Opinion
DOCKET NO. A-4665-11T2
09-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. RICHARD W. ROGERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-01-0050. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Richard W. Rogers appeals from the October 19, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
I.
In 2005, following a seven-day trial, a jury found defendant guilty of two counts of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1), (2), for the 1992 murder of Thomas Mulcahy and the 1993 murder of Anthony Marrero. Defendant was also convicted of two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b), each of which was related to one of the murders. The judge sentenced defendant on each murder count to life imprisonment with a thirty-year parole disqualifier, and on the hindering counts to five years imprisonment with a two and one-half year parole disqualifier. All four sentences were ordered to be served consecutively.
Defendant appealed, challenging his conviction and the sentence imposed. We affirmed the conviction and sentence. State v. Rogers, No. A-5885-05 (App. Div. July 22, 2008). The Supreme Court denied certification. State v. Rogers, 196 N.J. 599 (2008).
He raised the following arguments on direct appeal:
POINT I
THE ADMISSION OF EVIDENCE OF TWO OTHER MURDERS IN ORDER TO DEMONSTRATE "IDENTITY, OPPORTUNITY, INTENT [AND] PLAN" WAS VIOLATIVE OF N.J.R.E. 404(b) AS WELL AS DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
A) "Signature"/Identity.
B) Plan, Opportunity and/or Intent.
C) Harmless Error.
POINT II
THE JURY INSTRUCTION ON OTHER-CRIMES EVIDENCE WAS EITHER INCORRECT OR FATALLY INSUFFICIENT IN THREE DIFFERENT RESPECTS. (Not Raised Below).
POINT III
THE EVIDENCE THAT DEFENDANT NODDED HIS HEAD WHILE THE INTERROGATING OFFICERS READ HIM THE EVIDENCE AGAINST HIM WAS INADMISSIBLE AS AN "ADOPTIVE ADMISSION"; MOREOVER, NO INSTRUCTION ON ADOPTIVE ADMISSIONS WAS EVER GIVEN TO THE JURY; FINALLY, THE PROSECUTOR'S COMMENT IN SUMMATION THAT NOTED HOW DEFENDANT "CLAMMED UP" WHEN CONFRONTED WITH THE EVIDENCE AGAINST HIM WAS A BLATANT VIOLATION OF DEFENDANT'S RIGHT TO SILENCE. (Partially Raised Below).
POINT IV
THE REQUESTED RECHARGE ON TERRITORIAL JURISDICTION WAS CONTRADICTORY -- TELLING THE JURY THAT THE INFERENCE THAT THE CRIME OCCURRED IN THE STATE WHERE THE BODY WAS FOUND WAS BOTH MERELY PERMISSIBLE AND MANDATORY; MOREOVER, THAT RECHARGE ALSO OMITTED CRITICAL LANGUAGE FROM THE ORIGINAL INSTRUCTION. (Partially Raised Below).
Defendant filed a timely pro se PCR petition in which he alleged the State failed to prove his guilt beyond a reasonable doubt based upon insufficient fingerprint evidence, discrepancies in witness testimonies, and lack of territorial jurisdiction. Defendant also claimed judicial error because of the judge's alleged biased, pretrial comments. PCR counsel filed a supplemental brief adding claims of ineffective assistance of trial counsel based upon his failure to (1) move for a change of venue, (2) move for recusal of the trial judge, (3) investigate two exculpatory witnesses, and (4) present an expert witness with respect to the DNA evidence. Defendant's fifty-paragraph certification presented additional claims of court error or ineffective assistance of counsel.
