June 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ABDUS SAMAD HAMILTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 16, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant Abdus Hamilton appeals from the Law Division's denial of his first petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel and requested an evidentiary hearing. We affirm.
Defendant and co-defendants Andrew Dennis and Lewis Palmer were convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(l) (counts four and five); third-degree aggravated assault, N.J.S.A. 2C:12-1b(3) (count six); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count seven); two counts of second-degree armed burglary, N.J.S.A. 2C:l8-2 (counts eight and nine); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count ten); two weapons offenses, N.J.S.A. 2C:39-4a and -5b (counts eleven and twelve); and four conspiracy offenses, N.J.S.A. 2C:5-2 (counts thirteen through sixteen). The convictions arose from the armed robbery and aggravated assault of Christopher Tuten, a drug dealer, occurring in Atlantic City. Defendant was sentenced to an aggregate custodial term of thirty years with an eighty-five percent period of parole ineligibility.
Defendant filed a direct appeal, arguing trial court error in: (1) permitting the State to introduce into evidence Lonell Blagrove's and Levine Dickerson's taped statements on the issue of identification as prior inconsistent statements; (2) admitting, in violation of his right to confrontation, the allegedly impermissible hearsay testimony of Detective Edward Riegel, which indicated that Tuten had asked an associate to provide him with co-defendant Andrew Dennis' name, and the testimony concerning statements by a female witness, not at the scene, and who did not appear at trial, that a particular man was not the suspect with the "yellow fleece"; (3) failing to take corrective action following a courtroom outburst by Blagrove, when the prosecutor played his taped identification statement, that its playing was going to get him killed; (4) failing to investigate the competency of Blagrove prior to his testimony at trial; (4) denying his request to instruct the jury they could consider Tuten's expectations of favorable treatment from the State in evaluating his testimony; (5) failing to merge aggravated assault with first-degree robbery; and (6) imposing an excessive sentence. He also asserted prosecutorial misconduct in referencing the burglary and robbery as a "home invasion," requesting Tuten to make an in-court identification, commenting that the alibi statement by defendant's grandmother was prepared the day of trial, and making inflammatory comments while discussing the reasons for Blagrove's recantation. Defendant further argued the verdicts were against the weight of the evidence and there were cumulative errors meriting reversal.
We affirmed defendant's and co-defendants' convictions and sentence. State v. Palmer, Dennis and Hamilton, Nos. A-422-01, A-424-01, and A-1233-0l (App. Div. June 29, 2004). The Supreme Court denied defendant's petition for certification. State v. Hamilton, 182 N.J. 428 (2005).
In April 2005, defendant filed a twenty-four page pro se petition for PCR relief. In December 2008, an eighty-eight page amended petition was filed by counsel on defendant's behalf. Defendant argued, in part, that trial counsel was ineffective in failing to: (1) interview the State's witnesses, Detective Riegel, Tuten, Blagrove or Dickerson, and present evidence that police identification procedures during the investigation stage were impermissibly suggestive in his unsuccessful motion for a Wade*fn1 hearing; (2) timely process his alibi defense and give the prosecutor the witness statements until the eve of trial, and although the trial court permitted alibi testimony, defendant was penalized by the jury charge on credibility; (3) object to the prosecutor's admission of an impermissible photograph during cross-examination of an alibi witness; (4) find significant discovery later found by PCR counsel, which strongly supports that Dickerson was involved in the home invasion and Blagrove was involved in a cover-up of his involvement so the only victim was the actual shooting victim; (5) object following Blagrove's outburst at trial when the prosecutor played his taped statement; (6) make a motion for severance; and (7) present all appropriate challenges to his sentence. Defendant also claimed trial counsel was ineffective in stating in his opening that defendant would testify, which was equivalent to an admission of guilt when defendant chose not to do so, and the judge erred in not giving an appropriate identification instruction to the jury. Defendant further alleged prosecutorial misconduct, in part, in misstating during his opening and summation that there was an in-court identification of defendant by Tuten when Tuten only said defendant was of the same build as the assailant who wore the bandana. He sought an evidentiary hearing.
Following oral argument on March 4, 2010, Judge James E. Isman, who had been the trial judge, made extensive findings on each of the issues and denied defendant's motion for PCR relief. In pertinent part, the judge noted he permitted testimony by both of defendant's alibi witnesses -- his grandmother and the mother of his child. Judge Isman concluded the jury charge did not penalize defendant as he properly advised the jury that it may consider the time in which the alibi witness came forward only for the limited purpose of assessing the credibility of the that witness' account and, in fact, neither witness came forward on their own. The judge also pointed out damaging comments made by the alibi witnesses on cross-examination that undermined their credibility.
