STATE OF NEW JERSEY v. ALFRED PHELPS (2010)

Defendant appeals from the July 23, 2008 order of the trial court denying his petition for post-conviction relief (PCR), and from the November 5, 2008 order denying his motion for reconsideration.   We reverse.

In 1996, defendant was indicted for conspiracy to commit murder, attempted murder, aggravated assault, and related weapons offenses;  the victim was Fernando DeMarzino.   Defendant's first trial ended in a mistrial and the second ended in a hung jury.   At his third trial in 1998, he was convicted on all counts.   In June 1998, defendant was sentenced to an aggregate term of forty years with a twenty-year parole ineligibility period.   He appealed his convictions and sentence, and we affirmed.  State v. Phelps, No. A-1037-98 (App.Div. February 26, 2001).   The Supreme Court denied certification.   State v. Phelps, 169 N.J. 611 (2001).

On March 28, 2005, defendant filed his PCR petition, which was heard by the same judge who had presided over his trial.   Defendant raised numerous claims of ineffective assistance of trial counsel, including counsel's failure to call Ronald Rice as a witness, and appended a sworn statement from Rice stating that DeMarzino told him that he (DeMarzino) could not identify who shot him and only named defendant (and his two co-defendants) because they were people he wanted off the street.   The statement is dated October 31, 1995.   Defendant stated that Rice refused to testify at his second trial because his life was threatened and defendant's attorney “misled [defendant] into believing that [counsel] would bring this out and eventually call Rice as a witness, but at the last minute he failed to do so.”   Defendant further stated that, after the trial, he wrote to the Office of the Public Defender to complain about this.

On October 28, 2005, the judge issued a letter decision denying relief.   The State did not raise timeliness as a bar, and PCR was denied on the merits.   Regarding the Rice issue, the judge noted that the State “has not countered with specific facts to dispose of this issue.”   Nonetheless, the judge concluded that PCR counsel had failed to show how the outcome would have been different had trial counsel investigated the possibility of witness tampering.

Defendant appealed.   We reversed and remanded, holding that defendant had established a prima facie case sufficient to warrant a plenary hearing on the Rice issue.  State v. Phelps, No. A-3057-05 (November 13, 2007) (slip op. at 7-8).

The same judge held a hearing on June 6, 2008.   Rice testified that in February 1995, after DeMarzino was released from the hospital following the shooting, Rice asked him if he knew who shot him and DeMarzino said “he had no knowledge, he didn't know who ․ did it.”   Rice was not aware at that time that DeMarzino had implicated Phelps and his co-defendants.   Rice identified his 1995 statement (the one appended to defendant's PCR petition) and stated that he had given it to counsel for co-defendant Washington.

Rice testified that the “State” approached him after “they learned of the statement that [he] gave to ․ Washington.”   Rice was called to testify as a witness for the State, but he refused because threats had been made against members of his family.   No defense attorney called him to testify at trial.

Defendant testified that he did not know Rice at the time Rice gave his statement in 1995.

On July 23, 2008, the judge issued a letter decision, finding that Rice's testimony at the PCR hearing was “that if he had been called as a witness [at trial,] he would not have testified.”   Therefore, the judge found that defendant did not meet the second prong of the test for ineffective assistance of counsel, namely that counsel's failure to call Rice as a witness prejudiced his defense.

Defendant moved for reconsideration and included a certification from Rice stating that he wanted to clarify that he “would not have testified on behalf of the State” but that he “would have testified consistent with [his] pre-trial statement had [he] been called as a defense witness at [defendant]'s trial.”

The judge heard argument on defendant's reconsideration motion on October 31, 2008.   Rice was available to testify but the judge declined to call him, and denied relief based on the judge's recollection that, at the PCR hearing, Rice had said he would not testify, and in his latest affidavit he was trying to say he “made a mistake.”   The judge stated that he would not grant defendant's “motion for reconsideration, despite having received the affidavit from Mr. Rice and with the understanding that if, in fact, he were to testify, that this is what he would say.”

On appeal, defendant presents the following argument for our consideration:

POINT I

DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE HE ESTABLISHED AT THE EVIDENTIARY HEARING THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO CALL RONALD RICE AS A WITNESS FOR THE DEFENSE

While we do not concur that defendant has clearly established ineffective assistance of counsel to a degree entitling him to a new trial, we are satisfied that a remand for a further hearing is necessary.   This is because we do not find clear support in the record for the judge's conclusion that Rice would not have testified on defendant's behalf at trial.   Having reviewed Rice's testimony at the June 6, 2008 hearing, we note that the exchange upon which the judge relied is, at best, somewhat ambiguous.   We point to the following colloquy between the judge and Rice at that hearing:

Q. After you had given the statement ․ to [co-defendant Washington's attorney], did you have any further conversations with him about the events that led to [defendant] being on trial?

A. Any more conversations with who?

Q. Did he talk to you about what you said ․ [i]n that statement[?]

A.  Oh, no, I was never approached by any ․ defense counselor after anything after I originally gave this statement because once the [S]tate ran the superseding indictment, ․ nobody approached me at that time.

Q. And you weren't going to talk anyway.

A. I wasn't-

Q. Is that what you're are saying?

A. -gonna talk anyway, not at that time, i Was not gonna talk.

In our opinion on defendant's direct appeal, we noted that “DeMarzino ․ was the key witness” at trial.  State v. Phelps, supra, slip op. at 8. Rice's 1995 affidavit calls DeMarzino's credibility seriously into question.   Moreover, we question why Rice would have given his affidavit to one of the defense counsel if it was not his intention to aid the defense.

Under the circumstances, we are constrained to reverse and remand for a further hearing where Rice will have an opportunity to clarify his testimony to determine whether the trial judge's interpretation was, in fact, accurate.   Defendant may also consider whether to call his original trial attorney to testify as to whether counsel was aware of Rice's 1995 statement at the time of trial and, if so, what, if any, action he took with respect to that information.

Notwithstanding the protracted history of post-conviction proceedings in this matter, we conclude that defendant is entitled to an opportunity to establish the second prong of his ineffective assistance of counsel claim, namely that counsel's deficient performance in failing to call Rice as a witness at trial prejudiced his defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).

Reversed and remanded for proceedings in conformity with this opinion.   We do not retain jurisdiction.

PER CURIAM