April 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL CHISOLM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 96-09-1114.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 17, 2009
Before Judges Winkelstein and Fuentes.
Defendant, Paul Chisolm, appeals from Judge Malone's March 30, 2007 order denying defendant's petition for post-conviction relief. We affirm.
On September 18, 1996, a Union County Grand Jury indicted defendant, charging him with the following offenses: two counts of first-degree knowing or purposeful murder (counts one and two); first-degree kidnapping (count five); two counts of first-degree felony murder (counts six and seven); third-degree possession of a weapon for an unlawful purpose (count ten); and fourth-degree unlawful possession of a weapon (count eleven).
Defendant was tried before Judge Malone and a jury from October 19, 2000 to November 2, 2000.*fn1 At the close of the State's case, the judge denied defendant's motion for judgments of acquittal on both felony murder counts and the kidnapping count. The jury convicted defendant of reckless manslaughter of Peter Sizemore, as a lesser-included offense of count one; aggravated manslaughter of Cathy Brown, as a lesser-included offense of count two; kidnapping, count five; both counts of felony murder, counts six and seven; and possession of a weapon for an unlawful purpose, count ten.
Judge Malone subsequently granted defendant's motion to vacate the conviction on count ten, possession of a weapon for an unlawful purpose, and denied his motion for a new trial on the felony murder and kidnapping convictions. The judge merged defendant's reckless manslaughter conviction with his count siX felony murder conviction, and his aggravated manslaughter conviction with his count seven felony murder conviction. For the convictions on counts six and seven, first-degree felony murder, Judge Malone sentenced defendant to two consecutive life terms, each with a mandatory thirty-year period of parole ineligibility. The judge sentenced defendant to a concurrent thirty-year prison term, with fifteen years of parole ineligibility, for his conviction on count five, first-degree kidnapping. Thus, defendant received an aggregate life sentence with thirty years of parole ineligibility.
In his direct appeal to this court, defendant raised the following issues:
POINT I - THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS THE COUNTS OF THE INDICTMENT CHARGING KIDNAPPING AND FELONY MURDER.
POINT II - THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION [FOR] A NEW TRIAL BASED UPON THE LACK OF SUFFICIENCY OF THE EVIDENCE OR IN THE ALTERNATIVE TO DISMISS THE KIDNAPPING AND FELONY MURDER COUNTS OF THE INDICTMENT.
POINT III - THE COURT ERRED IN ADMITTING EVIDENCE OF THE DEFENDANT'S OTHER CRIMES AND/OR BAD ACTS TOWARD THE DECEDENT PETER SIZEMORE.
POINT IV - THE COURT ERRED IN EXCLUDING THE STATEMENT OF KEISHA HOWELL WHICH STATED THAT IF THE DEFENDANT WOULD HAVE BEEN PRESENT THESE CRIMES WOULD NOT HAVE OCCURRED.
POINT V - UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT VI - THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
POINT VII - THE SENTENCE WAS MANIFESTLY EXCESSIVE.
We affirmed his conviction and sentence. State v. Chisolm, No. A-4637-00 (App. Div. Dec. 8, 2003). The Supreme Court denied defendant's petition for certification. State v. Chisolm, 180 N.J. 358 (2004).
In August 2004, defendant filed a petition for post-conviction relief. It is the order denying that petition from which defendant appeals, raising the following issues:
POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) TRIAL COUNSEL FAILED TO CROSS EXAMINE KIESHA HOWELL IN AN EFFECTIVE MANNER.
B) TRIAL COUNSEL FAILED TO REQUEST A CHARGE ON AN AFFIRMATIVE DEFENSE TO FELONY-MURDER.
C) TRIAL COUNSEL FAILED TO CONSULT AND PRESENT THE TESTIMONY OF EXPERTS.
D) TRIAL COUNSEL FAILED TO MOVE FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL BASED ON THE VERDICT BEING AGAINST THE WEIGHT OF THE EVIDENCE.
E) TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE THE CASE.
F) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT REGARDING A WADE HEARING.
POINT II - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV - THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON A DEFENSE SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT V - THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VI - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-4.
