STATE OF NEW JERSEY v. DAVID STARR DAVID TERRELL STARR (2011)

Defendant David Starr appeals the denial of his petition for post-conviction relief.   We affirm.

I.

We discern the following procedural history and facts from the record on appeal.

In April 2005, Starr was convicted of murder, N.J.S.A. 2C:11–3(a)(1) and/or (2) (count one);  felony murder, N.J.S.A. 2C:11–3(a)(3) (count two);  robbery, N.J.S.A. 2C:15–1 (count three);  unlawful possession of a handgun, N.J.S.A. 2C:39–5(b) (count four);  and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39–4(a) (count five).   On count one (murder), the judge imposed a sixty-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. The same sentence was imposed on count two (felony murder), to run concurrent to the sentence imposed on count one.   The judge merged counts three (robbery) and five (possession of a firearm for an unlawful purpose) with count four (unlawful possession of a handgun) and imposed a flat, four-year sentence, to run concurrent to the sentences imposed on counts one and two.

In our opinion on Starr's direct appeal, we outlined the underlying facts as follows:

On March 14, 2003, at approximately 7:05 a.m., Officer Sean McGuire (McGuire) of the Plainfield Police Department (PPD) was dispatched to a residence on Evona Avenue based on a report that a man was bleeding from the head.   McGuire entered the residence and was directed to the basement, where he observed L.J. laying on a mattress in the rear of the basement.   L.J. was alive, but his heart rate was rapid and breathing labored.

McGuire immediately called for the rescue squad, which responded to the scene and attempted to perform medical treatment upon the victim.   L.J. was pronounced dead at 7:43 a.m. He was fifteen years old at the time.   McGuire testified that, while in the basement of the Evona Avenue residence, he observed a plastic bag containing suspected crack cocaine on an “entertainment center” that held a television.

Dr. Leonard Zaretski (Zaretski) performed an autopsy on L.J.'s body the following day.   Zaretski testified that L.J. died as a result of two gunshot wounds to the head.   Detective Michael Sandford of the Union County Police Department testified that the bullets removed from L.J.'s body were .32 caliber projectiles, and were fired from the same weapon.   Officer Glenn Trescott (Trescott) of the PPD testified that he found .32 caliber ammunition behind an air duct in the basement of the residence.   He also found a .45 caliber handgun, a 9 millimeter handgun, suspected cocaine, and twenty three bags of marijuana.

T.J. is L.J.'s mother.   T.J. testified that in March 2003, she was living in the residence on Evona Avenue with L.J., her daughters S.T.J., S.I.J., and S.A.J., and another son, K.J. T.J. testified that L.J. slept in the finished basement of the house.

T.J. stated that on the morning of March 14, 2003, she asked S.I.J. to go and wake L.J. S.I.J. returned with a paper towel full of blood and said that L.J. would not wake up.   T.J. went to the basement.   She shook L.J. and lifted his arms.   He gasped for air but did not verbally respond.   T.J. called the police.

T.J. stated that [Starr] was L.J.'s cousin.  [Starr] slept in her home during the evening of March 13, 2003.   K.C., to whom T.J. referred as her “godbrother,” also stayed in the house that night.   K.C. slept in the living room on the first floor.

T.J. said that the stairway from the first floor was the only way to gain access to the basement.   There was a window in the basement but the window was screwed shut.   T.J. also said that there were two entrances on the first floor of the house.   The front door had two locks, one of which was a dead bolt lock.   The back door had similar locks.   In addition, T.J. had a dog that was free to roam around the house.   According to T.J., the dog did not take “kindly” to strangers.

T.J. testified that on the night before L.J. was killed, she heard [Starr] ask L.J. if he could wear one of his outfits.   L.J. refused.   T.J. said that L.J. owned a brown sweat suit.   L.J. also owned diamond earrings.   In addition, he had a long chain and medallion with diamonds.   T.J. additionally testified that on the morning of March 14, 2003, she heard gunshots at around 6:30 a.m. T.J. said that she was awake at the time, sitting on her bed, watching the news on television.

