricated an exculpatory statement purporting to explain his presence in New Jersey. He also testified that that statement was given to Kolins. On cross-examination, Zeitz had elicited from McKinnon that the statement was entirely McKinnon's creation and that McKinnon had not collaborated with anyone in creating it. In view of that testimony, and because the statement was ultimately placed in evidence and read into the record, we are satisfied that its late admission into evidence was immaterial. The jury had the benefit of the statement itself, and counsel had the opportunity to present arguments concerning McKinnon's statement to the jury in summation.

We also dismiss defendant's claims alleging that the State engaged in a strategy of impugning Kolins's integrity by suggesting that Kolins was involved in a conspiracy to cover up Maria Marshall's murder and that Kolins's receipt of McKinnon's fabricated statement was in furtherance of that conspiracy. Defendant first contends that his counsel should have moved in limine to exclude evidence of McKinnon's statement because the statement was prepared after the dates of the murder conspiracy as charged in the indictment. Defendant also contends that counsel was ineffective in his response to the alleged efforts by the State to impugn Kolins's integrity. One such claim alleges that Zeitz should have requested a mistrial in response to the inference that Kolins travelled to Louisiana to arrange a cover story for Marshall. Another claim alleges that counsel should have called Kolins as a witness prior to calling Marshall and should have elicited from Kolins rather than Marshall the nature of Kolins's instructions and the purpose of Kolins's trip to Louisiana. In a third claim, defendant contends that Zeitz should have removed himself from the case to testify that he personally had directed the scope of Kolins's investigation and that it had not been his or Kolins's intention to secure a cover story for Marshall. A fourth claim concerns a comment by the prosecutor to defense counsel in the presence of the jury regarding whether Zeitz had instructed Kolins to conduct an investigation in Louisiana. And a fifth claim alleges that counsel should have called McKinnon's sister as a witness to establish that she had given McKinnon's statement to Kolins after Kolins spoke by telephone with Marshall.

We determine that all of those claims are without merit and that defendant has failed to establish by any of those claims a prima facie case of ineffective assistance of counsel. The trial record reveals that, during the State's examination of McKinnon, both Marshall's and Thompson's counsel objected on the ground that McKinnon's statement had been prepared subsequent to the dates of the alleged conspiracy. In addition, both counsel vigorously objected to the inference that McKinnon had given Kolins the fabricated statement in furtherance of a conspiracy to cover up the murder. Zeitz argued that the State's examination of McKinnon could not be used "to cast some kind of shadow over the head of the defense investigator." In response, the prosecutor stated that he intended to elicit from McKinnon only that "[McKinnon] made up a story. He gave it to [Kolins] and that's it. I am not alleging that [Kolins] told him to make up the story." Following that colloquy, the court ruled that there was no showing that the proffered testimony was inadmissible. We conclude that the court's ruling was unquestionably correct and that defendant has failed to establish ineffective assistance of counsel in connection with the proffer of testimony concerning McKinnon's statement.

In addition, we decline to second-guess counsel's tactical decisions to call Marshall as a witness prior to calling Kolins, to elicit from Marshall the purpose of Kolins's investigation in Louisiana, and to decline to call McKinnon's sister as a witness. We also reject as wholly without merit the allegation that counsel could somehow have prevented the prosecutor from making an inappropriate remark concerning Kolins's trip to Louisiana, and we note that that remark was both fleeting and insignificant. The allegation that Zeitz should have taken the extreme measure of removing himself as counsel to testify about Kolins's role as defense investigator is equally without merit. We discern nothing in the record to support defendant's suggestion that counsel should have ended his representation in order to testify.

We also reject defendant's allegation of ineffective assistance of counsel involving counsel's failure to move for a mistrial or seek other relief following a comment by the prosecutor allegedly intended to denigrate Zeitz and Kolins. During defense counsel's cross-examination of the insurance examiner who examined defendant and Maria Marshall on the morning of September 6, 1994, counsel asked whether the witness knew the location of the original medical screening form that he had completed for defendant. Upon learning that the form was in Sioux Falls, South Dakota at the offices of the insurance company, counsel paused to request the Court's assistance in obtaining the document. At that point the prosecutor remarked in the hearing of the jury, "Why don't you send Russ Kolins." Defendant contends that counsel's failure to seek relief following the prosecutor's remark constituted ineffective assistance of counsel. We disagree. The prosecutor's fleeting remark, although inappropriate, could not have materially affected the outcome of the trial.

