STATE OF NEW JERSEY v. ALTON BRYANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4448-03T44448-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ALTON BRYANT,

Defendant-Appellant.

__________________________________

 

Submitted: December 19, 2005 - Decided January 24, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-11-3839.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Defendant Alton Bryant is serving a life term of imprisonment with a thirty-five year period of parole ineligibility following his conviction of conspiracy to commit murder, murder, aggravated assault, possession of a prohibited weapon, and possession of a weapon for an unlawful purpose. Defendant appeals the denial of his petition for post-conviction relief following an evidentiary hearing.

According to the testimony at trial, defendant shot Rodney "Fu" Hutchins in the back at the urging of Patrick Bryant. The State's case included the testimony of the victim's girlfriend, Mary Frances, who identified defendant as the shooter. Defendant's petition for post-conviction relief is founded largely on allegations that more aggressive pre-trial investigation would have revealed that Mary Frances' identification of defendant was grounded in reports from by-standers rather than her personal observations.

In his petition for post-conviction relief, defendant argued that newly discovered evidence of an eye witness warranted a new trial, that the trial judge should have recused himself, and that he was denied the effective assistance of trial and appellate counsel because counsel's preparation was insufficient to provide proper representation. At oral argument on April 26, 2002, defendant made a motion of recusal because Judge Fullilove had represented one of defendant's brothers in another proceeding years before. Judge Fullilove denied defendant's motion to recuse himself from the post-conviction relief proceeding and further held that his participation as the trial judge was proper. He noted that no one notified him of the relationship at the time of defendant's 1997 trial, that he was unaware of the relationship at the time, and that the rules governing judicial conduct did not require his recusal.

An evidentiary hearing commenced on August 2, 2002. On that date and on September 20, 2002; December 10, 2002; April 11, 2003; and April 22, 2003, various witnesses, including defendant's trial counsel and his alibi witness, testified. Judge Fullilove issued a written opinion on September 15, 2003, in which he addressed the ineffective assistance of counsel claim. He found that trial counsel did not call defendant's wife as an alibi witness because he did not believe that she was
"a legitimate alibi witness." The judge also found that trial counsel did not call Frank Mattocks (also referred to as Frank Mattox) as a witness because he had witnessed a confrontation between defendant and the victim earlier in the day and that this information supported the State's theory of the case. Therefore, although Mattocks had some information that questioned the credibility of Mary Frances, the State's primary witness, presenting Mattocks as a witness was ill-advised. Finally, the judge found that defense counsel relied on the investigatory efforts of counsel for co-defendant Patrick Bryant, defendant's brother, and that other witnesses could not be located.

Judge Fullilove concluded that the decisions made by trial counsel "fall into this category of strategic choices and do not rise to the level of ineffective assistance of counsel." He also concluded that if the various witnesses could have been located and presented at trial, that the outcome would not have been different.

On appeal, defendant presents the following issues:

POINT I

THE JUDGE BELOW ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL FOR FAILURE TO ARGUE THAT THE IMPOSITION OF THE DISCRETIONARY OFFENDER EXTENDED TERM VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW.

In a pro se supplemental brief, defendant presents the following issues:

POINT I

THE JUDGE ERRED IN DENIAL OF DEFENDANT POST CONVICTION RELIEF AFTER DEFENDANT ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUAR[A]NTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT II

THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM PRESIDING OVER PETITIONER'S TRIAL AND POST CONVICTION RELIEF. THEREBY DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT III

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTIONS.

POINT IV

THE ROOTS OF THE RIGHT TO EFFECTIVE COUNSEL AND THE APPLICABLE STANDARD OF REVIEW.

POINT V

THE JURY INSTRUCTION ON IDENTIFICATION WAS INSUFFICIENT AND UNBALANCED IN FAVOR OF THE STATE THEREBY DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTIONS.

POINT VI

THE STATE'S KNOWING USE OF PERJURED TESTIMONY CONSTITUTES A BRADY VIOLATION AND ACCORDINGLY, A VIOLATION OF DEFEN[D]ANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT VII

THE TRIAL COURT'S ERROR IN PRESENTING A CHARGE OF CONSPIRACY TO MURDER WHEN THERE WAS INSUFFICIENT EVIDENCE TO PROVE CONSPIRACY TO MURDER WHICH VIOLATED DEFENDANT'S RIGHTS THAT ARE GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTIONS.

POINT VIII

THE JUDGE VIOLATED DEFENDANT'S RIGHTS TO A FAIR TRIAL BY GIVEN A CHARGE OF RENUNCIATION AS TO ATTEMPT MURDER OF MARY FRANCIS THIS CHARGE SHIFTED THE BURDEN OF PROOF TO DEFENDANT AND STRENGTHEN THE MISIDENTIFICATION OF MS FRANCIS AND PLACE DEFENDANT AT CRIME SCENE WHEN DEFENDANT REPEATEDLY EXPRESSED HIS COMPLETE INNOCENT. BY THIS CHARGE DEFENDANT AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WAS VIOLATED IN ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTIONS.

