December 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD ROBINSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-06-0627.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Graves and Sabatino.
Defendant Edward Robinson appeals from an order dated May 8, 2006, denying his petition for post-conviction relief (PCR). We affirm.
On appeal, defendant makes the following arguments through counsel:
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST[-]CONVICTION RELIEF.
B. THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF AS BEING BARRED AS OUT OF TIME.
C. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO MOVE FOR SUPPLEMENTAL DISCOVERY REGARDING STATE'S INVESTIGATOR, DETECTIVE [FORREST] CUPO.
D. COUNSEL STIPULATED TO THE BALLISTICS REPORT RATHER THAN CHALLENGING THE SCIENTIFIC RELEVANCE OF THE COMPARATIVE BULLET LEAD ANALYSIS.
E. COUNSEL FAILED TO REQUEST THAT AN INSTRUCTION REGARDING PASSION/PROVOCATION BE INCLUDED IN THE CHARGE TO THE JURY.
F. THE JURY CHARGE WAS PREJUDICIAL AND ASSURED THE PETITIONER'S CONVICTION.
Additionally, in his pro se supplemental brief, defendant contends:
POINT I THE APPELLANT SHOULD NOT HAVE BEEN TIME BARRED FROM PRESENTING HIS POST[-]CONVICTION RELIEF CLAIMS BECAUSE HE MADE A TIMELY FILING.
POINT II THE APPELLANT SHOULD NOT BE DENIED HIS RIGHT TO DUE PROCESS OF THE LAW AND HE SHOULD BE GRANTED AN EVIDENTIARY HEARING BECAUSE HE MAKES A PRIMA FACIE SHOWING.
POINT III THE APPELLANT IS ACTUALLY INNOCENT OF THE GREATER CRIME OF MURDER, AND THEREFORE HE PREVAILS IN SATISFYING THE SECOND PRONG OF THE [STRICKLAND] STANDARD REQUIRING THAT ONE PROVE THAT IF NOT FOR ATTORNEY'S INEFFECTIVENESS THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT.
After considering these arguments in lieu of the record, the applicable law, and the trial court's findings and conclusions, we are convinced defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11- 3(e)(2). We add only the following comments.
A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On May 5, 2000, defendant was sentenced to an aggregate term of life with thirty-five years of parole ineligibility, consecutive to a sentence he was then serving on an earlier conviction. Prior to imposing sentence, the trial court stated:
There was absolutely no need for this event to have occurred. Life is difficult enough in the Projects. It's obvious that this defendant, even though he allegedly lived in North Carolina, visited periodically for reasons best known to him. I still haven't figured that one out, even though there's no gainful employment that I'm aware of, and even though he indicated at the trial, if I remember, that he possessed a gun because he was taking his brother to New York to some nightclub. That's for reasons best known to him, and I'm not sure exactly what that is all about.
Again, he finds himself in the position where he's at the Projects and his brother apparently had some kind of confrontation, whatever that consisted of, and nothing of major importance or significance. His brother, Mr. Tate, went to this defendant for his assistance and reassurance. Mr. Robinson, with his loaded weapon, returned to the area and within minutes discharged three bullets into the back or side of the victim causing his death.
It was an execution. This victim had no weapon. Mr. Robinson wasn't confronted in the sense that he was placed in any danger. He could have left the area, and he didn't have to even return to the area. He did what he did for reasons best known to him.
This was an unusual event. There was a witness. You remember the Armed Forces? I guess if you had to grade a witness from one to ten, he was a ten. I never saw anything like that. He apparently was in a car within close proximity of where this execution/murder took place and observed everything, and he was unequivocal in his testimony. There was no bias, no prejudice, and he didn't know any of the parties, and he spelled it all out on the record. His testimony spoke volumes, and I believe unhesitatingly that the jury believed each and every word that he uttered on the witness stand. He described the details as they occurred. In my opinion, the manner in which they occurred suggests, quite frankly, that they do constitute a particularly cruel or depraved manner.
In our initial unpublished opinion, affirming defendant's judgment of conviction and sentence, we rejected defendant's claim that the trial judge committed reversible error by failing to charge the jury on passion/provocation manslaughter:
The facts elicited at trial demonstrate that on April 4, 1996, Lee Griffin and defendant's brother, Jason Tate, had an argument that resulted in a shoving match. The fight was broken up by Griffin's friends soon after it started. No weapons were involved and no one was hurt. Tate left the scene but returned, accompanied by defendant and another man, Corey Armstead. Defendant confronted Griffin and his friends, causing a crowd to gather. Defendant then pulled a gun and began to shoot. Griffin and his friends ran and tried to duck for cover. As Griffin ran to a nearby van, he was struck by multiple gunshots and collapsed onto the sidewalk. After he finished firing, defendant casually walked away from the scene.
Defendant fled from New Jersey and was apprehended two months later by the North Carolina Highway Patrol. He testified on his own behalf at trial, claiming that he was surrounded by a mob, happened to have a loaded gun in his possession and fired at the ground, accidentally hitting Griffin three times. Robinson claimed that he fled from the state so that the "boys from the projects" would not kill him.
Even under his own version of the events leading to the shooting--defendant claimed the shooting was accidental and he merely fired the gun to disburse the crowd--the evidence did not suggest that he was subjected to sufficient provocation to inflame the passions of a reasonable person. State v. Mauricio, 117 N.J. 402, 412 (1990). There was no fighting between Robinson and Griffin, only words were exchanged. Mere words are not sufficient provocation. State v. Crisantos, 102 N.J. 265, 274 (1986). We conclude that there was no error in failing to give the passion/provocation manslaughter charge, much less plain error.
[State v. Robinson, No. A-4651-00 (App. Div. Dec. 10, 2002) (slip op. at 2, 4), certif. denied, 176 N.J. 72 (2003).]
On defendant's direct appeal, we also considered, but rejected, defendant's remaining arguments, which included a claim "that the jury instructions, combined with the verdict sheet, precluded the jury from considering lesser included offenses, leading to his conviction for first[-]degree murder." Id. at 4. The PCR court ruled that defendant's ineffective assistance of counsel claims were "procedurally time barred" because defendant's PCR petition was not filed within the five-year period allowed by Rule 3:22-12, and defendant failed to show relaxation of this time bar was required because of "excusable neglect" or "the interests of justice" demanded it. State v. Goodwin, 173 N.J. 583, 594-95 (2002) (internal quotations omitted). Nonetheless, in a written opinion dated May 8, 2006, the court addressed the merits of defendant's PCR application, and we agree with its conclusions. The court determined: (1) defendant's claim that the jury should have been given a passion/provocation manslaughter charge, and his other arguments directed to the adequacy of the jury charge, were procedurally barred by Rule 3:22-5 because defendant's claims were "'identical or substantially equivalent'" to claims adjudicated on the merits on direct appeal, State v. McQuaid, 147 N.J. 464, 484 (1997) (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438, 444 (1971)); and (2) defendant's remaining ineffective assistance of counsel arguments were completely without merit.
A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). New Jersey has adopted the standards set out in Strickland. State v. Fritz, 105 N.J. 42, 58 (1987).
"[A] defendant whose counsel performed below a level of reasonable competence must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
[Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (internal citation and quotation omitted).]
"[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of [success]." Id. at 463.
Applying these principles to this case, we are convinced that the record fully supports the PCR court's conclusion that defendant failed to demonstrate a reasonable likelihood of success under the Strickland/Fritz test. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge Subryan in his eighteen-page written decision dated May 8, 2006.
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