On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-11-3839.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Parker and Yannotti.
Defendant Alton Bryant appeals from an order entered by Judge Harold W. Fullilove on March 16, 2007, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Essex County Indictment No. 96- 11-3839 with conspiracy to commit murder, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); murder of Rodney Hutchins in violation of N.J.S.A. 2C:11-3a(1) and (2) (count two); attempted murder of Mary Francis, in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count three); aggravated assault upon Mary Francis, in violation of N.J.S.A. 2C:12-1b(4) (count four); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-3b (count five); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (count six).
Defendant was tried to a jury. At the trial, the State presented evidence that, on the evening of August 25, 1996, Mary Francis and Carol Hutchins were sitting in Rodney Hutchins' car in Newark when Rodney approached them on a bicycle. Rodney was speaking with the women and defendant approached on foot. He pulled out a sawed-off shotgun, pointed it at Rodney, and told him to put his hands up. Rodney told the women to run. Carol Hutchins got out of the car and began to run. Mary Francis remained in the car.
Defendant's brother, co-defendant Patrick Bryant, exited a car, and struck Rodney in the face. Rodney knocked the gun out of defendant's hands and began to run. Patrick said, "[g]et that mother fucker, kill that mother fucker." Defendant chased Rodney and shot him in the back. Defendant returned to the car, pointed the shotgun at Mary, and began pumping it. Patrick told defendant to leave her alone and Patrick and defendant drove away. Rodney died as a result of the gunshot wounds in his back.
In addition to presenting testimony from eyewitnesses to the shooting, the State presented testimony from Cantrell Wilkes, who stated that on the evening before the shooting, he saw Rodney and defendant talking "face to face" at the Club Safari in Newark. Wilkes said that Rodney appeared frustrated.
The State additionally presented testimony from Cleveland Barlow, who stated that sometime in the summer of 1996, he saw Patrick with a shotgun that was similar to the gun used in the shooting. Barlow also said that he saw defendant rob certain drug dealers. Barlow testified that Rodney was a known drug dealer. Barlow further testified that in August 1997, while he and defendant were incarcerated in the Essex County jail, defendant admitted that he shot Rodney because defendant wanted what belonged to him, which Barlow understood to mean money. Defendant was found not guilty on count three (attempted murder) but he was found guilty of the remaining charges. Judge Fullilove sentenced defendant on November 12, 1997. The judge merged count one (conspiracy) and count six (possession of a weapon for an unlawful purpose) with count two (murder). On count two, the judge imposed a life sentence, with a thirty- five-year period of parole ineligibility. On count five (unlawful possession of a weapon), the judge sentenced defendant to a consecutive term of five years with a two-and-one-half-year period of parole ineligibility. The judge imposed a consecutive eighteen-month term on count four (aggravated assault). The judge additionally imposed appropriate penalties and assessments.
On direct appeal, defendant argued:
THE TRIAL COURT ERRED BY REFUSING TO EXCUSE FOR CAUSE JUROR [H.M.] SINCE SHE WAS A CORRECTIONS' OFFICER AT THE ESSEX COUNTY JAIL.
MR. BRYANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE TRIAL COURT ALLOWED CLEVELAND BARLOW TO TESTIFY ABOUT OTHER CRIME EVIDENCE INCLUDING THAT IN THE PAST BARLOW HAD SEEN DEFENDANT ROB DRUG DEALERS, AND THAT THE CO-DEFENDANT WAS A SEMI-DRUG DEALER WHOM BARLOW HAD SEEN ON THE STREET WITH A SHOTGUN SIMILAR TO THE MURDER WEAPON.
THE STATE'S MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL, NECESSITATING REVERSAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10 (Partially Raised Below)
DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED BECAUSE OF THE DISRUPTIVE BEHAVIOR ENGAGED IN BY THE STATE'S WITNESS MARY FRANCIS WHICH DIVERTED THE JURORS' ATTENTION AWAY FROM THE EVIDENCE, MAKING IT IMPOSSIBLE FOR DEFENDANT TO RECEIVE AN IMPARTIAL VERDICT AND A FAIR TRIAL.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT BEFORE THEY COULD CONSIDER DEFENDANT'S ALLEGED OUT-OF-COURT ORAL STATEMENTS TO CLEVELAND BARLOW THEY MUST FIRST FIND SUCH STATEMENTS TO BE CREDIBLE BEYOND A REASONABLE DOUBT, AND ITS FAILURE TO CAUTION THE JURY AS TO THE UNRELIABLE NATURE OF TESTIMONY ATTESTING TO SUCH STATEMENTS, SINGULARLY AND CONJUNCTIVELY DEPRIVED DEFENDANT OF H[IS] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, VI, and IV; NEW JERSEY CONST. (1947) Art. I, pars. 1, 10 and 12. (Not raised below).
THE TRIAL JUDGE ERRED IN ADMITTING HEARSAY EVIDENCE UNDER THE "PRESENT SENSE IMPRESSION" EXCEPTION TO THE HEARSAY RULE.
DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTRODUCE THE SWORN POLICE STATEMENT OF LIMONIQUE SCOTT*fn1 AN EYEWITNESS TO THE HOMICIDE WHO WAS UNAVAILABLE TO TESTIFY BECAUSE HIS WHEREABOUTS WERE UNKNOWN TO DEFENDANT.
THE JUDGE IMPROPERLY DENIED THE REQUEST FOR A [STATE v. CLAWANS, 38 N.J. 162 (1962)] CHARGE.
DEFENDANT'S SENTENCE OF LIFE WITH A MINIMUM PAROLE DISQUALIFIER OF 38 1/2 YEARS WAS GROSSLY EXCESSIVE AND CONTRARY TO THE GUIDELINES GOVERNING CRIMINAL SENTENCES IN THIS STATE.
We rejected these contentions and affirmed defendant's convictions and sentences. State v. Bryant, No. A-5662-97 (App. Div. Oct. 20, 1999). Defendant thereafter filed a petition for certification with the Supreme Court, seeking review of our judgment. The Court denied the petition. State v. Bryant, 163 N.J. 74 (2000).
Thereafter, defendant filed his first petition for PCR. He argued that that his conviction should be set aside on the following grounds: 1) newly discovered evidence of an eyewitness, Lorenzo Biera; 2) the trial judge should have recused himself; 3) the instructions to the jury violated defendant's right to a fair trial; and 4) the ineffective assistance of counsel. On September 15, 2003, Judge Fullilove denied the petition.
Defendant appealed and raised the following arguments:
THE JUDGE BELOW ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL FOR FAILURE TO ARGUE THAT THE IMPOSITION OF THE DISCRETIONARY OFFENDER EXTENDED TERM VIOLATED THE DEFENDANT'S ...