August 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALONZO BRYANT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Burlington County, Indictment No. 93-09-00492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2007
Before Judges R. B. Coleman and Gilroy.
Defendant, Alonzo Bryant, appeals from the July 13, 2005, order memorializing the denial of his petition for post-conviction relief (PCR).*fn1 For the reasons that follow, we affirm.
On January 30, 1997, a jury convicted defendant of the following crimes: (1) purposeful murder of Michael Eck, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count four); (2) felony murder of Eck, N.J.S.A. 2C:11-3a(3) (count six); (3) two counts of first degree robbery of Eck, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:15-1a(1) (counts eight and ten); (4) two counts of first degree robbery of Toby Chrostowski, N.J.S.A. 2C:15-1a(1) and N.J.S.A. 2C:15-1 (counts twelve and thirteen); and (5) two counts of aggravated assault against Chrostowski, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:12-1b(2) (counts fourteen and fifteen). Defendant received an aggregate sentence of two life terms, in addition to a fifty-five year parole disqualifier.
This sentence was affirmed on appeal, State v. Bryant, No. A-0685-97T4 (App. Div. Feb. 2, 2000); and on May 11, 2000, the Supreme Court denied defendant's petition for certification. State v. Bryant, 164 N.J. 560 (2000).
Defendant filed a pro se petition for PCR on November 3, 2000, which raised various points, but did not include a brief or appendix in support thereof. Assigned counsel subsequently filed a brief raising the following points of argument for our consideration:
POINT I: DEFENDANT-PETITIONER'S RIGHT TO TESTIFY AT HIS TRIAL WAS VIOLATED WHEN HE WAS ERRONEOUSLY ADVISED BY TRIAL COUNSEL NOT TO DO SO, THEREBY RENDERING DEFENDANT INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: DEFENDANT-PETITIONER'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE COUNSEL WERE VIOLATED BY TRIAL COUNSEL WHEN THEY "OPENED THE DOOR" TO DAMAGING TESTIMONY ON THE REDIRECT EXAMINATION OF DETECTIVE RYAN.
POINT III: IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCLUDE THAT PORTION OF THE CO-DEFENDANT'S INCULPATORY STATEMENT CONCERNING HIS STABBING OF MICHAEL ECK FROM THE JURY IN DEFENDANT'S TRIAL.
POINT IV: THE TRIAL COURT IMPROPERLY INTERFERED WITH DEFENSE COUNSEL'S ARGUMENT TO THE JURY ABOUT REASONABLE DOUBT BY GIVING THE JURY AN ERRONEOUS "CORRECTIVE" CHARGE ON REASONABLE DOUBT.
POINT V: THE PROCEDURAL BARS OF RULE 3:22-4 AND 3:22-5 DO NOT APPLY TO THE DEFENDANT-PETITIONER'S POST-CONVICTION RELIEF CLAIMS.
The petition was not supported by a certification or affidavit from defendant, however, the matter was heard by Judge Cornelius P. Sullivan on July 23, 2005, and denied on the same date. In denying the petition, the judge found that points three and four were procedurally barred because they could have been raised during defendant's direct appeal. R. 3:22-4. The court also declined to address point two, reasoning that the underlying claim of error had previously been adjudicated, albeit phrased differently, on defendant's direct appeal. R. 3:22-5.
Despite defendant's failure to submit an affidavit or certification in support of his petition, the court considered his claims of ineffective assistance of counsel. The judge appropriately analyzed defendant's claim under the standards of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and as adopted by State v. Fritz, 105 N.J. 42, 58 (1987). After conducting this analysis, the judge found that defendant had failed to make out a prima facie case, and therefore an evidentiary hearing was not warranted. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (finding bare allegations are insufficient to make out a prima facie claim of ineffective assistance sufficient to warrant an evidentiary hearing).
On appeal, defendant argues:
POINT: THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
A. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL AND ON HIS PETITION FOR POST-CONVICTION RELIEF.
B. DEFENDANT-PETITIONER'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE COUNSEL WERE VIOLATED BY TRIAL COUNSEL WHEN THEY "OPENED THE DOOR" TO DAMAGING TESTIMONY ON THE REDIRECT EXAMINATION OF DETECTIVE RYAN.
C. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCLUDE THAT PORTION OF THE CO-DEFENDANT'S INCULPATORY STATEMENT CONCERNING HIS STABBING OF MICHAEL ECK FROM THE JURY IN DEFENDANT'S TRIAL.
D. THE TRIAL COURT IMPROPERLY INTERFERED WITH DEFENSE COUNSEL'S ARGUMENT TO THE JURY ABOUT REASONABLE DOUBT BY GIVING THE JURY AN ERRONEOUS "CORRECTIVE" CHARGE ON REASONABLE DOUBT.
E. THE PROCEDURAL BARS OF RULE 3:22-4 AND 3:22-5 DO NOT APPLY TO THE DEFENDANT-PETITIONER'S POST-CONVICTION RELIEF CLAIMS.
F. THE DEFENDANT IS ENTITLED TO AN EVIDENTARY HEARING ON THE ISSUE OF FAILURE TO TESTIFY.
Based upon our review of the record, we are satisfied that the judge correctly analyzed the petition and that defendant's certification does not establish that his counsel performed deficiently and that he suffered prejudice as a result of such deficient performance. Consequently, we affirm substantially for the reasons expressed by Judge Sullivan in his oral opinion on June 23, 2005.