On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 78-4-859-I.
Before Judges Baime, Newman and Fall.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 27, 2002
Defendant, Edward C. Bishop, appeals from an order denying his petition for post-conviction relief. We affirm.
On April 24, 1979, a Monmouth County Grand Jury returned an eight count indictment against defendant that charged him with rape, N.J.S.A. 2A:138-1 (count one); assault with intent to rape, N.J.S.A. 2A:90-2 (count two); atrocious assault and battery, N.J.S.A. 2A:90-1 (count three); breaking and entering with the intent to rape, N.J.S.A. 2A:94-1 (count four); sodomy, N.J.S.A. 2A:143-1 (count five); assault with intent to sodomize, N.J.S.A. 2A:90-2 (count six); atrocious assault and battery, N.J.S.A. 2A:90-1 (count seven); and breaking and entering with the intent to sodomize, N.J.S.A. 2A:94-1 (count eight). The crimes for which defendant was charged occurred on November 10, 1978 (counts one through four) and on May 18, 1978 (counts five through eight).
After a jury trial, on October 4, 1979, defendant was found guilty of the events that occurred on November 10, 1978, namely: rape, assault with the intent to rape and atrocious assault and battery. The jury acquitted him of the charges relating to the events of May 18, 1978.
On October 15, 1979, defendant moved for a new trial alleging: (1) Blacks were inadequately represented on the jury, and (2) trial error arising from (a) testimony relating to defendant's "mug shot," (b) the testimony and report of the State's chemist, (c) the Prosecutor's improper statements during summation and improper cross examination of a witness, and (d) the jury's verdict was a compromise. The court denied defendant's motion. Defendant did not appeal that order or appear for sentencing. Instead, he fled to Belize where he remained for eighteen years. In 1997, defendant was arrested in Belize and extradited to the United States.
Upon his return, defendant made another motion for a new trial. In denying the motion on April 24, 1998, Judge Theodore J. LaBrecque, Jr. had this to say:
I'm satisfied that a motion for a new trial was made and decided on the merits. And this motion for new trial, as far as it addresses the merits, because it says we can't address the merits because we don't have a transcript, is basically moot because the merits in fact have been addressed previously. And I feel bound by Judge Cunningham's ruling.
As far as the lack of a record, I too agree that that's for an appellate tribunal to make a determination. It is obvious here that if the record is inadvertently lost it cannot be reconstructed. And if it cannot be reconstructed, the victim is dead and the matter can never be retried.
So I leave that to the Appellate courts to decide whether someone who has been a fugitive for 19 years, and through his own efforts has basically caused this situation of the inadvertent losing of a record and the inability because of the passage of time and the destruction of defense counsel's records, the inability to reconstruct the record, of whether or not he should be able to take advantage of that. Accordingly, the application is denied.
Defendant elected to be sentenced under the Code of Criminal Justice. The court then sentenced defendant to fifteen years with a four year parole disqualifier for the rape conviction. The court also denied defendant jail credit for the time he spent in custody in Belize resisting extradition. The remaining counts were merged.
Defendant appealed both the judgment of conviction and his sentence. On direct appeal, defendant contended that (1) his motion for a new trial should have been granted; (2) he was entitled to jail credit for the custodial time spent in Belize resisting extradition; and (3) his sentence was manifestly excessive. According to the argument before Judge LaBrecque, defendant argued for reconstruction of the trial transcripts, but did not set forth the reconstruction argument in a separate point heading as required by R. 2:6-2(a)(5).
This court held defendant was entitled to credit for the time he spent in a Belize jail fighting extradition, but rejected defendant's remaining contentions as lacking merit pursuant to R. 2:11-3(e)(2). State v. Bishop, No. A-5800-97T3, slip op. (App. Div. June 30, 1999). The Supreme Court denied defendant's petition for certification. State v. Bishop, 162 N.J. 487 (1999).
Thereafter, defendant filed a pro se petition for post- conviction relief alleging ineffective assistance of counsel and requesting a plenary hearing. Defendant set forth three arguments in his pro se petition in support of his PCR application: (1) ineffective assistance of counsel, (2) insufficiency of the evidence, and (3) spoliation of scientific evidence. Through appointed counsel who filed an amended petition defendant also asserted that (4) he was entitled to have the trial reconstructed pursuant to R. 2:5-3(f), (5) the State's failure to release the results of victim's polygraph test constituted a Brady*fn1 violation, (6) the Prosecutor made improper statements before the grand jury, and (7) the counts in the indictment relating to the events of May 18, 1978 and November 10, 1978 should have been severed. The State opposed defendant's application. On October 13, 2000 the court denied defendant relief.
In regard to the lack of record, Judge LaBrecque observed that in denying defendant's previous motion for a new trial he had specifically left it to this court to decide whether someone who had been a fugitive and, consequently created the inability to reconstruct a trial record, should be allowed to move for a new trial on those grounds. He noted:
The factual presentation that the court is faced with over 21 years after the event is as follows. The victim has died. The court reporter's notes cannot be located therefore no transcript could be used at any potential retrial. The court reporter is deceased. The defense attorney destroyed his file in the early 1990's, including his trial notes. The prosecutor who prosecuted the case left the office over 20 years ago. The judge retired 14 years ago and is now 84 years old. And the court file was stripped and microfiched and the judge's trial notes are missing from the court file.
Against that backdrop, Judge LaBrecque addressed defendant's argument that the lack of trial transcripts was a denial of his ...