February 18, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERSCHEL BOXTON A/K/A HERSHEL BOXTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-08-3405.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Cuff and Payne.
Defendant, Herschel Boxton, was convicted of charges arising from burglaries committed on March 25, 1997; of robbery, felony murder and unlawful possession of a handgun arising from events occurring on March 30, 1997; and of unlawful possession of a .357 magnum handgun on April 9, 1997. He was sentenced on May 19, 1998 to life imprisonment, subject to a thirty-year parole disqualifier, for the felony murder, to concurrent five-year terms for the weapons charges and to concurrent five-year terms on charges arising from the burglaries, to be served consecutively to the sentence imposed for the felony murder. Defendant's total sentence was therefore life plus five years, subject to a thirty-year parole disqualifier.
Defendant appealed, arguing
THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR SEPARATE TRIALS ON THE MARCH 25TH BURGLARY AND THE MARCH 30TH HOMICIDE.*fn1
THE COURT ERRED IN FAILING TO INSTRUCT THAT DEFENANT COULD BE FOUND GUILTY OF THEFT EVEN IF HIS CO-DEFENDANT WAS GUILTY OF ROBBERY.
We affirmed defendant's convictions in an unpublished decision. State v. Boxton, no. A-1456-98T4 (App. Div. January 31, 2000).
On April 27, 2004, defendant filed a pro se petition for post-conviction relief, which, after counsel was assigned, was argued orally on March 26, 2007 and denied without a testimonial hearing. Defendant has appealed that denial. Through counsel, he has presented the following arguments:
The Court should reverse the denial of defendant's petition for post-conviction relief.
1. Defendant's petition is not time barred.
2. Defendant established at least a prima facie case of ineffective assistance of counsel, warranting remand for further consideration of his claim.
Defendant has presented the following additional arguments in a pro se supplemental brief:
MISCONDUCT, ILLEGAL CHARGES AND LESSER INCLUDED OFFENSE BY THE TRIAL JUDGE S. PERRETTI: MISCONDUCT BY THE TRIAL PROSECUTOR & COUNSEL: APPELLANT/H. BOXTON CONSTITUTIONAL RIGHTS HAD BEEN VIOLATED BY THE DENIAL OF HIS EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL; ON DIRECT APPEAL; & ON HIS [FIRST] PETITION FOR POST-CONVICTION RELIEF BY COUNSEL/F.S. CUTRUZZULA, IN WHICH DENIES APPELLANT HIS FEDERAL WRIT OF HABEAS CORPUS.
1.] MISCONDUCT/CONSPIRACY AGAINST MR. BOXTON BY THE TRIAL JUDGE, PROSECUTOR AND COUNSEL.
2.] PROSECUTORIAL MISCONDUCT.
3.] THE TRIAL JUDGE VIOLATED STATE V. YARBOUGH, IN HIS SENTENCING OF HERSCHEL BOXTON.
4.] THE TRIAL JUDGE'S IMPROPER CHARGE ON THE ELEMENTS OF CONSPIRACY AND ACCOMPLICE LIABILITY.
5.] THE TRIAL JUDGE IN REALITY ILLEGALLY NEVER GAVE MR. BOXTON A LESSER INCLUDED OFFENSE AND ILLEGALLY CHARGE THE JURY TO SUCH.
6.] INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL BY MARCIA BLUM.
7.] INEFFECTIVE ASSISTANCE OF COUNSEL ON MR. BOXTON'S [FIRST-[PCR]] BY F. S. CUTRUZZULA.
The record establishes that, on March 25, 1997, Tyrus Sheppard burglarized two residences in Irvington, while defendant and his girlfriend, Sonia Christmas, remained in a car as lookouts. During the course of the burglaries, Sheppard took from the home of Shelton Wyche a .38 caliber handgun.
