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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 In an unpublished opinion, we affirmed defendant's conviction but remanded for re-sentencing.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 May 1, 2003) (unpublished opinion).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.
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. ...