STATE OF NEW JERSEY v. ALONZO PRICE (2011)

Defendant Alonzo Price appeals from an order dated January 14, 2009 denying his petition for post-conviction relief (PCR).  He asserts he made a prima facie showing that his constitutional rights were violated and that he was denied a fair trial due to ineffective assistance of counsel.   He also reasserts every issue raised in his PCR petition.   We have considered his arguments in light of the facts and applicable law, and we affirm the order denying his petition.

On August 19, 2004, a jury found defendant Alonzo Price guilty of two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one and two);  two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts three and four);  one count of third-degree burglary, N.J.S.A. 2C:18-2 (count five);  two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts six and seven);  two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3 (counts eight and nine);  one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven);  one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count thirteen);  one count of theft as a disorderly persons offense, N.J.S.A. 2C:20-3 (count fourteen);  and one count of third-degree theft, N.J.S.A. 2C:20-3 (count fifteen).

The court sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3(a), to a discretionary extended term.   The extended term resulted in an aggregate sentence of life in prison with a twenty-five year period of parole ineligibility, plus thirty years in prison with fifteen years of parole ineligibility.

The convictions arose out of two residential burglaries in Woodbine, which occurred one week apart and involved female occupants living alone.   In each burglary, the women were sleeping in their bedrooms when someone broke into their homes, threatened them, bound and robbed them.¹

Defendant appealed his conviction and sentence.   In a per curiam opinion, we affirmed defendant's conviction but dismissed his third-degree theft conviction on double jeopardy grounds and remanded the case for re-sentencing on all counts.   The Supreme Court denied defendant's petition for certification.   State v. Price, 190 N.J. 256 (2007).

Defendant filed a pro se motion for PCR. Later, defendant, assisted by counsel, submitted a supplemented petition for PCR. After a hearing, Judge Raymond A. Batten denied defendant's petition for PCR. Defendant filed this appeal and asserts he made a prima facie showing of ineffective assistance of counsel.   More particularly, he raises the following points:

POINT I:  THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED.

POINT II:  THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION TO SUPPRESS ADMISSION OF THE CIGARETTE BUTT;  TRIAL COURT'S FAILURE TO SUBMIT SAMPLES OF THE DEFENDANT'S HAIR FOR COMPARATIVE DNA TESTING;  TRIAL COUNSEL'S FAILURE TO PURSUE SUPPRESSION OF THE “FRUIT OF THE POISONOUS TREE” ARISING FROM THE INVALID ARREST WARRANT AND THE IMPROPER VOICE IDENTIFICATION;  AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE JURY CHARGE ON THE DEFENDANT'S ELECTION NOT TO TESTIFY;  RESULTED IN A PRIMA FACIE DEFICIENT PERFORMANCE UNDER THE FIRST PRONG OF THE STRICKLAND /FRITZ TEST, AND A PRIMA FACIE SHOWING OF PREJUDICE UNDER THE SECOND PRONG OF THE TEST.

POINT III:  THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV:  DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN SUPPORT OF POST-CONVICTION RELIEF.

Defendant also submitted a pro se supplemental brief advancing the same challenges, though his brief does not set forth separate point headings.

A prima facie claim of ineffective assistance of counsel requires defendant to show (1) counsel's performance was deficient;  and (2) but for counsel's deficient performance, the outcome of the trial would have been different.   Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 52 (1987).   Adequate assistance of counsel should be measured by a standard of “reasonable competence.”  Fritz, supra, 105 N.J. at 60.   That standard does not require “the best of attorneys,” but rather requires that attorneys be not “so ineffective as to make the idea of a fair trial meaningless.”  State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000).  “[T]he defendant must overcome a ‘strong presumption’ that counsel exercised ‘reasonable professional’ judgment and ‘sound trial strategy’ in fulfilling his responsibilities.”  State v. Loftin, 191 N.J. 172, 198 (2007).

I.

Defendant argues he made a prima facie showing that police fabricated evidence, specifically that detectives switched a cigarette butt found on the roof of the second crime scene with one from his ashtray.   We find this argument to be without merit and rely substantially on the reasons stated by Judge Batten on the record on January 14, 2009.

[p]etitioner now asserts that trial counsel was ineffective in not moving for suppression to the cigarette butt on a chain of custody theory or in the alternative, failing to discredit that evidence through cross-examination or by jury argument because competent counsel would have done either or both of these things.

Petitioner asserts that the cigarette butt was prejudicial and the circumstances of its recovery questionable.   Specifically, obvious high-risk that the cigarette butt was switched from-switched with one from the defendant's home.

These arguments, while interesting and while the subject of extensive dialogue between counsel and the Court when last we convened on this-is nonetheless denied and for the following reasons.

The cigarette butt found by [the victim] was taken into evidence by Detective [Scull] before the defendant's room was searched․  The defense argument, therefore, that the police switched or planted the cigarette butt with one they obtained from his room is not borne by the evidence and certainly not supported.   There is no evidence that [the victim] or the two individuals at the home with [the victim] at the time Detective [Scull] arrived had access to the defendant's room prior to the cigarette butt being found.   As a result, this argument lacks sufficient merit.

