STATE OF NEW JERSEY v. CLAYTON WEBSTER

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5693-06T45693-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLAYTON WEBSTER,

Defendant-Appellant.

___________________________________

 

Submitted March 10, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

94-06-0968.

Yvonne Smith Segars, Public Defender, attorney

for appellant (David A. Gies, Designated Counsel,

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

Defendant Clayton Webster appeals from the order of the Law Division denying his third petition seeking post-conviction relief (PCR). We affirm.

Defendant was tried before a jury and convicted of murder, N.J.S.A. 2C:11-3, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On September 18, 1995, the trial court sentenced him to a term of life, with 30 years of parole ineligibility. We affirmed the conviction and sentence, State v. Webster, No. A-2869-96 (App. Div. July 22, 1999); the Supreme Court denied certification on February 3, 2000. State v. Webster, 163 N.J. 75 (2000).

Defendant's first PCR petition, filed on May 8, 2000, was denied by the court without prejudice based on defendant's failure to file a supporting brief. On May 22, 2002, defendant filed a second PCR petition alleging ineffective assistance of counsel based on his trial attorney's failure "to conduct [an] adequate pre-trial investigation on the potential defense of diminished capacity."

After conducting a plenary hearing, the PCR judge denied the petition on October 20, 2003. On defendant's direct appeal, we affirmed. Our decision was reversed by the Supreme Court, State v. Webster, supra, 187 N.J. 254, holding that PCR counsel, assigned by the Public Defender's Office, erred by failing to present to the court hearing the matter all of the grounds advanced by defendant in his pro se petition. Id. at 257-58.

On February 11, 2007, defendant filed an amended petition, purporting to add three additional grounds for relief, all based on ineffective assistance of trial counsel. On May 1, 2007, the trial court denied this third PCR petition.

Defendant now appeals, raising the following arguments:

POINT I

A TRIAL ATTORNEY'S STRATEGIC MISCALCULATIONS WHICH ARE OF SUCH MAGNITUDE AS TO THWART THE FUNDAMENTAL GUARANTEE OF A FAIR TRIAL MAY SUSTAIN A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE TRIAL ATTORNEY'S PRESENTMENT OF AN IMPERFECT SELF-DEFENSE CLAIM WAS NEGATED BY HIS ACQUIESCENCE TO AN INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER.

POINT III

THE DEFENDANT WAS NOT ADEQUATELY PREPARED BY HIS TRIAL ATTORNEY TO ADDRESS THE TWO CONFLICTING THEORIES OF HIS DEFENSE.

POINT IV

AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHY THE DEFENDANT'S TRIAL ATTORNEY DID NOT REMOVE A HISPANIC JUROR WHO HAD A RELATIONSHIP WITH A FEDERAL LAW ENFORCEMENT AGENT.

POINT V

THE TRIAL COURT DID NOT ADEQUATELY INSTRUCT THE JURY IT COULD REJECT THE INFERENCE THAT THE USE OF A HANDGUN WAS EVIDENCE OF THE DEFENDANT'S INTENT TO KILL.

POINT VI

THIS COURT SHOULD REMAND FOR A MORE THOROUGH REVIEW BY PCR COUNSEL OF THE DEFENDANT'S ARGUMENT REGARDING THE GRAND JURY'S COMPOSITION.

We reject these arguments and affirm. We will not recite the facts leading to defendant's conviction. Those facts were stated in detail in our opinion affirming defendant's conviction, and we incorporate them by reference here. State v. Webster, supra, slip op. at 3-5.

As to the argument raised in Point I, we note that defense counsel did in fact move to suppress defendant's statement, although not on the ground of coercion that defendant now argues. Stated simply, the record does not support defendant's claim of coercion. Defendant's response to the interrogating officer's question concerning whether he was forced or coerced to give the statement: "You said you wanted a statement. I gave it to you, you know;" does not suggest improper police conduct.

We have no reason to second guess trial counsel's decision not to call defendant as a witness in the N.J.R.E. 104 hearing held to determine the admissibility of the statement. State v. Savage, 120 N.J. 594, 617-18 (1990). Finally, in addition to this lack of merit, this argument is procedurally barred by Rule 3:22-4 because it should have been made on direct appeal.

The argument raised in Point II lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant has not presented any evidence showing that counsel's strategic decision fell below "the range of competence demanded of attorneys in criminal cases." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)).

The remaining arguments are equally without merit. Arguments attacking the make-up of the jury panel are clearly barred by Rule 3:22-4; the arguments attacking the jury instructions were expressly raised and rejected on direct appeal. R. 3:22-5. Finally, as to the argument raised in Point

VI, the petit jury's verdict renders moot any alleged defect in the composition of the grand jury.

Affirmed.

The parties did not include a copy of our unpublished opinion affirming the denial of this PCR petition in their respective appendices. We note, however, that the Supreme Court noted our decision in its opinion remanding the matter for further proceedings. Webster, 187 N.J. 254, 256 (2006).

Defendant argued that: (1) counsel failed to seek the suppression of a statement he made to Lt. Nagel; (2) he was denied his right to a fair trial by the State's use of this statement; and (3) he made a prima facie case of ineffective assistance of trial counsel, requiring the court to conduct a hearing under State v. Preciose, 129 N.J. 451 (1992).

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A-5693-06T4

June 12, 2009