May 22, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARSELL WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-09-3076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2012
Before Judges A. A. Rodriguez and Sabatino.
Defendant Darsell Williams, who was convicted of first-degree felony murder and other related offenses at a 1986 jury trial, appeals the trial court's order dated May 27, 2008, dismissing his petition for post-conviction relief ("PCR"). Because we agree with the trial court that defendant's petition is time-barred under Rule 3:22-12, and because it is also apparent that the petition lacks merit, we affirm.
This matter stems from the fatal shooting on July 2, 1986 of a teenager who had been selling marijuana, along with an adult companion, from the porch steps of an abandoned house in East Orange. After the teenager was shot and killed, defendant, who had arrived at the scene with the shooter, approached the decedent's adult companion. Defendant placed a handgun on the companion's head, reached into the companion's pocket, and then fled in the same direction as the shooter. At the ensuing trial, the decedent's companion positively identified defendant as the man who had accompanied the shooter and who had robbed him at gunpoint.
The jury found defendant guilty of first-degree felony murder, N.J.S.A. 2C:11-3a(3); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and first-degree robbery, N.J.S.A. 2C:15-10. After merging the robbery conviction into the felony murder offense, the court imposed a thirty-year custodial term without parole for the felony murder conviction; a concurrent five-year term for the weapons offense; and a consecutive eighteen-month sentence for the aggravated assault.
Defendant's conviction was upheld on direct appeal in 1989 in an unpublished opinion. State v. Darsell Williams, No. A-3298-86 (App. Div. Feb. 27, 1989). Certification was denied. State v. Darsell Williams, 117 N.J. 639 (1989). Defendant then filed an initial PCR application in 1990, which was denied by the trial court but then remanded by our court for further proceedings. State v. Darsell Williams, No. A-5789-89 (App. Div. Oct. 20, 1992). Unlike the issues now before us, defendant's initial PCR claims involved his trial counsel's failure to call two alleged alibi witnesses. Id. at 3-4. On remand, the trial court denied PCR relief on the alibi issues. We sustained that determination in an unpublished opinion in 1997. State v. Darsell Williams, No. A-5648-94 (App. Div. Nov. 24, 1997). Certification was then denied. 153 N.J. 213 (1998). Defendant then filed a habeas corpus petition in the United States District Court, which was denied in a written opinion in 2000. Darsell Williams v. Morton, No. 98-3785 (D.N.J. July 28, 2000). The Third Circuit affirmed, and the United States Supreme Court denied certiorari. Darsell Williams v. Hendricks, 534 U.S. 1025, 122 S. Ct. 557, 151 L. Ed. 2d 432 (2001).
Nearly twenty years after his trial, defendant filed a second PCR application with the trial court in April 2006. In that second petition, defendant raised a new argument, contending that he had been deprived of the effective assistance of counsel and of a fair trial because during jury selection prospective jurors had seen him in handcuffs and wearing clothes that he alleged to be prison garb.
The trial court conducted an evidentiary hearing in May 2008 on the issues raised by the second PCR petition. At that hearing, defendant's former trial counsel testified and stated that he had no specific recollection of what his client had been wearing at the beginning of jury selection. Defendant's former counsel did testify, however, that if defendant had been wearing prison garb, he would have complained to the judge. Defendant himself testified and insisted that he had appeared in prison garb and handcuffs. The transcript from 1986 is not clear about what defendant was wearing, although it does note that defense counsel indicated that defendant's mother was bringing him another set of clothes, and the judge presiding over the trial then noted that defendant looked "very presentable" in the clothes that he was wearing.
Following the evidentiary hearing, the PCR judge issued a written opinion, finding that defendant had been "briefly forced to appear in front of a jury while dressed in prison garb." Nevertheless, the judge declared defendant's petition untimely pursuant to Rule 3:22-12 because it was not filed within five years of defendant's conviction.
Defendant now appeals, raising the following points for our consideration:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CONSEQUENCES THAT THE VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM, AND ON THE DEFENDANT'S RIGHT TO A FAIR TRIAL, WHEN HE WAS FORCED TO APPEAR IN COURT IN FRONT OF THE JURY HANDCUFFED AND DRESSED IN PRISON GARB, WARRANTED RELAXATION OF THE [FIVE] YEAR TIME BAR UNDER THE "INJUSTICE" CLAUSE OF RULE 1:1-2 POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS REVERSED BECAUSE TRIAL COUNSEL'S CONSENT TO LET THE DEFENDANT REMAIN HANDCUFFED AND DRESSED IN PRISON GARB DURING THE JURY VOIR DIRE, AND APPELLATE COUNSEL'S FAILURE TO RAISE THIS ISSUE ON DIRECT APPEAL, RESULTED IN INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL POINT III
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF
THE TRIAL COURT ERRED BY GIVING A FLIGHT CHARGE AND DENIED DEFENDANT DUE PROCESS BY THE INFERENCE THAT DEFENDANT FLED WITH A CONSCIOUSNESS OF GUILT WHEREFORE, POST-CONVICTION RELIEF MUST BE GRANTED
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE PREJUDICIAL FLIGHT INSTRUCTION ON DIRECT APPEAL
THE PROCEDURAL BAR OF R. 3:22-12 SHOULD HAVE BEEN RELAXED DUE TO "EXCUSABLE NEGLECT"
Having considered these arguments, we affirm the trial court's dismissal of defendant's second PCR petition as time-barred, substantially for the reasons expressed in Judge Harold W. Fullilove's written opinion dated May 27, 2008. The petition was filed almost fifteen years after the five-year deadline prescribed by Rule 3:22-12.*fn1 Defendant has not established any "serious question about his guilt," or other exceptional justification to excuse its belated filing, see State v. Cummings, 321 N.J. Super. 154, 168-69 (App. Div.), certif. denied, 162 N.J. 199 (1999), particularly after an initial round of PCR proceedings and a collateral habeas corpus attack in federal court.
In addition to the petition's untimeliness, we further conclude that it lacks any merit. Even if the jurors briefly saw defendant in prison garb, his status as an incarcerated person would have been no surprise to the jury, as he volunteered during his redirect examination at the trial that he had recently been in jail. Furthermore, State v. Kuchera, 198 N.J. 482, 500-01 (2009), the ensuing case in which the Supreme Court announced a new rule of law disfavoring the appearance of criminal defendants at trial in prison garb, does not apply retroactively to instances such as this, where defendant's direct appeal had already been completed long before Kuchera was decided. State v. Dock, 205 N.J. 237, 258-59 (2011); see also R. 3:22-12(a)(2)(A).