After hearing oral argument Judge James Den Uyl considered all of defendant's contentions. The judge joined the assertions from the certification into eight general claims, and then ruled upon each. The judge barred the following claims under Rule 3:22-5:
Discrepancies exist between certain pretrial and trial testimony. The testifying detectives were not truthful on the witness stand, (paragraphs 2-10, 12)The judge addressed the following issues and found they each lacked merit:
Trial counsel did not present experts on DNA and fingerprint analysis, (paragraph 19)
There were various issues regarding pretrial hearings: Evidence presented at the 404(b) hearing, (paragraph 37-49)
There were various issues regarding territorial jurisdiction, (paragraph 24-31)
During the testimony of Detective Hayes, the details of the preparation of his report were not brought out on cross-examination. (paragraph 11)
Detective Colantinio (sic) testified that he declined to show a photo lineup to a witness because, "it could hurt the investigation if he pointed to someone and it took off in another direction." (paragraph 15)
There were hairs at the crime scene that were not tested for DNA. (paragraph 15)
There were various issues regarding pretrial hearings: Allegations of potential judicial "bias and complicity." (paragraph 20-22)
[Trial judge's] questioning of the State's DNA expert. (paragraph 16-19)
There were issues regarding the fingerprint evidence. (paragraph 32-36)
Judge Den Uyl issued a comprehensive twenty-seven page written opinion rejecting defendant's arguments and denying his petition for PCR without an evidentiary hearing. Defendant filed this appeal and raises the following points:
I. DEFENDANT'S CONVICTION MUST BE REVERSED DUE TO APPELLATE AND PCR COUNSELS' INEFFECTIVENESS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS. (Partially Raised Below)Defendant has also submitted a pro se supplemental brief in which he raises claims of (1) ineffective assistance of trial counsel for failing to move for a change in venue; (2) ineffective assistance of trial counsel for failing to file a motion for recusal of the trial judge; (3) trial court error in its evidentiary rulings and jury instruction on territorial jurisdiction; (4) trial court error in the admission of other crimes evidence; (5) trial court error in the admission of Detective Hayes' testimony regarding defendant's head-nodding as an adoptive admission; and, (6) prosecutorial misconduct in several statements made during summation.
A. Appellate Counsel Failed to Raise the Issue That the Trial
Court Improperly Questioned the State's DNA Expert, Thereby Effectively Negating His Exculpatory Testimony and Eviscerating the Defense; PCR Counsel Failed to Claim Ineffectiveness of Appellate Counsel For Not Raising This Issue. (Not Raised Below)
B. Trial Counsel Failed to Move For a Change of Venue.
C. Trial Counsel Failed to Conduct An Investigation Regarding Two Individuals Who Supposedly Made Incriminating Statements As to Their Involvement in the Crimes.
Having reviewed the record, we affirm substantially for the reasons set forth in Judge Den Uyl's written opinion. Judge Den Uyl thoroughly reviewed the trial record and thoughtfully considered each claim presented by defendant. The judge applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (requiring proof counsel's performance was objectively deficient which created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different); See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-prong test in New Jersey).
II.
A.
We begin by addressing the arguments raised in points three through six of defendant's supplemental brief. We conclude these claims are procedurally barred. Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . . , or in any appeal taken from such proceedings." Ibid.
Here, these claims had been raised and argued at length by defendant on direct appeal, where we addressed and rejected each argument. We will not revisit these claims. Ibid. With particular reference to defendant's supplemental brief point six complaining of remarks made by the prosecutor in his summation, to the extent this claim seeks to raise additional arguments with respect to the prosecutor's summation, it is barred by Rule 3:22-4. Rule 3:22-4 prevents a defendant from raising issues in a PCR petition that could have been raised on direct appeal. There are three narrow exceptions to this general exclusion:
(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(b) that enforcement of the bar would result in fundamental injustice; or
(c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
[Ibid.]
Defendant has not presented any basis to apply the exceptions to this rule. Therefore, any expansion on this previously addressed claim is precluded from further review.
B.
As to Point I(B) and supplemental brief point one, defendant argues his trial counsel was ineffective in failing to seek a change of venue in the face of widespread publicity over the four-year period covering his arrest, indictment, and the commencement of trial. Judge Den Uyl noted that extensive news coverage reached newspapers in Pennsylvania, New York, Maine, Texas, Massachusetts and New Jersey. However, the judge noted that defendant failed to produce evidence of any articles published within one year of trial.
On a motion to change venue because of pretrial publicity, a court must determine "[w]hether an impartial jury can be obtained from among the citizens of the county, or whether they are so aroused that they would not be qualified to sit as a jury to try the case." State v. Ravenell, 43 N.J. 171, 181 (1964) (quotation and citation omitted), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). This was not a case whether the trial atmosphere was "so corrupted by publicity that prejudice may be presumed." State v. Biegenwald, 106 N.J. 13, 33 (1987).
