On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-09-3108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2007
Before Judges Axelrad and Messano.
Defendant Alwyn Martin, and his brother, co-defendant Selwin Martin, were jointly tried before a jury on Camden County Indictment 31-08-09-98. Defendant was convicted of murder in the first degree, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder in the first degree, N.J.S.A. 2C:11-3(a)(3); kidnapping in the first degree, N.J.S.A. 2C:13-1(b)(1) and (2); criminal restraint in the third degree, N.J.S.A. 2C:13-5(a)(1); possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-5(b); attempted murder in the first degree, N.J.S.A. 2C:5-1; conspiracy in the first degree, N.J.S.A. 2C:5-2; and certain persons not to have a weapon in the second degree, N.J.S.A. 2C:39-7. At sentencing, the judge granted the State's motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a), and, after the appropriate merger of offenses, sentenced defendant to an aggregate sentence of life plus ten years imprisonment, and a period of forty years parole ineligibility.
We affirmed defendant's conviction on appeal, although we remanded the matter for re-sentencing on defendant's attempted murder conviction. State v. Alwyn Martin, A-2612-00 (App. Div. March 7, 2003). Defendant's petition for certification was denied. 177 N.J. 572 (2003).
Defendant filed a pro se verified petition for post-conviction relief (PCR) on January 22, 2004, citing the following reasons for relief: "ineffective assistance of counsel"; the "court's denial of [a] motion to introduce exculpatory evidence"; and a claim that the "prosecutor's use of collateral estoppel infringed [up]on due process of defendant and led to [a] direct verdict." Although the application was not supported by any affidavits, see State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that to support a prima facie claim for relief, the petitioner must "do more than make bald assertions that he was denied the effective assistance of counsel"), Judge Samuel D. Natal, before whom the case had been tried, nevertheless conducted an evidentiary hearing on defendant's claims.
Defendant and his trial counsel testified before Judge Natal. In a comprehensive written opinion filed on January 30, 2006, Judge Natal denied defendant's application. This appeal ensued.
Defendant raises the following points for our consideration:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL FAILED TO PROPERLY INTERVIEW GRACE MARTIN PRIOR TO TRIAL, TO INSPECT THE PAGER, AND TO PROPERLY REVIEW GRACE MARTIN'S TRANSCRIBED STATEMENT.
B. TRIAL COUNSEL FAILED TO ADVISE DEFENDANT OR GRACE MARTIN OF THE SPOUSAL PRIVILEGE.
C. TRIAL COUNSEL FAILED TO PRESENT EXCULPATORY EVIDENCE.
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE OF THE TRIAL COURT'S NOT ALLOWING THE DEFENSE TO REOPEN ITS CASE TO PRESENT EXCULPATORY EVIDENCE.
THIS MATTER MUST BE REMANDED AS TO DEFENDANT'S PRO SE PCR CLAIMS BECAUSE PCR COUNSEL DID NOT ADVANCE THOSE CLAIMS.
We have considered these issues in light of the applicable legal standards. We affirm the denial of defendant's PCR petition substantially for the reasons set forth by Judge Natal in his written decision.
To place the arguments now raised in the appropriate context, we summarize the trial evidence by quoting a portion of our opinion on ...