November 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFRED PHELPS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2007
Before Judges Fuentes and Grall.
Defendant Alfred Phelps appeals from the denial of his motion for post-conviction relief (PCR). The crimes were committed in December 1994. Tried to a jury with his co-defendants James Washington and Robert Phelps, defendant was convicted of conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a; attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a; aggravated assault, N.J.S.A. 2C:12-1b(1); possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a. On June 27, 1998, the judge merged defendant's convictions for conspiracy, aggravated assault and possession of a firearm with an unlawful purpose with his conviction for attempted murder. Pursuant to N.J.S.A. 2C:44-3d, the judge imposed an extended term of incarceration for attempted murder, a term of forty years, twenty to be served without possibility of parole. The judge also imposed a concurrent term for possession of a handgun without a permit. We affirmed defendant's conviction and sentence on appeal, and the Supreme Court denied his petition for certification. State v. Phelps, No. A-1037-98T4 (App. Div. Feb. 26, 2001), certif. denied, 169 N.J. 611 (2001). Defendant submitted a petition for post-conviction relief, which the State conceded should be treated as if timely filed.
The judge who presided over defendant's trial considered defendant's petition. The judge denied the petition for reasons stated in a written decision of October 28, 2005.
Defendant subsequently filed a pro se motion for reconsideration. On December 19, 2005, the judge entertained defendant's argument on that motion. Although the judge indicated that he intended to deny the motion, he asked defendant if he wanted an adjournment in order to retain an attorney. Defendant responded, "Yes." The judge, replied: "Okay, I will carry this motion. I will give it a control date . . . of Monday, January 31st. If in fact, I have not heard from an attorney at that point one way or the other - ." Defendant finished the judge's sentence by stating, "Your ruling will stand." The judge clarified his ruling: "I will bring you back up here to find out what's going on. Okay?" The judge repeated, "I'll carry this matter until January 31st." Defendant agreed.
In a letter to defendant dated January 9, 2006, however, the judge wrote:
Please be advised that this [c]court has denied your request for reconsideration of your post conviction relief and will not reconsider this matter.
Should you feel that further legal proceedings are necessary, you may pursue this matter with the New Jersey Superior Court, Appellate Division.
The facts that the jurors could have found to support defendant's convictions are recited in this court's opinion affirming his convictions and sentence. State v. Phelps, supra, slip op. at 21-23. To the extent relevant to the issues raised on this appeal, the facts stated in that opinion and additional facts not addressed therein follow.
DeMarzino, the victim of the crimes, was shot while sitting in his car. Defendant and his co-defendant, Washington, approached his car. Washington shot him approximately nine times. Defendant, who was holding a handgun, attempted to enter the car on the passenger-side, but the door was locked. After the shooting, Robert Phelps, who was also present, urged the others to "come on." DeMarzino knew the men by their nicknames and subsequently identified them.
Elston, who was charged with defendant, defendant's brother Robert Phelps and Washington, was acquitted in a prior trial. Elston saw Washington shoot DeMarzino, and he saw defendant attempt to open the car door. He also saw defendant's brother standing behind him. Although Elston denied any involvement in the shooting or its planning, he heard the co-defendants say that they were going to do it, i.e. he testified that he heard defendant and Washington talking about shooting DeMarzino.
After trial, the co-defendants moved for a new trial on the ground that they had evidence that, while he was confined, Elston had told another prisoner and a corrections officer that defendant and his brother were not involved in the shooting. The trial judge denied the motion for a new trial. On direct appeal, this court affirmed that denial. We concluded: "In light of the strength of the State's case, Elston's statements made to the corrections officer and [the] fellow inmate . . . would not have affected the outcome of the trial." Id. at 8.
In reaching that conclusion, we stressed that DeMarzino, not Elston, was the "State's key witness" and that Elston's credibility had been drawn into question at trial. Id. at 8-9.
In support of his application for post-conviction relief, defendant provided an affidavit relevant to DeMarzino's credibility. The affidavit was signed and witnessed on October 31, 1995. R.J. Rice executed the affidavit. Rice was not called as a witness at trial. The following assertion was included in Rice's affidavit:
On or about February 15, 1995[,] I spoke with Mr. DeMarzino and he told me the details of a shooting in which he was shot.
He told me that he could not say for sure[,] even then, who shot him, but that the people he named were people he wanted off the street as he felt [that] they posed a threat to his drug operations. We spoke many times after that[;] he told me that he tried to withdraw the charges and the State told him "no way." "We will give you a 10 yr. stip." Defendant raises the following issues on appeal from denial of his PCR:
I. THE TRIAL COURT SHOULD HAVE GIVEN THE DEFENDANT AN EVIDENTIAL HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF HIS TRIAL COUNSEL.
B. Trial Counsel Failed to Investigate Whether There Were Any Fingerprints on the Passenger Side of the Victim's Car.
C. The Trial [Court] Should Have Conducted an Evidentiary Hearing With Respect to Defendant's Claim of Ineffective Assistance of Counsel Because of Counsel's Failure to Investigate Possible Witness Tampering [Directed at] Ronald Rice and Counsel's Failure to Call Ronald Rice as a Defense Witness.
II. THE TRIAL COURT SHOULD HAVE GIVEN THE DEFENDANT AN EVIDENTIAL HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF HIS APPELLATE COUNSEL.
III. DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE THE TRIAL COURT REFUSED TO ALLOW DEFENDANT TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR THEREBY VIOLATING THE DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER N.J.S.A. 2B:23-13 AND R. 1:8-3(d).
