STATE OF NEW JERSEY v. ANTHONY C. TAZEWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5696-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY C. TAZEWELL,

Defendant-Appellant.

____________________________________

December 8, 2009

Submitted November 30, 2009 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 98-10-711-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 2000, a jury found defendant Anthony C. Tazewell guilty of first degree purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1), and related crimes. He received an aggregate term of life imprisonment plus ten years, with a thirty-five year period of parole ineligibility. On direct appeal, we affirmed, State v. Tazewell, No. A-142-00T4 (App. Div. October 29, 2002), and the Supreme Court denied certification. State v. Tazewell, 176 N.J. 279 (2003).

In 2004, Tazewell filed a petition for post-conviction relief. Following a non-evidentiary hearing, Judge Thomas S. Smith denied the petition by order dated December 21, 2006. Tazewell appeals from that order, and we affirm.

By way of background, we incorporate by reference the description of the facts established at trial as set forth in our previously filed opinion noted above. We there observed that the "State presented decisive direct and circumstantial evidence of defendant's guilt." Tazewell, supra, at 3. Among other things, "DNA evidence revealed that the victim's blood was on defendant's right shoe and his fingerprint was identified on the bloody blade of the knife that was used to inflict the multiple stab wounds" to the victim's body. Ibid. We also noted that at trial, defendant admitted having left the victim's apartment in the morning after the murder, but claimed he left her asleep. Id. at 6. He also claimed that if he killed the victim, he was too intoxicated to have the requisite state of mind or that he was provoked because he had found her sleeping with another man. Ibid.

Tazewell offers the following arguments in support of this appeal:

POINT I: THE COURT ABUSED ITS DISCRETION BY APPLYING THE R. 3:22-4 PROCEDURAL BAR IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED.

POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION; TRIAL COUNSEL'S INADEQUATE CROSS-EXAMINATION AND FAILURE TO PRESENT A COHERENT DEFENSE: [sic] TRIAL COUNSEL'S UNILATERAL DECISION TO HAVE THE DEFENDANT TESTIFY; AND TRIAL COUNSEL'S FAILURE TO MAKE APPROPRIATE OBJECTIONS; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.

A. THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

B. THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT IV: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.

After carefully considering the record and briefs, we are satisfied that none of the arguments offered by defendant are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Under Point I, defendant argues that the judge erred in ruling that all of defendant's claims were procedurally barred under Rule 3:22-4. However, after so ruling, the judge addressed defendant's claims on their merits. Consequently, any error in applying the procedural bar is of no moment.

Under Point II, defendant argues that the judge erred in failing to hold a full evidentiary hearing with respect to supposed deficiencies in his attorney's pretrial investigation; cross-examination of witnesses; failure to object to erroneous jury instructions; failure to insure that defendant's decision to testify was knowing, free and voluntary; and failure to present a coherent defense.

The problem with those arguments is that defendant failed to submit specific evidence in support of his claims. Consequently, he failed to meet the requirements for a full testimonial hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant also argues under Point II that his appellate counsel was ineffective for failing to raise the points now under consideration, adding that had counsel done so, defendant would have prevailed on direct appeal. Since we are satisfied, as was Judge Smith, that none of the points would have resulted in a reversal on direct appeal, this aspect of defendant's argument is utterly without merit.

Defendant's Point III merely reiterates the arguments set forth under his Point II, and thus requires no comment.

Defendant's Point IV attempts to reassert "all other issues raised in post-conviction relief." This point, consisting of one sentence, contains neither reference to particular facts, nor citation of relevant legal principles. Consequently, no further comment is required.

To prevail on his petition, defendant had to show that the defense provided was deficient in fact and that it prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 105 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The evidence submitted was deficient in both regards, both as to trial and appellate counsel. To the contrary, one could not reach the conclusion on this record that either attorney was not reasonably competent. Id. at 60-61. Nor could one say that any of the supposed deficiencies of trial counsel were so serious as to "deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Given the overwhelming evidence of guilt, even if the first prong of the Strickland test was established, which is not the case here, defendant clearly failed to establish the second prong. Consequently on that ground alone, affirmance is in order. State v. Taccetta, 200 N.J. 183, 195 (2009).

Affirmed.