Opinion
DOCKET NO. A-6215-11T1
01-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2449. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the Law Division order entered on March 20, 2012, which denied his petition for post-conviction relief without an evidentiary hearing ("PCR"), and the related August 16, 2012 order denying his motion for reconsideration. We affirm.
I.
Defendant and co-defendant Larry Gibbs were charged under Indictment No. 05-11-2449, with first-degree robbery, N.J.S.A. 2C:15-1 (count one), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two). They were also charged with second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (defendant in count three and Gibbs in count four).
From June 28 through July 13, 2006, defendant and Gibbs were tried before a judge and jury on counts one and two. We summarized the evidence presented at trial in an earlier opinion:
On the evening of September 23, 2003, [Julia] was at the back counter of Katsin's Pharmacy in Red Bank. As she was preparing to close out her register, she was approached by a man wearing a hat and sunglasses who asked if she had anything for a bad hip. She helped the man, whom she later identified as defendant, find several items. Two other employees were in the store, [Amanda,] who was working at the front counter, and [Brandon], who was in the office, as well as several customers. Defendant approached [Julia]'s rear
register, and as [Julia] began to ring up his purchases, defendant pulled out a gun and told her to open the register. At that point two other men entered the store; one remained at front counter with [Amanda] while the other went to the rear to help defendant. The man who remained in the front wore a ski mask which looked as if the holes had been enlarged from their original size.
[Julia] had trouble opening the cash drawer and [Brandon] came to help her. He opened the drawer, which contained approximately $100; the robbers took the money. They then had [Brandon] and [Julia] empty their pockets. Defendant was agitated at how little money they had gotten and took [Brandon] into the store's rear office, insisting he come up with more money. He saw [Julia]'s purse in the office and took her wallet. He then struck [Brandon] in the back of the head with his gun and [Brandon] began to struggle with him. The other man entered the office and punched [Brandon]. After beating [Brandon], the two men fled out the rear door.
The third robber had remained standing at the front counter with [Amanda]. His mask slipped and she recognized him as Larry Gibbs. She told Gibbs both that she was going to tell her father and that his confederates had left. He ran out the front door.
[Brandon], [Amanda,] and [Julia] ran out the back door of the pharmacy and saw the three robbers getting into a dark blue, boxy, cargo-style minivan. The three returned to the pharmacy, locked the back door, and called 9-1-1.
. . . .
In her statement, [Amanda] said she had recognized co-defendant Gibbs because she had babysat for his son. The police prepared three photo arrays, each of which contained defendant's picture, although in a different position. When an array was displayed to [Julia], she selected defendant's picture; she said she was "[ninety-nine percent]" sure he was the robber. When [Amanda] and [Brandon] were each independently shown a photo array, they each selected the same picture, but it was not of defendant.
[Jim] was a pharmacy employee who was not working the day of the robbery. When he reported for work the following day, he set about cleaning up the disarray he found. While doing so, he found a pair of sunglasses in the rear office where [Brandon] had struggled with his assailant. When [Jim] learned that they did not belong to any of the store's employees, he turned them over to the police.
Three days after the robbery, maintenance staff at Lakewood Two Apartments noted a wallet in a storm drain. They retrieved it and learned it belonged to [Julia]. They contacted [Julia] who in turn contacted the police who arranged to pick it up. The spot where [Julia]'s wallet was found was less than one-half mile from defendant's residence.
Approximately a week and a half later the police executed a search warrant for defendant's residence and van. [Detective Robert] Clayton testified that the van, which had been rented by defendant's fiancée, matched the description of the van used by the robbers. From the van's interior the police recovered a blue ski mask and a letter written by co-defendant Gibbs to a prospective employer that was dated September 23, 2003, the date of the
robbery. In defendant's home the police recovered a loaded .45 caliber handgun and a pellet gun. Defendant was placed under arrest.
While defendant was in custody, the police took buccal swabs. They also took swabs from the frames of the sunglasses that [Jim] found in the pharmacy office. These swabs were forwarded to the State Police Laboratory for DNA testing.
