March 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CRAIG SZEMPLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 91-12-2414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2008
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Craig Szemple appeals from an order dated October 12, 2006, denying his third petition for post-conviction relief (PCR). Defendant was convicted on January 24, 1995, of the 1977 murder of Juanita Simmons, after a jury trial. Defendant was subsequently sentenced to a term of life imprisonment consecutive to a life sentence previously imposed pursuant to a Morris County indictment. Because we substantially agree with the opinion of the PCR judge, Judge Kevin J. Callahan, we affirm.
The detailed facts in this case are set forth in our opinion of May 5, 1997, and we incorporate them by reference. State v. Szemple, No. A-2977-94T4 (App. Div. May 5, 1997) (slip op. at 3), certif. denied, 151 N.J. 76 (1997). By way of summary, on January 13, 1977, defendant went to New York City in the company of his brother, where he met the victim, a prostitute. After engaging in sexual relations with the victim in his car, defendant strangled the victim with a piece of clothesline. He and his brother later dumped the body near a set of iron steps on a cliff in Jersey City. In 1991, defendant's brother was questioned by the police and ultimately revealed what he witnessed in January 1977.
On December 18, 1991, defendant was indicted and charged with murder. On November 19, 1992, the court heard and decided defendant's motion to dismiss the indictment on the ground that New Jersey lacked jurisdiction because the victim died in New York. Thereafter, a jury trial was held from January 17 to January 24, 1995. At the trial, defendant elected not to testify. Defendant's younger brother did recount the statement that he had earlier given police implicating defendant in the murder. Defendant's brother was the major witness in the trial. On February 23, 1995, defendant was sentenced to a term of life imprisonment to be served consecutively with the sentence imposed for his conviction for murder based on a Morris County indictment.
On May 9, 1995, a notice of appeal was filed. On May 5, 1997, we denied defendant's appeal. The Supreme Court denied certification. State v. Szemple, 151 N.J. 76 (1997). One point of that appeal is identical to a point raised in this appeal, that is, that trial counsel was deficient because of alleged extraordinary ethical breaches and conflicts of interest.
Defendant filed his first PCR sometime in 2000. On May 2, 2001, defendant's first PCR was dismissed without prejudice. Thereafter in May 2001, defendant pro se filed a motion for reconsideration. In July 2001, PCR counsel also filed a motion for reconsideration on defendant's behalf. Before the PCR court could rule on the motions for reconsideration, defendant filed a second PCR on September 27, 2001. That petition alleged that trial counsel was ineffective and that there was prosecutorial misconduct, particularly with respect to discovery issues.
The PCR judge heard oral argument on October 15, 2001, at which time defendant was granted an adjournment to decide if he wished to pursue his claim that PCR counsel was ineffective. On February 22, 2002, the PCR judge found that there was no ineffective assistance of PCR counsel. On November 19, 2002, the PCR judge permitted DNA testing to be performed on both hairs and blood found on the clothing of the victim. On April 9, 2003, the second PCR was dismissed because the DNA test results substantially undermined defendant's claim. On June 15, 2006, this third PCR application was filed. On October 12, 2006, the PCR judge issued a written opinion and executed an order which dismissed the third PCR. This appeal ensued.
On appeal, defendant presents the following arguments for our consideration:
PCR COUNSEL FAILED TO EFFECTIVELY REPRESENT HIS CLIENT CRAIG SZEMPLE.
DEFENDANT WAS ENTITLED TO A FULL EVIDENTIARY HEARING UNDER STATE V. PRECIOSE, 129 N.J. 451 (1992) TO TEST HIS CLAIM REGARDING HIS TRIAL COUNSEL'S INEFFECTIVE AND DEFICIENT PERFORMANCE.
DEFENDANT'S CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, U.S. CONSTITUTION AMEND VI, N.J. STATE CONSTITUTIONAL ART. 1, PAR. 10 WERE VIOLATED BY TRIAL COUNSEL'S DEFICIENT PERFORMANCE.
A. TRIAL COUNSEL FAILED TO RETAIN AND CALL AN EXPERT WITNESS TO RENDER AN OPINION THAT THE VICTIM DIED IN NEW YORK.
B. TRIAL COUNSEL FAILED TO INTRODUCE EVIDENCE RELATING TO THE ROPE ALLEGEDLY USED TO STRANGLE THE VICTIM.
C. DEFENSE COUNSEL FAILED TO EFFECTIVELY CROSS EXAMINE BRETT SZEMPLE CONCERNING THE IMMUNITY AGREEMENT.
THE EXTRAORDINARY ETHICAL BREACHES AND CONFLICTS OF INTEREST OF DEFENDANT'S TRIAL COUNSEL NECESSITATE REVERSAL.
