Opinion
DOCKET NO. A-3809-12T1
06-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DUANE KELLY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-03-0460. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from an order entered by the Law Division on August 6, 2012, denying his petition for post-conviction relief ("PCR"). We affirm.
I.
Defendant was charged in Union County Indictment No. 02-03-0460, with first-degree murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:2-6 (counts one and two); first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (counts three and four); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (counts six and seven); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts ten and eleven); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts twelve and thirteen).
Defendant was tried before a jury. He was found guilty of counts one and two, charging first-degree murder; count three, charging first-degree robbery; counts six and seven, charging felony murder; and count eleven, charging unlawful possession of a weapon. He was found not guilty of counts ten, twelve and thirteen, charging unlawful possession of a .357 and/or .38 caliber handgun, and possession of that weapon for an unlawful purpose. Count four was dismissed.
Defendant was sentenced on December 12, 2003. The court merged the felony murder counts with the murder counts, and imposed two consecutive life terms, each with a thirty-year period of parole ineligibility, for the murder convictions. The court imposed a concurrent twenty-year term for the robbery conviction, with an 85% period of parole ineligibility, as provided by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The court also imposed a concurrent five-year term for the weapons offense.
In March 2004, the court granted defendant's motion to vacate the convictions other than the conviction for the weapons offense because a defense witness had perjured herself during the trial. Another trial followed. Defendant was convicted on all of the counts that were retried. Defendant was re-sentenced on April 15, 2005. The court imposed the same sentences that it had imposed previously for the murder and felony murder convictions. It also merged the robbery conviction with the murder conviction charged in count one.
Defendant appealed and raised the following arguments:
POINT I
THE INSTANT PROSECUTION AS TO MURDER IS PRECLUDED BY THE DOCTRINE OF COLLATERAL ESTOPPEL. ACCORDINGLY, THE CONVICTION MUST BE VACATED AND THE INDICTMENT DISMISSED. U.S. CONST. AMEND. V., XIV; N.J. CONST. (1947) Art. I, Par. 11.
POINT II
THE DEFENDANT'S RIGHT AGAINST DOUBLE JEOPARDY WAS ALSO VIOLATED BY THE STATE'S REFINEMENT OF ITS CASE DURING THE RETRIAL. U.S. CONST. AMEND. V., XIV; N.J. CONST. (1947) Art. I, Par. 11 (Not Raised Below).
POINT III
THE STATE COMMITTED HIGHLY PREJUDICIAL MISCONDUCT BY DENIGRATING THE DEFENSE AND MAKING ERRONEOUS FACTUAL ASSERTIONS IN SUMMATION, NECESSITATING REVERSAL. U.S. CONST. AMENDS. VI., XIV: N.J. CONST. (1947) Art. I, Pars. 9, 10. (Not Raised Below).
POINT IV
THE TRIAL COURT'S PRETRIAL INSTRUCTION AS TO CIRCUMSTANTIAL EVIDENCE WAS HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. (Not Raised Below).
POINT V
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
We affirmed defendant's convictions and sentences in a published opinion. State v. Kelly, 406 N.J. Super. 332, 353 (App. Div. 2009). The Supreme Court granted defendant's petition for certification, limited to the issue of whether the second prosecution was barred by principles of double jeopardy or collateral estoppel. State v. Kelly, 200 N.J. 371 (2009). Thereafter, the Court affirmed our judgment. State v. Kelly, 201 N.J. 471, 494-95 (2010).
II.
In its opinion, the Supreme Court summarized the evidence presented at both trials. Id. at 477-81. Defendant was convicted of murdering Rajuahn Anderson ("Anderson") and Malcolm Mills ("Mills"). Id. at 479, 480-81. Anderson was a drug dealer, who had a cache of marijuana in an apartment in Plainfield, along with a .40 caliber semi-automatic pistol and a .38 caliber revolver. Id. at 477. "Defendant was one of Anderson's trusted friends." Ibid. Defendant, Mills and others were in Anderson's apartment on the afternoon of June 15, 2001. Ibid. Anderson, Mills and others left the apartment, while defendant remained. Ibid. Anderson and Mills returned to the apartment around 5:30 p.m., which was the last time they were seen alive. Ibid.
