August 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONYELLE LOCUST, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 99-08-1578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Defendant Donyelle Locust appeals from the Law Division's November 18, 2005 order denying defendant's petition for post- conviction relief (PCR). We affirm.
Tried to a jury, defendant was found guilty on June 16, 2000, of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1)(2) (Count One); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Three); and third-degree theft from the person, N.J.S.A. 2C:20- 2(b)(2)(d) and N.J.S.A. 2C:30-3(a) (Count Four). On August 4, 2000, defendant was sentenced to an aggregate ninety-five years imprisonment with an eighty-year, three-month, nine-day parole disqualifier and a five-year period of post-release supervision. In an unpublished opinion, we affirmed defendant's conviction but remanded for re-sentencing. State v. Locust, No. A-409-00T4 (App. Div. May 1, 2003) (unpublished opinion). The Supreme Court denied his petition for certification on July 17, 2003. State v. Locust, 177 N.J. 496 (2003).
Defendant then filed a petition for post-conviction relief (PCR). Judge Patricia Del Bueno Cleary, in a comprehensive and well-reasoned oral opinion, denied his application without conducting an evidentiary hearing. She concluded that the vast majority of defendant's contentions were procedurally barred because they were either addressed or should have been addressed on direct appeal and that defendant had failed to satisfy the two-prong test for ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The instant appeal is from that order.
The factual evidence presented to the jury is recited in our May 1, 2003 opinion on direct appeal, which we repeat here verbatim:
The State charged that defendant robbed seventy-two year old Joseph Amison, in Amison's Asbury Park home, after striking him several times in the head with a hammer, shattering his skull. Amison died about an hour after the attack. Defendant was friends with Amison who paid defendant for odd jobs and oral sex, often loaned defendant additional money and permitted defendant to stay at his home.
I. The Confession
Shortly after Amison's body was discovered, the police investigation led to defendant as someone who had been in Amison's house before the murder. The State's evidence revealed that at 10:30 a.m., on the morning of the murder, investigators located defendant and his girlfriend Bernice Tolbert outside Tolbert's apartment building. While defendant was holding a bottle of beer, he did not appear to the officers to be under the influence of either drugs or alcohol.
After initially giving a false name to the police, defendant agreed to speak to the officers back at the station regarding an unspecified investigation. upon arrival at the station, the officers placed defendant in a large training/conference room and Detective Paul Seitz of the Monmouth County Prosecutor's Office read defendant his rights, obtained a written waiver from defendant, and then around 11:00 a.m. began questioning defendant regarding his relationship with Amison.
He informed defendant that someone had seriously injured Amison and noticed that defendant did not exhibit any emotion nor ask about Amison's condition. Seitz and another officer also noticed that defendant's pants and sneakers were bloodstained. Defendant revealed that he was a thirty-two-year old unemployed drug addict with a tenth grade education. During questioning over the next four hours, defendant was given several breaks, as well as food and drink.
Defendant insisted that he had last seen Amison the night before when he stopped by to borrow money for more drugs. He claimed to have smoked some crack and drank some beer before leaving with two fifty dollar bills that had been given to him by Amison. Defendant further contended that, after buying more crack and beer, he went to Tolbert's apartment, where he remained for the rest of the night, except for brief periods when he went out to buy more drugs. Despite defendant's revelation that he was a drug addict and had smoked crack cocaine and consumed alcohol the day before, Seitz believed defendant was sober and alert during the interrogation. Defendant's account was ultimately memorialized in a formal statement taken between 3:00 p.m. and 4:00 p.m. Before taking this statement, Seitz once again advised defendant of his rights.
While defendant was being interviewed, and unknown to defendant, Tolbert also gave a formal statement which conflicted significantly with defendant's account. She explained that she drove defendant to Amison's house, just before midnight, in the hopes that Amison would again loan him money so they could buy more drugs. Tolbert got impatient waiting for defendant and returned home. She called Amison's house five times between 12:37 a.m. and 2:58 a.m. and each time defendant answered, telling her he would be back in a short while. However, defendant did not return to her apartment until sometime after 6:30 a.m., about four hours before the police arrived at her apartment to speak with defendant.