POINT IX

DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTRODUCE THE SWORN TESTIMONY OF LIMONIQUE SCOTT AN EYE WITNESS WHO WAS UNAVAILABLE. AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT X

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL THAT GUARANTEE BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION DUE TO APPELLATE COUNSEL FAILURE TO RAISE OBVIOUS ISSUES OF TRIAL ERRORS.

In a second pro se supplemental brief, defendant presents the following issues:

POINT I: THE JUDGE ERRED IN DENIAL OF APPELLANT POST CONVICTION RELIEF AFTER APPELLANT ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II: DEFENDANT SHOULD NOT BE PROCEDURALLY-BARRED FOR ASSERTING THAT THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM PRESIDING AT DEFENDANT'S TRIAL AND PCR HEARING.

POINT III: TRIAL COUNSEL PROVIDED [IN]EFFECTIVE REPRESENTATION; THE PCR COURT ERRED WHEN IT DENIED DEFENDANT'S PCR APP[L]ICATION.

POINT IV: TRIAL COUNSEL PROVIDED INCOMPETENT REPRESENTATION; THE PCR COURT ERRED WHEN IT DENIED PCR RELIEF.

POINT V: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING THE ISSUE OF IMPROPER JURY INSTRUCTIONS ON PCR.

POINT VI: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING A BRADY VIOLATION ON PCR.

POINT VII: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING AN ACQUITTAL OF CONSPIRACY TO COMMIT MURDER CHARGE ON PCR REVIEW.

POINT VIII: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED; THE JUDGE ERRED WHEN HE INSTRUCTED ON THE DEFENSE OF RENUNCIATION TO THE JURY.

POINT IX: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED; LIMONIQUE SCOTT'S STATEMENT TO POLICE SHOULD HAVE BEEN AD[M]ITTED AT TRIAL.

POINT X: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING A CLAWANS.

POINT XI: APPELLATE COUNSEL WAS INEFFECTIVE AND DEFENDANT SHOULD BE ENTITLED TO PCR.

POINT XII: DEFENDANT'S CLAIMS SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING A CUMULATIVE ON PCR.

Post-conviction relief constitutes "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 post-conviction relief:

(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.

[R. 3:22-2(a)-(d).]

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not 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, 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, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, 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 State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 61, 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). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

After careful scrutiny of the record in its entirety, we are satisfied that the post-conviction relief judge's findings of fact are well-supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). Having found that trial counsel had conducted an investigation, had attempted to locate witnesses and had decided not to call witnesses because the negative testimony outweighed the value of any positive testimony, the post-conviction relief judge properly found that defendant did not establish the first prong of the Strickland/Fritz test. We are also satisfied that there was no factual or legal basis to require recusal of Judge Fullilove as either the trial judge or the judge assigned to review his petition for post-conviction relief.

Defendant also contends that trial counsel was ineffective because he failed to argue that the imposition of a discretionary extended term violated his right to due process and right to a jury trial. Defendant asserts that the range for murder was between twenty years and life and that the sentence imposed required additional fact-finding which should have been done by a jury rather than the judge. In support of this argument, defendant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Initially, we note that the rules announced in State v. Natale, 184 N.J. 458 (2005) (Natale II); State v. Abdullah, 184 N.J. 497 (2005); and State v. Franklin, 184 N.J. 516 (2005), do not apply to cases that come before the court on petitions for post-conviction relief in which Blakely claims were not made at trial or on direct appeal. In Natale II, the Court accorded the new rules "pipeline retroactivity." Natale II, supra, 184 N.J. at 494. The Court stated, "'[p]ipeline retroactivity,' -- applying our holding to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal -- best balances principles of fairness and repose." Ibid.

In any event, the Graves Act mandatory minimum term imposed does not contravene State v. Franklin, supra, 184 N.J. at 534. To be sure, a Graves Act mandatory minimum term requires a jury to find that the offense was committed with a gun; however, unlike the facts in Franklin, the jury found that defendant used a gun to kill the victim. Thus, the imposition of a Graves Act mandatory minimum term in this case did not offend constitutional principles. Moreover, defendant was sentenced in accordance with N.J.S.A. 2C:44-3, which allows the imposition of an extended term for persistent offenders. Defendant acknowledges that he was extended term eligible. An extended term imposed on the basis of the prior criminal record of defendant does not violate the Apprendi/Blakely rules. Abdullah, supra, 184 N.J. at 509-10.

Finally, the remaining issues identified by defendant, including the jury instruction on identification, the alleged use of perjured testimony, the inclusion of a conspiracy to commit murder charge in the jury instructions, alleged flaws in the renunciation charge, and introduction of the testimony of Limonique Scott are without sufficient merit to warrant discussion in a written opinion. We note that most, if not all of these allegations could have and should have been raised on direct appeal and are thus procedurally barred. R. 3:22-4. Moreover, none of these assertions were presented in defendant's petition for post-conviction relief. As an appellate tribunal, this court only reviews the rulings on the issues presented to the trial judge. State v. Arthur, 184 N.J. 307, 327 (2005). In other words, this is not the forum to raise additional issues.

 
The order denying the petition for post-conviction relief is affirmed.

The prescribed term for murder is thirty years to life. N.J.S.A. 2C:11-3b(1).

N.J.S.A. 2C:43-6(c).

(continued)

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A-4448-03T4

January 24, 2006