Where there is no presumed prejudice from pretrial publicity, a court must determine whether there is actual prejudice. Id. at 33-36. It would be appropriate for an Assignment Judge or his or her designee, Rule 3:14-2, to hold a motion to change venue in abeyance, or to deny it without prejudice, until it could be determined whether actual, which is distinct from presumed prejudice, could be demonstrated.
The ultimate question for the Assignment Judge is whether it is possible to select a fair and impartial jury. In many cases the Assignment Judge should either defer ruling
on the motion until after some voir dire examination of prospective jurors, or should deny the motion without prejudice to the motion being renewed if the prospective jurors are found by the trial judge to be tainted by the publicity.
[N.J. Practice, Criminal Practice and Procedure § 15:12 at 749 (L. Arnold) (2011-2012 ed.)]
Judge Den Uyl noted that the victims were residents of New York and Massachusetts and not from Ocean County. Defendant was a resident of Staten Island, New York and worked in New York City. The judge noted neither the victims nor defendant were known in Ocean County.
While recognizing the probability there was media cover in Ocean County, the judge found defendant failed to demonstrate a "reasonable likelihood that the [trial judge] would have exercised his discretion to change venue" and he failed to specify what arguments "counsel could have made beyond asserting prejudicial publicity." He concluded defendant did not meet his burden of showing he was prejudiced by the pretrial publicity, and failed to satisfy the second prong of the Strickland/Fritz test that, "in some other jurisdiction, the result would have been different because the crime received news coverage beyond Ocean County."
Moreover, as to the jury selection process, the judge recognized each potential juror received a special juror questionnaire that elicited information to discern if any information they "read, heard or seen would cause them to have an opinion" in the case. The questionnaire required jurors to sign and certify their answers under penalty of perjury. The judge found defendant failed to present any evidence of community hostility toward him.
Although we have found no New Jersey published decision addressing a PCR petition claiming ineffective assistance arising out of the failure to move to change venue, the analysis of the Court of Appeals in Campbell v. Bradshaw, 674 F.3d 578 (6th Cir. 2012) is persuasive. In that case involving a petition for habeas corpus after the state court denied post-conviction relief, the court acknowledged there was prominent pretrial media coverage, and "most of the prospective jurors were aware of the case." Id. at 594. Yet, as we have here, that court found insufficient facts to demonstrate presumptive prejudice and concluded that the defendant had not demonstrated prejudice from pretrial publicity. Ibid. We reach the same conclusion with respect to defendant's claims here.
C.
Defendant also argues his trial counsel was ineffective by failing to investigate two individuals who supposedly made incriminating statements implicating themselves in these crimes. He asserted these individuals became known in pretrial and trial testimony, yet counsel did not hire an investigator to pursue this information. Judge Den Uyl rejected this claim as a "bald assertion" from which defendant merely speculated about possible exculpatory testimony from other individuals. The judge found defendant did not show what these two individuals would have been likely to state if they had been questioned. Nor had defendant presented certifications or affidavits from the men "in support of the allegation that they [would have] admitted to a third party culpability for these crimes." The judge determined defendant failed to produce any evidence linking the two individuals to the crimes. The judge concluded defendant failed to establish that counsel's performance fell below an objective standard of reasonableness, and that defendant failed to satisfy the second prong of the Strickland/Fritz test, that "but for counsel's omission, the result of the proceeding would have been different. We agree.
We recognize a defendant has a constitutional right to present evidence tending to show a third party committed the crime of which the defendant is accused. State v. Timmendequas, 161 N.J. 515, 620 (1999). Where a defendant seeks to introduce evidence of the guilt of a specific third party, as defendant does in this case, "[t]he evidence, in order to be admissible, need not establish a probability of a third-party guilt. There need only be proof capable of raising a reasonable doubt on the issue of defendant's guilt." State v. Millet, 272 N.J. Super. 68, 99-100 (App. Div. 1994) (citations omitted) (trial court erred in excluding evidence that a third-party seen walking away from gas station on evening of murder close in time and place to crime).
