STATE OF NEW JERSEY v. RAYMOND BIRT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5665-04T45665-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND BIRT,

Defendant-Appellant.

 

Submitted: May 22, 2006 - Decided July 20, 2006

Before Judges Fall, C.S. Fisher and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 00-03-0433.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (S. Allan Stacy, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raymond Birt appeals from an order entered in the Law Division on April 22, 2005, denying his petition for post-conviction relief. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Monmouth County Indictment Number 00-03-0433 with second-degree conspiracy to commit the crimes of armed robbery or aggravated assault, or both, N.J.S.A. 2C:5-1; 2C:15-1a(1), -1a(3); and 2C:12-1b(1) (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree purposeful or knowing murder of Kenneth Portlock, N.J.S.A. 2C:11-3 (count three); first-degree felony murder of Portlock, N.J.S.A. 2C:11-3a(3) (count four); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); fourth-degree acquiring a handgun without a permit, N.J.S.A. 2C:58-3a and 2C:39-10a (count seven); and second-degree unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count twelve). Defendant's co-defendants Darrell Foye, William Vernon and Stephen Adams were charged in counts one, two, three, four, five, six, and seven of the indictment. Foye was also charged with two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3b, -3a (counts eight and nine); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count ten); and second-degree prohibited possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7b (count eleven). Vernon was further charged with possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7b (count thirteen).

Vernon and Adams pled guilty to conspiracy and testified for the State in the trial against defendant and Foye. Tried to a jury jointly with Foye between January 3, 2001 and January 25, 2001, defendant was convicted of the charges in counts one through six, as well as count twelve. Defendant was sentenced to an aggregate term of life imprisonment, plus ten years, with thirty-five years to be served before eligibility for parole.

We affirmed the convictions and sentence imposed in an unpublished opinion. State v. Birt, A-6197-00T4 (July 11, 2003). On October 29, 2003, the Supreme Court denied defendant's petition for certification. State v. Birt, 178 N.J. 34 (2003).

The facts adduced by the State at trial were discussed at length in our prior opinion and need not be recounted here at length. In brief, at approximately 5:00 a.m. on November 5, 1999, police officers discovered the body of Kenneth Portlock lying dead on the sidewalk in front of two apartment buildings in Asbury Park. Portlock had been shot in the head and twice in the right thigh. Witnesses to the incident identified defendant as the shooter, and the State produced other witness who testified that defendant had admitted to the shooting of Portlock. Testimony from co-defendants Vernon and Adams disclosed that the shooting of Portlock was the result of co-defendant Foye soliciting defendant and Vernon to rob and inflict a beating on Portlock because Portlock was allegedly "messing with his girl."

On or about February 10, 2004, defendant filed a petition seeking post-conviction relief, contending he had been provided ineffective assistance of trial counsel. On April 22, 2005, a hearing on defendant's petition was conducted in the Law Division before Judge Paul Chaiet. Defense counsel acknowledged that an investigation conducted in connection with the petition had failed to uncover any favorable witnesses for the defense. In a comprehensive oral decision, applying the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the judge found that defendant had failed to demonstrate how, but for the alleged deficiencies by trial counsel, the result would have been different.

The judge also concluded that defendant's contention that trial counsel was ineffective for failing to raise a self-defense or intoxication defense was without merit. The judge noted there were no facts in the record supporting self-defense. With respect to the issue of intoxication, the judge acknowledged there had been testimony that defendant "was very, very drunk." However, the judge concluded that trial counsel had made a strategy decision not to raise this defense and stated that "counsel's strategy is virtually unchallengeable if he thoroughly investigated the law and facts, considered all possible options." He continued:

Now, there certainly was sufficient evidence to support the jury's verdict in this particular case, and there is really no factual basis that I can see to raise this issue. The defendant chose not to testify in this case. Other than someone indicating he was very drunk, there's nothing to indicate that he couldn't form the requisite intent. We'd have to be guessing about that.

