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State v. Tubens

November 17, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD TUBENS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-08-0612.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2010

Before Judges Payne and Baxter.

Defendant Richard Tubens appeals from a May 12, 2008 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

I.

Following a trial by jury, defendant was convicted on May 23, 2002 of one count of third-degree burglary for breaking into the home of Carole McLaughlin, at which time he stole her deceased husband's handgun. The jury also convicted him of robbery for using the stolen handgun to commit a robbery at a pizzeria the next day. In connection with the robbery, the jury convicted him of possession of a handgun for an unlawful purpose and unlawful possession of a handgun. The judge sentenced defendant to a fifteen-year prison term, subject to an eighty-five percent period of parole ineligibility, on the first-degree robbery conviction, and sentenced him to a consecutive four-year term with a three-year Graves Act parole disqualification, see N.J.S.A. 2C:43-6(c), on the burglary charge.

Prior to the trial, the judge conducted a Miranda*fn1 hearing to determine the admissibility of a statement defendant gave to police. In an initial oral statement that was not tape recorded, but which was preceded by Miranda warnings, defendant admitted he had stolen the gun and some jewelry after breaking into the McLaughlin home and had used that gun to commit a robbery at a pizzeria the next night. After re-administering the Miranda warnings, detectives questioned defendant a second time and recorded that statement. Defendant made the same admissions on tape as he had provided in the initial untaped interview.

At the Miranda hearing, defendant asserted he was coerced to make this statement and did not understand his right to have an attorney present. He also testified that he had used cocaine and marijuana and was under the influence of those substances during the interrogation. At the Miranda hearing, Detective Zadroga testified that when he asked defendant whether he agreed to "waive" his rights and make a statement, defendant responded by saying he did not understand what that meant. The detective explained it simply meant that he was willing to make a statement to police. At the conclusion of the Miranda hearing, the judge found defendant was properly advised of his constitutional rights and waived those rights, knowingly, voluntarily and intelligently.

At trial, the State presented the testimony of a detective who had taken a shoe imprint from the area adjacent to the McLaughlin residence and who testified that the shoe was size ten. Defense counsel established that defendant's shoe size was eight and one-half. The defense did not present any expert in the procedures for taking shoe imprints.

At trial, defendant testified that he had bought the jewelry and handgun from a drug dealer he knew. He claimed he gave the handgun to a friend, Dennis Costanzo, and had not seen it again. He denied any involvement in either the burglary or the robbery.

On direct appeal, we affirmed defendant's conviction and sentence. State v. Tubens, No. A-1726-03 (App. Div. June 15, 2005). We rejected defendant's arguments that his statement to police should have been suppressed and his sentence was excessive. (Id. at 6-7). The Supreme Court denied defendant's petition for certification. State v. Tubens, 185 N.J. 267 (2005).

On January 5, 2007, defendant filed a timely PCR petition, in which he asserted first that trial counsel rendered ineffective assistance by failing to obtain the opinion of a shoe imprint expert as well as an intoxication expert. According to defendant, the latter expert would have been able to opine that the cocaine and marijuana defendant had consumed before providing his statement to police interfered with his capacity to knowingly and voluntarily waive his right to remain silent. Defendant also maintained that trial counsel was ineffective in "failing to obtain" a severance of the burglary charge from the robbery charge.*fn2

In a thorough and well-reasoned written opinion, Judge Geiger rejected all three claims. As to the claim that trial should have obtained an intoxication expert, Judge Geiger noted that he had listened to the audiotape of defendant's statement to police and the tape demonstrated defendant was able to effectively "recall, recollect and relate the events" by providing "detailed narratives of the burglary and the robbery" with answers that were "responsive and very specific." The judge also observed that defendant was not "slurring or mumbling his words," his answers were not delayed, he did not ask the questioner to repeat or simplify the questions and provided his answers "coherent[ly]" without needing any prompting or assistance.

Judge Geiger concluded there was nothing about defendant's statement to police that would suggest defendant was too intoxicated to understand his rights or effectively waive them. "On the contrary," according to the judge, defendant was "able to think and express himself clearly." The judge therefore concluded that defendant had not established a prima facie case of ineffective assistance of trial counsel based upon counsel's failure to retain an intoxication expert.

On the issue of trial counsel's failure to obtain a shoe imprint expert, the judge noted there was no need for trial counsel to retain an expert to explain how shoe imprints are taken, how various soils will change the size of a shoe imprint or to challenge the credentials of the State's witness because counsel had "aggressively" cross examined the State's shoe imprint expert on the discrepancy between the shoe imprint impression that measured size ten and the shoe recovered from defendant that was a size eight and one-half. The judge also noted trial counsel established that the detective who had taken the shoe imprint had never, prior to this incident, taken a shoe imprint other than in training at the police academy.

The judge reasoned that had trial counsel obtained a shoe imprint expert, the expert would have been unable to add anything to the effective cross-examination trial counsel had already conducted. For that reason, the judge found defendant had not raised a prima facie case of ineffective assistance related to trial counsel's failure to retain a shoe imprint expert. The judge's conclusion was strengthened by his observation that defendant admitted during his statement to police that the shoes seized by police were his and that he had worn them during the burglary and the robbery. The judge pointed out that the unusual tread pattern of defendant's shoes matched the tread pattern of the imprint.

On appeal, defendant raises the following claims:

I. [DEFENDANT] WAS ENTITLED TO AN EVIDENTIARY HEARING TO ESTABLISH A RECORD OF HIS PRIMA FACIE CLAIM FOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

II. [DEFENDANT] MADE A PRIMA FACIE CLAIM FOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON TRIAL COUNSEL'S FAILURE TO INVESTIGATE, AS WELL AS OTHER SIGNIFICANT ERRORS.

III. [DEFENDANT] MADE A PRIMA FACIE CLAIM FOR INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BASED ON TRIAL COUNSEL'S FAILURE TO RAISE KEY ARGUMENTS AND DEFICIENCIES AT THE TRIAL LEVEL.

IV. [DEFENDANT] HAS A CLAIM FOR INEFFECTIVE ASSISTANCE OF PCR COUNSEL BASED ON PCR COUNSEL'S FAILURE TO RAISE KEY ARGUMENTS AND DEFICIENCIES AT BOTH THE TRIAL AND APPELLATE LEVELS.

V. THE CLAIMS OF [DEFENDANT'S] PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct ...


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