At about 5:10 p.m., during the interrogation, Seitz resumed questioning defendant and asked about the inconsistencies between defendant's story and his girlfriend's, but defendant continued to maintain his innocence. Sometime during this period, defendant asked to use the phone. Seitz asked whether defendant wanted to call an attorney. According to Seitz, defendant replied that only guilty people needed attorneys and he simply wanted to speak with his mother. Defendant was told he could call his mother when they were through with the interview and defendant was asked if he wanted to continue. Defendant agreed to proceed with the interview. While the interrogation continued, defendant's mother attempted to contact him at the station. The police advised defendant's mother that she would be able to speak with her son later.
Several hours later, a detective asked defendant if he would turn over his clothing for testing. While the police claimed that defendant simply gave up his clothing upon their request, according to defendant, he asked whether he could leave in return for relinquishing his clothing and was told "yes." In any event, defendant complied with the clothing request and was given some of his own clothing to put on. The detective could not recall whether defendant was given shoes to wear, and defendant claims he was left barefoot. Defendant was not released at that time and questioning continued.
A short time later, Captain Philip George of the Monmouth County Prosecutor's Office entered the room carrying a cotton swab which he had dipped into orange soda. George announced that he had done a presumptive test which indicated that there was blood on defendant's clothes and shoes. He said that he was confident the blood would be identified as Amison's.
At roughly 7:20 p.m., the detective who had collected defendant's clothing relieved Seitz and began to question defendant by stating that there was no doubt in his mind that defendant had killed Amison, but he just wanted to know why, especially because Amison had been friendly with defendant. After the detective stated that Amison should not have died the way he had, defendant, who was noticeably more emotional, started crying and then confessed saying "I did it."
Thereafter, defendant ate some dinner and was readvised of his rights after being formally arrested. He gave a second formal statement to the police between 8:35 p.m. and 10:00 p.m. In this statement, defendant admitted that after Tolbert left him at Amison's house, he asked Amison for more money. Amison refused and defendant decided that he would stay at the house so he could kill Amison in his sleep and take his money. Defendant then described how he killed Amison and stole some jewelry.
At the Miranda proceeding, defendant denied committing the murder and contended that his confession was untrue and was not obtained in the manner recited by the State witnesses. Instead, he asserted that he was tired and under the influence of drugs and alcohol when he was threatened, coerced, tricked and prevented from calling an attorney. He confessed only because he was a drug addict who needed to get out of the police station, so he told the police what they wanted to hear. Defendant contended that the police must have lied because his mother, who was a former police dispatcher for the Long Branch Police Department, had previously sued Long Branch and several of its police officers. The judge rejected defendant's contentions and allowed the confession to be considered by the jury.
A hearing on defendant's PCR petition was held before Judge Del Bueno Cleary on November 18, 2005. Defendant asserted that he had established a prima facie claim of ineffective assistance of trial counsel, entitling him to an evidentiary hearing. Defendant claimed ineffective assistance in that trial counsel (1) failed to object to the jury composition, in particular, to the fact that a former employee of the Prosecutor's Office was a member of the panel; (2) failed to raise that his confession was coerced; (3) failed to raise that unknown DNA was found on his clothing; (4) failed to raise the possibility of a setup by Detective Sietz due to the fact of defendant's mother's lawsuit against the City of Long Branch; and (5) failed to investigate Brian Pisano or Barbara Latham. Defendant claimed the accumulation of these errors warranted a new trial.
Following the arguments of counsel, Judge Del Bueno Cleary denied defendant's PCR application ruling:
Rule 3:22-5 states that a prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post conviction proceeding brought pursuant to this rule or prior to the adoption thereof or in any appeal taken from such proceedings. The standard governing this rule is whether the issue raised is identical or substantially equivalent to one already disposed of in a prior proceeding. STATE V. MARSHALL, 148 [N.J.] 89, 148 to 52, 1997.
In this case, the Appellate Division has already affirmed this Court's rulings with regard to the issue set forth in this motion for post conviction relief. The defendant is using the argument of ineffective assistance of counsel to raise arguments which already have been defeated both at this level and at the appellate level.
The defendant argues that his counsel never argued that his confession was induced without consent or voluntariness on his part and although under the guise of an ineffective assistance of counsel motion, the motion relies on adjudication of the issues which have already been decided. Both trial and appellate counsel have zealously advocated defendant's position that his confession was not voluntary.
Rule 3:22-4 instructs that any issue that could have been raised on direct appeal but was not is not a viable ground for post conviction relief unless one of three exceptions is established. And that is that the issues could not have reasonably been raised in a prior proceeding, enforcement of the bar would occasion fundamental injustice and denial of relief would result in a constitutional violation.