The judge noted that a Wade hearing was conducted for co-defendant Dennis regarding Blagrove's and Dickerson's identifications but none was conducted for defendant or co-defendant Palmer. According to the judge, he would not have granted a Wade hearing to defendant because some of the identifications were by blood relatives and there was no evidence of impermissible suggestiveness or attempted influence by a detective. He noted we addressed the Blagrove outburst issue extensively on appeal and he was not convinced appellate counsel improperly framed the issue; furthermore, he found "nothing inappropriate" with the way the matter was handled at trial and commented that the outburst was not the basis for defendant's conviction. As to the prosecutor's comments in his opening and summation regarding Tuten's identification of defendant, the judge pointed out his repeated jury instructions that comments by counsel were not evidential and the jury's recollection of the facts controls. He further emphasized that the jury was also clearly told on several occasions it was deciding the case separately for each defendant based on the evidence introduced against each defendant and was given three separate jury verdict forms so the prosecutor's confusing the evidence between the defendants was immaterial.
Judge Isman noted that we found the jury charge regarding Tuten's testimony and identification of defendant was not in error, and further emphasized that he explained to the jury defendant "was only identified by Blagrove and Dickerson and  discussed the photo array each witness performed[,]" told the jurors "it was their job to determine the reliability of the identifications[,]" and listed the appropriate factors to consider under the case law.
The court concluded that defendant failed to establish ineffective assistance of trial counsel under the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). He found no deficiencies by defense counsel and, in fact, commented on his effective cross-examination of Tuten, Blagrove, and Dickerson and his effective opening focusing on the lack of proof that defendant was at the scene and the State's burden of proof.
Judge Isman further explained defendant's failure to satisfy the second prong, stating:
The outcome of this case . . . was based upon the following factors. Blagrove and Dickerson and their pathetic attempts at recantation and their original ID's [and] Tuten, for whatever value his testimony had. . . . [Defendant's] comment to the police  caused the jury, I think, to question the credibility and accuracy. And by the way . . . grandmother was not even there. She indicated she was not there, she had gone to work but it was his habit and custom to come there from 9:00 to 5:00 to baby-sit.
So . . . that too would have been contradicted by the words out of the [d]efendant's own mouth. And there was circumstantial evidence in this matter that tied these [d]efendants to that area, that tied these [d]efendants together, that tied these [d]efendants to this effort and I concur with the Appellate Division finding that really echoed my original finding that the proofs against all three gentlemen appear to be independent of each other, strong to the point of being overwhelming.
This appeal ensued.
On appeal, defendant argues the State committed a Brady*fn2 violation by failing to disclose evidence that Tuten had viewed a photographic array containing defendant's photograph the day before he testified at trial and failing to correct Tuten's testimony that the only pictures he was shown were of the crime scene. According to defendant,
[E]ven though Tuten testified on cross-examination that he could not say beyond a shadow of a doubt that the defendant was the man wearing the bandana, the suppression of his viewing of the defendant in a photo array resulted in an unfair trial, a verdict not worthy of confidence. What the jury heard was Tuten's identification of the defendant believing as Tuten was testifying that he was seeing the defendant in the courtroom for the first time since the day of the incident and was identifying him based on what he saw of the assailant. In fact, the trial prosecutor had shown him the defendant's photograph the day before he testified and in asking Tuten whether he could identify the man wearing the bandana he knew Tuten was identifying the man in the photograph as opposed to the man he saw in the apartment and he had Tuten lie about not being shown the defendant's photograph in order to make the in-court identification credible.
Defendant further argued that trial counsel erred in failing to: (1) object to the in-court identification and request an evidentiary hearing; (2) move to strike the in-court identification as tainted after Investigator Keith Cormack testified at the close of the State's case that when he picked Tuten up from the airport the day before trial he showed him the four-picture photographic array that included defendant's picture and he was unable to identify defendant; (3) request an identification charge as to Tuten's in-court identification; (4) use available significant probative evidence of Blagrove's and Dickerson's involvement in the robbery and shooting to discredit the reliability of their out-of-court identifications of defendant; (5) object and move for a curative instruction after Blagrove's outburst, which was "a good acting job," leading the jury free to conclude there was truth to Blagrove's statements; and (6) file a timely notice of alibi.
Defense counsel acknowledged in his brief and in our oral argument that defendant did not raise the Brady violation in his PCR petition. He urged at oral argument that defendant's petition was "inarticulate" and requested we remand the case for the trial court to address this issue. Considering this argument was not based on evidence outside the trial record, it could have been raised on direct appeal, R. 3:22-4, or in the lengthy PCR petitions filed by defendant and counsel. Moreover, the transcript clearly reflects that Tuten equivocated in his in-court identification of defendant and the jury was apprised by Inv. Cormack of his presentation of the photographic array to Tuten the day before trial. Accordingly, we discern no basis to deviate from our general rule that we do not entertain issues raised for the first time on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (l973)). Nor do we discern a basis to remand this matter to Judge Isman for analysis of this issue.
We also reject the balance of defendant's arguments as without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Isman in his comprehensive opinion.