December 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASHONA CLARK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 90-05-1489.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Collester and C.S. Fisher.
At the conclusion of a jury trial, defendant was convicted of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; armed robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and tampering with physical evidence, N.J.S.A. 2C:28-6(1). Following all appropriate mergers, defendant was sentenced on the murder conviction to life imprisonment with a thirty-year period of parole ineligibility and on the tampering conviction to a consecutive eighteen-month term.
Defendant appealed and, in an opinion filed on March 11, 1994, we affirmed. Docket No. A-6271-90T4. The Supreme Court denied defendant's petition for certification on May 24, 1994. 137 N.J. 166 (1994).
Defendant filed a petition for post-conviction relief (PCR), which was denied. He appealed, but a desire to withdraw the appeal was later indicated and the appeal was dismissed by an order entered on October 1, 1999. On May 9, 2002, defendant moved to vacate the dismissal and to reinstate the appeal. We referred the matter to the Public Defender, who filed a motion for summary disposition. We granted that motion, finding that defendant had not received the effective assistance of counsel regarding his PCR petition. We permitted defendant to file a new PCR petition.
Defendant filed a new PCR petition on April 15, 2003. The Public Defender filed a supplemental petition on defendant's behalf on August 6, 2003. On October 29, 2003, the PCR judge denied relief for the reasons contained in an oral decision.
Defendant appealed, arguing that he was deprived the effective assistance of counsel because his trial attorney failed (1) to call two eyewitnesses; (2) to call alibi witnesses; (3) to adequately challenge the State's fingerprint expert; (4) to consult a psychological expert concerning what he referred to as the State's coercive interrogation techniques; (5) to request a charge on certain lesser included offenses; (6) to advise defendant of a plea offer; (7) to request a jury charge on the credibility of both defendant's confession and the testimony of defendant's accomplices; and (8) to object to certain remarks in the prosecutor's summation. In an unpublished opinion filed on October 3, 2005, Docket No. A-2865-03T4, we concluded that defendant was entitled to an evidentiary hearing on (1), (2), (3), (6), and (7). We affirmed with regard to the other issues. The State's petition for certification was denied on January 17, 2006. 186 N.J. 242 (2006).
Following our remand, defendant abandoned issues (2), (3) and (6). This left, for the trial court's consideration, defendant's argument that his trial attorney failed to call two eyewitnesses to testify (issue number 1) and failed to seek credibility instructions regarding his statements and the testimony of his accomplices (issue number 7).
Judge Michael A. Donio conducted an evidentiary hearing, and received the testimony of Lisa Brinson, who was one of the two alleged eyewitnesses, two officers who investigated the matter, defendant's trial attorney, and defendant. In an oral decision, Judge Donio made the findings required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 51 (1987), and concluded that defendant had not been denied the effective assistance of trial counsel. As a result, the judge entered an order denying the PCR petition.
Defendant appealed. In a brief filed by his appellate counsel, defendant has presented the following arguments:
I. THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
II. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF THAT REQUIRES A REMAND FOR REARGUMENT.
Defendant also filed a pro se brief, in which he presents the following arguments, which we have renumbered:
III. MR. CLARK WAS DEPRIVED OF [THE] EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND PCR COUNSEL, ALL IN VIOLATION OF THE CONSTITUTION[']S SIXTH AMENDMENT.
A. Standards of Review For Trial, Appellate and PCR Counsel Claims.
B. Trial Counsel.
1. Police failed to "scrupulously honor" Mr. Clark's right to remain silent.
2. Mr. Clark's confession was the product of his illegal arrest and should have been suppressed.
C. Appellate Counsel.
D. PCR Counsel.
IV. PCR COUNSEL WAS INEFFECTIVE BY NOT REQUESTING TO AMEND HIS PETITION TO INCLUDE MIRANDA*fn1 ISSUES WHICH WERE RELATED TO THE ISSUES THE APPELLATE DIVISION REMANDED IT FOR.
V. THE TRIAL COURT ERRED BY DENYING MR. CLARK'S PCR.
A. The Trial Court Erred By Finding Mr. Clark Was Not Prejudiced By Trial Counsel's Ineffectiveness For Failing To Request A Hampton/Kociolek*fn2 Charge Regarding his Custodial Statements.
B. The Trial Court Erred By Finding That Mr. Clark Was Not Prejudiced By Trial Counsel's Failure To Request A Jury Instruction Regarding The Credibility Of The Accomplices Who Testified For The State.
C. The Trial Court Erred By Finding Mr. Clark Was Not Prejudiced By Trial Counsel's Ineffectiveness For Failing To Call The Eyewitness Ms. Brinson As a Witness and Failure To Cross-Examine Jubilee Concerning The Eyewitnesses['] Identification.
We reject the arguments contained in Points I, II, and V, as well as those parts of Points III and IV, which contain arguments regarding the performance of defendant's trial attorney, substantially for the reasons set forth in Judge Donio's comprehensive and thoughtful decision.
We observe that it is argued in Points III and IV that defendant was deprived of the effective assistance of appellate and PCR counsel; these arguments exceed the scope of the mandate contained in our 2005 opinion and the scope of Judge Donio's decision, which faithfully adhered to our mandate. Nevertheless, we have reviewed their merits and, after carefully examining the record, we find those additional arguments to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).