STATE OF NEW JERSEY v. JOHN DOWNIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2947-04T42947-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN DOWNIE,

Defendant-Appellant.

_________________________________

 

Submitted January 25, 2006 - Decided May 24, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

No. 86-01-0134.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and on

the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); attempted murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1; robbery, N.J.S.A. 2C:15-1, all crimes of the first degree; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree. At sentencing, the trial court merged the felony murder conviction into the murder conviction and sentenced defendant to life in prison, with a thirty-year period of parole ineligibility. It also sentenced defendant to a consecutive eighteen years in prison for attempted murder, with a six-year period of parole ineligibility. Defendant's sentences for robbery and possession of a weapon for an unlawful purpose were made concurrent to his sentence for murder.

The offenses for which defendant was indicted and convicted occurred during the early morning hours of December 25, 1985, and judgment of conviction was entered in May 1989. Defendant appealed, and we affirmed in an unpublished opinion. State v. Downie, No. A-5296-88 (App. Div. Dec. 11, 1991). The Supreme Court denied certification. 127 N.J. 564 (1992).

On March 29, 2003, defendant filed his first petition for post-conviction relief. The trial court denied that petition in an order entered on December 10, 2004, nearly twenty years after the crimes for which defendant was convicted. Defendant has appealed from that order. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On appeal, defendant raises the following arguments:

POINT I THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO ABIDE BY DEFENDANT'S REQUEST TO TESTIFY ON HIS OWN BEHALF.

B. TRIAL COUNSEL FAILED TO HAVE THE CASE PROPERLY AND COMPETENTLY INVESTIGATED BY AN EXPERT WITNESS.

C. TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE THE CRIME SCENE.

D. TRIAL COUNSEL FAILED TO ADEQUATELY CHALLENGE THE ADMISSIBILITY OF DEFENDANT'S STATEMENTS.

E. TRIAL COUNSEL FAILED TO PROPERLY CONSULT WITH DEFENDANT TO PREPARE A DEFENSE.

F. CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III THE LOWER COURT ERRED IN DENYING THE PETITION SINCE THE PROSECUTOR ENGAGED IN MISCONDUCT.

POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT TIME BARRED UNDER R. 3:22-12.

POINT V THE LOWER COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

Defendant was convicted of murder in connection with the shooting of Neil Pannetta, who was working the overnight shift on Christmas Eve into Christmas morning in 1985 at a Hess gas station on Route 9 South in Sayreville. Defendant was convicted of attempted murder in connection with his shooting at Police Officer Douglas Sprague of the Sayreville Police Department, who responded to the sounds of gunshots from the Hess station. Defendant inadvertently left his black moccasins at the station, and police K-9 tracking dogs followed the scent to defendant's nearby home. At the time of the shooting, defendant was twenty-one years old, and Pannetta was eighteen.

A defendant charged with a criminal offense is entitled to the effective assistance of counsel. State v. Sugar, 84 N.J. 1, 17 (1980). The principles underlying a claim of ineffective assistance of trial counsel are well-known and may be briefly summarized. To sustain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A defendant claiming ineffective assistance of counsel must demonstrate, first, that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. It is insufficient, moreover, to show that the error now complained of had some conceivable effect on the outcome of the trial. "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, 104 S. Ct. at 1068, 80 L. Ed. 2d at 698. New Jersey has adopted this two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).

Additionally, in considering the first prong, whether counsel's performance was deficient, an appellate court will not second-guess counsel's trial decisions which rest upon strategic or tactical considerations. State v. Buonadonna, 122 N.J. 22, 38 (1991).

We are satisfied, as was the trial court, that defendant's claims are not only time-barred under R. 3:22-12, but are legally insufficient as well. In order to circumvent the five-year time bar of R. 3:22-12, defendant submitted a certification that he was not in his right mind after he was placed in jail and was thus unable to work on his case. He also pointed to a fire in his jail cell in 2003 that destroyed his file. We concur with the trial court that defendant's assertion about his mental state is entirely unsupported by any professional assessment and that a fire in 2003 is immaterial. By the date of the fire, defendant's right to file a petition for post-conviction relief had already expired many years earlier.

The trial court, nonetheless, recognized that the five-year time bar may be relaxed in exceptional circumstances. State v. Milne, 178 N.J. 486, 492 (2004) ("[A]bsent compelling extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay") (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). The trial court thus reviewed the particular assertions of defendant that his trial counsel was ineffective. It compared those assertions against the trial record and concluded that defendant's arguments were not supported by the record. We agree with the trial court's conclusions. It is clear, moreover, that defendant's belated assertions about wishing to testify to explain that the shooting was accidental are fundamentally inconsistent with his other complaints that defense counsel was ineffective for failing to pursue certain avenues to establish that someone else was responsible for the shooting.

In connection with this appeal, defendant also asserts that he received ineffective assistance of counsel in conjunction with his direct appeal. He recognizes, as he must, that the United States Supreme Court has held that an appellate attorney is not obligated to present every argument on appeal, no matter its relative strengths or weaknesses. Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). He asserts, nonetheless, that the attorney who represented him on his direct appeal was ineffective for failing to raise the arguments that defendant has presented to us about his trial counsel.

This argument is unpersuasive for two reasons. It is well-recognized that claims of ineffective assistance of trial counsel are particularly suitable to be raised as part of a petition for post-conviction relief, as opposed to direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). More importantly, we have rejected the arguments defendant criticizes his appellate counsel for not pursuing. Perforce, his appellate counsel could not have been ineffective for not including those arguments in his appellate papers.

We also reject defendant's contention that the prosecutor engaged in misconduct during his trial. Initially, not only is this contention barred by R. 3:22-12, it is also subject to the constraints of R. 3:22-4, for defendant should have raised this assertion on his direct appeal.

Defendant complains of three brief comments by the prosecutor in her extensive summation. No objection was made to those remarks at the time of trial, and no complaint was made of them on appeal. Having reviewed the sections of which defendant now complains, we consider the assertion of prosecutorial misconduct to be wholly unwarranted. The prosecutor did no more than engage in the vigorous advocacy to which she was entitled.

State v. Frost, 158 N.J. 76, 82 (1999).

Defendant's final assertion is that the trial court erred in deciding the merits of his petition for post-conviction relief without conducting a plenary hearing. We disagree. An evidentiary hearing must be held in connection with a petition for post-conviction relief if defendant establishes a prima facie case of ineffective assistance of counsel. State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). Defendant, however, failed to establish such a prima facie case. There was no error on the part of the trial court in this regard.

 
The order under review is affirmed substantially for the reasons expressed by Judge DeVesa in his oral opinion of November 15, 2004.

(continued)

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A-2947-04T4

May 24, 2006