In brief, defendant and his co-defendant (collectively, defendants) were charged with the kidnapping and murders of two fellow drug dealers, Peter Sizemore and Cathy Brown. Because the victims allegedly had stolen drugs from defendants, they forced the victims into a room in a boarding house where defendants had been selling drugs. Witnesses heard thumping sounds and muffled squeals from Brown. While Smallwood struck Brown, defendant beat Sizemore unconscious. When Brown became loud and hysterical, defendant threw her into a closet. Then, Smallwood gave defendant a knife with which he repeatedly stabbed Sizemore. Later, defendants moved the bodies of Sizemore and Brown to the basement of the boarding house, and then removed them to a park where they burned them.
In denying defendant's PCR petition, Judge Malone made the following findings:
[W]e can all Monday morning quarterback and you can pick through a transcript and perhaps think of a question or two questions or even five questions that you might have posed to Keisha Howell.... [Howell] was a critical witness to the State's case.... And I think that was not a point missed by [trial counsel].
... There was a lengthy cross-examination of Ms. Howell. Ms. Howell's own criminal involvement was certainly raised and I believe every reasonable effort by a defense counsel to put before the jury sufficient questions, sufficient doubt about Ms. Howell's credibility was made....
But I cannot conclude that either with respect to the charge or with respect to the cross-examination of Ms. Howell that counsel was deficient as that term is defined by our cases.
The United States and New Jersey constitutions grant the right to effective assistance of counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. To establish a prima facie showing for ineffective assistance, a defendant must show a reasonable likelihood of succeeding under the test established by Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The two-part test requires first, "'that counsel's performance was deficient,'" and second, that "'the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).
To make a prima facie showing to satisfy the first prong of the Strickland test, a defendant must show 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. Counsel's performance is to be given "extreme deference" with a presumption of reasonable assistance. Fritz, supra, 105 N.J. at 52. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." State v. Arthur, 184 N.J. 307, 319 (2005) (internal quotation omitted).
To satisfy the second prong of the Strickland test, 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." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Upon review of a PCR decision, this court defers to the PCR court's factual findings if they were supported by "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The PCR court's legal conclusions, however, are reviewed de novo. Id. at 416.
Here, defendant's primary argument is that trial counsel failed to adequately cross-examine the prosecution's key witness, Keisha Howell. We reject that argument for the reasons expressed by Judge Malone in his March 30, 2007 opinion from the bench. No additional discussion as to that issue is required.
We further conclude that trial counsel was not ineffective for failing to request a jury instruction as to the affirmative defense to felony murder as set forth in N.J.S.A. 2C:11-3a(3); and that the trial court did not commit plain error by not sua sponte providing such an instruction. The PCR court barred that argument pursuant to Rule 3:22-4 because defendant should have raised it on direct appeal. Rule 3:22-4 provides:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
We agree with Judge Malone that defendant is procedurally barred from raising this issue. Defendant has failed to show that the issue could not have been previously raised, that enforcement of the procedural bar would result in fundamental injustice, or that enforcement would be contrary to the State or federal constitution.
We also conclude that substantively, defendant's claim is without merit, and trial counsel's failure to request such a charge was not ineffective. Where a defendant is not the only participant in the underlying crime, an affirmative defense to felony-murder is available if the defendant:
(a) [d]id not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) [w]as not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) [h]ad no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) [h]ad no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. [N.J.S.A. 2C:11-3a(3).]
The affirmative defense to felony-murder requires a showing of all four factors. Ibid.
Here, the evidence simply does not support the statutory criteria to have warranted the affirmative defense to felony murder charge. Witnesses saw defendant leave the room where the victims were apparently murdered after the screaming coming from the room had ceased. The police found DNA consistent with Sizemore's blood in defendant's rented car. In the boarding house where defendants operated their drug business, the police found Sizemore's blood in the room where defendant allegedly murdered him, as well as on mattress filler in the boarding house's basement. The police also found hairs, consistent with Brown's, in the trunk of defendant's rented car. Thus, adequate evidence existed to support the PCR court's finding that defendant could not show that all four factors of the affirmative defense were present.
Defendant's remaining arguments are either procedurally barred, as not having been brought on direct appeal or were adjudicated previously by this court, or are otherwise not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm substantially for the reasons expressed by Judge Malone.