August 29, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ROBERT HILL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2012.
Decided February 1, 2013 Motion for reconsideration granted.
Argued May 28, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-218.
Robert Carter Pierce argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, Designated Counsel, on the brief).
Nicholas Norcia, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Norcia, on the brief).
Before Graves and Guadagno, Judges.
After we filed our opinion denying defendant's petition for post-conviction relief (PCR), State v. Hill, No. A-0201-10 (App. Div. February 1, 2013), defendant moved for reconsideration as he had requested oral argument. We granted the motion, to the extent that we agreed to hear oral argument on May, 2013.
We repeat the facts recited in our earlier opinion:
Sometime between 10:00 p.m. on May 17, 2002 and 2:00 a.m. on May 18, 2002, defendant killed his fiancée, Gwendolyn Boyd, by strangling her with a bungee cord.
Defendant's cousin, Michael Scott, attempted to help defendant dispose of Boyd's body.
On February 8, 2005, defendant and Scott were indicted by an Ocean County grand jury and charged with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a) or (b) (count one), and first-degree murder, N.J.S.A. 2C:11-3(a) or (b) (count two). Scott agreed to plead guilty and testify against defendant.
Following a jury trial, defendant was convicted of both counts. At sentencing, the judge merged count one and count two and sentenced defendant to life, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Hill, No. A-4536-05 (App. Div. July 28, 2008). The Supreme Court denied defendant's petition for certification on October 31, 2008. State v. Hill, 196 N.J. 601 (2008).
Defendant filed a pro se PCR petition on December 19, 2008, followed by an amended petition on October 22, 2009, after he was assigned counsel. During oral argument on March 3, 2010, the first PCR judge summarized defendant's claims: (1) there was a conflict of interest between the court and the prosecutor; (2) the racial and sexual composition of the jury was unfair; (3) trial counsel was ineffective for: (a) informing the jury that he advised defendant not to testify; (b) failing to retain a forensic expert; (c) failing to move for a mistrial after an investigator violated a sequestration order by speaking with Michael Scott; (d) failing to move to dismiss the indictment; (e) failing to strike three jurors; and (f) failing to call numerous defense witnesses. Defendant also claimed he was denied effective assistance of appellate counsel.
In an oral decision, the first PCR judge found the record did not support defendant's claims. The court also found that even when the alleged errors were considered in the aggregate, defendant failed to show that his attorney's performance was deficient or that he was prejudiced by his attorney's conduct. The PCR judge also rejected defendant's claim that his appellate counsel was ineffective.
The judge reserved decision as to defendant's claim that his attorney was ineffective for refusing to dismiss certain jurors for cause. In a written decision on April 8, 2010, the judge concluded there was no merit to defendant's claim that his attorney was ineffective during jury selection.
After defendant filed a notice of appeal from the April 8, 2010 order, he moved to supplement the record with two certifications claiming that some jurors may have seen that he was shackled during the trial and that Michael Scott wore prison garb and was also shackled when he testified. We denied the motion to supplement the record but entered an order for a limited remand to allow the PCR judge to consider the certifications.
On remand, a different judge conducted a hearing where defendant and the two prosecutors who tried the case testified. The second PCR judge filed a written memorandum containing extensive and detailed findings of fact.
The judge rejected defendant's claim that he was wearing leg shackles during trial as not believable. The judge credited the testimony and certifications of both prosecutors who recalled that defendant was not wearing leg irons during trial. The judge also noted both of defendant's trial counsel submitted certifications and neither could remember him wearing leg shackles. Defendant testified that he had two different suits to wear for trial with a variety of shirts and ties. The trial record indicates that when some of defendant's civilian clothes went missing, the trial judge ordered the warden to investigate the matter. Given the "great lengths" defendant's counsel and the trial court went to protect his rights, the second PCR judge found defendant's claim that he appeared in court wearing leg shackles to be "incredulous."
The judge also rejected defendant's claim, raised for the first time at the PCR hearing, that a juror tapped him on the shoulder and spoke to him as the juror was leaving the courtroom and another time when defendant was reading the Bible. The judge found this testimony not credible, noting that defendant never disclosed the juror contacts to his trial counsel; could not remember what was discussed; and did not recall these contacts until December 14, 2011, almost six years after the trial.
As to defendant's claim that Michael Scott testified at trial wearing prison apparel, the judge found that defendant's counsel's failure to object to Scott's dress was a tactical decision intended to have the jury "consider this incarcerated witnesses' testimony in an unfavorable manner." The judge noted that, while State v. Artwell, 177 N.J. 526 (2003), prohibited defense witnesses from appearing at trial in prison garb, Scott was called by the State. The judge also noted that trial took place in January 2006, prior to our decision in State v. Russell, 384 N.J.Super. 586 (App. Div. 2006), where we held that a witness can never testify in prison garb. The judge concluded that there was no reliable evidence that defendant was prejudiced by Scott appearing in prison clothing.
On appeal, defendant raises the following points:
THE PCR COURT ERRED IN RULING THAT MR. HILL'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED DUE TO THE CONFLICT OF INTEREST BETWEEN THE TRIAL JUDGE AND THE PROSECUTOR AND THAT THE ISSUE WAS PROCEDURALLY BARRED.
MR. HILL WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
(A) TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE WHEN HE INFORMED THE JURY THAT HE ADVISED MR. HILL NOT TO TESTIFY.
(B) TRIAL COUNSEL FAILED TO RETAIN A FORENSIC SCIENTIST AS A DEFENSE EXPERT TO ANALYZE THE RUBBER GLOVE FINGER TIP WITH THE BUNGEE CORD TO DETERMINE WHETHER THE BUNGEE CORD CAUSED THE GLOVE FINGERS TO RIP, WHICH WOULD HAVE ESTABLISHED THAT CO-DEFENDANT SCOTT COMMITTED THE MURDER.
(C) TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE FOR FAILING TO MOVE FOR A MISTRIAL WHEN INVESTIGATOR MITCHELL CONTINUALLY SPOKE TO CO-DEFENDANT SCOTT DURING BREAKS AND RECESSES OF HIS TRIAL TESTIMONY, THEREBY VIOLATING THE TRIAL COURT'S SEQUESTRATION ORDER.
(D) DEFENSE COUNSEL'S CUMULATIVE ERRORS ESTABLISH MR. HILL'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT ERRED BY DENYING MR. HILL'S MOTION TO COMPEL DISCOVERY.
THE CUMULATIVE EFFECT OF THE CONFLICT OF INTEREST VIOLATION, COUPLED WITH TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE WARRANT REVERSAL OF THE CONVICTION AND A NEW TRIAL.
THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING BECAUSE MR. HILL ESTABLISHED A PRIMA FACIE CASE.
We have considered these arguments in light of the record and the applicable law and we affirm the Law Division's denial of defendant's PCR petition for the reasons stated in our February 1 2013 opinion