L.J.'s sister S.I.J. testified that on March 13, 2003, [Starr] was staying in L.J.'s room in the basement of the house.   Sometime during the day, S.I.J. went down to the basement.   L.J. had gone out and [Starr] was there with S.I.J.'s other brother, K.J. S.I.J. saw K.J. reach under a pillow on a couch and pull out a gun.   She also observed [Starr] walk over to L.J.'s cabinet, pull out a “little gun” and point it at K.J. S.I.J. went upstairs to the second floor and, at some point, went to sleep.

S.I.J. testified that the following morning, she awoke around 6:00 a.m. and heard sounds “like a firecracker.”   S.I.R. [sic] heard two sounds, minutes apart.   She said that the sounds were coming from beneath her.   S.I.J. observed [Starr] coming up the stairs.  [Starr] gave S.I.J. a “high-five” and he went into the bathroom.   About ten minutes later, S.I.J. went down to wake L.J.

On the first floor, S.I.J. noticed that the front door was unlocked.   K.C. was asleep.   S.I.J. went down to the basement.   She saw L.J. lying on a mattress on the floor.   He had a cover over his face.   S.I.J. pulled the cover back and told L.J. to wake up.   L.J. did not awaken and S.I.J. started to shake him.   She then observed blood.

K.C. testified that he was staying at the T.J.'s residence on the night of March 13, 2003.   K.C. said that he arrived at the house between 8:00 and 8:30 p.m. and [Starr] answered the door.   K.C. never met [Starr] before.   K.C. entered the house and T.J. arrived about fifteen minutes later.

K.C. stated that L.J. was in the house.   K.C. was present when [Starr] asked L.J. if he could wear his sweat suit and boots and L.J. refused.   K.C. said that [Starr] seemed “a little bit aggravated.”   L.J. and [Starr] left the house together but later, [Starr] returned without L.J.

K.C. testified that afterwards, L.J. returned home.   K.C. was in the living room on the first floor.   L.J. showed K.C. “a big handful of money” and went downstairs to the basement.   K.C. remained upstairs and slept on the couch.   Sometime between 2:30 and 3:30 a.m., a man came to the door.   K.C. said that the man identified himself as C.J., T.J. “or something to that effect.”   The man asked to come in and said that he needed to speak to L.J.

K.C. went to the basement, woke L.J. and asked if he knew the person at the door.   L.J. said that he did.   K.C. went upstairs, let the man into the house, and took him downstairs.   L.J. and the man spoke briefly.   According to K.C., [Starr] was asleep in the basement and did not wake up.   The man left and K.C. locked the door.

K.C. stated that while he was in the basement, he did not see anyone shoot L.J. He also said that, to the best of his knowledge, no one came into the house at any time after that.  [K.C.] woke the following morning when S.I.J. came downstairs, opened the front door, and went into the basement to wake L.J.

L.J.'s sister S.T.J. testified that [Starr] was at T.J.'s residence on the evening of March 13, 2003.   That evening, S.T.J. saw [Starr] standing at the top of the stairway on the second floor with a black handgun in his waistband.  [Starr] said something about leaving and going to Virginia.   S.T.J. went to sleep about 11:00 p.m. and woke around 6:30 a.m. the following day.

S.T.J. recalled hearing two “loud bangs.”   She heard the first sound shortly after she woke up, when she was on her way upstairs to the third floor.   S.T.J. was on her way down from the third floor when she heard the second sound.   S.T.J. thought the sounds came from downstairs.   After she heard the two “bangs,” S.T.J. saw her sister, S.I.J. She was wearing plastic gloves and was holding bloody paper towels.   S.I.J. told her that L.J. was downstairs and he was lying in “two piles of blood.”

S.C. lived next door to the T.J.'s home.   She knew L.J. for about four years and said he was her “best friend.”   S.C. met [Starr] for the first time in the morning on March 13, 2003.   Later that day, S.C. was in the basement of T.J.'s home with L.J. and [Starr].   She said that L.J. was counting money and he was “about to chop some drugs up.”

