NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-12-4373.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Fasciale.
Defendant appeals from a December 9, 2010 order denying his petition for post-conviction relief (PCR). He contends primarily that he received ineffective assistance of counsel from his trial attorney. We affirm.
The State charged defendant with committing murder and two weapons-related offenses. Defendant and the victim's brother engaged in an altercation several weeks before the shooting. The State's theory was that defendant shot the victim either in retaliation for the victim's brother's failure to make a drug payment, or in a case of mistaken identity. Defendant asserted an alibi defense. During the trial, the court admitted into evidence the excited utterances of two witnesses, pursuant to N.J.R.E. 803(c)(2). At the conclusion of the trial, the jury found defendant guilty of murder and the weapons-related offenses.
Judge Irvin J. Snyder sentenced defendant to forty-five years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to an aggregate prison term of five years on the weapons convictions. We affirmed the convictions but remanded for re-sentencing. State v. Hunt, No. A-2678-05 (App. Div. December 12, 2007), certif. denied, 195 N.J. 419 (2008). On remand, the judge made the proper merger and imposed an aggregate prison term of forty-five years subject to NERA. Defendant appealed from the re-sentence, but later withdrew because his PCR petition was pending.
Defendant filed his petition for PCR contending in part that his trial counsel failed to effectively contest the admissibility of the excited utterances from two witnesses. Judge Snyder denied the PCR petition, issued a ten-page written opinion, and rejected defendant's evidentiary contention both procedurally and on the merits. The judge stated that
[o]ne of the defendant's multiple arguments deals with the admissibility of the hearsay testimony of Janelle Hill and Marion Hill; both testified that Norris Robinson told them that the defendant shot [the victim]. The State argued that the statement[s] constituted . . . excited utterance[s], and the court ruled that the statement[s were] admissible under that exception to the hearsay rule. Due to the fact [that] the trial court ruled that the statements were admissible[, ] over [the] objection of the defendant's trial counsel, [PCR] relief is not the proper venue for this issue. . . . .
In addition to arguing that certain testimony by Janelle Hill and Marion Hill was wrongfully admitted under the excited utterance hearsay exception, defendant claims that trial counsel erred by failing to request a preliminary hearing. This claim should also be rejected, due to the fact [that] defendant has failed to meet [a] prima facie case [for PCR].
In the instant case, [the court applied a N.J.R.E.] 104 [hearing] . . . without [defense] counsel requesting [it]. . . . Here, the witnesses were asked a question that would have elicited hearsay. Defendant's trial counsel properly objected to the questions, and the trial court made a ruling on the [admissibility of the] excited utterance[s]. The trial court found that, given the facts, the [evidentiary] requirements [under N.J.R.E. 803(c)(2)] had been met. Additionally, even if the excited utterance[s] were excluded, two other witnesses identified the defendant as the shooter. Therefore[, ] the outcome of the ...