On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 98-01-0070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
This is an appeal from an order denying post-conviction relief without an evidentiary hearing. Defendant argues the trial court erred in rejecting his claim of ineffective assistance of counsel. He asserted his trial attorney was ineffective because he failed to investigate other suspects;
failed to investigate possible degradation of a blood sample used in an incriminating DNA analysis; and failed to move for a change of venue. We affirm.
After an eight-day trial in February-March 2001, a Cumberland County jury found defendant guilty of the first-degree murder on February 11, 1997 of his wife Kimberly,*fn1 N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon (a shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a shotgun without having first obtained a firearms purchaser identification card, N.J.S.A. 2C:39-5c(2). The court sentenced defendant to thirty years without parole on the murder charge. We affirmed the conviction, but remanded for resentencing of the weapons charges, State v. Tetz, No. A-4914-00 (App. Div. March 27, 2003), and the Supreme Court denied certification. State v. Tetz, 177 N.J. 495 (2003).
We incorporate our prior opinion's description of the evidence in support of the conviction. Suffice it to say here that the trial evidence included both scientific DNA evidence and other circumstantial evidence. In December 1996, defendant began an affair with Michelle Melini roughly six months after his marriage to his wife. Defendant had discussed divorce with his wife in January 1997, and Melini told defendant he would have to choose between his wife and her.
At 8:44 p.m. on February 11, 1997, Vineland police officers discovered Kimberly slumped over in her small car in Giampietro Park. She was shot twice at close range by a shotgun. Substantial evidence supporting the conviction included: the affair and defendant's request for divorce; defendant drove a white pickup truck and eyewitnesses saw both a truck and a small car, like defendant's and Kimberly's, in the park shortly before the homicide; defendant's statements to police regarding his affair and his whereabouts before the homicide were belied by other evidence; defendant owned shotguns and police discovered in defendant's home partially empty boxes of ammunition like that used in the murder; and a blood sample found near the truck's gas tank lid matched the DNA of a sample of Kimberly's blood. Actually, two samples of Kimberly's blood were collected and provided to police. One was provided to a police officer present at the autopsy. A second sample was provided later, by a person at Shore Memorial Hospital where Kimberly was taken after the murder. A Vineland police officer retrieved the sample from the hospital and transported it unrefrigerated to Vineland.
In affirming defendant's conviction, we rejected his argument that the trial court erred in failing to exclude DNA test reports linking the blood on the truck to the victim. Without discussion, we rejected as without merit his argument challenging the chain of custody of one of the vials of blood taken from the victim. We also rejected defendant's argument that the trial court erred in prohibiting him from calling three Vineland police officers to testify that they had received information that Kimberly had told a friend that a certain individual had been stalking her, they interviewed the individual who denied the allegation, and they did not pursue the matter further.
Defendant filed his pro se petition for post-conviction relief on August 20, 2004. In a brief filed by appointed counsel on June 19, 2009,*fn2 defendant argued his trial counsel was ineffective because he failed to properly investigate the chain of custody of the blood samples in the case; he failed to investigate the person who allegedly stalked Kimberly and another person in the park; and he failed to seek a change in venue due to pretrial publicity.
After hearing oral argument on September 21, 2009, Judge Richard J. Geiger denied the petition. Defendant filed his notice of appeal February 3, ...