She testified that she counted a total of $7,800.   She put about $4,000 in a vent, $1,300 in a coat, and L.J. took the remainder.   L.J. put some of the drugs in a plastic bag and placed the bag on top of the vent.   Drugs also were placed behind the sofa.   S.C. said that there was a shotgun behind the sofa and two guns were underneath the entertainment system.   Another gun was broken but [Starr] fixed it and he handed it to S.C. She placed the gun on top of the vent.

In the morning of March 14, 2003, S.C. saw the ambulance and police at L.J.'s house.   She tried calling L.J. on his cell phone but he did not answer.   Later that day, S.C. saw [Starr] at the police precinct.   He was wearing a brown outfit that belonged to L.J. S.C. said that L.J. had two diamond earrings, a pinky ring, and a chain with a pendant with two praying hands.   S.C. said that L.J. never loaned his clothes or jewelry to anyone.

S.C. testified that after L.J. was killed, she returned to his room with the police to show them where the drugs, money and guns were.   Some of the money was missing.   The police found some of the drugs that were placed on top of the vent.   They also found the guns under the entertainment center but did not find the shotgun behind the couch or the gun on top of the vent.

Tammy Green (Ms. Green) is T.J.'s cousin.  [Starr] is also her cousin and he would occasionally stay at her house.  [Starr] came to Ms. Green's home at about 7:45 a.m. or 8:00 a.m. on March 14, 2003.  [Starr] was wearing L.J.'s brown velour sweat suit.  [Starr] also was wearing L.J.'s gold chain.   Ms. Green said that [Starr] took off the chain and placed it on the dining room table.

Ms. Green said that [Starr] went to the door because his sister Vanessa was outside screaming.   Ms. Green let Vanessa into the house.   According to Ms. Green, Vanessa was “hysterical, [and] freaked out.”   Vanessa said that L.J. was dead.  [Starr] was standing next to Vanessa.   Ms. Green said that [Starr] displayed “no type of feeling, or anything at all.”

Ms. Green traveled to Plainfield in a car with [Starr] and others.   They stopped at a convenience store because [Starr] said that he “needed to get” a Pepsi.  [Starr] went into the store and came out with a bottle of Pepsi.   Ms. Green said [Starr] “kind of like washed his hands with it.”   Later, Ms. Green told [Starr] that she heard people saying that he killed L.J. [Starr] replied that this was “bull shit.”   Referring to L.J., [Starr] stated that “when he left, that mother fucker was alive.”

Markell Green (Mr. Green) testified that, at the time of L.J.'s death, he was living with his sister, Tammy.   Mr. Green said that [Starr] came to the house on the morning of March 14, 2004[sic].   He was wearing a rust-colored sweat suit and a chain with diamonds.  [Starr]'s sister arrived and she was screaming.  [Starr] placed the chain on the table.   Calls about L.J. started coming in.   Mr. Green asked [Starr] where he got the chain, and [Starr] said that he and L.J. “went shooting in the Projects early in the morning” and some persons “started dropping things.”

Mr. Green went with his sister, [Starr] and others to Plainfield.   Mr. Green recounted that they stopped at a store where [Starr] purchased a Pepsi.   [Starr] did not drink any of the soda but used it to wipe off his skin from the arms down.   According to Mr. Green, [Starr] said that he was rubbing the Pepsi on his hands because he had been “shooting in the Projects earlier that morning.”   According to Mr. Green, when they arrived at T.J.'s residence, [Starr] asserted that “C.J. did it.”

Peter Martin (Martin) was incarcerated in the Union County jail in March and April of 2003.   Martin met [Starr] in the special housing unit of the jail.   [Starr] told Martin that he shot L.J. twice in the back of the head while L.J. was sleeping.  [Starr] said that he used L.J.'s .32 caliber weapon.  [Starr] told Martin that after the shooting, he removed his clothes, changed into L.J.'s sweat suit, took a gold chain and money, boarded a bus to Newark and later took a taxi to Ms. Green's house in East Orange.  [Starr] said that he needed the money and had to go to Virginia because his girlfriend was going to have his baby the following month.  [Starr] told Martin that “he washed his hands off with Pepsi to get the gunpowder off.”  [Starr] also told Martin that he had taken L.J.'s necklace.