There's no testimony from him how much he drank. There's no expert testimony on what affect, if any, that would have had on his ability. Just the bald statement saying that he was drunk is not enough for me to have a hearing as to whether counsel was competent or not competent in going through that allegation.

Regarding defendant's claim that trial counsel had been ineffective due to his failure to move for severance of defendant's trial from that of Foye, the judge noted that the Appellate Division had ruled on this issue and found it to be "clearly without merit." The judge found that defendant was therefore barred from relitigating that issue on procedural grounds. See R. 3:22-5.

The judge rejected defendant's claim that trial counsel was ineffective because he had failed to interview Tumora Davis because defendant had failed to demonstrate how Davis' testimony would have been different had trial counsel interviewed her prior to the trial.

The judge also rejected defendant's claim that trial counsel was ineffective because he had failed to move to strike comments made by the prosecutor during his opening statement regarding a statement given by Leon Bell. The judge noted that the same claim had been raised and rejected on direct appeal. See R. 3:22-5.

Lastly, the judge addressed defendant's claim that the imposition of consecutive sentences was illegal. The judge found that we had already addressed and rejected this claim on the direct appeal, and stated:

I gave him consecutive sentences on the possession of a firearm by a felon because I felt that additional penalties should be imposed because he was certainly in possession of the weapon that he used to kill Mr. Portlock in this case, was one thing. But then being a felon and carrying a weapon was another. And I felt that he should get additional penalty for that. And that was affirmed by the Appellate Division.

So, all in all, I don't see any basis for an evidentiary hearing in this particular matter. I will deny the petition for post-conviction relief.

An order memorializing that denial was entered on April 22, 2005.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO CHALLENGE THE CRIMINAL COMPLAINT.

B. TRIAL COUNSEL FAILED TO MOVE TO STRIKE IMPROPER REMARKS DURING OPENING STATEMENT.

C. TRIAL COUNSEL FAILED TO CHALLENGE THE INDICTMENT.

D. TRIAL COUNSEL FAILED TO OBJECT TO THE INTRODUCTION OF HEARSAY EVIDENCE AT TRIAL.

E. TRIAL COUNSEL FAILED TO HAVE AN INVESTIGATOR TRACK DOWN WITNESSES FAVORABLE TO DEFENDANT.

F. TRIAL COUNSEL FAILED TO INTERVIEW TUMORA DAVIS PRIOR TO TRIAL.

H. TRIAL COUNSEL FAILED TO REQUEST THAT DEFENDANT'S CASE BE TRIED SEPARATELY FROM THE CO-DEFENDANT'S.

I. TRIAL COUNSEL FAILED TO INTRODUCE EVIDENCE TENDING TO PROVE SELF DEFENSE.

J. TRIAL COUNSEL FAILED TO INTRODUCE EVIDENCE OF DEFENDANT'S INTOXICATION.

K. TRIAL COUNSEL FAILED TO PRESENT A DIMINISHED CAPACITY DEFENSE.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE SENTENCE IS ILLEGAL.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANTS' CLAIMS.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Chaiet in his oral opinion delivered on April 22, 2005. We add the following.

 
All of the claims of ineffective assistance of counsel are either based on issues raised and previously adjudicated on direct appeal and are thus barred, R. 3:22-5, see State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1992), or fail to meet the two-prong test articulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693. The evidence presented against defendant was overwhelming, and defendant failed to establish in his petition how any of the testimony adduced at trial would have been different had the actions now suggested by him been taken by defense counsel at trial. He has also failed to show how testimony from Walter Fentress, Ms. Martin, Sharon Jackson, Cheryl Jackson or Percy Prince would have exculpated him in the crimes he was convicted of committing, or how interviewing witness Tumora Davis prior to trial would have changed or augmented her testimony in a favorable way. As properly concluded by Judge Chaiet, there was no basis to warrant an evidentiary hearing on defendant's petition because the allegations were vague, conclusory and unsupported. See State v. Preciose, 129 N.J. 451, 462-64; State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

(continued)

(continued)

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A-5665-04T4

July 20, 2006