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State v. Stout

March 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN STOUT A/K/A HAROLD FRAZIER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 80-07-1715.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 18, 2009

Before Judges Fisher and King.

Following a trial in 1982, defendant was convicted of first-degree murder, as well as attempted robbery and a weapons offense. He was sentenced to prison for life, subject to a twenty-five year period of parole ineligibility.

Defendant appealed, arguing that his prosecution on the weapons charge was barred by double jeopardy principles, that the admission of the handgun into evidence was unduly prejudicial and deprived him of a fair trial, and that the judge erred in permitting testimony that inferred "defendant was a 'badman' in the eyes of the jury." By way of an unreported opinion, we found insufficient merit in all these arguments to warrant discussion in a written opinion, citing R. 2:11-3(e)(2). No. A-3020-81T4 (App. Div. October 13, 1983).

Defendant filed a motion in 1994 arguing he was entitled to a new trial based upon newly discovered evidence. After hearing the testimony of the witness whose version of the incident formed the basis for defendant's motion, the trial judge denied relief. We affirmed by way of an unpublished opinion substantially for the reasons set forth in the trial judge's oral opinion. No. A-5347-94T4 (App. Div. July 5, 1996).

Defendant filed another motion in 2003, seeking a reconsideration of his sentence in order to permit him to be assigned to a drug rehabilitation program. That motion was denied on October 24, 2003. No appeal was filed.

Defendant filed a petition for post-conviction relief (PCR) on August 8, 2003. The pro se brief filed at that time argued that defendant was denied the effective assistance of counsel because his trial counsel allegedly failed to properly investigate the case; in this regard, defendant alleged "[t]here were witnesses who named other persons as the perpetrators, which counsel failed to present." Defendant also argued that counsel failed to challenge physical and forensic evidence. He claimed, with few specifics, that new fingerprinting and ballistic technology would establish his innocence. Assigned counsel for defendant filed a three-page brief in support of PCR nearly three years after defendant's initial filing.

The PCR judge did not conduct an evidentiary hearing. On July 11, 2006, the judge entered an order denying relief for reasons set forth in a written decision of the same date. Defendant appealed.

During the pendency of the PCR appeal, defendant moved for reconsideration of his sentence pursuant to R. 3:21-10(b)(3). That motion was denied, on November 30, 2007, because the prosecutor did not join in the application. Defendant appealed that order as well.

In appealing the orders of July 11, 2006 and November 30, 2007, defendant presents the following arguments for our consideration:

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

A. TRIAL COUNSEL FAILED TO UNDERTAKE AN APPROPRIATE PRETRIAL INVESTIGATION AND FAILED TO CALL ...


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