On March 30, 1997, Mark Howard drove defendant and Sheppard around Newark looking for a source for drugs. Defendant was armed with a .357 magnum handgun, and Sheppard was armed with the .38 caliber gun stolen from Wyche. At approximately 4:00 p.m., while driving down South 9th Street in Newark, the men saw what appeared to be drug dealing in an alley next to a blue abandoned house. Howard parked, and first Sheppard and then defendant alighted from the vehicle and proceeded into the alley. Several minutes later, a shot was heard by local residents Baleegh McCrimmon, Cynthia Jones, and Janette Muldrow, as well as Howard. Defendant was seen running from the alley, followed by Sheppard. They proceeded into the abandoned house and, after determining that the victim, Emmett Green, who had been selling drugs through the window, was dead, defendant took $300 in cash from Green's hand and Sheppard took Green's stash of drugs. The two men then fled the building, entered Howard's car, and instructed him to drive away. During the course of the drive, defendant, Sheppard and Howard divided the cash and the drugs.
McCrimmon and Muldrow identified photographs of defendant as one of the persons they had seen leaving the abandoned house after the shooting. Jones testified that she witnessed defendant placing a gun in his waistband as he left the house. In a statement given to the Newark Police following his arrest on April 9, 1997, defendant admitted to going with Howard and Sheppard to 9th Street searching for drugs. Additionally he admitted to entering the alley with Sheppard. However, he identified Sheppard as the shooter, claiming that Sheppard used the .38 caliber pistol obtained in the earlier breaking and entry in Irvington. Defendant stated his only involvement in the crime was to take $300 from the victim's hand after the murder had been committed by Sheppard, which he shared equally with Sheppard and Howard. Defendant admitted to possessing a .357 magnum, which he had hidden in his mother's house. Defendant denied that the .357 was used in the shooting.
At trial, the State's ballistics expert, Detective Lieutenant Gary Prystauk, testified that, through his comparison of the markings on the single bullet retrieved from the victim's skull with an exemplar bullet fired from defendant's .357 magnum, he had determined that the magnum had been the murder weapon. Although the bullet fired was .38 caliber, Prystauk testified that a .357 magnum could fire a .38 caliber bullet, which was shorter than a standard .357 magnum bullet but had the same diameter. In contrast, a .38 caliber gun could not fire the longer .357 magnum bullet. Prystauk's testimony was not countered by that of a defense expert. However, Kirk Schwindel, an investigator with the Essex County Prosecutor's Office, testified that, in a statement given by Sheppard to the police, Sheppard admitted to being the shooter.
At the conclusion of the evidence, the jury was instructed that it could convict defendant of the murder as a co-conspirator with Sheppard, as Sheppard's accomplice or as the actual shooter. In its verdict, the jury found defendant not guilty of conspiracy to commit murder, of murder and of aggravated manslaughter. It found defendant guilty of manslaughter and felony murder. Additionally, it found defendant guilty of conspiracy to commit robbery and of first-degree robbery.
Following the hearing on defendant's PCR petition, the motion judge ruled that the petition was time-barred by Rule 3:22-12, which requires that such a petition be filed within five years after rendition of the judgment or sentence sought to be attacked unless excusable neglect is demonstrated. On appeal, as before the motion judge, defendant argues that he demonstrated excusable neglect as the result of his confinement in administrative segregation at the time that the petition was due. We, like the motion judge, find this excuse insufficient to raise the procedural bar, determining that imposition of a disciplinary sanction as the result of a defendant's misconduct does not constitute a proper foundation for an excusable neglect claim and that denial of defendant's claim will not result in fundamental injustice. State v. Murray, 162 N.J. 240, 249 (2000); State v. McQuaid, 147 N.J. 464, 483 (1997); State v. Mitchell, 126 N.J. 565, 575-76 (1992).
Moreover, we note the applicability of the bar of Rule 3:22-4 to those of defendant's arguments that could have been raised on direct appeal. They include (1) prosecutorial misconduct arising from her statement that defendant, not Sheppard, was the principal in the murder of Green; (2) violation by the trial judge of the prohibition against double counting of aggravating factors and the requirement that the judge fairly consider facts relating to the crime, set forth in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986); (3) error by the trial judge in her instruction on the elements of conspiracy and accomplice liability; and (4) errors by the judge in her instructions to the jury with respect to murder, its lesser-included offenses, and felony murder, together with errors in sentencing. "A defendant ordinarily must pursue relief by direct appeal, see R. 3:22-3, and may not use post-conviction relief to assert a new claim that could have been raised on direct appeal." McQuaid, supra, 147 N.J. at 483. Moreover, our review of the record suggests that none of the arguments that we have described were presented to the PCR judge. Accordingly, we decline to address them on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We nonetheless briefly address defendant's remaining arguments, bearing in mind that defendant has the burden of demonstrating both that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment and that counsel's performance was so deficient as to create a reasonable probability that those deficiencies materially contributed to defendant's conviction. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Through counsel, defendant argues that his trial attorney was ineffective as the result of his failure to retain an expert to challenge the State's ballistics evidence tying defendant's gun to the killing. However, defendant has offered no independent evidence that would suggest another ballistics expert would reach a conclusion different from Lt. Prystauk, and the retention of a corroborating expert would have materially impaired defendant's defense that he was not the shooter.
