February 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE KINMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 95-07-2365-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing and R. B. Coleman.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged with one count of second-degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3; two counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5); one count of first-degree carjacking, N.J.S.A. 2C:15-2; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). A jury found defendant guilty of all charges except that of carjacking. The trial court sentenced defendant to an aggregate term of thirty-four years in prison and specified that defendant would have to serve fourteen years before he would be eligible for parole. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Kinman, No. A-6008-97T4 (App. Div. June 24, 1999). The Supreme Court denied defendant's petition for certification. 164 N.J. 188 (2000).
Thereafter, defendant filed a pro se petition for post-conviction relief in which he contended that he had been denied the effective assistance of counsel at trial. Specifically, he alleged his trial attorney was ineffective for failing to request a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967), for failing to request either a DNA test or a paraffin test and with regard to particular aspects of the trial court's charge. Counsel was assigned to represent defendant in connection with his petition for post-conviction relief. Counsel filed an amended petition alleging that defendant's trial attorney was ineffective for failing to request a voice-identification and in his cross-examination of one of the victims. The trial court denied defendant's petition after hearing oral argument but without conducting an evidentiary hearing.
On appeal, defendant raises the following issues:
THE DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
PURSUANT TO STATE V. WEBSTER, THE CONTENTIONS IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF ARE HEREBY INCORPORATED BY REFERENCE AS IF SET FORTH IN FULL HEREIN.
Certain fundamental principles guide our analysis of these contentions. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984), but a defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S.Ct. 2039, 2043-46, 80 L.Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).
The "benchmark" for evaluating a claim of ineffective assistance of counsel "must be whether 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, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d 692-93. A defendant making such a claim must demonstrate first, that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. New Jersey has expressly adopted this two-pronged test. State v. Fritz, 105 N.J. 42, 58 (1987).
Finally, the law recognizes that there are a number of ways in which a sound defense may be presented. Thus, the decision to follow a particular trial strategy is not a basis for a charge of ineffective assistance of counsel, particularly when that strategy is considered against the backdrop of a presumption that counsel's performance was reasonable. Id. at 54.
Within our unpublished opinion, we set forth the following factual synopsis of the events that led to defendant's convictions.
Defendant's convictions rest upon an incident that occurred on the evening of May 14, 1995. Darren Perkins and [T.K.] were sitting in Perkins's car in Weequahic Park in Newark, New Jersey. As they were talking, they were approached by a number of individuals. Suddenly, a bullet shattered the driver's side window, and one individual held a gun to Perkins's head. Perkins was beaten unconscious and robbed. Jewelry was taken from [T.K.]. One of the assailants led her a short distance from the car and sexually assaulted her. The group then fled down Elizabeth Avenue.
Perkins and [T.K.] went to a nearby telephone and summoned the police. Upon arrival, the police drove the victims down Elizabeth Avenue in search of the perpetrators. They spotted a number of individuals in a Chinese restaurant, and [T.K.] identified defendant as her attacker. Defendant was placed under arrest and taken to police headquarters. A subsequent search of the police car uncovered a gold chain stuffed behind the rear passenger seat; Perkins identified the chain as one that had been stolen from him. [slip op. at 2-3.]
Certain additional facts are pertinent to our analysis. Defendant testified at trial. He told the jury that he lived near where the incident occurred. He said he was alone in the park when he saw the shadows of people and heard shouting, gunshots, and a woman screaming. He said he ran to the scene shouting, "Leave her alone."
His assertion that his trial counsel was ineffective for not requesting a voice-identification is premised on his contention that the victims would have recognized his voice as that of a person who ran to their aid, not one of the assailants. Not only is defendant's claim speculative, we agree with the trial court that there were indeed sound strategic reasons for defendant's attorney not to have requested such a test. First, neither of the victims testified that they heard someone yelling, "Leave her alone." Further, if such a test had been conducted and either of the victims recognized defendant's voice as belonging to one of the attackers, the defense theory would have been seriously undermined.
Defendant also complains that his trial attorney was ineffective for not conducting an effective cross-examination of the victim Perkins. At trial, Perkins identified a chain that had been recovered from the police car in which defendant was transported to the station as belonging to him, but Perkins did not mention in his direct testimony that the chain had been taken from him. Defendant complains that his attorney should have highlighted that omission in cross-examination. The trial court correctly rejected this argument. It overlooks the fact that Perkins also testified that he was knocked unconscious during the incident. If defense counsel had cross-examined Perkins in the manner defendant now suggests it would have afforded Perkins the opportunity to stress the nature of the blow that rendered him unconscious.
Defendant also restates on appeal those issues defendant raised in his original pro se petition. These claims lack sufficient merit to warrant discussion in a written opinion because it would lack precedential value. R. 2:11-3(e)(2). There was no basis for defendant to request a Wade hearing; the circumstances surrounding the identification were challenged on cross-examination, and the strength of the identification was up to the jury to assess. In light of the nature of the assault upon [T.K.] there was no basis for a DNA test. Further, even if a paraffin test showed that defendant had not recently fired a gun, that would be immaterial to whether defendant participated in this attack.
The order denying defendant's petition for post-conviction relief is affirmed.
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