On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-04-0964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Carchman, Graves, and Waugh.
Defendant James Black*fn1 appeals the dismissal of his petition for post-conviction relief (PCR) in which he challenged his conviction for first-degree aggravated sexual assault, first-degree murder, and related charges, as well as the resulting sentence. We affirm.
I. We discern the following facts and procedural history from the record on appeal.
Black was charged with the rape at knifepoint of his former girlfriend, Georgia Mills, on January 15, 1995, and her subsequent murder on February 20, 1995. In our opinion affirming Black's conviction, we outlined the underlying facts as follows:
Evidence produced at trial disclosed that defendant and the victim, Georgia Mills, lived together in an apartment in Atlantic City with their daughter until September 1994, when their six-year relationship ended and defendant was ordered by Mills to leave. To prevent defendant's return, Mills took defendant's apartment key, and later changed the apartment's locks. Nonetheless, defendant continued to seek contact with Mills.
Shortly before Christmas 1994 defendant, having learned that Mills had not returned to her apartment on the prior night, accosted her at a hair salon and slammed her head against a wall with force sufficient to create a hole. Although the event was not witnessed, persons who came to Mills's aid immediately after the assault found her crying and holding her head and observed the consequent damage to the wall. In trial testimony, defendant denied that the incident arose from jealousy, claimed that he was merely concerned as the result of Mills's absence for her well-being, and asserted that he had damaged the wall himself with his fist.
On January 15, 1995, defendant returned to Mills's apartment in a jealous rage, cut Mills's clothes off with a knife, and raped her at knifepoint. The rape was witnessed by Mills's sister, Ann Marie, who also lived in the apartment with her two children. Ann Marie called the police. They were met upon their arrival at the apartment by Mills, hysterical, clad only in a torn bra, and exhibiting a large knot on her forehead and a bruise on her left cheek. She stated to the police that she had been beaten by defendant, and she confirmed the rape. Defendant, who had remained seated quietly in a chair in the bedroom, was arrested after a scuffle and, while being escorted from the scene, stated in Jamaican dialect: "I can't believe she's doing this to me, getting me locked up like this. When I get out of here, I'm going to kill her and her sister." He repeated the threat to a witness, Annette Reid, while being escorted through the apartment's lobby, stating in dialect: "See what your friends did to me. I'm going to kill her." Defendant also repeated the death threat to a police officer while being booked. The police later found a knife on the headboard of Mills's bed and discovered that the telephone line in the bedroom had been severed. Following his arrest, defendant gave a signed statement in which he admitted that he had become jealous after observing Mills kiss another man and that he had engaged in an altercation with Mills, cutting off her clothes, but he claimed that intercourse had been consensual.
Evidence also disclosed that, after defendant's release from jail, he had gone to Mills's place of employment, Trump Plaza, and had asked for Derrick Alford, the person with whom Mills was having a relationship. A few days later, on the evening of February 20, 1995, Mills was repeatedly shot as she left work. The shooting was witnessed, and defendant was identified as the perpetrator by Trump Plaza employees. In a later phone call to Mills's sister Ann Marie, defendant stated when asked why he had killed Mills: "I love her and if I can't have her, nobody can." At trial, defendant denied that he was Mills's murderer.
Defendant fled to Jamaica after learning of Mills's death, but was apprehended on August 24, 2000. [State v. Black, No. A-2798-03 (App. Div. March 13, 2006) (slip op. at 3-6), certif. denied, 186 N.J. 608 (2006).]
Following a jury trial, Black was convicted of the following charges: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); tampering with physical evidence, N.J.S.A. 2C:29-3 (count nine); and hindering apprehension, N.J.S.A. 2C:29-3 (count ten).*fn2 Following required mergers, he received consecutive sentences of fifteen years for rape, four years for terroristic threats, four years for unlawful possession of a firearm, and life in prison with thirty years of parole ineligibility for murder.
On appeal, we affirmed the conviction and sentence, and the Supreme Court denied certification. State v. Black, supra, slip op. at 3. Black filed a verified petition for PCR on June 28, 2006. Both he and his assigned counsel subsequently filed supporting briefs. The State opposed the petition. On August 14, 2008, the judge who had tried the case heard argument on the petition, following which he delivered an oral opinion denying relief. This appeal followed entry of the order of dismissal.
II. Black raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO MOVE TO SUPPRESS INAND-OUT-OF COURT IDENTIFICATIONS OF DEFENDANT BOTH BEFORE AND DURING TRIAL.
C. DEFENSE COUNSEL FAILED TO PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO OBJECT TO AN ERRONEOUS INSTRUCTION ON THE AGGRAVATED SEXUAL ASSAULT CHARGE.
D. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ASSURE THAT THE DEFENDANT WAS AWARE OF ISSUES SURROUNDING HIS RIGHT TO TESTIFY.
E. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO USE THE SEXUAL ASSAULT VICTIM'S WITHDRAWAL STATEMENT TO SEVER THE SEXUAL ASSAULT CHARGE FROM THE ...