The scientist who performed this DNA testing no longer worked at the laboratory at the time of trial, having relocated to Wisconsin. Christopher Huber, who supervises forensic scientists at the laboratory, reviewed her analysis, notes and conclusions and testified in her stead at defendant's trial. He testified that defendant's DNA was tested against four samples taken from evidence recovered by the police: the left arm of the sunglasses, the right arm of the sunglasses, the interior of the ski mask recovered from defendant's van, and the exterior of that ski mask. Huber testified that no DNA was found on the left arm of the sunglasses and defendant was excluded as a possible contributor to the DNA found on the inside of the ski mask. He also testified that defendant was identified as the source of the major DNA profile found at ten of the thirteen loci examined from the DNA recovered from the right arm of the sunglasses. He explained that this major DNA profile occurs in only one out of every 13.4 trillion people in the African-American population. With respect to the outside of the ski mask, Huber testified that a mixture of DNA was present, with no major DNA profile. He also stated that only one out of 1.2 million African-Americans could have contributed to this mixture. Finally, Huber testified that while co-defendant Gibbs could not be excluded as a contributor to the DNA found on the ski mask, he could not
have been a contributor to the DNA found on the sunglasses.
Defendant did not testify and did not present any witnesses. Co-defendant Gibbs presented one witness, the mother of his two children. She testified that [Amanda] never babysat for them and that the blue ski mask found in the van belonged to their younger son. . . .
[State v. Williams, No. A-2112-06 (App. Div. July 2, 2009) (slip op. at 2-7) (footnotes omitted), certif. denied, 200 N.J. 474 (2009).]
We utilize pseudonyms to protect the victims' privacy.
The jury convicted defendant and Gibbs of both counts, and the court dismissed counts three and four on the State's motion. The trial court merged count two into count one and sentenced defendant to forty years of incarceration, consecutive to defendant's pre-existing sentences, with an eighty-five percent period of parole ineligibility. N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction on December 13, 2006. In an unpublished opinion issued on July 2, 2009, we affirmed the verdict. Williams, supra, slip op. at 9-14. The Supreme Court denied defendant's petition for certification. State v. Williams, 200 N.J. 474 (2009).
On January 8, 2010, defendant filed a pro se petition for PCR. Defendant alleged that "my attorney failed to investigate my alibi[,] which would have been easily proven." The trial court assigned counsel, who filed briefs in support of defendant's petition. Defendant also filed an amended PCR petition alleging that he was denied the right to effective assistance of counsel when his attorney failed "to object to . . . the in-court testimony of a scientist who did not perform the test or sign the DNA report[.]"
On March 16, 2012, the PCR court heard oral argument in the matter. The PCR court denied defendant's petition without an evidentiary hearing in a sixteen-page written decision issued on March 20, 2012. Defendant filed a motion for reconsideration, which the PCR court denied on August 16, 2012. The court noted that defendant failed to present any new case law or error by the court related to the claims raised in his underlying petition.
This appeal followed. On appeal, defendant argues:
POINT I - THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING THE PROCEDURAL BAR OF R. 3:22-5 BECAUSE THE DEFENDANT'S PCR ARGUMENT CONCERNING THE WRONGFUL ADMISSION OF DNA TESTIMONY WAS RAISED IN THE CONTEXT OF A VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S FAILURE TO OBJECT TO CHRISTOPHER HUBER'S TRIAL TESTIMONY CONCERNING THE RESULTS OF DNA TESTING RESULTED [IN] INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III - THE COURT'S ORDER DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.We are convinced from our review of the record that these arguments are entirely without merit.
POINT IV - OTHER ISSUES RAISED IN POST-CONVICTION RELIEF ESTABLISHED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
II.
"PCR is our analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014). It is "[n]either a substitute for direct appeal, nor a vehicle to relitigate the merits of cases resolved on their merits[.]" Ibid. (citation omitted). Accordingly, any issue previously adjudicated on the merits is conclusive, and cannot be re-litigated through petition for PCR. R. 3:22-5. Rule 3:22-5 bars issues that are "either identical or substantially equivalent" to previously adjudicated claims. State v. Marshall, 173 N.J. 343, 351 (2002) (internal quotation marks omitted).
