June 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFRED PHELPS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2012
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 the following reasons for its decision:
. . . [T]hough this matter was returned from the Appellate Division to see if, in fact, the second prong of Strickland v. Washington had been satisfied, now that I heard the testimony of Mr. Rice, I am satisfied that neither prong [has] been satisfied; . . . .
Before the first trial for Mr. Phelps, there appears to have been a presentation to the grand jury in which Mr. Rice testified contrary to the affidavit, and as a result of his testimony, additional charges were added to the original indictment charging Mr. Washington with witness tampering . . . .
During the course of that first trial, the State calls Mr. Rice. He takes the Fifth, that is, he has indicated that he exercised his right to the Fifth Amendment.
If he testified as he did in the grand jury, it does not help Mr. Phelps, because, basically, what he said before the grand jury was sufficient for a grand jury to return an indictment for witness tampering, indicating to me that he made the affidavit as a result of pressure by Washington and that the affidavit wasn't true.
I can think of no reason, since this is the same indictment, why defense attorneys would call Mr. Rice. He's taken the Fifth in this trial. There's no reason to believe that just because it is now for the defense, the reasons for the Fifth Amendment invocation now change. They don't. If he testifies differently, the charges that were part -- that were added in the superseding indictment still exist. He is still subject to perjury.
They cannot call him for only part of it and not have the State go into the rest of the charges in the indictment, and, in fact, the statement he gave to the grand jury, so I find no fault in defense counsel in not calling Mr. Rice as a defense witness in the trial.
I further find that given Mr. Rice's prior record, which would come out before the jury, clearly, whether it be the State trying to impeach him if, in fact, he testified for the defense, or the defense trying to impeach him if he is testifying that there was this pushing up that caused him to make this affidavit, there's clearly a right to try and impeach his credibility by prior convictions. His record would have come out.
Also, what would have come out is that he gave two different statements, for whatever reason. I cannot find, under that scenario that if, in fact, Mr. Rice were to take the stand if called by the defense and said DeMarzino told me he didn't know what happened, and then he told me he was doing it for business reasons, that is to get rid of the competition in the drug trade, as opposed to I'm force[d] to say this by Mr. Washington, given that scenario, that there would have been a not guilty, a different outcome with regard to this indictment.
On his appeal from that decision, defendant presents the following arguments:
DEFENDANT HAS ESTABLISHED THE SECOND PRONG OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, NAMELY, THAT COUNSEL'S DEFICIENT PERFORMANCE IN FAILING TO CALL RONALD RICE AS A WITNESS AT TRIAL PREJUDICED HIS DEFENSE.
A. DEFENSE COUNSEL'S FAILURE TO CALL RONALD RICE AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL BY DEFENDANT'S TRIAL ATTORNEY.
B. DEFENSE COUNSEL'S FAILURE TO INTERVIEW RONALD RICE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL BY DEFENDANT'S TRIAL ATTORNEY.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's October 25, 2010 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11- 3(e)(2). We only note that the basis of the trial court's decision was not that Rice would have refused to testify on defendant's behalf but rather that, in light of Rice's conflicting stories regarding what DeMarzino did or did not tell him and Rice's own criminal record, defendant failed to establish that if his trial counsel had called Rice as a witness and Rice had testified in conformity with his affidavit, there is a "reasonable probability" the outcome of defendant's trial would have been different. State v. Fritz, 105 N.J. 42, 52 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).