Another allegation of ineffective assistance of counsel involves Zeitz's elicitation during cross-examination of McKinnon that McKinnon had tampered with a car rented by New Jersey State law-enforcement authorities who were in Louisiana to investigate the murder. McKinnon testified that while he was in a restaurant with his wife and Kolins, State Investigators Murphy and Churchill had entered the restaurant. McKinnon then went outside to the parking lot and let the air out of the tires of the car he believed was rented by the State Investigators. Defendant argues that Zeitz's elicitation of that testimony diminished Kolins's credibility and therefore constitutes ineffective assistance of counsel. We disagree. McKinnon did not testify that Kolins was involved in the tampering, and we decline to question counsel's tactical decision to elicit McKinnon's admission that he had tampered with the State's car. We also note that during both direct and cross-examination of Kolins, Kolins emphatically denied any involvement in McKinnon's tampering with the State's car.

Defendant also contends that counsel should not have permitted Kolins to perform investigative work on behalf of co-defendant Thompson, because Thompson's interests were adverse to Marshall's. We reject that claim as wholly without merit. Kolins testified that during his investigation on behalf of Marshall he learned information that ultimately would be helpful to Thompson's defense. Kolins explained that at the request of Thompson's counsel and with the permission of Zeitz, he later shared that information, which concerned Thompson's alibi witnesses, with Thompson's counsel. We will not second-guess counsel's decision to share information useful to the impeachment of defendant's chief accuser, McKinnon, and helpful to a co-defendant being jointly tried with defendant. A tactical decision of that nature does not, in our view, constitute deficient performance of counsel.

Two of defendant's claims concern a pretrial investigation of Kolins that was conducted by State law-enforcement officers after they learned that Kolins had been retained as a private investigator on behalf of defendant. The claims include an allegation of a discovery violation based on the State's failure to produce the police reports of that investigation, and an allegation of ineffective assistance of counsel based on Zeitz's failure to request or obtain prior to trial those police reports. We conclude that both of those contentions are entirely without merit. The State's investigative reports on Kolins disclose no information materially affecting Kolins's credibility, and the mere fact that Kolins was investigated by the State reveals no more than that the State engaged in thorough preparation for trial. Defendant could not have been prejudiced by counsel's failure to request that which had no capacity to affect the trial.

Lastly, we address defendant's allegations of ineffective assistance of counsel relating to Zeitz's continued reliance on Kolins as an investigator and witness for the defense despite Kolins's misplacement of McKinnon's statement, the State's alleged efforts to impugn Kolins's integrity, and McKinnon's testimony concerning the tampering with the State's car. Even assuming, arguendo, that Zeitz's continued reliance on Kolins was unreasonable in view of those facts and circumstances, we would conclude that defendant has failed to establish a prima facie case of ineffective assistance of counsel. Defendant fails to demonstrate either that Zeitz's continued reliance on Kolins had a material detrimental effect on the outcome of the trial or that Zeitz's retention of a different investigator probably would have led to a different result.

C.

ALLEGED ERRORS RELATING TO THE "SUICIDE TAPE" AND ITEMS SEIZED FROM DEFENDANT'S MOTEL ROOM

Defendant has raised thirty claims concerning the admission into evidence of an audio tape defendant recorded during an apparent suicide attempt and related issues concerning the seizure of items from his motel room. The factual context for those claims has been set forth in a prior opinion of this Court, see Marshall I, (supra) , 123 N.J. at 39-41, 62-73, and need be summarized only briefly here. We address the claims on their merits and determine that they should be dismissed without an evidentiary hearing.

On September 27, 1984, approximately one week after police had confronted defendant with their knowledge of his connection to McKinnon, police were informed that defendant had checked into the Best Western Motel in Lakewood, New Jersey. Investigators immediately established surveillance at the motel. At 11:30 p.m., defendant left his room and went to the front office of the motel. Investigator Mohel followed defendant and observed him at the front desk. After defendant returned to his room, Mohel spoke to the clerk who said that defendant had deposited letters in the outgoing mail tray. Mohel testified that he looked into the tray and saw two letters there. One was addressed to Joseph Dougherty, Esq. On the outside of the envelope, Mohel observed the writing: "To be opened only in the event of my death."