On direct appeal, defendant argued that it was plain error for the State to call Huber in lieu of the scientist that performed the DNA analysis, as this violated his right to confrontation, as guaranteed by the Sixth Amendment to the Federal Constitution and article I, paragraph 10 of the New Jersey Constitution. Williams, supra, slip op. at 8. We rejected defendant's argument, finding that he relied on the substitution of witnesses to his strategic advantage, and that, in light of the wealth of remaining identification evidence, any error "was not clearly capable of producing an unjust result." Id. at 9-10.
Presently, defendant argues that his trial counsel's failure to object to Huber's testimony on Confrontation Clause grounds violated his right to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution. The Confrontation Clause guarantees a defendant's right to confront witnesses subject to its waiver. See State v. Williams, 219 N.J. 89, 98 (2014) ("The right of confrontation, like other constitutional rights, may be waived by the accused."). Indeed, as previously noted, defendant attempted to use the State's use of Huber as a substitute witness to his advantage, "arguing to the jury that it should reject Huber's testimony as unreliable because he had not been involved in the testing and analysis that he testified to." Williams, supra, slip op. at 9.
Moreover, the PCR court's holding is supported by the fact that our prior decision rejecting defendant's claims of plain error effectively moots defendant's present claim. In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate: (1) "'that counsel's performance was deficient'"; and (2) that "there is '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, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98 (1984)).
Given that the admission of Huber's testimony was consistent with trial counsel's legitimate strategy, counsel's performance was not deficient. Williams, supra, slip op. at 9. Additionally, given that admission of the testimony "was not clearly capable of producing an unjust result[,]" defendant cannot show a reasonable probability that his trial counsel's objection would have produced a different result. Id. at 10.
Defendant also argues that he was denied the effective assistance of trial counsel because his trial attorney: (1) failed to investigate the fact that defendant was in the hospital on the night of the robbery; (2) did not object to the introduction of certain evidence of other bad acts that defendant committed; (3) failed to object to the prosecutor's misconduct; (4) did not object to the instruction on accomplice liability; (5) did not retain a DNA expert; and (6) did not object to the alleged imposition of a "second" extended term. He also claims that appellate counsel was ineffective because he did not raise "all meritorious issues on direct appeal."
The PCR court correctly noted that the issue of whether defendant was in the hospital at the time of the robbery was previously addressed by the trial court and our earlier opinion. Williams, supra, slip op. at 13. There was no evidence to support the claim, as this court noted in rejecting the argument. Moreover, defendant's PCR petition failed to identify any evidence that could have supported his alibi.
The admission of the evidence of defendant's other bad acts was also addressed in our prior decision on defendant's direct appeal, where we noted that references to these bad acts were made to establish the custody of certain items. Williams, supra, slip op. at 11. We found that the brief references to these other acts was not plain error. Ibid. Thus, counsel's failure to object was not prejudicial.
The PCR court also noted that defendant's claim that the prosecutor committed misconduct by threatening one of the State's witnesses could have been raised on his direct appeal. Nevertheless, the PCR court found that the witness was not threatened. In addition, the PCR court correctly noted that defendant could have raised an issue regarding the accomplice liability instruction in his direct appeal, but failed to do so.
The claim that counsel erred by failing to present testimony from a DNA expert was properly rejected by the PCR court. The court noted that defendant had not provided any evidence of what an expert would have done or said to counter the State's DNA evidence. Defendant failed to show that, but for the testimony of a DNA expert, he would not have been convicted. The record supports the PCR court's determination.
Defendant's claim that he was subjected to an unlawful "second" extended-term sentence is meritless. The trial court imposed one extended term in this case, and made it consecutive to an extended term imposed for an offense committed in another county. We previously held that the statutory bar to the imposition of more than one extended term did not apply here, because defendant "was sentenced separately in two counties for crimes committed in different locations, on different dates, with different victims." Williams, supra, slip op. at 14. The record provides no support for defendant's claim that he received an illegal sentence.
Thus, the record fully supports the PCR court's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel, and that the existing record provided an adequate basis for resolution of defendant's claim. R. 3:22-10(b). Therefore, an evidentiary hearing was not required. See Jones, supra, 219 N.J. at 311 (noting that an evidentiary hearing on a PCR petition is only required when the alleged facts, "when viewed in the light most favorable to [defendant], are sufficient to demonstrate a reasonable likelihood of success on [the] PCR claim").
To the extent we have not specifically addressed any of defendant's arguments, we find them to be 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