November 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERENCE CULPEPPER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-02-296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on October 27, 2009
Before Judges Fuentes and Simonelli.
Defendant Terence Culpepper appeals from the denial of his petition for post conviction relief (PCR). We affirm.
A jury convicted defendant of third-degree terroristic threats, N.J.S.A. 2C:12-3b, stemming from his threat to kill his sister. The trial judge sentenced defendant to a two-year term of probation and imposed the appropriate penalties, assessments and fees.
We affirmed defendant's appeal of his conviction. State v. Culpepper, No. A-6070-02 (App. Div. June 20, 2006). Our Supreme Court denied certification, State v. Culpepper, 188 N.J. 576 (2006). On this appeal, defendant raises the following contentions:
I. THE PROSECUTOR MARK THONUS SUPPRESSED EXCULPATORY EVIDENCE FROM THE GRAND AND TRIAL JURIES. AND SUBBORNED PERJURY IN ORDER TO OBTAIN AN INDICTMENT AND CONVICTION.
II. JUDGE VENEZIA REFUSED TO ALLOW EXCULPATORY EVIDENCE TO BE PRESENTED AT TRIAL IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENT TO THE CONSTITUTION.
III. TAPES OF PHONE MESSAGES LEFT BY COMPLAINANT SHOULD HAVE BEEN ADMITTED INTO EVIDENCE.
A. THE PROSECUTOR MARK THONUS USURPED THE AUTHORITY OF THE GRAND JURY AND THE GRAND JURY FAILED IN THEIR DUTY TO THE DEFENDANT BY FAILING TO CALL THE ALLEGED VICTIM TO TESTIFY.
B. THE PROSECUTOR MARK THONUS KNOWINGLY PRESENTED FALSE EVIDENCE TO THE GRAND JURY THAT THE DEFENDANT KNOWINGLY POSSESSED AN ILLEGAL HIGH CAPACITY [AMMUNITION] MAGAZINE.
C. THE PROSECUTOR MARK THONUS FAILED TO INVESTIGATE THE ALLEGATIONS, SUBBORNED PERJURY AND LIED TO THE JURY THAT THE DEFENDANT FOLLOWED THE ALLEGED VICTIM INTO THE KITCHEN WITH THE ALLEGED WEAPONS.
D. THE PROSECUTOR MARK THONUS FAILED TO INVESTIGATE THE ALLEGATIONS AND LIED TO THE JURY THAT THE DEFENDANT CALLED 9-1-1 TO REPORT THE ALLEGED THREAT.
E. THE PROSECUTOR MARK THONUS FAILED TO INVESTIGATE THE ALLEGATIONS AGAINST THE DEFENDANT AND FAILED TO CORRECT THE DEFENDANTS FALSE STATEMENTS MADE UNDER OATH THAT THERE WAS ONLY ONE OTHER WAY OUT [OF] THE HOUSE.
F. THE ALLEGED VICTIM IS A EMOTIONALLY DISTURBED WOMAN WHO HAS REPEATEDLY LIED UNDER OATH AND THREATENED TO KILL THE DEFENDANT'S SISTER KAREN WHEN KAREN TOLD HER SHE DID NOT BELIEVE HER ALLEGATION THAT SHE HAD BEEN THREATENED.
G. THE "ALLEGED VICTIM" ILLEGALLY FORCED HER WAY INTO THE DEFENDANT'S HOME AFTER IT WAS SEIZED BY THE OAKLAND POLICE WITHOUT A WARRANT.
H. THE DEFENDANT'S COUNSEL WAS INEFFECTIVE.
I. THE ALLEGED VICTIM IS A SERIAL PERJURER AND THE FAILURE OF THE PROSECUTOR TO INVESTIGATE THE ALLEGATIONS AGAINST THE DEFENDANT RESULTED IN MORE FALSE STATEMENTS WHICH WERE MADE UNDER OATH BY THE ALLEGED VICTIM.
We decline to consider the contentions raised in Points I and II, and Points III A through G and I, as they were raised or should have been raised on defendant's direct appeal, and no exception applies. R. 3:22-3; R. 3:22-5; State v. Marshall, 173 N.J. 343, 350-51 (2002). Accordingly, we only address defendant's ineffective assistance of counsel contention.*fn1
In order to prevail on a claim of ineffective assistance of counsel, defendant must prove "that the representation is both deficient and prejudicial" to him. State v. Martini, 160 N.J. 248, 264 (1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
"Counsel's representation is deficient if it falls 'below an objective standard of reasonableness,' [and] it is prejudicial if 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[.]" Id. at 264 (internal citations omitted).
"There is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....'" State v. Buonadonna, 122 N.J. 22, 42 (1991) (omission in original) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L.Ed. at 694). "Even if counsel made strategy miscalculations or trial mistakes... 'these may not be permitted to impair the binding nature of the proceedings, except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of fair trial.'" Ibid. (quoting State v. Dennis, 43 N.J. 418, 428 (1964)).
Defendant contends that his "original counsel" was ineffective for failing to inform him "of the opportunity to appear before the Grand Jury[,]" thus denying him the right to defend himself. This contention lacks merit.
Rule 3:6-6(a) states, in part, that "[n]o person other than the jurors, the prosecuting attorney, the clerk of the grand jury, the witness under examination, interpreters when needed and, for the purpose of recording the proceedings, a stenographer or operator of a recording device may be present while the grand jury is in session." Thus, "a defendant has no right to appear before the grand jury unless subpoenaed or invited to testify with his or her consent." State v. Grant, 361 N.J. Super. 349, 359 (App. Div. 2003) (citing State v. Spano, 64 N.J. 566, 568 (1974)).
Defendant also contends that "original counsel" was ineffective for losing a motion to suppress the use of a message his sister left on his answering machine and the use of her prior sworn statement, which allegedly contradicted her trial testimony. Defendant further contends that trial counsel was ineffective for failing to call defendant's brother, whom the sister claimed had harassed her, and failing to object when the sister claimed that defendant had abused their father. These contentions are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We add this brief comment.
Any alleged deficiencies by original and trial counsel merely constitute "strategy miscalculations or trial mistakes" that do not result in fundamental injustice. Buonadonna, supra, 122 N.J. at 42. As we concluded on defendant's direct appeal, the sister's trial testimony provided ample evidence for the jury to find beyond a reasonable doubt that defendant had made a terroristic threat. State v. Culpepper, supra, slip op. at 10. Accordingly, defense counsel's alleged mistakes would not have changed the outcome of the trial.