On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3475.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Collester and C. S. Fisher.
Defendant Troy Swint appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
Defendant was convicted following a jury trial of first-degree kidnapping, N.J.S.A. 2C:13-1b(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The victim of the kidnapping and aggravated assault was Rashon Grundy. Defendant was tried jointly with co-defendant Corey Smith. The judge imposed concurrent terms aggregating life imprisonment with a twenty-year parole disqualifier and mandatory monetary penalties.
Defendant appealed alleging multiple errors concerning evidentiary decisions made by the trial court and ineffective assistance of trial counsel. In an opinion concerning the appeals of both defendant and Smith, we affirmed, but remanded for resentencing to impose a mandatory period of parole ineligibility of twenty-five years on defendant. State v. Swint, 328 N.J. Super. 236, 262-63 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Defendant then filed his first petition for PCR alleging, among other things, ineffective assistance of trial counsel and appellate counsel. Designated PCR counsel filed a brief and defendant filed a supplemental brief. Judge Paul J. Vichness found that an evidentiary hearing was not warranted and denied the petition.
The State's proofs are fully set forth in our opinion. Id. at 245-48. Briefly, we highlight the salient facts. On June 18, 1996, Chea Smith, co-defendant Corey Smith's brother, was shot to death in Newark. Shortly after the shooting, Smith learned that the two men who carried out the shooting were friends of Grundy. Smith borrowed a U-Haul truck and, along with the defendant and three others, kidnapped Grundy from his living room. A plastic garbage bag was placed over Grundy's head and one of the assailants struck him in the head with a gun. The assailants put Grundy into the U-Haul and took him to an abandoned apartment building. In an effort to obtain from Grundy the whereabouts of the killers, the assailants tortured and brutalized Grundy, cutting off his ears and cutting his back, neck, hand and arm. The assailants then shot Grundy above the knee and in the ankle. At some point, Grundy took off his mask and saw defendant standing by a window. Eventually, Grundy realized that the room was quiet. He escaped and managed to get around the corner to his brother's house.
Janyne Morris, who lived with Grundy's brother, answered the door and saw the victim crying, screaming, and covered with blood. Grundy told her what had been done to him. Her testimony as to what Grundy told her was offered as an excited utterance pursuant to N.J.R.E. 803(c)(2). She then testified, without objection, that the victim said "Rajhon and them" caused his injuries. At trial, it was developed that Rajhon was Corey Smith's street name.
Grundy's brother testified similarly that he saw his brother bleeding and crying. Without objection, he testified that Grundy said that "Rajhon and them kicked in mommy door." Grundy's brother got dressed and attempted to take his brother to the hospital. However, Grundy said "[h]e wanted to go to check on my mother and my sisters." At that point, defense counsel objected to any further testimony regarding statements made by Grundy because too much time had elapsed and there was an insufficient foundation to justify the admission of the testimony pursuant to N.J.R.E. 803(c)(2). The judge directed the prosecutor to lay the appropriate foundation for the admission of the testimony. After the prosecutor did so, the judge overruled defendant's objection, concluding that Grundy was still under the stress of the excitement caused by the incident without opportunity to deliberate or fabricate. Thus, Grundy's brother was allowed to testify that his brother told him that defendant and Rajhon had participated in the incident.
Grundy said that he knew ". . . it was [defendant] 'cause [defendant] took off his mask."
Newark Detective Calvin Parkman testified that he was dispatched to the hospital and met Grundy, who described to Parkman what had happened to him. Without objection, Parkman testified that Grundy told him Rajhon Muhammad, who was also known as Corey Smith, and a person named Troy committed the assault. Grundy did not know Troy's last name. He also testified that Grundy knew it was Smith because he knew him for approximately one year and recognized his voice and mannerisms. Parkman also testified that Grundy told him that Troy pulled his mask off and he was able to look "right in his face."
According to Parkman, the U-Haul was recovered at approximately 4:00 a.m. In the cab of the truck, he observed two brown cloth gloves that had "smears of blood on it," a black ski mask, and a box cutter.
On appeal, defendant contends:
I. THE COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING
II. THE TRIAL ATTORNEY PROVIDED INEFFECTIVE ...