Mohel immediately seized the letters and telephoned for assistance. When uniformed officers arrived, they entered defendant's room and found him there asleep. Mohel woke defendant and asked him if he had taken anything. Defendant said that he had put a lethal dose of a sleeping medicine in a cup of soda, but that he had fallen asleep before drinking it. Defendant said that it had been his intention to commit suicide at the exact time his wife had been murdered, but that he had overslept.

The State obtained a search warrant to open the envelopes. Inside the envelope addressed to Dougherty, investigators found a letter, a contract to sell some real estate, and an audio tape. The tape was dictated by defendant, and we previously have set forth its substance.

The tape discussed Marshall's relationship with Kraushaar, his intention to leave Maria "within a month," his "spiral" of debt that "accelerated to almost * * * two-hundred thousand dollars * * * that I was determined to pay off, but just couldn't seem to climb out," and his reasons for hiring [McKinnon] to investigate Maria. On the tape Marshall acknowledged that he had sent McKinnon $5,500 in two installments and had given him an additional $800 at Harrah's the night of the homicide. Marshall instructed Dougherty on the tape with respect to how various business, financial, and personal matters should be handled. Marshall expressed his intention to take his own life because he expected to be indicted and convicted for his wife's murder, even though he was innocent.

[ 123 N.J. at 40-41 (first alteration in original.)]

1.

Claims Based on Evidence Relevant to Whether the Tape Should Have Been Suppressed on the Ground That It Was Improperly Seized

(A.74, A.78, B.17, D.6-8, D.10-11)

The trial court held a pretrial suppression hearing to determine the admissibility of the contents of the seized envelope, including the audio tape. A crucial issue was whether the initial seizure of the envelopes by Mohel was proper. The State attempted to show that the envelopes were in plain view when Mohel saw them, and that their evidentiary importance was apparent to the officers based on the writing on the outside of the letter addressed to Dougherty. Defendant challenged the State's version of the facts, claiming that the mail receptacle into which Marshall had placed the envelopes was a closed box with a slot, and that the officers could not have seen the envelopes inside the box. The warrantless seizure of the envelopes, according to defendant, violated his Fourth Amendment rights and the evidence they contained should have been suppressed.

Mohel and Zillah Hahn, the front desk manager of the motel, testified for the State that the motel's mail depository was "'an open box that sat up on the counter' at the front desk." 123 N.J. at 64-65. Another investigator at the scene described it as an "open tray." Hahn testified that the motel later began using a closed box with a slot on the top to collect outgoing mail. Mohel and Investigator Edward Murphy revisited the motel in 1985 and the owner, Henry Tajfel, retrieved the tray described by Mohel from a storage shed. Both the tray and the box that replaced it were admitted into evidence at the suppression hearing.

Defendant presented the testimony of Paul Rokoczy, the night manager who was on duty on the night of September 27th. Rokoczy testified that the closed box with the slot was the only mailbox that the motel had ever used. The mailman also testified. He stated that he had been delivering mail to the motel since 1978, that he had never seen the open tray, and that the closed box was the only depository he had ever used. Defendant also testified that the closed box was the one he had used on September 27. On cross-examination, Rokoczy admitted that Marshall may have placed his two envelopes on top of the mailbox. Investigator Murphy testified that Rokoczy had told him that the envelope with the tape would not fit through the slot. Lieutenant James Churchill testified that he had experimented with the closed box and the audio tape, and found that neither the original package nor the tape by itself would fit through the slot in the closed box.

The trial court resolved the conflict in the testimony in favor of the State. The court found that the open tray retrieved from the storage shed by Tajfel, or one very similar to it, was the one into which Marshall had placed the envelope containing the audio tape. The record shows that the court attached little weight to the testimony of the motel employees, relying instead on the testimony of the investigators because of their greater opportunity and motive to observe what type of mail receptacle had actually been used by Marshall. In particular, Rokoczy was found not to be a credible witness. This Court upheld the trial court's factual determination, finding that it was "amply supported" by the evidence in the record. 123 N.J. at 66.

Defendant's challenge to those determinations centers on two police memoranda, prepared in connection with the investigation, that the State failed to disclose in response to defendant's discovery requests. One was written by Ocean County Police Chief P.J. Herbert, who was the officer in charge of the scene at the motel. Herbert left the motel before the events that give rise to defendant's claims took place. Thus his memorandum contains no evidence relevant to the legal issues raised by the petition and it need not be considered further.

