On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
Defendant appeals from the July 23, 2008 order of the trial court denying his petition for post-conviction relief (PCR), and from the November 5, 2008 order denying his motion for reconsideration. We reverse.
In 1996, defendant was indicted for conspiracy to commit murder, attempted murder, aggravated assault, and related weapons offenses; the victim was Fernando DeMarzino. Defendant's first trial ended in a mistrial and the second ended in a hung jury. At his third trial in 1998, he was convicted on all counts. In June 1998, defendant was sentenced to an aggregate term of forty years with a twenty-year parole ineligibility period. He appealed his convictions and sentence, and we affirmed. State v. Phelps, No. A-1037-98 (App. Div. February 26, 2001). The Supreme Court denied certification. State v. Phelps, 169 N.J. 611 (2001).
On March 28, 2005, defendant filed his PCR petition, which was heard by the same judge who had presided over his trial. Defendant raised numerous claims of ineffective assistance of trial counsel, including counsel's failure to call Ronald Rice as a witness, and appended a sworn statement from Rice stating that DeMarzino told him that he (DeMarzino) could not identify who shot him and only named defendant (and his two co-defendants) because they were people he wanted off the street. The statement is dated October 31, 1995. Defendant stated that Rice refused to testify at his second trial because his life was threatened and defendant's attorney "misled [defendant] into believing that [counsel] would bring this out and eventually call Rice as a witness, but at the last minute he failed to do so." Defendant further stated that, after the trial, he wrote to the Office of the Public Defender to complain about this.
On October 28, 2005, the judge issued a letter decision denying relief. The State did not raise timeliness as a bar, and PCR was denied on the merits. Regarding the Rice issue, the judge noted that the State "has not countered with specific facts to dispose of this issue." Nonetheless, the judge concluded that PCR counsel had failed to show how the outcome would have been different had trial counsel investigated the possibility of witness tampering.
Defendant appealed. We reversed and remanded, holding that defendant had established a prima facie case sufficient to warrant a plenary hearing on the Rice issue. State v. Phelps, No. A-3057-05 (November 13, 2007) (slip op. at 7-8).
The same judge held a hearing on June 6, 2008. Rice testified that in February 1995, after DeMarzino was released from the hospital following the shooting, Rice asked him if he knew who shot him and DeMarzino said "he had no knowledge, he didn't know who . . . did it." Rice was not aware at that time that DeMarzino had implicated Phelps and his co-defendants.
Rice identified his 1995 statement (the one appended to defendant's PCR petition) and stated that he had given it to counsel for co-defendant Washington.
Rice testified that the "State" approached him after "they learned of the statement that [he] gave to . . . Washington." Rice was called to testify as a witness for the State, but he refused because threats had been made against members of his family. No defense attorney called him to testify at trial.
Defendant testified that he did not know Rice at the time Rice gave his statement in 1995.
On July 23, 2008, the judge issued a letter decision, finding that Rice's testimony at the PCR hearing was "that if he had been called as a witness [at trial,] he would not have testified." Therefore, the judge found that defendant did not meet the second prong of the test for ineffective assistance of counsel, ...