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State v. Higginbotham

October 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BYRON HIGGINBOTHAM, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-10-1042.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 12, 2010

Before Judges Reisner and Alvarez.

Defendant Byron Higginbotham appeals from a January 23, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A jury convicted defendant of four counts of burglary, N.J.S.A. 2C:18-2a(1); four counts of theft by unlawful taking, N.J.S.A. 2C:20-3a; eluding police, N.J.S.A. 2C:29-2b; and obstruction of justice, N.J.S.A. 2C:29-1a. After merger, the trial judge sentenced defendant to an aggregate term of twenty-one years in prison with ten and one-half years of parole ineligibility. As we noted in our opinion affirming the conviction on direct appeal, the trial evidence of defendant's guilt was "overwhelming." State v. Higginbotham, No. A-3549-04 (App. Div. Oct. 3, 2006) (slip op. at 3), certif. denied, 189 N.J. 104 (2006).*fn1 Defendant's PCR petition followed.

Because defendant's PCR appeal is limited to certain aspects of the police investigation, we briefly summarize the evidence pertaining to that issue. The police suspected defendant of committing several burglaries in which gold jewelry was stolen from private homes in several different New Jersey municipalities. A task force composed of police officers from those towns followed defendant to a pawn shop in Philadelphia. As soon as defendant left the pawn shop, one of the officers entered the shop, interviewed the owner and recovered several pieces of jewelry that the owner said he had just purchased from defendant. The burglary victims later identified the recovered jewelry.

At the trial, Detective Sergeant David Mansue described in detail the process by which the New Jersey police cooperated with the Philadelphia Police Department in turning over the jewelry to the Philadelphia police to be logged and photographed, before taking the jewelry back to New Jersey.*fn2

Defendant's counsel cross-examined Mansue at length about this process and the police descriptions of the jewelry. In his closing, defense counsel highlighted contradictions between the descriptions of the jewelry the police claimed they recovered from the pawn shop, and the pawn shop owner's description of the jewelry he allegedly bought from defendant.

In his PCR petition, defendant contended, among other things, that his trial counsel failed to effectively cross-examine the police witnesses about the jewelry recovered from the Philadelphia pawn shop. In a detailed oral opinion, issued January 23, 2009, Judge Ostrer concluded that defense counsel effectively cross-examined the witnesses and appropriately highlighted inconsistencies between their testimony and that of the shop owner. The judge found that defense counsel had raised questions about the source of the jewelry the police allegedly recovered. Judge Ostrer further rejected defendant's argument that "there is no record in the Philadelphia police department of any log of any jewelry seized at the [pawn shop]." Defendant presented no legally competent evidence to support that allegation.

II.

On this appeal, defendant raises the following points for our consideration:

POINT I: POST-CONVICTION RELIEF COUNSEL FAILED TO FULLY INVESTIGATE AND ADVANCE THE ISSUE RAISED IN DEFENDANT'S PETITION CONCERNING THE DEFENDANT'S ALLEGED SALE OF JEWELRY IN A PHILADELPHIA PAWN ...


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