June 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LANCE L. PHILLIPS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-07-1070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2008
Before Judges Skillman and Winkelstein.
In 1994, defendant was found guilty by a jury of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); three counts of attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); and various other offenses. All of these offenses were committed on July 21, 1991. The trial court sentenced defendant to an aggregate term of life plus forty years imprisonment, with fifty years of parole ineligibility. On appeal, we reversed defendant's convictions by a reported opinion and remanded the case for a new trial. State v. Phillips, 322 N.J. Super. 429 (App. Div. 1999).
Defendant was not retried until more than two years later. On June 5, 2001, new counsel for defendant entered an appearance, dated May 30, 2001, and a substitution of counsel. At that time, the case was listed for trial six weeks later, on July 16, 2001.
On June 12, 2001, defendant's new counsel submitted a certification requesting an adjournment of the trial date. The certification stated that defendant's new counsel had "received the two box file from Defendant's prior counsel, Tim Reilly, Esq. on June 4, 2001." The certification also stated: "I believe that in light of the size of the file, severity of the charges and short time period for preparation (five weeks), I may not be adequately prepared to represent defendant at trial on July 16, 2001, thereby potentially rendering my assistance of counsel ineffective and in violation of Defendant's Sixth Amendment Rights." A supporting brief indicated that defendant had dismissed his previous counsel and retained new counsel on June 1, 2001.
By letter dated June 14, 2001, the trial court denied defendant's request for an adjournment of the trial date. That letter stated in part:
I find that you have failed to provide this Court with a legitimate reason for continuing this case; which was remanded by the Appellate Division on June 29, 1999. The fact that there are trial transcripts to read and discovery to disseminate is not persuasive. The trial is scheduled for Monday, July 16, 2001 and your appearance was entered on May 30, 2001. This means that you will have forty-seven days by the time of the trial to adequately prepare your defense.
It is the Court's opinion that this is more than enough time to review, disseminate and prepare the discovery that you received from prior counsel.
Defendant was retried before a jury starting on July 17, 2001 and found guilty of felony murder, in violation of N.J.S.A. 2C:11-3a(3), first-degree robbery, in violation of N.J.S.A. 2C:15-1, and fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4). The jury acquitted defendant of purposeful or knowing murder, the three counts of attempted murder, and possession of a firearm for an unlawful purpose.
The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for the felony murder, and a consecutive eighteen month term without parole for the aggravated assault. The court merged the robbery conviction. On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Phillips, A-5660-01 (App. Div. Sept. 24, 2004). Defendant did not raise any issue in that appeal regarding the denial of his motion for an adjournment of the trial date. The Supreme Court denied defendant's petition for certification. 182 N.J. 428 (2005).
Defendant thereafter filed a petition for post-conviction relief, alleging that he was denied the effective assistance of counsel at his retrial because the trial court denied his new attorney a continuance to permit further trial preparation. Defendant's petition was supported by letter from his trial counsel, which asserted:
The purpose of my analysis is to assist in determining whether my counsel may have been rendered ineffective in any way as a result of Judge Telsey's refusal to grant a continuance. I had been hired to represent defendant approximately 3 weeks before the trial and asked Judge Telsey for more time, he denied my request.
1. Categorically, I did not have time to engage a private investigator in time for the trial and relied upon the State's discovery and previous trial transcript.
2. Maribel Torres was a defense witness that supported defendant's alibi (p. 49, 2001 trial transcript "tt"). I presented her testimony, but was not able to prepare more for the alibi, or investigate further the availability of other witnesses.
3. Detective Kenneth Tunstall admitted in the first trial that he lied to defendant during the course of the interrogation that resulted in a confession. I was aware of this but did not have time to pursue it further with an interview of Tunstall or interview of Arthur Folks. Tunstall's testimony was read into the record (p. 100 tt). In retrospect, I should have subpoenaed him and attacked his credibility. It may have cast doubt on the confession and its reliability. Seems that the confession was the most damaging evidence presented by the State at both trials.
4. The Court admitted a prior inconsistent statement of the State's key witness Lizabeth Rivas (p. 80 tt). I never had an opportunity to interview Rivas or anyone in her family who was present the night of the murder. While I was able to discredit some of her testimony, she did testify that she saw defendant after his mask was removed. That testimony was severely damaging to the alibi defense. It was difficult for me to know that her 2001 testimony would differ from previous trial without interviewing her first. I simply didn't have time to interview any witnesses.
5. Lieutenant Arthur Folks had information that the murder may have been committed by some people from New York, and he was apprised of their names. He admitted that he never pursued these individuals as suspects. With more time, I would have looked into these individuals and presented third party guilt to the jury. (p. 66 tt).
The trial court denied defendant's petition by an oral opinion. That opinion noted that defendant could have challenged the denial of his application for an adjournment of the trial date on his direct appeal, but he had failed to do so.
The opinion also noted that the letter submitted by defendant's trial counsel did not address the pretrial preparation conducted by defendant's prior counsel during the two-year interval between the remand for a new trial and defendant's dismissal of his prior counsel. The opinion further noted that defendant's petition was not supported by any certification or other evidence that the additional pretrial preparation defendant's trial counsel claimed he would have undertaken if he had additional time would have produced any evidence that could have changed the outcome of defendant's trial. Consequently, the court concluded that defendant had not presented a prima facie case of ineffective assistance of trial counsel that warranted an evidentiary hearing.
On appeal, defendant presents the following arguments:
I. THE LOWER COURT ERRED WHEN IT DENIED THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE THE DEFENDANT ESTABLISHED HIS RIGHT TO AN EVIDENTIARY HEARING BY A PREPONDERANCE OF EVIDENCE.
II. THE DEFENDANT SHOULD NOT BE FORECCLOSED FROM POST-CONVICTION RELIEF FOR FAILING TO PURSUE HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL BECAUSE THERE WAS AN INADEQUATE RECORD TO SUPPORT SUCH AN APPEAL.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's oral opinion. We add the following supplemental comments. The trial in which defendant's motion for an adjournment was denied was a retrial. Defendant's original counsel had presumably fully prepared the case before the first trial. Moreover, defendant's new counsel at the retrial had the opportunity to review the transcripts of the first trial in which the State's evidence against defendant and the defense at the first trial was clearly set forth.
Therefore, defendant's new counsel had the benefit of the preparation for the first trial and the record of that trial in preparing for the retrial. There is absolutely no foundation in the materials defendant presented in support of his petition that any additional preparation defendant's new counsel might have undertaken if the trial had been adjourned would have changed the outcome of the retrial. Therefore, the trial court correctly concluded that defendant had failed to present a prima facie case of ineffective assistance of counsel that warranted an evidentiary hearing.
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