The second was prepared by Investigator Murphy on August 23, 1985. It is addressed to Assistant Prosecutor Kelly and summarizes additional investigation undertaken by Murphy and Mohel. The existence of Murphy's memorandum was discovered by defense counsel during cross-examination of Mohel at the suppression hearing. The prosecutor refused to produce the memorandum, claiming that it was protected by the work-product doctrine. The trial court conducted an in camera review and agreed with the State's position. The memorandum was supplied to counsel on post-conviction relief pursuant to court order in July 1993, and the PCR court acknowledged that its prior ruling at trial was erroneous.

The Murphy memorandum recounts the visit to the motel by Murphy and Mohel on August 21, 1985, to collect evidence about the type of mail receptacle that was in use on the night Marshall's letters were seized. The officers first interviewed Zillah Hahn who indicated that the current mailbox was the closed box with the slot to insert mail. Hahn stated that the box had been built and installed by the owner of the motel, and that prior to the installation of that box a tray was used. Hahn could not say when the box replaced the tray.

According to the memorandum, Murphy and Mohel returned to speak with the owner, Tajfel, the next day. Tajfel told the officers that the closed box was put into use approximately two years previously, one year before the night Marshall attempted to mail his letters. Tajfel told the officers that, before the box had been put into use, a tray had been used to collect outgoing mail. Tajfel contacted a friend who had constructed the box for him. That person confirmed Tajfel's recollection that the box had been made about two years previously. Tajfel was able to locate the tray, and the officers took possession of it. The officers also interviewed Rokoczy, who told them that the box had been in use on the night that Marshall was at the motel. Rokoczy recalled that Marshall had placed his letters on top of the box because they were too thick to fit through the slot. Rokoczy also stated that he had initially picked up the letters and handed them to Mohel after Marshall had placed them on the box.

After defendant received the disputed memoranda in 1993, he sent his own investigator to the Best Western motel to interview Tajfel. The defense investigator learned from Tajfel that the box builder, Ben Bogart, was a former employee, but that Tajfel believed that Bogart was deceased. Tajfel no longer remembered the details of his conversation with the investigators in 1985, but he recalled that he had answered their questions truthfully at the time. Defendant's trial counsel certified to the PCR court that if he had been permitted to see the Murphy memorandum he would have interviewed Tajfel and the box builder and produced them as witnesses at the suppression hearing.

Defendant claims that the failure to turn over the memoranda constituted a violation of the State's duty under Brady, (supra) , to provide to defendant material, exculpatory evidence. Whether evidence is material and thus subject to disclosure under the Brady rule is a mixed question of law and fact. United States v. Pelullo, 14 F. 3d 881, 886 (3d Cir. 1994); United States v. Perdomo, 929 F. 2d 967, 969 (3d Cir. 1991); Carter v. Rafferty, 826 F. 2d 1299, 1306 (3d Cir. 1987), cert. denied, 484 U.S. 1011, 108 S. Ct. 711, 98 L. Ed. 2d 661 (1988). The lower court's decision in deciding what legal standard governs a Brady claim is reviewed de novo. Pelullo, (supra) , 14 F. 3d at 886. If the correct standard is applied, the court's factual determination will be reversed only if clearly erroneous. Ibid.

The sole issue is whether the evidence provided by the memoranda was material for purposes of the Brady rule. In the typical case, the trial court must weigh the probable impact of the withheld evidence on the jury's determination of guilt to determine whether it was material under Brady. As the Third Circuit has noted in the context of a direct appeal, the trial court's "weighing of the evidence merits deference . . . especially given the difficulty inherent in measuring the effect of a non-disclosure on the course of a lengthy trial covering many witnesses and exhibits." United States v. Price, 13 F. 3d 711, 722 (3d Cir.), cert. denied, 511 U.S. 1096, 114 S. Ct. 1863, 128 L. Ed. 2d 485 (1994).

In this case, however, the evidence at issue is relevant to a collateral issue raised in a suppression hearing: whether Marshall's envelopes were in plain view and thus properly seized by the police. The finder of fact was the trial Judge, not a jury. The same Judge decided the Brady claim raised in the petition for PCR. We are thus faced with an unusual situation in which the original finder of fact has the opportunity to rule on the materiality of the withheld information, and thus whether there was a "reasonable probability that, had the [suppressed] evidence been disclosed to the defense, the result of the proceeding would have been different." Knight, (supra) , 145 N.J. at 244 (1996) (quoting Bagley, (supra) , 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494 (1985)). We believe that the PCR court's finding that the withheld information would not have changed its original determination is entitled to special weight in those circumstances.