However, even if defendant had obtained non-hearsay evidence that each man implicated himself in the crime, that evidence may still have been inadmissible, as "it [is] not enough to prove some hostile event and leave its connection with the case to mere conjecture." State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960). "Somewhere in the total circumstances there must be some thread capable of inducing reasonable men [and women] to regard the event as bearing upon the State's case." Ibid. For example, in State v. Koedatich, 112 N.J. 225, 302-03 (1988) cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), the defendant was accused of murdering a high school cheerleader. The Court upheld as remote and speculative evidence that a coach had made obscene phone calls to a telephone outside the cheerleaders' locker room, reacted nervously when questioned, and owned a car matching the general type observed near the murder scene.
Here, defendant has failed to show what additional facts an investigation of these men would have produced, let alone that the facts would have been sufficient to be admissible as evidence of third-party guilt at trial. Defendant thus failed to establish a prima facie case of ineffective assistance, or prejudice therefrom.
D.
In Point I(A) and supplemental brief point two, raised for the first time in this appeal, defendant asserts ineffective assistance of trial counsel for his failure to object to the trial judge's questioning of the State's DNA expert, and appellate and PCR counsels' failure to raise the issue on appeal. Ordinarily, we would not review issues not part of the record, Rule 2:6-2, however, for completeness of our review, we will briefly address this matter because the PCR judge addressed the judge's conduct.
A judge is permitted to ask questions to clarify testimony. State v. Belliard, 415 N.J. Super. 51, 86 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011); see also N.J.R.E. 614 (providing that a judge "may interrogate any witness."). The authority is constrained by the obligation to avoid any suggestion that the judge is "taking one party's side." State v. Taffaro, 195 N.J. 442, 451 (2008). In State v. O'Brien, 200 N.J. 520, 539 (2009), the Supreme Court reemphasized that the right of a judge to question witnesses "is tethered to ensuring the fairness of the proceedings, to expedition, and to the clarification of ambiguities."
At trial, the State's DNA expert testified extensively on direct and cross-examination with regard to his analysis of the evidence. He discussed that the lack of DNA technology in 1992 and 1993 impeded a thorough and conclusive analysis of the evidence found on the trash bags containing the dismembered bodies of the slain victims. He also explained that current advancement in DNA technology made it possible to achieve results when old evidence is reevaluated, as occurred in this case.
After the attorneys completed their examination of the witness, the trial judge asked a number of questions regarding the transfer of DNA and the degradation of DNA over a ten-year period. After the colloquy, when the judge offered the opportunity to conduct further examination, defense counsel asked several additional questions of the witness. The trial judge then gave a cautionary instruction to the jury with regard to his questioning of the witness.
The PCR judge thoroughly reviewed the trial record and addressed this claim. He determined the trial judge's questions "explored different areas or went into areas not clearly explained on direct and cross [examination]." Further, the trial judge's belief that the technical nature of the testimony made it difficult to understand is supported by the record. More importantly, unlike the situation in O'Brien, where the Court found the trial judge interrupted the witness's testimony with excessive and repetitive questions, O'Brien, supra, 200 N.J. at 537, the trial judge here waited until after both counsel had completed their examinations before asking a limited amount of questions. The judge's examination of the witness was tempered by defense counsel's follow-up re-cross examination of the expert, and the judge's cautionary instruction to the jury.
We agree with Judge Den Uyl that the trial judge's intent in questioning the DNA expert was to clarify the technical aspects of the testimony for the jury's benefit. Consequently, we conclude there was prejudicial error in the trial judge's conduct at trial.
Defendant asserts that appellate counsel failed to raise the issue of trial judge's questioning of the DNA expert on direct appeal, and PCR counsel subsequently failed raise argue ineffective assistance of counsel based upon the same issue. Suffice it to say, based on our conclusion, we would not have reversed defendant's murder convictions if this issue had been raised on direct appeal. There being no reversible error, defendant cannot show a reasonable probability that the outcome of his appeal would have been different but for appellate counsel's silence on this point. State v. Echols, 199 N.J. 344, 361 (2009). Defendant's claim that PCR counsel was ineffective simply lacks any factual allegations whatsoever. It is without merit. R. 2:11-3(e)(2).
Because defendant's PCR petition failed to establish a prima facie case, it was properly denied without a hearing. To the extent not specifically addressed, defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION