January 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN DELBRIDGE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-04-0962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Carchman and Baxter.
Following a jury trial, defendant John Delbridge was convicted of felony murder, N.J.S.A. 2C:11-3a(3), and armed robbery, N.J.S.A. 2C:15-1. The judge merged the two offenses and on August 4, 1994, sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility. Defendant appealed, and we affirmed. State v. Delbridge, A-0712-94 (App. Div. December 23, 1996). The Supreme Court denied certification. 149 N.J. 142 (1997). Thereafter, defendant filed a timely petition for post-conviction relief (PCR). The Law Division judge denied relief, and we affirmed. State v. Delbridge, A-3978-00 (App. Div. Jan. 9, 2003), certif. denied, 176 N.J. 72 (2003). Apparently, no petition for certification was filed for further review in the Supreme Court.
In July 2008, defendant filed a "motion for reconstruction of the record," with the stated purpose to file yet another PCR petition. Judge Kevin Callahan denied the application in January 2010. Defendant appeals, and we affirm.
We need not restate the facts giving rise to the underlying offenses, as they are more specifically and fully set forth in our 1996 opinion, except to note that the offenses arose as a result of an armed robbery involving three elderly women returning from a church function in Jersey City.
On his direct appeal, defendant raised the following issues:
I. Defendant was denied due process as a result of several rulings of the trial court which ultimately permitted a positive in-court identification of defendant by R.K. when it was clear from her pretrial statements and her pretrial Wade[*fn1 ] hearing testimony that she could not positively identify defendant, and when the in-court identification could only have resulted from her observing defendant at the pretrial hearing.
II. The trial committed plain error during its jury charge when it instructed the jury that R.K. had identified defendant. (Partially raised below).
III. Defendant was deprived of his Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel by the omission of jury charges on second degree robbery and the affirmative defense to felony murder, together with the absence of an instruction that an accomplice may be guilty of a lesser offense than the principal. (Partially raised below).
IV. The decision to impose a sentence of life imprisonment could not reasonably have been made upon a proper weighing of aggravating and mitigating factors.
On his appeal from his first PCR petition, defendant raised
the following issues:
I. The lower court erred in denying defendant's petition since defendant raised claims of constitutional magnitude and demonstrated the conviction was the produce [sic] of a fundamental injustice.
A. The prosecutor deliberately misled the grand jury in order to obtain an indictment.
B. Defendant's right to counsel was violated when Henderson engaged in a surreptitious interrogation.
C. The indictment was unlawfully obtained.
D. The intercept[ion] of defendant's conversation was made without authority.
E. Defendant's constitutional rights were violated when the principle [sic] pled guilty to a lesser offense.
F. The introduction of other[-]crime evidence violated due process of the law.
G. The court erred in its instruction on accomplice liability.
H. The court's instructions to the jury were erroneous.
II. The lower court order denying the petition must be reversed since defendant received ineffective assistance of trial counsel.
III. The lower court erred in denying defendant's petition on the ground of ineffective assistance of appellate counsel.
IV. The low [sic] court erred in failing to conduct an evidentiary hearing on defendant's claims.
V. The lower court order denying the petition must be reversed since defendant's claims are not procedurally barred.
VI. The lower court erred in denying the petition since the cumulative effect of defendant's claims entitled him to relief.
In his pro se supplemental brief, Delbridge asserts:
I. The PCR [post-conviction relief] court misapprehended the matter as to the admission of the un-redacted statements, which contained inadmissible other[-]crimes evidence that should have been excluded.
II. Defendant's constitution [sic] right of [sic] counsel was violated when defendant was interrogated [sic] Albert Henderson as an agent of the State.
III. The PCR court erred in its apprehension of the accomplice liability argument, whereas defendant was tried on the State's theory that he was the principal on the main offenses (i.e., Murder and the lesser included offenses of aggravated and reckless manslaughter), but as the accomplice on felony murder, armed robbery and weapons offenses which led to an inconsistent verdict.
IV. Defendant's convictions on armed robbery and felony murder must be vacated and dismissed because the jury's verdict was the result of mistaken compromise and does not establish the elements of the offenses.
V. Defendant was denied his constitutional right of due process by the trial court's failure to instruct the jury to not draw any negative inferences from the fact that defendant was in jail, or based on the "mugshots" used in the identification process.