Defendant was seen walking quickly from the direction of the apartment. Ibid. Around 6:00 p.m., he stole a truck from a location a short distance from Anderson's apartment, and about thirty minutes later, a police officer in Clark saw defendant driving the vehicle. Ibid. A high-speed chase followed. Ibid. Defendant lost control of the vehicle, hit a tree, and took flight. Ibid. He was taken into custody. In the truck, the police found a .40 caliber semi-automatic pistol and a backpack containing bags of marijuana, numerous empty plastic bags, and an electronic scale. Ibid. Testimony indicated that the weapon and the scale were similar to those that Anderson had possessed. Id. at 477-78.
Anderson's and Mills's bodies were found on June 17, 2001. Id. at 478. Both had died from gunshot wounds to their heads. Ibid. The bullets that killed them came from either a .357 or .38 caliber firearm. Ibid. Anderson's .38 caliber handgun was not found in the apartment. Ibid. When the case was first tried, the murder weapon had not been recovered. Ibid. At that trial, defendant presented testimony from Shelley Copeland Perry ("Perry"), who said Terrence Wilson ("Wilson") had admitted to her that he and George Pennant ("Pennant") killed Anderson and Mills during a "botched robbery." Ibid.
The trial court instructed the jury that, based on Perry's testimony, defendant could be found guilty either as a principal or accomplice to murder, felony murder, robbery and possession of a .357 or .38 caliber handgun, with the purpose to use either weapon unlawfully. Ibid. The court also instructed the jury that it could find defendant guilty of robbery only if it found that defendant was armed as a principal or an accomplice with a .357 or .38 caliber weapon. Ibid.
Defendant was found guilty of murdering Anderson and Mills, the felony murders of both victims, the armed robbery of Anderson, and possession of a .40 caliber firearm, but not guilty of possession of a .357 or .38 caliber weapon. Id. at 479. Thereafter, Perry recanted her testimony and statements implicating Wilson in the murders, and the court granted defendant's motion for a new trial on all charges, except for the unlawful possession of a .40 caliber handgun. Id. at 479-80.
At the second trial, the State presented additional evidence in support of the charges. Id. at 480. The .38 caliber revolver, which had been used to kill the victims, had been found on property near Anderson's apartment. Ibid. Anderson's cousin testified that defendant told her he was in Anderson's apartment when the victims were killed. Id. at 480-81. Defendant claimed to have been using the toilet in the basement when some persons entered the apartment. Id. at 481.
Defendant told Anderson's cousin that, when he was returning from the basement, he heard gunshots and the sound of footsteps running from the apartment. Ibid. Defendant said that, after a period of silence, he went to the apartment, where he found the bodies. Ibid. He did not call the police, but took Anderson's drugs and gun. Ibid.
A police officer testified that when he went to the apartment the day the bodies were found, he noticed that the basement toilet "'was pretty much bone dry' and did not appear to have 'been used for awhile.'" Ibid. The jury found defendant guilty of two murders, felony murders, and armed robbery. Ibid.
III.
On June 24, 2010, defendant filed a pro se PCR petition. The court appointed counsel to represent defendant and counsel filed a brief arguing that: defendant was deprived of his constitutional rights to testify on his own behalf, present a defense and cross examine witnesses; defendant was denied the effective assistance of trial and appellate counsel; the cumulative effect of the errors complained of rendered the trial unfair; an evidentiary hearing was required on the petition; and the petition was not barred by procedural considerations.
Judge Scott J. Moynihan considered the petition and rendered an oral decision on August 3, 2012. The judge determined that the petition was barred by Rule 3:22-12(a)(1) because it had been filed more than five years after the judgment of conviction was entered, and defendant had not shown excusable neglect for the late filing. The judge nevertheless considered the merits of the petition and denied relief. The judge's decision was memorialized in an order dated August 6, 2012.
Defendant appeals and raises the following arguments:
POINT I:
THE TRIAL COURT ERED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVALING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HER FAILURE TO THOROUGHLY DISCUSS WITH HER CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH THE DEFENDANT DID NOT TESTIFY IN HIS OWN DEFENSE.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT POTENTIALLY EXCULPATORY TESTIMONY AT TRIAL.
