On appeal from Superior Court of New Jersey, Law Division, Camden County, No. I-98-02-0803.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Wefing and Yannotti.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant of two counts of capital murder, four counts of first-degree conspiracy, unlawful possession of a weapon and possession of a weapon for an unlawful purpose. A separate jury concluded that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt and defendant was sentenced to death. On appeal, the Supreme Court affirmed defendant's convictions but reversed the death sentences that had been imposed because of error in the court's instructions. State v. Josephs, 174 N.J. 44 (2002). It noted, however, that this reversal did "not affect defendant's conviction of the murders provided the State is willing to accept non-capital sentences." Id. at 65. Defendant was accordingly re-sentenced in October 2002 to two consecutive life terms, with a thirty-year period of parole ineligibility for each.
The murders occurred in the course of a dispute between defendant and his half-brother Emil, who ran a large narcotics distribution network in Camden. Emil objected to defendant, and another half-brother, intruding into his territory and the two retaliated against him.*fn1 The facts of the underlying offenses are set forth in our Supreme Court's opinion, and we incorporate that recitation here. Id. at 66-70.
In October 2003, defendant filed a PCR petition and counsel was assigned to represent him. Counsel argued that defendant's trial counsel had been ineffective for not presenting the testimony of defendant's mother and half-sister, who submitted certifications that Hugh Josephs had told them that defendant was not involved in the shootings. He also contended that trial counsel had been ineffective for not retaining a crime-scene reconstruction expert until the penalty phase of the trial. The trial court had disallowed that expert testimony, finding that it constituted an attempt to re-litigate the issue of defendant's guilt.
After hearing oral argument on defendant's petition, the trial court denied relief. This appeal followed. Defendant makes one argument on appeal--that the trial court erred in denying his petition.
To prevail on a claim of ineffective assistance of counsel a defendant must not only overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S.Ct. 2039, 2043-46, 80 L.Ed. 2d 657, 664-67 (1984).
A defendant claiming incompetent representation must demonstrate first that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. In addition, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2064, 80 L.Ed. 2d at 698. New Jersey has adopted this two-pronged standard. State v. Fritz, 105 N.J. 42, 58 (1987).
The trial court pointed out during the argument that Hugh Josephs, who allegedly made these admissions, could not be located at the time of defendant's trial. Indeed, he was not apprehended until some years later, when he surrendered in Grenada. The trial court also pointed out that during Hugh Joseph's trial, his pre-trial statement, in which he claimed this defendant was responsible for the murders, directly contradicting what his mother and sister alleged he told them, was admitted into evidence. The trial court also noted that the expert report that had been excluded during the penalty phase of defendant's trial did no more than criticize the police for not preserving the crime scene correctly. The proffered testimony would not have served to exculpate defendant or to inculpate someone else.
At the conclusion of the argument, the trial court placed its oral opinion on the record. After setting forth the applicable legal standard by which defendant's petition must be measured, the trial court observed that the proffered testimony of defendant's mother and sister was inadmissible hearsay. It also stated that nothing within the expert's report would support a conclusion that if it had been presented during the guilt phase of the trial, the jury would have reached a different conclusion. It thus denied relief, finding no basis for a plenary hearing.
The order under review is affirmed substantially for the reasons stated by Judge John T. McNeill, III, in his ...