STATE OF NEW JERSEY v. RONALD ROBBINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1038-04T41038-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD ROBBINS,

Defendant-Appellant.

_________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Grall and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-08-768.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ronald Robbins appeals from the denial of post-conviction relief. On February 3, 2000, following a jury trial, he was found not guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), but convicted of the lesser included offense of third-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(7), as well as third-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(5)(a). He was sentenced on each count to five years imprisonment with parole ineligibility of two and one-half years. The sentences were to run concurrently, but consecutive to a prison term he had already been serving.

The crime occurred on April 19, 1998, when defendant, an inmate in Trenton State Prison, threw a scalding liquid through the bars of his cell, severely burning Corrections Officer Louis M. Brady, Jr. Earlier that day, Brady had determined to file disciplinary charges against defendant after finding contraband, an immersion heating coil, known as a "stinger," and another inmate's radio in his cell. Immersion coils, which are used for heating water and certain foods, are permitted in certain parts of the prison, but not in the area where defendant's cell was located.

During the trial, Brady testified that he saw defendant throw the liquid from a bucket he was holding and then laugh. After being scalded and suffering second-degree burns on his arm and side, Brady ran down the tier yelling, hit the riot bell, and about five seconds later, reported defendant's assault to two officers who came to his aid, Gregory D. Kelly and Roland Zimmerman, both of whom also testified at trial.

Following the attack, defendant's cell was searched again and Officer Ervin Copeland found a second immersion coil underneath defendant's bed. Both coils were destroyed by prison officials prior to the trial. Wayne Allen Robbins, a senior investigator, testified that, consistent with prison policy, defendant was notified that the coils would be destroyed unless he notified prison officials within a stated number of days what disposition of the coils he desired. The coils were destroyed after defendant failed to respond. Investigator Robbins testified that the prison officials who destroyed the coils did not know they were to be used as evidence in a criminal proceeding. At trial, over the objection of the defense, the court accepted into evidence a sample immersion coil.

On November 1, 2001, we affirmed defendant's conviction and sentence. The New Jersey Supreme Court denied certification on February 6, 2002. State v. Robbins, 171 N.J. 337 (2002). Defendant's petition for post-conviction relief was filed on August 29, 2002. It was denied on July 30, 2004. This appeal was filed on October 29, 2004.

Defendant now argues that his trial and appellate counsel were ineffective. He also contends that the court erred in denying him an evidentiary hearing on his petition. With regard to his trial counsel, defendant maintains that he was ineffective because he failed to move to dismiss the indictment or suppress the evidence based upon the State's purposeful destruction of evidence, the immersion coils. With respect to his appellate counsel, defendant argues that he was ineffective because he failed to raise on appeal the shackling of two defense witnesses, prison inmates who allegedly witnessed the attack.

A claim of ineffective assistance of counsel is to be considered in light of the guidelines established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). It requires a two-prong analysis. In order to prevail, a defendant must first demonstrate that trial counsel committed serious professional errors. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984). Second, a defendant must demonstrate that the professional errors prejudiced him to the extent that he was deprived of a fair trial. Ibid. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Defendant's claim of ineffective assistance of trial counsel was raised by defendant in his appeal of his conviction. We addressed it as follows:

A careful examination of this record reveals that even if defendant could succeed on the "first prong[]" [of the Strickland test,] the evidence was so overwhelming as to lead us to conclude that the asserted errors would not alter the outcome of the trial.

When distilled to its essence, this case focused on Brady's testimony supported in substantial measure by other State witnesses who rushed to the scene, observed defendant, observed the condition of his cell and the surrounding circumstances. Even the testimony of defendant's witnesses do not alter the outcome. We are satisfied that defendant has not met even a threshold burden to proceed further on his claim of ineffective assistance of counsel, and we reject that claim on the merits as well.

In this appeal, defendant has presented no basis for us to reach a contrary conclusion. In making that determination, we note that, given the trial testimony, there was no colorable basis for a claim of bad faith destruction of evidence. See State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). Moreover, defendant is barred from again presenting this ground for relief since it was adjudicated on the merits in his direct appeal. R. 3:22-5. Based upon both considerations, his contention that his trial counsel was ineffective is rejected.

The overwhelming evidence of defendant's guilt also leads us to reject his claim of ineffective assistance of appellate counsel. In addition, we note that the testimony of defendant's witnesses would most likely not have been persuasive regardless of the shackling, given that, on rebuttal, the State introduced evidence that neither inmate was housed on the tier where the assault took place. Moreover, in light of the location and circumstances of the assault, the jury was going to be aware that defendant's witnesses were inmates. To the extent there was any error in shackling the witnesses, it was clearly harmless. We also note, State v. Artwell, 177 N.J. 526, 539 (2003), is not retroactive.

Finally, we reject the argument that factual issues implicated by the post-conviction relief petition required an evidentiary hearing. In fact, we considered defendant's ineffective assistance of counsel claim on direct appeal "recognizing that there are no factual issues to be deferred requiring a hearing." Nothing presented by defendant in support of this appeal leads us to reconsider that determination.

 
Affirmed.

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A-1038-04T4

November 29, 2005