VI. Defendant was denied his right of the effective assistance of counsel by trial counsel at trial and during appeal, in violation of the New Jersey and United States Constitutions. Defendant premised his current application to "reconstruct the record" on his review of the Promis/Gavel System's event history detailing various events that may have transpired on the record. A search of the records indicated that nothing was placed on the record.
In his pro se application for reconstruction, defendant asserted that "reconstruction of the record is warranted in the interest of justice, procedural due process, and constitutional safeguards." He asserts that this reconstruction is necessary to address issues regarding a wiretap application and order together with an Authorization for Consensual Wiretap, all to the end that defendant's "decision to go to trial may have been reconsidered." In an eighteen-page written decision, Judge Callahan*fn2 denied defendant's application.
The judge noted that in his prior PCR, defendant raised the issue regarding the admissibility of certain recorded conversations. The judge also observed that defendant's claims were barred by Rule 3:22-12(a)(1) (barring PCR petitions submitted more than five years after conviction); Rule 3:22-5 (barring a PCR where the claims have been previously adjudicated); and Rule 3:22-4 (barring claims that should have been raised on the direct appeal or a previous PCR). Judge Callahan, considering the applicability of the time bar incorporated in Rule 3:22-12(a), observed that it would "be very difficult if not impossible to reconstruct all of the pretrial proceedings[,] which occurred between fifteen (15) and sixteen (16) years ago."
The thrust of defendant's arguments before the Law Division is that he was not present at substantive pretrial hearings. As the PCR judge observed, the record is devoid of any proof that defendant was absent from such hearings, and colloquy between counsel and the judge suggests that he was present. At one point, trial counsel observed, "I would like to have my client present . . . ." The judge responded: "Absolutely. He'll be present at all times." The PCR judge noted that the record contains no waiver of defendant's appearance nor suggestion that he was not present.
In his opinion, Judge Callahan said:
For the reasons set forth, Petitioner's claims are procedurally barred by R. 3:22-12(a)'s five-year time bar. Petitioner has failed to assert grounds for relief that have not already been adjudicated by other courts and so his claims should be precluded[.] R. 3:22-5. Finally, even if these claims were not procedurally barred by Rules 3:22-12 and 3:22-5, they should be excluded by R. 3:22-4, because the claims should have been raised in Petitioner's direct appeal and/or in Petitioner's two previous motions for post-conviction relief.
In addition, Petitioner has not asserted a reason for which the requested discovery would be used. Therefore, this court is not obliged to order the State to conduct an extensive search and reconstruct the record of documents from sixteen (16) years ago, which may not even exist, on the speculation by Defendant that he has a viable claim under the law. Rather, it appears Defendant has engaged in a "fishing expedition" in hope of finding issues to raise. Moreover, Petitioner has not provided any evidence showing he was not present at his pretrial proceedings or that he did not possess the documents he now seeks. Rather, the lengthy and detailed record leads this court to believe Petitioner was present for all proceedings and Petitioner did, at some point, possess the documents he is currently requesting.
After having reviewed the various papers from Petitioner and the State submitted to the courts over the past fourteen (14) years, after having reviewed the opinions of the Appellate Courts, the various papers submitted for Petitioner's current motion to reconstruct the record, and based on the several court hearings for this motion, it is the opinion of this court that Petitioner has not asserted any valid grounds to reconstruct the record. As a result, Petitioner's motion to reconstruct the record is DENIED.
On this appeal, defendant raises the following issues:
POINT I - DEFENDANT'S PRO SE MOTION TO RECONSTRUCT THE RECORD SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
A. Defendant Was Not Procedurally Barred Pursuant To Rule 3:22-12(a).
B. Defendant Was Not Procedurally Barred Pursuant To Rule 3:22-5.
C. Defendant Was Not Procedurally Barred Pursuant To Rule 3:22-4.
POINT II - THE DENIAL OF DEFENDANT'S PRO SE MOTION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR A RECONSTRUCTION OF THE RECORD.
POINT III.- DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, THEREBY MANDATING THAT THE DENIAL OF HIS PRO SE MOTION BE REVERSED; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS WAS ESTABLISHED.
We have carefully reviewed the arguments of counsel as well as the record on this appeal, and we are satisfied that defendant's arguments are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Callahan's thorough and thoughtful written opinion of February 19, 2010.