Defendant would have us find that, because the trial Judge ruled against him in the first proceeding, he has exhibited bias and should be disqualified from ruling on any claims concerning the suicide tape on PCR review. Defendant points to the court's ruling on the status of the Murphy memorandum as work-product and the court's refusal to give credence to defendant's attempts to impeach Churchill's testimony as evidence of the court's bias. However, bias is not established by the fact that a litigant is disappointed in a court's ruling on an issue. Beyond that argument, defendant makes no showing of bias on the part of the trial court, and we therefore reject that claim.

On post-conviction relief, the court again reviewed the Murphy memorandum. It found that the statements of Hahn and Rokoczy were consistent with their testimony at trial. Assuming that the testimony of Tajfel and Bogart would have been consistent with the statements recorded in the memorandum, the court found that the memorandum would have been merely cumulative, and less specific than the testimony of the defense witnesses who did testify.

Accordingly, the PCR court found that "the evidence at the suppression hearing clearly led to the Conclusion . . . that [the tray] was the mail receptacle present and nothing contained in the memorandum of August 23, 1985, had the capacity to have affected that determination." Regarding defendant's argument that disclosure of the memorandum would have led to additional, favorable evidence from Tajfel, the court stated that Tajfel's testimony "could not have conceivably changed the result of the hearing."

We are satisfied that the standard of materiality applied by the PCR court was at least as protective of defendant's right under Brady, (supra) , to disclosure of the memo as the standard set forth in Bagley, (supra) , and Knight, (supra) . The lower court made clear that there was no chance that the result would have been different had defendant had access to the memorandum, and certainly not a "reasonable probability" that he would have prevailed at the suppression hearing.

The factual component of the Judge's finding -- that he would not have ruled differently had defendant had access to the withheld information -- is not "clearly erroneous." At the suppression hearing, the court found that the conflicting evidence could support the Conclusion that the motel's use of the tray and the mailbox could have overlapped, and that both might have been present at the front desk at the same time. Therefore, even if Bogart were available, the best defendant could hope for would be that Bogart would testify authoritatively that he had built the slotted box for Tajfel before the night of September 27, 1984. That testimony would not directly contradict the testimony that Marshall had placed his letters into a tray. Defendant contends that he has also been deprived of Tajfel's testimony, because he no longer remembers the relevant details. However, like the hypothetical testimony of Bogart, even if Tajfel had testified that the box was placed in service before Marshall's stay at the Best Western, that testimony would have merely duplicated other testimony, and it would have been contradicted by other evidence that the trial court found to be credible.

Justice Handler's Dissenting opinion asserts that "the only witnesses who consistently professed that the mail receptacle was an open tray were the two officers who had seized the tape." 148 N.J. at 188. That assertion ignores Zillah Hahn's trial testimony that the mail depository on the night in question had been an open box. That testimony was not contradicted by the Murphy memorandum, which states only that Hahn could not recall the date when the tray was replaced by the mailbox. That same assertion understates the significance of the Murphy memorandum's detailed reference to Paul Rakoczy's recollection that "the letters were on top of the mailbox because they were too thick to fit into the mail slot" and that to his best recollection "he actually picked up the letters and handed them to Investigator Mohel."

Finally, defendant has failed to undermine the testimony of Lieutenant Churchill, who stated that neither the envelope as it was retrieved from the motel with the tape and the letter inside, nor the tape by itself would fit through the slot in the closed mailbox. Defendant claims that Churchill wrongly performed his experiment with the tape inside its plastic cover, thus increasing its width so that it would not fit through the slot. Marshall testified that he had put the tape in the envelope without a cover, and defendant notes that the police inventory of the envelope did not mention a cover. However, Churchill testified concerning the chain of possession of the envelope and its contents, and stated that when he tried to fit it through the mail box's slot the envelope was exactly as it had been retrieved from the motel. The trial court was entitled to disbelieve Marshall's testimony that there had been no cover on the tape and to conclude that the cover had been omitted from the police inventory. Churchill's testimony further undermines defendant's claim that the withheld memorandum was material for Brady purposes.