[State v. Starr, No. A–15891589–05T4–05 (App.Div. Oct. 9, 2007) (slip op. at 4–12).]

Starr appealed the conviction and sentence.   We affirmed the conviction, but remanded for resentencing with respect to errors concerning the merger of some of the offenses.  State v. Starr, supra, slip op. at 27.   The Supreme Court denied certification.  State v. Starr, 193 N.J. 587 (2008).

Starr filed a pro se petition for PCR in August 2008, which was supplemented by a brief filed by assigned counsel in February 2009.   Starr argued that he was denied the effective assistance of counsel because, after the trial judge barred the presentation of his proposed defense that L.J. was killed by gang members with whom he had previously been involved, his trial counsel did not focus the defense on the theory that C.J. was the killer.   Following oral argument on April 24, 2009, Judge James C. Heimlich delivered an oral opinion denying the petition.   This appeal followed.

II.

On appeal, Starr raises the following issues:

POINT I:  THE TRIAL COURT ERRED IN DENYING [STARR]'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 PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. SINCE [STARR] PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO PURSUE A THIRD–PARTY GUILT DEFENSE WITH RESPECT TO C.J., THE TRIAL COURT ERRED IN DENYING HIS PETITION WITHOUT AT LEAST AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

“Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992).   Under Rule 3:22–2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law․

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

“A petitioner must establish the right to such relief by a preponderance of the credible evidence.”  Preciose, supra, 129 N.J. at 459.   To sustain that burden, specific facts which “provide the court with an adequate basis on which to rest its decision” must be articulated.  State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22–4(a);  Preciose, supra, 129 N.J. at 459–60.   Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing.  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion.  Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance.  Preciose, supra, 129 N.J. at 459–64.   In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant.  Id. at 462–63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984).   Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient.   Ibid. Under the second prong, a defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.   The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome “ ‘a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ”  Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694).   Further, because prejudice is not presumed, id. at 52, a defendant must demonstrate “how specific errors of counsel undermined the reliability” of the proceeding.   United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed.2d 657, 668 n.26 (1984).

III.

Starr argues that the trial judge should have held an evidentiary hearing to consider his argument that his trial counsel was ineffective because he did not focus the defense on C.J. as the third-party killer.   In denying the petition, the trial judge concluded there was an insufficient basis for the proposed defense because Starr had not satisfied the requirements of 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), with respect to the quality of the evidence of third-party guilt.   In addition, he concluded that, even if the defense should have been pursued, it would not have been successful.   We agree.

A defendant is “entitled to prove his innocence by showing that someone else committed the crime.”  State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L. Ed.2d 803 (1989).   Accordingly, a defendant may introduce probative evidence of a third-party's guilt.  Id. at 297–98.   In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L. Ed.2d 297 (1973), the Supreme Court stated that an accused has a constitutional right under the due process clause of the Fourteenth Amendment to offer evidence of third-party guilt.

The standard adopted by our Supreme Court governing the admissibility of evidence of third-party guilt was set forth in Sturdivant, as follows:

A defendant of course may seek to prove that another agency produced the death with which he is charged.   It would seem in principle to be sufficient if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.

․

We think it not enough to prove some hostile event and leave its connection with the case to mere conjecture.   Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case.   The question of relevancy ultimately rests in a sound exercise of discretion.

[Sturdivant, supra, 31 N.J. at 179.]

The trial testimony established that C.J. left the murder scene at approximately 3:30 a.m., after which the door had been locked.   There was no evidence that he returned to commit the murder, which took place several hours later.   Starr's argument with respect to C.J.'s supposed guilt was the type of “mere conjecture” precluded by Sturdivant.   In contrast, there was considerable evidence that Starr had the opportunity to commit the murder, after which he was seen with a sweat suit and gold chain belonging to L.J. He also admitted the killing to a cellmate.   Thus, even if Starr's defense had focused on C.J. as the perpetrator, there is no reason to believe that the jury would have acquitted him.

Consequently, Judge Heimlich correctly concluded that neither prong of the Strickland test had been satisfied.   Without a prima facie case of ineffective assistance, no hearing was required.

Affirmed.

PER CURIAM