November 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHIRLEY PERKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-02-604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2010
Before Judges Reisner and Sabatino.
Defendant Shirley Perkins appeals the trial court's denial of her petition for post-conviction relief ("PCR"). We affirm.
As detailed in our extensive opinion affirming defendant's conviction on direct appeal, see State v. Perkins, No. A-6020-04 (May 2, 2007), defendant was found guilty by a jury in December 2004 of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), and certain weapons offenses. We remanded the case for resentencing to merge the weapons offenses into the manslaughter conviction, and also to comply with recent case law concerning the formerly-applicable presumptive sentencing guidelines. The Supreme Court denied certification. 192 N.J. 293 (2007). On remand, the trial court merged the weapons offenses but reimposed the original sentence of a fifteen-year extended term on the manslaughter conviction, subject to an eighty-five percent parole disqualifier under N.J.S.A. 2C:43-7.2(a).
The underlying homicide concerned the stabbing of a woman during a heated altercation outside of a Newark tavern on August 1, 2002. The street fight involved the victim, defendant, another woman named April Williams,*fn1 and one or more other persons. The altercation was observed by several eyewitnesses. According to several of those witnesses, defendant, in the midst of the fight, took out an eight-inch knife, started swinging it, and then plunged it into the victim's chest, exclaiming her desire that she die. Based upon various statements she made at the scene, defendant's violent behavior was prompted by her desire to protect a friend she described as her "Little Bit."
The State presented more than a dozen witnesses at trial, including both eyewitnesses and numerous law enforcement witnesses. Defendant testified on her own behalf, claiming that Williams was the one who pulled out the knife, and that she had been screaming at Williams and not at the victim. She also presented two other witnesses: her daughter, and an eyewitness.
After her direct appeal and subsequent resentencing, defendant filed a pro se PCR petition with the trial court in March 2008. She filed an amended PCR petition, through counsel, in July 2008. She claimed in her petition that her trial counsel had been ineffective in various respects. The PCR application was heard by the judge who had presided over defendant's trial, Judge Harold W. Fullilove. After considering defendant's claims and the State's opposition, Judge Fullilove dismissed the PCR application without an evidentiary hearing. This appeal followed.
Through her present counsel, defendant advances the following argument on appeal:
THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, BECAUSE THE DEFENDANT'S TRIAL ATTORNEY FAILED TO 1) CROSS-EXAMINE POLICE WITNESSES ABOUT WHY THERE WAS NO SEIZURE/TESTING OF APRIL WILLIAMS' CLOTHING AND 2) FAILED TO ADEQUATELY CROSS-EXAMINE A KEY STATE WITNESS - APRIL WILLIAMS.
Defendant also raises the following arguments in a pro se supplemental brief:
PCR ATTORNEY WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE MATTER BY NOT ASKING TRIAL ATTORNEY FOR AN AFFIDAVIT CONTESTING TO THE FACT THAT NEITHER TRIAL ATTORNEY OR THE POLICE SEIZED THE CLOTHES.
CONSIDERATION OF ISSUES RAISED FOR THE FIRST TIME ON APPEAL IS WARRANTED TO ADDRESS ERRORS OF CONSTITUTIONAL DIMENSION AFFECTING APPELLANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below).
(A) Review should be Permitted Because All Prior Counsels; i.e., Direct, and prior PCR Petitions and Appellate Counsels Were Ineffective for Failing to Raise Them Below. POINT III
CURRENT AND PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO DISCOVER AND RAISE THESE ISSUES AT THE EARLIEST POSSIBLE OPPORTUNITY. (Not Raised Below).
The standards for PCR based on claims of ineffective assistance of counsel are well settled. Defendant must demonstrate that (1) counsel's performance was deficient, and
(2) the deficient performance actually prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed. 2d 366 (1965), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Echols, 199 N.J. 344, 357-59 (2009).
"The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
Applying those standards here, we sustain the trial court's finding that defendant has not met her burden and the trial court's rejection of her PCR application, essentially for the reasons placed on the record by Judge Fullilove on October 17, 2008. We add only some brief comments.
The thrust of defense counsel's argument is that defendant's trial attorney should have done more to attempt to show that April Williams was the victim's assailant. In particular, counsel argues that defendant's trial attorney should have cross-examined Williams more vigorously, and also that defendant's trial attorney should have cross-examined the police witnesses for the State about their failure to seize and test the clothing that Williams was wearing at the time of the altercation. Defendant, in her pro se supplemental brief, makes related arguments, contending that further investigation should have been performed and that Williams' clothes should have been preserved and DNA-tested for traces of the victim's blood.
The arguments related to Williams' clothing are based upon complete speculation. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting that PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999). There is no indication that if Williams's clothing had been preserved, the victim's blood would have been found on it. The lack of testing, however, is inconsequential. Even if the victim's blood were found on Williams's clothing, that would not necessarily inculpate her in the homicide, given that defendant, the victim, and Williams had all been fighting in the street for a sustained period of time. During the course of that melee, the victim's blood could have spattered on Williams, or it could have transferred to Williams's clothing from contact with defendant.
We agree with the trial judge that defendant's trial attorney was not ineffective in eschewing a trial strategy predicated on hypothetical results of testing of Williams's unpreserved clothing. Nor was defendant actually prejudiced, given the strength of the proofs against her, which included multiple eyewitnesses who saw her plunge a knife into the victim while shouting "die."
We also discern no ineffectiveness in the manner in which defendant's trial attorney cross-examined Williams. Defendant suggests that trial counsel should have brought out that the police had not charged Williams with a crime, thereby accentuating her potential bias in testifying for the State. We conclude that Williams' potential bias was self-evident and would have been readily apparent to the jury. In his summation, defendant's trial attorney emphasized Williams' clear motive to shift blame to defendant. There was no need for trial counsel to ask Williams directly on cross-examination about her motive in testifying. The point was obvious.
The remaining issues raised on appeal, including defendant's pro se contentions that her counsel on direct appeal and her PCR counsel were also constitutionally ineffective, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).