Accordingly, we uphold the ruling of the PCR court that the failure to turn over the memoranda did not violate defendant's Brady rights, on the ground that the withheld evidence was not material. Our finding on the Brady issue causes several of defendant's other claims to fall as well. Defendant claims that the failure to turn over the memoranda constituted substantive violations of his rights under the Fourth, Sixth, Eighth and Fourteenth Amendments to the Federal Constitution, and Article I, Paragraphs 1, 7, 10, and 12 of the New Jersey Constitution. Assuming that the failure to turn over the memoranda constituted a direct violation of those constitutional provisions, our Conclusion that disclosing the memoranda would not have materially influenced the outcome of the suppression hearing indicates that those alleged violations would have been harmless.

Defendant also claims that his counsel was ineffective when he failed to have the Murphy memorandum held as an exhibit for appellate review of the trial court's decision that the memorandum was privileged work-product. That failure prejudiced defendant, he claims, because, if the work-product ruling had been reversed on direct appeal, defendant could have interviewed Tajfel when his memory was fresher and Bogart was still alive. This claim also fails on the ground that the lost testimony would not have affected the outcome of the hearing.

Finally, two of defendant's claims that fall within this category assert that the cumulative effect of the other violations entitles him to relief. In view of the lack of merit in the underlying allegations, we reject defendant's cumulative claims.

2.

Claims Based on Evidence Relevant to Whether the Tape Should Have Been Suppressed on the Ground That It Was Subject to the Attorney-Client Communication Privilege

(A.87-88, D.1-4)

Defendant makes a series of claims based on the common premise that the seizure and search of the envelope and the admission of the audio tape into evidence violated defendant's right to the assistance of counsel and his privilege against disclosure of attorney-client communications. Defendant relies on the fact that Dougherty was an attorney and that the tape and the other enclosures in the envelope addressed, in part, matters in which Dougherty was to act on his behalf. The attorney-client relationship between Marshall and Dougherty concerned real estate and financial matters unrelated to defendant's criminal litigation. Marshall I, (supra) , 123 N.J. at 69. By the time of the incidents at the Best Western Motel, investigators were aware that defendant had retained attorney Glenn Zeitz to handle the impending criminal charges. Dougherty had expressly declined to represent defendant in the criminal case, agreeing that his law firm would assist defendant's criminal counsel with legal research only. Ibid.

In upholding the search warrant to open the envelope containing the tape, we held that the investigator's failure to include in the supporting affidavit that Dougherty was defendant's attorney was not improper because the record indicated that the officers believed that Dougherty, who was defendant's brother-in-law, was not representing defendant in the murder case. Id. at 70. We held that "to whatever extent an attorney-client relationship between defendant and Dougherty may have existed at the time of the seizure, we are unpersuaded that the seizure of the envelope violated the attorney-client privilege." Ibid. Any attorney-client relationship was "undisclosed." Id. at 73. With regard to the content of the tape itself, we affirmed the trial court's holding that, "defendant was communicating with Dougherty primarily as a trusted friend and relative, not as an attorney." Ibid.

A note was seized from defendant's motel room that read: "My name is Rob Marshall. Please contact my attorney Joseph Dougherty," and set forth a telephone number. At the suppression hearing, Mohel denied having seen the note previously. The record does not indicate which officer seized the note from defendant's motel room. The existence of the note was memorialized in an inventory of items seized from the motel room prepared by Investigator Daniel Mahoney on February 15, 1985, approximately five months after the incidents at the Best Western. Mahoney's inventory was not turned over to defendant until 1993 pursuant to a discovery request during the PCR proceeding.

Defendant argues on PCR review that the failure to turn over the inventory before trial deprived him of the opportunity to show that the investigators were aware of the existence of the note, and consequently that they knew the Dougherty envelope contained protected attorney-client communications. Defendant also claims that the omission of any reference to the existence of the note from Mahoney's search warrant affidavit invalidated the warrant. Based on the discovery of the inventory, defendant reasserts in PCR filings that the seizure of the envelope from the Best Western's mailbox, the failure to mention the note naming Dougherty as defendant's counsel in the search warrant affidavit, the issuance of the search warrant itself, and the admission of the tape into evidence violated his privilege against disclosure of an attorney-client communication and thus his constitutional right to the assistance of counsel. Defendant also claims that the failure to turn over the inventory before trial was a violation of the State's discovery obligations.

Several of defendant's claims based on attorney-client privilege fail because the content of the tape has been held not to constitute a privileged attorney-client communication. The fact that defendant wrote "Please contact my attorney Joseph Dougherty," might offer support to the argument that a professional relationship existed between defendant and Dougherty, and the existence of the inventory would be relevant to the investigators' awareness of that relationship. However, the trial court noted, and we affirmed the ...


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