As to petitioner's assertion that trial counsel failed to discredit the argument on cross-examination, or when making arguments to the jury, the assertion also lacks merit as specific portions of the trial transcript demonstrate.

We note that the court critically addressed defendant's argument concerning police fabrication of evidence in exhaustive detail.   The court fully reviewed the record in search of credible evidence to support defendant's claims and determined the claims lack sufficient merit.   Our review of the record supports the court's findings that defendant's characterization of the events regarding the discovery of the cigarette butt is factually inaccurate and unsupported by the record.   Furthermore, the court pointed to numerous instances in the record, contrary to defendant's argument, where his counsel attempted unsuccessfully to discredit the cigarette butt's chain of custody.

II.

Defendant argues the PCR court erred by not conducting an evidentiary hearing.   An evidentiary hearing for a PCR petition is not required;  however, the court has discretion to conduct such a hearing if the defendant has established a prima facie case of ineffective assistance of counsel.  State v. Preciose, 129 N.J. 451, 462 (1992).   To establish a prima facie case, defendant must demonstrate a reasonable likelihood of success on the merits.   State v. Marshall, 148 N.J. 89, 158 (1992).  “If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.”  Ibid. (citations omitted).

Here, defendant argues his trial counsel was ineffective for failing to request a comparative DNA test between hair samples from the scene of the crime and defendant.   In addition to the previously cited Strickland /Fritz test, a “[d]efendant must also establish by a preponderance of the credible evidence that there is a reasonable probability that the outcome of the proceedings would have been different had a favorable DNA result been obtained.”  State v. Cann, 342 N.J.Super. 93, 104 (App.Div.2001).   During the PCR hearing, defendant's counsel argued the significance of the hair fibers would be “one more piece of the puzzle” which the jury would pile up to find reasonable doubt.

In determining whether to seek DNA testing, we have recognized a balancing of risks or costs and benefits may be required:

the Legislature also determined that the [Office of the Public Defender] may consider factors such as need and real value to a defense, and weigh those factors against the financial constraints of [the Office of the Public Defender] in determining what are the necessary services and facilities of representation.   Thus, the Legislature has recognized that resources are not unlimited and are subject to budgetary limitations and it has given [the Office of the Public Defender] discretionary authority to determine what services and facilities are to be provided to an indigent defendant.

[Cann, supra, 342 N.J.Super. at 105 (citation and quotation marks omitted).]

Since DNA testing is discretionary within the Public Defender's Office, the issue of trial counsel's failure to offer defendant's hair fibers for comparison becomes one of trial strategy.   Strategic decisions of trial counsel made after a thorough investigation of the reasonable options are “virtually unchallengeable.”  Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed.2d at 695;  see also State v. Martini, 160 N.J. 248, 266 (1999);  State v. Savage, 120 N.J. 594, 617 (1990).  “As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.”  State v. Castagna, 187 N.J. 293, 314-15 (2006).

Although trial counsel did not offer defendant's hair for DNA testing to prove the hairs did not match, counsel did impeach the government's witness about the State's failure to do the same.   We do not consider failure to offer DNA in comparison to the hair fibers found in the victim's apartment to be significant.   Nor does this evidence possess the ability to alter the outcome of the trial.   Moreover, there is no evidence the hair fibers were from the night of the robbery.

Defendant also argues counsel was ineffective for failing to contest the legality of his arrest and failing to move to exclude the “fruits” of the victim's voice identification.   However, as the PCR court correctly found, defendant's claim that trial counsel was ineffective for not moving to suppress fruits of the arrest warrant is meritless.   Although the State in its PCR argument conceded the arrest warrant was invalid, this fact did not have the potential to affect the outcome of the trial, because defendant was already a suspect.

Further the PCR court found, since the facts of the voice identification were not used in the affidavit for the search warrant, that the search warrant was inevitable and not based on the fruits of the unlawful arrest warrant.   Contrary to defendant's claims, trial counsel did move to suppress the search warrant and the evidence seized after it.   The trial court denied the motion, and we affirmed the denial.   We agree with the PCR court and find defendant's argument to be without merit and unsupported by the record.

Defendant argues, for the first time on this appeal, it was error for the trial court to charge the jury using the phrase:  “even if [the defendant] chooses not to testify.”   A PCR claim may not be based on a ground for relief that could reasonably have been raised “in any prior proceeding,” unless the bar would create a “fundamental injustice” or an unconstitutional result.   R. 3:22-4.   Post-conviction relief is not a substitute for a direct appeal nor an opportunity to re-litigate cases already decided on the merits.  Preciose, supra, 129 N.J. at 459.   Pursuant to Rule 2:10-2, a reviewing court is not obligated to consider errors not previously asserted.  State v. Robinson, 200 N.J. 1, 20 (2009).   We, therefore, refuse to address the argument here.

Defendant's remaining arguments are variations of the same theme expressed above and do not warrant discussion in a written opinion.   R. 2:11-3(e)(2).

Affirmed.

FOOTNOTES

FN1. A detailed recitation of the facts can be found in State v. Price, No. A-2211-04 (App.Div. November 15, 2006)..  FN1. A detailed recitation of the facts can be found in State v. Price, No. A-2211-04 (App.Div. November 15, 2006).

PER CURIAM