POINT II:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12(a).
Defendant has filed a pro se supplemental brief in which he argues:
POINT I:
THE COURT IMPROPERLY DETERMINED THAT DEFENDANT'S PETITION FOR PCR WAS PROCEDURALLY TIME BARRED (Not raised below).
POINT II:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS PCR CLAIMS BECAUSE HE DID DEMONSTRATE A [PRIMA FACIE] CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL (Not raised below).
POINT III:
PCR COUNSEL VIOLATED [RULE] 3:22-6(d) DURING HIS REPRESENTATION OF PETITIONER
IV.
Defendant argues that he was denied the effective assistance of counsel because his attorney failed to call him as a witness at the second trial. Judge Moynihan rejected this claim, finding that defendant had knowingly, voluntarily and intelligently waived his right to testify at the second trial.
Claims of ineffective assistance of counsel are considered under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The Strickland test requires a defendant to show that the performance of his attorney was deficient, and that counsel's deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Here, Judge Moynihan noted that, after the State rested, the trial court informed defendant's attorney that defendant had the weekend to decide "for a second time" whether he would testify. The trial court told defendant that this was "a personal decision" he had to make in consultation with his attorney. The court told defendant to discuss the decision with his attorney, and to "[t]hink about it" over the weekend.
When the trial resumed, the court reviewed the matter with defense counsel. The following colloquy ensued:
THE COURT: Let's go on the record now. Counsel, have you had a chance over the weekend to discuss [defendant]'s option to testify or not?
[COUNSEL]: We have spoken not only over this weekend, but throughout my representation of [defendant].
THE COURT: He's made a determination?
[COUNSEL]: He has.
THE COURT: What is it please?
[COUNSEL]: He has determined not to become a witness in this case.
THE COURT: Does he wish me to give the charge that speaks to that point?
[COUNSEL]: He does, [Y]our Honor, and we have it signed and witnessed by me.
Thereafter, the court addressed defendant directly:
THE COURT: [Defendant], . . . [h]ave you had enough time to talk to [your attorney] about this important issue?
[DEFENDANT]: Yes.
THE COURT: You understand, because you have been through this twice on the same case, you can testify if you wanted [and] . . . therefore put your view of what happened on that date in the record orally, or you may refuse to testify. If you don't testify no one can speak about that fact to the jury. Understand?
[DEFENDANT]: Yes.
THE COURT: If you testified, then on cross as your lawyer was crossing State's witnesses, this prosecutor could ask you questions too. Right?
[DEFENDANT]: Yes.
THE COURT: Do you want to testify or not?
[DEFENDANT]: No, sir.
THE COURT: For the record you are how old now?
[DEFENDANT]: 35.
THE COURT: How far have you gone in school?
[DEFENDANT]: Twelfth grade.
THE COURT: You can obviously read and write. Correct?
[DEFENDANT]: Yes.
THE COURT: Have you had enough time to consider this very important issue?
[DEFENDANT]: Yes.
THE COURT: And has [counsel] given you enough time to discuss it with her?
[DEFENDANT]: Yes.
THE COURT: Thus far you're satisfied with her work?
[DEFENDANT]: Yes, sir.
THE COURT: You want to testify or not?
[DEFENDANT]: No, sir.
THE COURT: This document that's in front of you, have you gone over that with her?
[DEFENDANT]: Yes.
THE COURT: You want me to charge the jury to that effect?
DEFENDANT: Yes.
Here, Judge Moynihan determined that the record did not support defendant's "self-serving" statement that his attorney had failed to adequately advise him regarding his decision not to testify. Moreover, the judge correctly found that defendant had not shown he was prejudiced by the alleged deficient advice. The judge noted that, despite any deficiencies on the part of defendant's attorney, defendant "was able to make an informed and intelligent decision regarding whether to testify and therefore suffered no prejudice" due to counsel's alleged deficient representation. The judge found that there was no indication that if defendant had testified, the outcome of the trial would have been different. We are convinced the record supports the judge's findings.