In this case none of those exceptions apply. The defendant's voluntariness argument was raised, litigated and rejected. The Appellate Division considered his claim that he was left barefoot. In affirming the decision on this, the Appellate Court spoke on this very issue, noting that the police were unsure if the defendant had been given shoes. This motion was heard with a lot of evidence, four days, and the motion was denied. The Appellate Division affirmed.
The balance of the defendant's claims also have been litigated. The defendant argued that trial counsel failed to raise that prior to his confession he was forced to stand barefoot on the cold floor. This argument was noted in the Appellate Division opinion. It stated that the police lying to a defendant does not render the confession involuntary. So the arguments that his confession was tricked out of him was raised and litigated.
The defendant also argues that counsel never raised the issue that his forced confession was retaliation due to his mother's lawsuit. That the confession was held to be voluntary, again, and the issue was fully explored by trial counsel on cross[-]examination of many of the State's witnesses and that included Detectives Coleman and Sietz.
Also the defendant argues that it was never brought to the jury that there was DNA which could not have originated from him or the victim found on his clothes and therefore the police must have planted it there. However, again, this was raised and litigated before trial. So the argument is both without any merit and should have been addressed on direct appeal. There was cross[-]examination of Jackie Higgins. So it shows that this argument is not probative.
And I find that the defendant is not entitled to a hearing because his motion is procedurally barred for raising issues which have previously been raised and litigated at the trial and on appeal. The defendant again talks about ineffective assistance of counsel, which is really the same argument. It's constantly the same argument here. He uses the same discussions.
For a claim of ineffective assistance of counsel, our Court has adopted the standard of review outlined in STRICKLAND V. WASHINGTON, 466 U.S. 668, 1984. In order for a claim of ineffective assistance of counsel to succeed the defendant must satisfy a two prong test. First he must show that the attorney's performance did not meet an objective standard of reasonableness. And second he must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.
So in this case I find that the defendant has failed to meet both of these prongs. The defendant's mere second guessing of strategic decisions made during the suppression hearing and the trial, that appellate counsel did not consider worthy of notice during direct appeal, does not satisfy this prong.
It is clear from a review of the facts and a review of my notes of the trial and my review of the transcripts of the trial that the defense counsel really had a strategically mapped out defense. The defendant participated in this. It's obvious. The defense counsel presented a presentation. He called witnesses.
He cross[-]examined rigorously as to many facts that could shed a negative light on the State's witnesses . . . and tried to establish another perpetrator. So he did what he had to do. This was a sound and reasonable strategy, especially in light of the overwhelming evidence. Besides the confession, there was overwhelming evidence that the defendant was guilty in this.
I'll just note a few things. Counsel cross[-]examined Veronica Smothers. She was the sister of Michael Cordiman (phonetic) and he elicited facts that Mr. Cordiman and the defendant both had drug problems, that they consumed drugs together. And that, I think, could have raised suspicions about the fact that Cordiman may have been the perpetrator in this event. He elicited the fact that Cordiman frequented Mr. A[m]ison's residence and obtained money from him, as well as the defendant.
He cross[-]examined Det. Ferguson about the fingerprint evidence. He minimized the blood spatter evidence in anticipation of the defendant's testimony. He also cross[-] examined Sgt. Donovan and Det. Cassidy.
He cross[-]examined other witnesses, which set a foundation for his cross[-] examination of Brian Pisano. And there is really nothing before me to show that he didn't vigorously investigate anything here. Just because Brian Pisano ultimately decided to testify for the State doesn't mean that defense counsel did anything wrong. So I think that that argument is specious.
Also the defendant's counsel brought out alleged police practices that may have been abusive or coercive. And I rejected them and they were brought out again at trial and the jury rejected them. So all those things were brought out. When he cross[-]examined Brian Pisano he attacked his credibility. He attempted to portray him as the killer. So defense counsel did exactly what he had to do in this case.
Also the fact that when he presented his case in chief he called various witnesses and they were called to try to establish the fact that Pisano might have committed this crime. The jury rejected that defense. They heard those witnesses and the jury rejected that.
Also the defendant testified himself. He testified as to what he did, what he said. He testified in front of me. He testified in front of the jury. He told his story on two occasions.
There's also the issue of the fact that trial counsel claims that counsel failed to provide effective assistance of counsel because a member of the jury was a former employee of the prosecutor's office. There was a voir dire as to that. That juror was questioned. She said that she had worked for the prosecutor's office 22 years before that. I think it was only for a short period of time.
