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State v. Damplias

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEMETRIOS DAMPLIAS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 93-10-1881.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2008

Before Judges Lihotz and Simonelli.

Defendant Demetrios Damplias appeals from the order of May 9, 2006, denying his post conviction relief (PCR) petition.

This is the third appeal in this case. In the first, we granted the State leave to appeal, and reversed the trial judge's ruling suppressing a blanket seized at the murder scene. See State v. Damplias, 282 N.J. Super. 471, 481 (App. Div. 1995). Following our decision, a jury convicted defendant of first degree murder, contrary to N.J.S.A. 2C:11-3a(1) and (2), and third degree possession of a weapon, a knife, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d, stemming from the murder of his wife. Defendant is serving a term of life imprisonment with a thirty-year period of parole ineligibility.

Defendant filed an appeal challenging his conviction and sentence and raised eleven separate issues as error. We affirmed. State v. Damplias, No. A-5235-95T2, (App. Div. January 30, 1998), certif. denied, 154 N.J. 607 (1998).

Defendant filed a PCR petition. The trial judge denied the petition from the bench, stating he would later issue a written opinion and order, but never did and retired. Defendant then filed an appeal, which we dismissed without prejudice, remanded for reconsideration, and ordered the Office of the Public Defender to represent defendant. On remand, Judge DeVesa denied the PCR petition.

On this appeal, defendant raises the following arguments:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT.

B) TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S ERRONEOUS CHARGE REGARDING MURDER AND PASSION/PROVOCATION MANSLAUGHTER.

C) TRIAL COUNSEL FAILED TO OBJECT TO THE ADMISSION OF THE BLANKET.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT ERRONEOUSLY ADMITTED CERTAIN EVIDENCE.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE VERDICT WAS NOT SUPPORTED BY THE EVIDENCE.

POINT V

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ITS SEQUENTIAL CHARGE TO THE JURY.

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VIII

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We affirm Points III and IV because defendant previously raised those arguments in his direct appeal and we conclusively adjudicated them on the merits. R. 3:22-5. We conclude that Point V is barred by Rule 3:22-4. Thus, we only consider defendant's ineffective assistance of trial and appellate counsel contentions in Points I, II, and VIII.

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). To establish a prima facie case of ineffective assistance of counsel, "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, 193 N.J. 352, 366 (2008); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Loftin, 191 N.J. 172, 197-98 (2007).

To satisfy the first prong, the defendant must show "'that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Under this prong, "'there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [and that, t]o rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy.'" Ibid.

The strong presumption that counsel has exercised sound trial strategy is grounded in "the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial[.]" State v. Arthur, 184 N.J. 307, 319 (2005). Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975) (citing United States v. Cariola, 211 F. Supp. 423, 427 (D.N.J. 1962), aff'd, 323 F.2d 180 (3d. Cir. 1963)). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989)), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).

To satisfy the second prong, a defendant must show that the error committed was "'so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 315). It is against these standards we review defendant's contention that trial and appellate counsel were ineffective.

Defendant first contends that trial counsel was ineffective in failing to consult with defendant, a Greek immigrant, regarding the difference between and consequences of certain defenses. Trial counsel pursued two defenses: passion/provocation manslaughter and self-defense. Defendant argues he would only have presented a passion/provocation manslaughter defense had he known that self-defense would justify the admission of certain hearsay statements relating to his wife's state of mind and desire to divorce him, and his threats to her. This argument is without merit.

First, defendant gave a statement to the police indicating self-defense. Thus, a self-defense argument was an appropriate trial strategy, which, if not raised, could have detrimentally affected the credibility of that statement. Second, counsel challenged at trial and on appeal the admissibility of the hearsay statements, and did not prevail. Thus, the statements were admissible regardless of what defense trial counsel pursued. Third, the record contains overwhelming evidence that defendant would not have prevailed under a passion/provocation manslaughter defense. Finally, we agree with Judge DeVesa that defendant's suggestion there was a language barrier and his status as a Greek immigrant had something to do with his misunderstanding the nature and consequences of his defenses "is absurd." There is no evidence defendant did not speak and understand English.

Defendant next contends trial counsel was ineffective in failing to object to the trial judge's charge on murder and passion/provocation manslaughter. Defendant argues that the charge gave erroneous sequential jury instructions, improperly led the jury to believe it could find passion/provocation manslaughter only if it first acquitted defendant of knowing or purposeful murder, thus foreclosing the jury from considering passion/provocation manslaughter during deliberation on the murder charge. We disagree.

Defendant's challenge to the passion/provocation manslaughter charge is barred. R. 3:22-4. Nevertheless, our review of the charge as a whole convinces us the trial judge correctly instructed the jury that to find defendant guilty of knowing/purposeful murder, the State had the burden of proving beyond a reasonable doubt that he did not act in the heat of passion resulting for reasonable provocation. State v. Coyle, 119 N.J. 194, 222 (1990). Since there was no error in the charge, there was no ineffective assistance of counsel in failing to object to it.

Finally, defendant contends trial counsel was ineffective in failing to object to the admission of the blanket, and appellate counsel was ineffective for (1) failing to raise claims of ineffective assistance of counsel in the PCR petition; (2) failing to communicate with him; and (3) failing to completely read the transcripts. These contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.

Trial counsel challenged the admission of the blanket and initially prevailed. He did not prevail on leave to appeal or on direct appeal. We agree with Judge DeVesa that appellate counsel "adequately examined the entire case and argued all pertinent legal and factual issues," and "raised 11 different issues" on appeal.

Affirmed.

20080421

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