June 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HOWARD D. PHILLIPS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Indictment No. 89-06-1711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 21, 2009
Before Judges Stern and Newman.
Defendant appeals from an order entered on November 28, 2005, denying his petition for post conviction relief (PCR) filed in March 2002.*fn1 The offense occurred in 1989, and the trial was conducted in 1990. Judgment was entered on February 5, 1991. The background and facts are detailed in our unpublished opinion of June 7, 1994. State v. Phillips, No. A-4443-90 (App. Div. June 7, 1994). The State contends there was no justification for defendant to wait over eleven years before filing the petition on March 26, 2002, and that it should have been procedurally barred because it was filed more than five years after the entry of judgment. See R. 3:22-12.
Defendant documents that the Public Defender ignored the case and his requests to file a petition once the direct appeal and habeas proceedings were concluded. The PCR court found "extenuating circumstances" to avoid application of the time bar, and we do not interfere with that determination, especially because there is no cross-appeal and the petition was properly denied on the merits.
Defendant asserts that "trial counsel did not provide discovery to him, did not review the discovery with him, did not hire an investigator, and did not conduct an adequate investigation prior to trial." According to defendant, if defense counsel had "locked in" his friend William Allen's statement as to when defendant arrived at Allen's house on the morning of the shooting, or tried to find the newspaper delivery boy who could tell when defendant arrived (immediately after delivery of a newspaper), he would have been able to develop a time sequence which would show defendant could not have been able to shoot the victim. Defendant also complains about counsel's lack of objection to the introduction of evidence against him, including the introduction of two x-rated movies and pictures of his former wife naked above the waist, which revealed he was the type of person with whom the jury would not sympathize. He asserts this introduction of evidence constituted a violation of N.J.R.E. 404(b), and suggested his relationship with Green was like the unfaithful people in the movies.*fn2
There is always the possibility that a co-defendant with whom a joint defense is contemplated may "turn" on the defendant particularly after being offered some "deal." Defendant asserts that counsel was not prepared for the fact that co-defendant Green, whose former husband was killed on a bus she was driving, "turned on" him during the trial, at which point a difficult case became even more difficult. Green's defense was that defendant shot the victim while the two men were on her bus, but that she was not involved in the planning. Her counsel's questioning helped establish their romantic relationship as a motive. But defendant had moved for a severance, which was denied before the trial, and a severance was undoubtedly the appropriate action for counsel to have taken in anticipation of the possible trial strategy of his co-defendant.
The PCR judge conducted an evidentiary hearing, at which defendant's trial counsel testified that there was a "trial strategy" that defendant "was not involved." His memory of specifics, so remote in time, was admittedly not good, but counsel explained that he did not attack co-defendant Green because of the possible consequences of her responses. The judge found counsel "thoroughly prepared for the trial" and that defendant did not prove there was "deficient performance." The judge also found defendant and his son (who claimed defendant's counsel said he would quit if not paid more during trial, a claim counsel "absolutely" denied) were not credible witnesses, while defendant's trial counsel was.*fn3
Defendant had the burden of establishing entitlement to PCR by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992); State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001). He did not do so. As the PCR judge conducted an evidentiary hearing and made determinations of credibility which justify the result, we must affirm the denial of PCR. See, e.g., State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
We are satisfied for the reasons expressed by Judge Mulvihill in his oral opinion of November 17, 2005, that trial counsel's conduct did not adversely affect the result, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and that PCR was properly denied.