In this third PCR application, defendant raises a number of issues that have been raised earlier. We note at the outset that defendant's fourth point that extraordinary ethical breaches and conflicts of interests necessitate a reversal, was raised as point four in defendant's direct appeal before us. Our opinion of May 5, 1997, found no merit in that argument. State v. Szemple, supra. Because there has been a prior conclusive adjudication on the merits with respect to that issue, we affirm as to that point without further discussion. R. 3:22-5.
In the PCR judge's opinion, he concluded that defendant's claim is time-barred pursuant to Rule 3:22-12(a). We agree with Judge Callahan that the petition is not one to correct an illegal sentence and that, therefore, a five-year time limitation is applicable. We also agree that the June 15, 2006, filing of this third PCR is well beyond the five-year limitation. We also agree that there is no showing of excusable neglect. The difficulty we face, however, is that defendant argues that his PCR counsel failed to effectively represent him by not obtaining a resolution of the issue of trial counsel's effectiveness and not appealing that. The PCR judge pointed out that that issue was raised and decided in his May 2, 2001, order. Unfortunately, that order is not in the record before us so we cannot pass upon it. However, even if that order addressed trial counsel's effectiveness on the merits, there was no appeal from that order and defendant argues that that constituted ineffectiveness on his PCR counsel's part. Consequently, we will address the underlying merits of defendant's claim.
We turn first to defendant's claims that trial counsel was ineffective in three respects: (1) counsel failed to retain an expert to testify and render an opinion that the victim died in New York; (2) trial counsel failed to introduce evidence relating to the rope allegedly used to strangle the victim; and (3) that trial counsel failed to effectively cross-examine defendant's brother concerning an immunity agreement.
We agree with Judge Callahan's conclusion with respect to all three allegations. We note at the outset that our Supreme Court has recently reaffirmed the two-prong standard by which ineffective assistance of counsel claims are measured. The Court has stated:
In determining whether any deficiencies in trial or appellate counsel's representation have undermined a defendant's constitutional right to counsel, we have generally relied on the standards enunciated in Strickland v. Washington[.] In Strickland, the United States Supreme Court established a two-prong test for assessing such claims. A defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [State v. Loftin, 191 N.J. 172, 197-98 (2007) (citations, internal quotation marks and editing marks omitted).]
The Court has incorporated the Strickland standards into our jurisprudential framework. State v. Fritz, 105 N.J. 42 (1987). The Court has recently stated that in order to sustain a claim of ineffective assistance of counsel, two separate elements must coalesce: a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would be altered." [State v. Allegro, ___ N.J. ___ (2008) (slip op. at 16).]
The first prong is satisfied by a showing that "counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotations omitted). The second prong is satisfied by a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984).
Defendant argues that trial counsel should have retained an expert who would have opined that the victim died in New York City and not New Jersey. Defendant argues that the jury would not have accepted the inference that the death occurred in New Jersey and, therefore, acquitted defendant. We agree with Judge Callahan that the failure to retain an expert would not be an omission that would fall "outside the wide range of the professionally competent assistance [of counsel] considered in light of all the circumstances of the case." Castagna, supra, 187 N.J. at 314. Moreover, we find that there was a sound strategic reason why trial counsel may not have sought to retain an expert. By leaving the question of the place of death an open one before the jury so as to create reasonable doubt concerning one of the elements of the offense, defendant may have benefited by an acquittal which may have insulated him from further liability under principles of double jeopardy. If, however, an expert had been retained and a jury concluded, by way of a specific interrogatory, that the death occurred in New York, defendant may well have avoided New Jersey prosecution only to find himself faced with strong evidence of his guilt for a New York murder.
We also agree with the PCR court's conclusions with respect to evidence regarding the rope. The rope was not determinative of guilt and, therefore, did not affect the jury's verdict. The trial counsel's cross-examination of defendant's brother concerning the immunity agreement was satisfactory after reviewing the transcript as a whole. Consequently, after a careful review of the record, we find that trial counsel's efforts were not deficient.
Because we found that trial counsel's efforts were not deficient, the arguments relating to PCR counsel's failure to effectively represent defendant automatically fail. Even if PCR counsel had advanced the arguments sought and then appealed same, they would not have had merit. Consequently, we find that the argument that PCR counsel failed to effectively represent defendant is without sufficient merit to warrant a further discussion in this opinion. R. 2:11-3(e)(2).
Lastly, we note that defendant's claim that he was entitled to an evidentiary hearing regarding his claims that trial counsel was ineffective is without merit. Hearings in such cases are discretionary with the court. R. 3:22-10. An evidentiary hearing concerning an ineffective assistance of counsel claim is required only where defendant has shown a prima facie case and the facts on which he relies are not already of record. See State v. Murray, 162 N.J. 240 (2000). That was not the case here. The court's analysis clearly demonstrates that there was no prima facie showing and the facts relied upon are on the record. Therefore, we find that the PCR judge's exercise of discretion not to grant a hearing was well founded.
Because we agree with the thorough, careful, and well-reasoned opinion of Judge Callahan, we affirm his dismissal of defendant's petition substantially for the reasons set forth in his written opinion.
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