February 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD PETERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 94-10-0564.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Stern and Kestin.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following his conviction for murder and sentence of life imprisonment with thirty years to be served before parole eligibility. The proofs at trial included an admission that defendant killed his wife after they fought in bed following his premature ejaculation. Defendant had waived his right to counsel at the pretrial hearing with respect to admissibility of a statement he gave to the police, but challenged its credibility at trial.
On his direct appeal defendant contested the determination, made at the hearing conducted in the absence of defense counsel, that his statement was admissible. He also challenged the sentence. We upheld the waiver of the right to counsel at the pretrial hearing, as well as the life sentence and the mandatory thirty year period before parole ineligibility. As was stated in the direct appeal, defendant's decision to represent himself did not give rise to a claim of ineffective assistance of counsel with respect to the issues decided when he was representing himself.
Defendant raised twenty issues in his petition for post-conviction relief, and counsel's brief addressed five issues. At oral argument at the PCR hearing, counsel also incorporated all of defendant's contentions, as well as arguing what counsel felt to be significant. See State v. Webster, 187 N.J. 254, 257 (2006). In essence, defendant asserted ineffective assistance of trial counsel and appellate counsel and entitlement to an evidentiary hearing by virtue of the assertion of a prima facie case on the PCR.
With respect to the claim of ineffective assistance of trial counsel, defendant now states that "his attorney did not investigate or call the defendant's prime witnesses on his behalf" and "also failed to aggressively challenge the state's witnesses and failed to thoroughly investigate the contents of their assertions." He attacks his prior appellate counsel for not raising ineffective assistance of trial counsel claims on the direct appeal. As to the latter, if such contentions had been raised on the appeal, we undoubtedly would have remanded for the PCR hearing defendant has since had. See State v. Preciose, 129 N.J. 451 (1992).
There is no indication in the PCR record of any new witnesses, or statements from them, as to how they would have testified, or that they would have testified in a way which may have made a difference in terms of a result. In other words, assuming deficient representation by trial counsel, we find no basis for finding the second prong of the Strickland test would be satisfied or that there is a sufficient showing of entitlement to a hearing. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div. 1999).
Defendant has to do more to obtain a hearing beyond merely contending that trial counsel has to be questioned as to why he did or did not do something. PCR is not a "fishing expedition."
Defendant testified at trial that he did not kill his wife, and presented a pathologist who challenged the testimony of the State's expert concerning cause of death. He does not now point to any other witnesses who could provide specific testimony that would have helped his case. But see State v. Cummings, supra, 321 N.J. Super. at 171.
Defendant also claims that the "PCR judge erred when he failed to order production of the original confession tape to be tested for authenticity."*fn1 However, from what was presented in the October 31, 2003 application for production of the tape recording, the judge's November 10, 2003 opinion on the issue, and the February 2004 motion for leave to appeal,*fn2 there has not been a sufficient showing of tampering or falsification to permit a turnover of the original tape for inspection, particularly at this late date.*fn3 See State v. Morton, 155 N.J. 383, 412-16 (1998). As Justice Pollock wrote in Morton:
The prosecution met its burden of disclosure by providing defendant with copies and transcripts of the taped confessions. Moreover, neither of these confessions were exculpatory. Defendant's argument, that the original tapes, if altered, would constitute exculpatory evidence under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963)], is too attenuated. His challenge is directed at the authenticity, not the disclosure, of evidence. As such, defendant must provide more than mere unfounded allegations of tampering to compel the prosecutor to turn over the original tapes for testing. [Morton, supra, 155 N.J. at 413-14 (citations omitted).]
Further, there is no credible or reasonable story which would exonerate defendant as "[e]ven if testing revealed evidence of tampering,  the test results would not conclusively prove defendant's innocence." Id. at 416.
In his opinion filed on October 7, 2005, the PCR judge concluded that the "counsel's performance was not deficient," stating "it is unclear who defendant could have called as witnesses who could have possibly provided relevant testimony on defendant's behalf, nor does defendant name any such person." He notes the cross-examination of State's witnesses by counsel. The judge also concluded that "even if counsel's performance was deficient, defendant was not prejudiced" given the overwhelming testimony independent of the confession, including the testimony of his ex-wife which indicated he never asserted the victim committed suicide until three months after the event, and that his wife died while the two were alone in their apartment and he never contacted anyone about her death. The judge also concluded that appellate counsel was "not ineffective" for not having raised the issue embodied in the petition.
We affirm the denial of PCR substantially for the reasons given by Judge Thomas Smith in his opinions of November 10, 2003 and October 7, 2005.