V.
Defendant next argues that he was denied the effective assistance of counsel because his trial attorney failed to present exculpatory evidence, which purportedly would have shown that Anderson and Mills were killed when he was in custody. He notes that the State's theory was that Anderson and Mills were killed between 5:30 p.m. and 6:00 p.m. on Friday, June 15, 2001.
Defendant asserts his trial attorney was deficient because she failed to present testimony from two individuals who resided in an apartment next to Anderson's apartment. They had provided statements indicating that they did not hear any noise coming from Anderson's apartment on Friday, June 15. However, they said they heard loud music coming from Anderson's apartment at about 5:20 a.m. the following morning and the music remained loud throughout the weekend.
Defendant also asserts his attorney erred by failing to present testimony from an individual who said she spoke with both victims at around 8:30 p.m. on June 15. Defendant notes that he had been observed driving the stolen truck around 6:07 p.m. and was taken into custody a short time thereafter. In addition, defendant states that his claim is supported by an affidavit of an officer of the Plainfield Police Department, who said the medical examiner had determined that the victims died between 12:00 p.m. and 6:00 p.m. on June 16, 2001.
Judge Moynihan determined that defendant's trial attorney was not deficient in failing to present this evidence. The judge found that testimony from the witnesses who said they heard loud music coming from Anderson's apartment would not have made a difference on the outcome of the trial. The judge noted that evidence had been presented at trial indicating that very loud music was heard coming from Anderson's apartment on the evening of June 16th, and the issue had been thoroughly explored by defense counsel in cross-examination. The judge pointed out that the fact that loud music had been playing did not establish that the victims were alive at that time.
The judge also found that defendant's claim that his trial attorney should have presented testimony from a person who said she had spoken to the victims at 8:30 p.m. on June 15 was unsubstantiated hearsay. The judge noted that this individual's statement had been referenced in a police report, but defendant did not present the PCR court with an affidavit or certification from this witness confirming her statement or her availability to testify.
In addition, the judge rejected the claim that counsel should have presented testimony from the police officer concerning the time of death of the victims. The judge noted that the medical examiner, Dr. Leonard Zaretski ("Zaretski"), had testified that the bodies were found on June 18, and Anderson's body was in the early stages of decomposition when the autopsy was performed. Zaretski indicated that "under ideal conditions" it would have taken thirty-six to forty-eight hours for the body to reach that stage of decomposition. He testified that any assessment of the time of death could have been affected by the temperature and relative humidity of the room where the bodies were found.
Zaretski added that "placement of [the] time of death is the least precise finding in forensic pathology." He testified, however, that it was medically possible for Anderson to have died sometime between 5:30 p.m. and 6:00 p.m. on June 15, 2001. Judge Moynihan noted that, at trial, defense counsel had thoroughly cross examined Zaretski on his findings.
The judge also pointed out that during summation, defense counsel had argued that the jury had "no time of death" to help them in their deliberations, and that Zaretski had "basically indicated" that thirty-six to forty-eight hours before the autopsy was the best that he could do. The judge found that the police officer's statement regarding the time of death was of "no import" particularly in view of Zaretski's testimony that the time of death "could not have been accurately pinpointed."
We are convinced that the Judge Moynihan correctly determined that defendant was not denied the effective assistance of counsel because his attorney failed to present testimony from these individuals.
VI.
In addition, defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. We disagree.
An evidentiary hearing on a PCR petition is required only if the defendant establishes a prima facie case for relief, the court determines that there are material issues of disputed fact that cannot be resolved based on the existing record, and the court decides that a hearing is necessary. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354-55 (2013). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." Ibid.; see also Porter, supra, 216 N.J. at 355.
Here, the PCR court correctly determined that defendant had not presented a prima facie case for relief, there were no material issues of disputed fact, and defendant's claims could be resolved based on the existing record. Therefore, the PCR court was not required to conduct an evidentiary hearing on the petition.
We have also considered the arguments raised in defendant's pro se supplemental brief, and conclude that those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In view of our decision, we need not address defendant's contention that the PCR court erred in finding that his petition was barred by Rule 3:22-12(a)(1).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION