On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
In 1998, a jury found defendant guilty in a joint trial with co-defendants James Washington and Robert Phelps of attempted murder, in violation of N.J.S.A. 2C:11-3; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39- 5(b); and other offenses. The trial court sentenced defendant to a forty-year term of imprisonment, with twenty years of parole ineligibility, for the attempted murder, and a concurrent five-year term of imprisonment for possession of a handgun without a permit.
On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Phelps, No. A-1037-98 (Feb. 26, 2001), and the Supreme Court denied certification. 169 N.J. 611 (2001).
In 2005, defendant filed a petition for post-conviction relief based partly on a claim that his trial counsel had been ineffective in failing to call as a witness Ronald Rice, who allegedly would have testified that the victim of attempted murder, Fernando DeMarzino, who identified defendant and his co-defendants as the persons who shot him, had told him that he did not know who the shooters were and that he identified defendant and the co-defendants only because they were his competitors in the sale of drugs and he wanted to eliminate them as competitors. The trial court denied the petition and a motion for reconsideration.
On appeal, we rejected most of the arguments presented by defendant in support of reversal of the denial of his petition in an unreported opinion. State v. Phelps, No. A-3057-05 (Nov. 13, 2007). However, we concluded that defendant had presented a prima facie case of denial of effective assistance of counsel in his trial counsel's failure to call Rice as a witness, which required an evidentiary hearing.
At the hearing on the remand we had ordered, defendant and Rice were the only two witnesses. Rice testified that DeMarzino told him he did not know who shot him and that he had identified defendant and his confederates as his assailants only because "[t]hey was in the way of something and it was business." Rice also testified that he gave a copy of the affidavit upon which defendant's petition was based to counsel for co-defendant Washington before the joint trial at which defendant was convicted, but that neither defendant nor any of the co-defendants called him as a witness. Rice also testified that the "State" approached him after "they learned of the statement that [he] gave to . . . Washington's attorney." Rice was called as a witness to testify for the State, but he refused because threats had been made against members of his family. After hearing this testimony, the trial court reaffirmed its decision denying defendant's petition in a brief written opinion, which stated:
. . . During the testimony of Ronald Rice at the hearing, Rice testified that if he had been called as a witness, he would not have testified. Given this testimony, this court is satisfied that had defense counsel called Rice, the second prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 , would not have been satisfied.
Defendant filed a motion for reconsideration of that decision, which the court denied.
Defendant again appealed, and we again reversed and remanded for a further hearing because it was unclear from Rice's testimony at the first hearing whether the court was correct in its conclusion that "Rice would not have testified on defendant's behalf at trial." Therefore, we remanded to afford Rice "an opportunity to clarify his testimony."
After this remand, the trial court conducted a second hearing at which Rice testified in greater detail than at the prior hearing.*fn1 Rice testified that the prosecutor's office pressured him to retract his statement that DeMarzino told him he did not know who had shot him. As a result, he testified before a grand jury that he had given that statement only because Washington had persuaded him to give it. This grand jury testimony resulted in a superseding indictment against Washington under which he was also charged with witness tampering. However, when the State called Rice as a witness at the first trial of this case, which ultimately resulted in a mistrial, Rice invoked his privilege against self-incrimination and refused to testify. Rice further testified that he was not called as a witness by defendant or his co-defendants at the subsequent trial that resulted in their convictions, but that if they had called him, he would have testified in conformity with his affidavit that DeMarzino told him that he did not know who had shot him.
After hearing this testimony, the trial court again denied defendant's petition for post-conviction relief. In an oral opinion, the court gave ...