October 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAINE ALLEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-12-4060.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 27, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant Dwaine Allen appeals from the July 29, 2005 order of the Law Division denying his petition for post-conviction relief (PCR) following an evidentiary hearing. He had unsuccessfully argued that trial counsel was ineffective in failing to investigate or interview two potential alibi witnesses. We affirm.
Defendant was convicted by a jury of the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4 (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). At the end of the State's case, the trial judge dismissed the felony murder charge (count two) and the robbery charge (count three).
The trial testimony presented by the State, including that of Robert Burley and Barbara Porter, eyewitnesses, was that Clifford McBride was fatally shot by a man they knew as "Mook," later identified as defendant. These witnesses, who were smoking "blunts" at the time of the offense, observed defendant approach Burley and ask him for drugs; Burley advised he had none, and defendant then lured McBride into an alley and shot him. The State theorized that defendant apparently tried to rob McBride but there was insufficient evidence on this proposition to allow the robbery counts to go to the jury. A shell was found on a roof near the scene of the homicide, which was the same as the bullet which killed the victim, as the result of which defendant argued that some unknown assailant shot and killed McBride from a rooftop. The defense presented no evidence.
On February 5, 1998, after merging count one with count five, Judge Harold W. Fullilove, the trial judge, sentenced defendant to a fifty-year custodial term with a twenty-five year period of parole ineligibility on count one, and a concurrent five-year term with a two-and-a-half year period of parole ineligibility on count four.
On direct appeal, defendant asserted error by the trial court in denying his motion for a new trial based on comments made by the prosecutor during the summation and in limiting his testimony of one of the officers. He also challenged the sentence as manifestly excessive. We affirmed the conviction and sentence. State v. Allen, No. A-4583-97 (App. Div. Apr. 6, 1999). The Supreme Court denied defendant's petition for certification. State v. Allen, 161 N.J. 150 (1999).
On September 15, 1999, defendant filed a pro se PCR petition, supplemented with a pro se brief filed on April 12, 2004 and a brief filed by counsel on March 21, 2005,*fn1 arguing ineffective assistance of trial counsel in failing to conduct a proper investigation to locate and produce potential alibi witnesses. On July 22, 2005, Judge Fullilove afforded defendant an evidentiary hearing.
Defendant's trial counsel, William Fitzsimmons, testified that the file from the public defender's office was no longer available and he did not have specific recall of the case. He therefore testified as to his usual methods of preparing a case, which entailed meeting with defendant in jail numerous times and discussing strategy or potential witnesses with him prior to trial. Fitzsimmons reviewed an alibi notice naming Erica Thompson and Carrie Dickey. He was certain he "would have discussed the testimony or the knowledge of the witness" with defendant and personally spoken to any potential alibi witnesses prior to filing this notice of alibi. He testified that, at the time of trial, he would have to decide whether or not to call the witnesses, weighing their testimony against the possibility that their information could possibly be used against defendant. Fitzsimmons related that, prior to trial he spoke with Thompson and Dickey again, and received "information that was not particularly helpful" to defendant. Accordingly, he made a strategic decision not to call them as witnesses.
Defendant testified he provided trial counsel with the names of Dickey and Thompson, and that of another potential alibi witness, Sherron Sexton. He testified that he was with his girlfriend, Thompson, they heard shots, and looked out the window and saw the victim lying there. He claimed Dickey came out of her own apartment five or ten minutes later. Defendant provided no information as to the relevance of Sexton's testimony. Defendant also testified that shortly before the shooting, he had fallen out of a window and had extensive leg injuries, walking with a noticeable limp. Defendant claimed he was not advised by Fitzsimmons that the physical condition of the shooter might become an issue at trial, though he was aware of Burley's statement to the investigator that the shooter could "barely walk."
Judge Fullilove was satisfied from defense counsel's testimony that he had performed investigations and interviewed the two named alibi witnesses but, based on his interview with them prior to trial, he chose not to have the witnesses testify. The court reviewed an affidavit submitted by Sexton, which is not contained in our record, and found it to "be of little value." Moreover, considering that when defendant testified, he failed to state that Sexton was even in the apartment at the time of the incident as she alleged in her affidavit, the court found it unlikely that defendant had given her name to trial counsel as a potential witness.
Judge Fullilove concluded there was no testimony adduced at the hearing from which he could have found Fitzsimmons performance to be "in any way deficient." He noted that "an informed strategic choice made by counsel, after a thorough investigation of the relevant laws and facts and consideration of all possible options are not challengeable" under the first Strickland prong.
He further found, had the witnesses been produced, they could have placed defendant at the scene of the incident and corroborated that he had an injury which would cause him to limp. Accordingly, defendant would be unable to satisfy the second Strickland prong of a different outcome had the alibi witnesses been called to testify at trial.
Defendant appeals, renewing this argument in a brief submitted by counsel and a pro se reply brief. His PCR appellate counsel also incorporated by reference the arguments raised in the PCR briefs respecting the claims of: (1) prosecutorial misconduct; (2) the erroneous limitation of testimony and purported exculpatory evidence; and (3) excessive sentence.
Based on our review of the record and applicable law, we are satisfied Judge Fullilove properly conducted the evidentiary hearing and appropriately addressed defendant's arguments raised on PCR. We affirm substantially for the reasons stated by the judge without the need for additional discussion. R. 2:11-3(e)(2). Defendant was granted every accommodation here -- an evidentiary hearing and an opportunity to provide some substance for his bald allegations, which he failed to do.
Judge Fullilove properly 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).
The judge correctly concluded that trial counsel's decision not to call the two named alibi witnesses was founded in sound strategy. See State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.) ("In determining whether [a] defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations."), certif. denied, 181 N.J. 546 (2004). Nor did defendant demonstrate the second prong of ineffective assistance of counsel, namely, how he was prejudiced by the omission.
The other issues raised in the trial brief were asserted and rejected on direct appeal. See Rule 3:22-5 (precluding a defendant from re-raising on PCR issues that were rejected on direct appeal).