April 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CRAIG FRANCIS SZEMPLE, A/K/A CRAIG SZEMPLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 91-12-1269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010
Before Judges R. B. Coleman and J. N. Harris.
Defendant Craig Francis Szemple appeals from a July 27, 2009 order denying his application for post-conviction relief (PCR). We affirm.
In July 1994, defendant was found guilty by jury of first-degree
murder under N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2.*fn1
He was sentenced to life imprisonment and later sentenced to
a consecutive term of life imprisonment pursuant to a Hudson County
indictment for murder. A detailed recitation of the facts in this case
is set forth in our opinion of September 19, 1997. State v. Szemple,
No. A-0696-94 (App. Div. Sep. 19, 1997) (slip op. at 2).
Briefly, in 1975 sixteen-year-old high school student Nicholas Mirov worked part-time at the pharmacy owned and operated by defendant's family. Mirov delivered medical and surgical supplies with the then eighteen-year-old defendant. On July 19, 1975, Mirov disappeared after he was dropped off for work at the pharmacy by his father. Later that summer, defendant admitted to his brother that he shot Mirov because defendant owed him too much money and did not plan to pay him back. Four months later, Mirov's body was found in a wooded area off the highway near Mount Olive. The body remained unidentified until defendant's brother divulged information about the murder when he was questioned in 1991 by police concerning an unrelated homicide in Warren County.
On April 17, 1991, defendant was arrested. He was tried in July 1994, and the process of his direct appeal was completed on November 18, 1997, when the Supreme Court denied certification. State v. Szemple, 152 N.J. 189 (1997). On or about June 2, 1999, defendant filed a pro se petition for PCR. In June 2007, designated counsel for defendant filed an amended petition asserting ineffective assistance of counsel at trial. Following oral arguments on July 27, 2009, defendant's petition for PCR was denied. Defendant appeals that denial and raises the following issue for our consideration:
POINT I: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS DUE TO HIS FAILURE TO RETAIN INVESTIGATORS AND EXPERTS VIA THE PUBLIC DEFENDER'S OFFICE TO ASSESS THE STATE'S EVIDENCE.
In our review of defendant's appeal, we initially note that an evidentiary hearing for a PCR petition is not always required; the PCR court has discretion to conduct such a hearing if the defendant establishes a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). If a defendant makes a prima facie showing of ineffective assistance at trial, then the court at PCR proceedings should allow an evidentiary hearing and make a determination on the merits of the claim. Id. at 463-64. To establish a prima facie case, defendant must demonstrate a reasonable likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 158 (1992). Therefore, in the context of allegations against counsel for failure to investigate a claim, the following considerations pertain:
[T]o establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. . . . [H]e must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. [State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).]
"If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (citations omitted). In determining whether a defendant has established a prima facie claim, the court views the facts in the light most favorable to a defendant. Preciose, supra, 129 N.J. at 462-63.
It is well-settled, a prima facie claim of ineffective assistance of counsel requires defendant to show (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. The standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007).
Defendant argues, in part, that his trial counsel's loss of confidence in his innocence resulted in ineffective assistance of counsel. That argument is procedurally barred pursuant to Rule 3:22-5. The argument has been considered previously on the merits and rejected. See State v. Szemple, A-3977-94 (App. Div. May 5, 1997) (slip op. at 10).
Defendant also argues that trial counsel failed to hire experts or to request that the Office of the Public Defender (OPD) pay for such ancillary services. More specifically, defendant asserts that counsel should have requested funding from OPD consistent with In re Cannady, 126 N.J. 486 (1991); In re Kauffman, 126 N.J. 499 (1991); and State v. Arenas, 126 N.J. 504 (1991), when a religious fellowship, which had funded his defense ended such funding. Such failure, defendant argues, establishes that his trial counsel was ineffective. We disagree.
The OPD maintains control over services provided to defendants represented by outside counsel the same as over services it provides to its own clients. Cannady, supra, 126 N.J. at 493. In determining what services and facilities shall be provided to an indigent defendant, the OPD is obligated to weigh "the factors of need and real value to the defense against the financial constraints inherent in the OPD's budget." Ibid. Thus, even if counsel had applied for the expert services, it is not clear or inevitable the OPD would have provided funding.
Specifically, defendant asserts trial counsel should have investigated issues more fully at trial by hiring a handwriting expert to counter the State's handwriting expert. The PCR court dismissed this contention, opining that the expert could have found the handwriting of the "Boyle Letter"*fn2 to be that of defendant and the prosecution could have used this evidence against the defendant. The PCR court also noted that trial counsel was a highly experienced criminal attorney and the record indicates trial counsel chose to impeach the letter as a forgery instead of developing a separate expert opinion.
Strategic decisions of trial counsel made after a thorough investigation of the reasonable options are "virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. See also State v. Martini, 160 N.J. 248, 266 (1999); State v. Savage, 120 N.J. 594, 617-18 (1990). "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." State v. Castagna, 187 N.J. 293, 314-15 (2006). We agree with the PCR court's assessment and only add that defendant's assertion concerning the handwriting is entirely too speculative to warrant an evidentiary hearing. See Fritz, supra, 105 N.J. at 64-65.
Likewise, defendant argues his counsel should have hired a ballistics expert. Again, as noted by the PCR court, the State's ballistic report was inconclusive. Defendant does not proffer a report stating that another ballistics report would have been more favorable. The PCR court reasoned that even if a second ballistics report might have found that the gun was not the murder weapon, it was outweighed by other forensic and testimonial evidence, including extensive testimony from defendant's brother. Under the circumstances, we are unconvinced defendant has established that his "counsel's performance was so deficient as to create a reasonable probability that these deficiencies materially contributed to his conviction." Cummings, supra, 321 N.J. Super. at 169.
Further, defendant argues that counsel was ineffective for failing to test for fingerprints or DNA analysis of blood stains on the "Boyle Letter." Those arguments are insufficient to lead to the conclusion that such tests and analyses would have affected the outcome of the trial. The PCR court correctly determined that analysis of fingerprints or blood testing held equal potential to damage, rather than bolster, defendant's defense of a familial conspiracy. "[W]hen the facts that support a certain potential line of defense are generally known to counsel . . . the need for further investigation may be considerably diminished or eliminated altogether." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696.
Here, evidence that defendant's fingerprints or blood were found on the "Boyle Letter" would have seriously undermined his defense that his brothers conspired to frame him. Although it is conceivable that favorable testimony regarding these issues would bolster his defense, defendant fails to show the lack of these experts had an adverse effect on his defense or undermined the reliability of the verdict.
Therefore, having given due consideration to the defendant's arguments and applicable decisional law, we find defendant failed to present a prima facie case of ineffective assistance of counsel and the PCR court did not improperly exercise its discretion when it denied defendant's petition without an evidentiary hearing.