IV. THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S MOTION FOR RECONSIDERATION OF HIS PETITION FOR POST-CONVICTION RELIEF BECAUSE HE DID NOT GIVE THE DEFENDANT AN OPPORTUNITY TO HAVE AN ATTORNEY PRESENT [AT] THIS MOTION.
Defendant raised a factual issue sufficient to require an evidentiary hearing on his claim of ineffective assistance of trial counsel, at least to the extent that the claim is based on his trial attorney's failure to produce Rice as a witness at trial. An evidentiary hearing is warranted "if a defendant has presented a prima facie claim in support of post-conviction relief" and has raised a genuine factual issue material to that claim. State v. Preciose, 129 N.J. 451, 462-63 (1992). A claim of ineffective assistance of counsel has two elements, deficient performance and resulting prejudice. The questions are: "(1) whether counsel's performance 'fell below an objective standard of reasonableness,' and if so, (2) whether there exists a 'reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different.'" State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)) (internal citations omitted); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the federal standard).
Rice's affidavit, viewed most favorably to defendant, establishes a prima facie case of prejudice -- i.e. a showing sufficient to raise a genuine question as to whether the result of this trial would have been different if Rice had been called as a witness to impeach DeMarzino. Rice's affidavit indicated that he would testify that DeMarzino told him that he could not say for sure who shot him. As noted above, this court previously described DeMarzino as the State's "key witness." Indeed, based in part on the strength of DeMarzino's testimony, this court concluded that newly discovered evidence relevant to impeach a second eyewitness, Elston, probably would not have affected the outcome at trial. Thus, we conclude that defendant established a prima facie case of prejudice.*fn1
We also conclude that defendant established a prima facie case of deficient performance. Courts presume that the attorney has selected a course that is "'within the wide range of reasonable professional assistance,'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). "To rebut that strong presumption, a defendant must establish that [under the circumstances of the case] trial counsel's actions did not equate to 'sound trial strategy.'" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). Given the significance of DeMarzino's testimony about the crime and the fact that this affidavit was dated prior to the date of this trial, "defendant might have demonstrated at an evidentiary hearing [that his attorney's failure to present Rice's testimony] constituted deficient performance." See Preciose, supra, 129 N.J. at 463, 478 (requiring an evidentiary hearing where defendant made that showing).
For the reasons stated in the judge's letter decision of October 28, 2005, we conclude that defendant did not make a prima facie showing of deficient performance or prejudice based on his trial attorney's failure to test the passenger door of DeMarzino's car for fingerprints. As the judge noted, the absence of defendant's fingerprints would have had some value to the defense but could not have exonerated him. Defendant makes no persuasive argument to the contrary on appeal. He does not, for example, point to any testimony or evidence placing a person other than himself at the passenger door of DeMarzino's car at the time of the shooting.
After review of the record in light of the arguments presented on appeal, we conclude that the issues raised in Points II and III of defendant's brief lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we provide only the brief explanation that follows.
In Point II, defendant claims that his counsel on direct appeal was deficient because the attorney did not claim error based on admission of evidence relevant to defendant's involvement in drug trade for the limited purpose of establishing motive, or admission of testimony about discussions between the co-defendants, which he contends were not admissible as either part of the res gestae or statements of coconspirators. On appeal, defendant simply claims that the PCR judge failed to evaluate these claims of error. He presents no argument as to why the statements were erroneously admitted.
Our independent review of the record discloses no abuse of discretion on these evidentiary rulings at trial. Evidence of defendant's involvement with drug trade was admitted for the limited purpose of establishing defendant's motive and there was an appropriate instruction advising the jury on the limited permissible use of that evidence. See State v. Allen, 337 N.J. Super. 259, 269 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002); State v. Green, 274 N.J. Super. 15, 31-32 (App. Div.), certif. denied, 137 N.J. 312 (1994). In his application for PCR, defendant asserted that Elston's testimony about the co-defendants' discussions was inadmissible because there was no proof that Elston was a participant in the conspiracy. Pursuant to N.J.R.E. 803(b)(5), a statement is admissible if a party and the person who made the statement were participating in a plan to commit a crime. It is irrelevant whether a witness who overheard the statement was participating in the crime. We further note that the trial judge also ruled that Elston's testimony about what the co-defendants did before, during and after the crime was part of the res gestae. See also State v. Long, 173 N.J. 138, 154-55 (2002) (discussing the relationship between res gestae and various exceptions to the hearsay rule).
In Point III, defendant contends that the trial court erred in denying his request for PCR based on an erroneous denial of his right to use a peremptory challenge. The judge denied this claim as procedurally barred pursuant to Rule 3:22-4. We see no error in that determination; the issue is one that defendant could have raised on direct appeal. We also note that defendant's objection to the trial judge's ruling on his peremptory challenge is wholly without support in the record. On appeal, defendant argues that the trial judge did not make findings about the composition of the jury, the race of the jurors challenged by him or his use of peremptory challenges to exclude a cognizable group. See State v. Gilmore, 103 N.J. 508, 535-39 (1986); State v. Chevalier, 340 N.J. Super. 339 (App. Div.) (applying Gilmore and its prohibition against discriminatory use of peremptory challenges to a defense attorney), certif. denied, 170 N.J. 386 (2001). Defendant's attorney on appeal has overlooked a significant portion -- four pages -- of transcript that includes the judge's detailed findings on these points. Accordingly, we reject this claim as patently inconsistent with the record.
In contrast, defendant's objection to the judge's denial of his motion for reconsideration is supported by the record. Although the judge advised defendant that he would adjourn the motion and set a new return date, the judge denied the motion prior to that date. For that reason, we vacate the order on defendant's motion for reconsideration so as to permit the judge to rule on the merits.
Affirmed in part; reversed in part, and remanded for further proceedings.