STATE OF NEW JERSEY v. WALIF SMITH

This case can also be found at 199 N.J. 132, 970 A.2d 1048.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1651-07T41651-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALIF SMITH a/k/a DENIES,

Defendant-Appellant.

________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-12-4185-I.

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

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

PER CURIAM

Defendant Walif Smith appeals from a Law Division order denying his post-conviction relief (PCR) petition. Following the waiver of the Family Part's jurisdiction, N.J.S.A. 2A:4A-26, defendant was indicted and tried before the Law Division on a five count indictment. Defendant was convicted of felony murder, N.J.S.A. 2C:11-3(a)(3), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The remaining three charges were merged into the murder conviction. Defendant was sentenced for the murder to life imprisonment with a thirty-year period of parole ineligibility. For the weapons offense, a concurrent fourteen-year term of imprisonment was imposed. Appropriate fees and penalties were also imposed.

Defendant's conviction and sentence were affirmed in our unpublished opinion, No. A-4621-94 (App. Div. Feb. 18, 1997), and the Supreme Court denied certification on June 30, 1997. State v. Smith, 151 N.J. 72 (1997).

Defendant filed a PCR petition, alleging ineffectiveness of his trial and appellate counsel. Noting the PCR petition was filed beyond the five-year limitations period expressed by Rule 3:22-12, the PCR judge, nevertheless, reviewed the two substantive issues raised by defendant. Finding counsel was not deficient and defendant was not otherwise prejudiced by the alleged failure to conduct a complete investigation, Judge Rosenberg rendered a written opinion denying defendant's request for an evidentiary hearing along with his requests for relief.

On appeal, defendant presents the following issues for our review:

POINT ONE

THE COURT BELOW ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW TRIAL BECAUSE THE FAILURE OF TRIAL COUNSEL TO INTERVIEW A CRITICAL WITNESS HE WOULD ARGUE WAS RESPONSIBLE FOR THE CRIMES DEFENDANT WAS ACCUSED OF, AND WHO HE KNEW WAS INTERVIEWED BY THE STATE, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT TWO

THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT A NEW TRIAL BECAUSE THE FAILURE OF TRIAL COUNSEL TO REQUEST A LIMITING INSTRUCTION ON THE PROPER USE OF OTHER CRIME EVIDENCE, PURSUANT TO N.J.R.E. 404b, AND OF APPELLANT COUNSEL TO RAISE THE ISSUE ON APPEAL, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT THREE

THE PCR COURT ERRED BY FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING.

We have considered each of these claims in light of the record and the applicable law, along with the arguments of counsel. We find defendant's arguments unpersuasive and affirm.

We recite the pertinent underlying facts supporting defendant's conviction. On September 21, 1990, at approximately 3:00 p.m., a witness discovered Marion Schultz, age 79, inside her automobile, which had crashed into a tree on Elmwood Avenue in Irvington. Schultz, who was "slumped over the steering wheel and blood had coagulated around her nose . . . " had been shot in the head. Police charged defendant, then fourteen, with Schultz's murder and related offenses.

Defendant's PCR petition addresses two issues, which materially relate to the murder weapon. Malik Brown was called by the State. Brown had contacted police and advised the murder weapon was purportedly used in an unrelated homicide in North Carolina. The gun was recovered on May 18, 1991, and ballistic tests confirmed the gun was used in both the New Jersey and North Carolina homicides. William Elmore was charged with, and later convicted of, the North Carolina homicide. Irvington police questioned Elmore, but ultimately excluded him as a suspect in the Irvington homicide.

Another witness appearing on behalf on the State was Christine Sweet, whose sons were friends with defendant. Sweet related an argument with defendant that occurred approximately one month following Schultz's murder. Sweet stated that during the argument defendant said, "I'll shoot you like I shot that old lady."

On appeal, defendant's arguments mirror those presented below. Defendant seeks a new trial asserting (1) trial counsel failed to interview Elmore, who defendant asserts shot Schultz; (2) trial counsel failed to seek a limiting instruction, pursuant to N.J.R.E. 404(b), regarding Sweet's testimony on cross-examination, which amounted to "other crime's evidence"; and (3) appellate counsel's failure to properly raise these issues on appeal was ineffective. Additionally, defendant maintains the PCR judge erred when he denied defendant's request for a plenary hearing. On appeal, the State argues defendant's PCR motion is time barred, pursuant to Rule 3:22-12.

We recite the principles informing our review. A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting his application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Once a defendant sufficiently alleges specific facts demonstrating the deficient performance, State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), he is entitled to an evidentiary hearing to determine whether "the result of the proceeding would have been different[.]" State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000).

Establishing a prima facie showing of ineffective assistance of counsel requires a defendant's petition meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); and State v. Fritz, 105 N.J. 42 (1987). First, he must demonstrate his counsel's performance was deficient, "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

Under the first prong, "a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170; see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). The sufficiency of counsel's performance under the first Strickland prong must be evaluated based upon standards of attorney performance existing at the time of representation, Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, and in accordance with the law as it existed at that time. State v. Goodwin, 173 N.J. 583, 597-98 (2002).

Under the second prong, a defendant must show a trial error committed was "'so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

"[P]etitions for post-conviction relief must be filed within five years of the judgment or sentence in the absence of facts demonstrating excusable neglect justifying delay." Preciose, supra, 129 N.J. at 476; R. 3:22-12(a). The burden to provide factual evidence demonstrating excusable neglect rests with defendant. State v. Mitchell, 126 N.J. 565, 579 (1992) (quoting State v. Marshall, 244 N.J. Super., 60, 69 (Law. Div. 1990)).

The trial court mentioned it was "not fully convinced" defendant's allegations of problems relating to obtaining assigned PCR counsel justified the application's filing fourteen years following the entry of the judgment of conviction, entered on November 9, 1994. Defendant's submission asserted he believed he engaged counsel in 2000, but defendant's PCR petition was not filed until approximately January 30, 2002. We determine the facts alleged are insufficient to justify the untimely submission, which is barred by Rule 3:22-12(a).

For the sake of completeness, we briefly review the substance of defendant's ineffectiveness arguments. Defendant maintains the failure of trial and appellate counsel to interview Elmore thwarted his challenge to the State's conclusion Elmore was not involved in the murder. Because counsel had no facts from Elmore, cross-examination of the police detectives was "futile." Defendant's demonstrated trial strategy was to pin responsibility for the crime on Elmore.

On September 26, 2007, defense Investigator Francis Reilly and defendant's PCR counsel, conducted a taped telephone interview with Elmore. At best, the interview revealed Elmore had no specific alibi for the date of the murder; but no evidence exculpating defendant was revealed. Thus, the second prong of the Strickland/Fritz test remains unmet.

Defendant's second point is equally unavailing. Defendant states trial counsel's failure to request a limiting instruction prior to eliciting Sweet's biased testimony resulted because counsel was deficient, not strategic. Appellate counsel failed to raise the issue on appeal. After Sweet's direct testimony wherein defendant referenced he "shot the old lady," defense counsel attempted to reveal Sweet's bias. Apparently, her sons and defendant were arrested for weapons possession offenses. The testimony was brief and additional instruction, most likely, would have highlighted defendant's familiarity with weapons.

Our review reveals the Sweet colloquy was a strategic choice made by counsel after investigation and consideration of available options. Counsel's choices neither demonstrated deficient performance, nor likely impacted the trial outcome.

Affirmed.

 

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A-1651-07T4

January 2, 2009