Defendant challenges defense counsel's failure to object to hearsay statements by investigator Schwindel that he obtained a partial license plate number for the get-away car and information suggesting that one of the suspects was a corrections officer, as a result of which the investigator was able to locate Howard. However, whatever error occurred in the introduction of this testimony, it did not harm defendant, who was not implicated in this fashion.
Defendant claims additionally that counsel was ineffective in failing to challenge the photo identifications made by McCrimmon and Muldrow. However, in his statement, read to the jury, defendant admitted to being present when the crimes were committed, a fact to which Howard also testified. Thus the admission of corroborative photo identifications that defendant claims was erroneous could have had little impact on the result.
Defendant suggests further error in the failure by defense counsel to request a Kociolek/Hampton charge following the testimony of Sonja Christmas regarding defendant's oral statements to her shortly after the crime. State v. Kociolek, 23 N.J. 400 (1957); State v. Hampton, 61 N.J. 250 (1972). Hampton is not relevant to this case because the decision relates to statements given to the police in a custodial setting. Id. at 272. A Kociolek charge, on the other hand, involves the general reliability of a defendant's statements. Kociolek, supra, 23 N.J. at 421. The charge requires a jury to consider evidence of such statements with caution "in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Ibid. However, such an instruction need not be given if there is no dispute as to the precise contents of the oral statement. State v. Baldwin, 296 N.J. Super. 391, 400-401 (App. Div.) certif. denied, 149 N.J. 143 (1997). Because Christmas's recitation of defendant's description to her of the crime and his identification of Sheppard as the killer was consistent with defendant's exculpatory statement to the police and because its accuracy was not challenged, no need for a Kociolek instruction was demonstrated.
In an additional argument, defendant maintains that his trial counsel was ineffective in failing to object to the inclusion by the trial judge of the following statement in her instruction to the jury regarding evidence supporting the existence of a conspiracy:
In this particular instance, and we're talking about the conspiracy said to have resulted in the incidents in Irvington, you do have some direct testimony to a conspiracy.
Defendant claims that this statement was inconsistent with the evidence and served to direct a verdict on the charge of conspiracy to commit burglary and theft. However, that statement was, in fact, a correct recitation of testimony provided by a participant in the crime, Christmas, who testified that, on March 25, she and defendant were riding around Irvington with Sheppard, that they stopped on Stuyvesant Avenue, and that she and defendant agreed to act as lookouts for Sheppard while he committed a burglary and returned carrying a .38 pistol. See N.J.S.A. 2C:5-2. We do not interpret the judge's language as directing a verdict, but only as accurately detailing trial testimony.
Defendant argued in his pro se brief in support of post-conviction relief and on appeal that his initial appellate counsel was ineffective in failing to argue that the State offered no competent evidence to support the existence of a conspiracy between defendant and Sheppard to commit robbery, the commission of the robbery, or felony murder. However, defendant's argument is premised upon his position that Sheppard was the shooter and that defendant had no knowledge of his intentions and neither conspired with Sheppard nor was his accomplice. Sufficient direct and circumstantial evidence existed in the record to support the jury's conclusion that defendant was the shooter and that he and Sheppard conspired to commit the robbery. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967). We thus find no ineffective assistance by appellate counsel to have been demonstrated.
As a final matter, our review of the record satisfies us that PCR counsel effectively represented defendant before the PCR judge and that no violation of State v. Rue, 175 N.J. 1 (2002) occurred.