She sent out subpoenas. I think that was the issue, that she sent out subpoenas for the prosecutor's office. She worked there approximately 22 years before this trial. And I asked her whether that would impair her ability to be fair and impartial in this case and she said, no, she could be fair and impartial. There was no reason to keep her off the jury.
Also counsel did use his challenges. He challenged numerous jurors. They were challenged. They were taken from the jury. So he did not rely on the first fourteen people that were impaneled.
As far as the claim that counsel allowed an all white jury, maybe that is the case. Maybe there was an all white jury, but there's nothing -- we can't go anyplace from there. There was no showing that because there was an all white jury it made any difference in the decision of the jury.
So I find besides being procedurally barred, if I were to consider all the facts in this case and all the argument that counsel was ineffective, I find that he was not ineffective. I also find that the accumulation of errors certainly did not creep into this case, that there was no accumulation of errors.
And I will deny the motion for post conviction relief.
On appeal, defendant presents the following points for our consideration:
BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE APPELLANT WAS PREJUDICED THEREBY, THE COURT SHOULD HAVE GRANTED HIS MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE APPELLANT HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING ON THIS ISSUE.
COUNSEL'S CUMULATIVE ERRORS DENIED TO THE APPELLANT HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL U.S. CONST., (Amend. VI, XIV: N.J. CONST., (1947), Art. I, par. 10) AND A RIGHT TO A FAIR TRIAL.
We have considered each of these issues in light of the record, the applicable law and the arguments of counsel, and we are satisfied none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm therefore substantially for the reasons stated in Judge Del Bueno Cleary's thoughtful and comprehensive oral opinion of November 18, 2005. We add only the following comments.
Apart from lacking substantive merit, defendant's arguments are procedurally barred as already adjudicated, Rule 3:22-5, and to the extent not heretofore decided, as capable of being raised and therefore now precluded from review, Rule 3:22-4.
Defendant does not raise any issue based on a constitutional principle established by our courts after his conviction and subject to retroactive application. See State v. Nash, 64 N.J. 464, 474-75 (1974). He does not make claims based on testimony outside of the trial record that could not have been raised on direct appeal. See State v. Sloan, 226 N.J. Super. 605, 612 (App. Div.), certif. denied, 113 N.J. 647 (1988). Additionally, he does not challenge the appellate proceedings themselves. See State v. Morrison, 215 N.J. Super. 540, 544-45 (App. Div.), certif. denied, 107 N.J. 642 (1987).
Although defendant asserts a claim of constitutional dimension, Rule 3:22-4(c), in order to come within this exception, defendant must show that his "constitutional rights were seriously infringed during the conviction proceedings." State v. Mitchell, 126 N.J. at 585-86 (1992). Defendant may not evade the procedural bars of Rule 3:22-4 by "[c]loaking the claim in constitutional language[.]" Id. at 586. A court must closely scrutinize defendant's issues to discover if a constitutional right is truly implicated. Ibid. Under such scrutiny, defendant fails to implicate any constitutional right.
Finally, the enforcement of the procedural bar of Rule 3:22-4 will not result in "fundamental injustice." Id. at 587. There is no fundamental injustice where the court has provided a fair proceeding "leading to a just outcome." Ibid. Defendant has failed to assert any facts that meet the definition of "fundamental injustice." Because defendant had more than ample opportunity on direct appeal to assert all of the claims he now raises, we are satisfied that Judge Del Bueno Cleary correctly determined defendant's claims are procedurally-barred.
Although Judge Del Buneo Cleary correctly found that defendant's PCR petition was procedurally barred, she nevertheless addressed defendant's allegations of ineffective assistance of trial counsel on the merits. Before doing so, she rejected defendant's contention that he was entitled to an evidentiary hearing. The judge found that defendant failed to establish a prima facie case of ineffective assistance of counsel, a condition precedent to entitlement to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992). Thus, the judge thoroughly reviewed each of defendant's allegations of ineffectiveness against the legal requirements to prove an ineffectiveness claim and determined that defendant had not shown that his counsel performed below the objective standard of reasonableness set forth in Strickland, supra, and State v. Fritz, 105 N.J. 42 (1987). The judge correctly concluded that defendant failed to establish either that the performance of his counsel was deficient or that he was prejudiced as a result of errors in his trial and appellate counsels' performance.
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