STATE OF NEW JERSEY v. FREDERICK HEDGESPETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0789-07T40789-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK HEDGESPETH,

Defendant-Appellant.

______________________________________________

 

Submitted January 25, 2010 - Decided

Before Judges Rodr guez, Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-12-3763.

Yvonne Smith Segars, Public Defender, attorney for appellant (Paul A. Rosenthal and Joan E. Karn, Designated Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Frederick Hedgespeth appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In September 1996, defendant was convicted of the murder of Shawn McKay, N.J.S.A. 2C:11-3(a)(1) or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first degree robbery, N.J.S.A. 2C:15-1; two counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b). Judge Donald S. Goldman imposed the following sentence: life with a thirty-year parole disqualifier; a consecutive eighteen-year term with a six-year parole disqualifier; two consecutive eighteen-month terms without parole; and a consecutive ten-year term with a five-year parole disqualifier. We affirmed on direct appeal. State v. Hedgespeth, No. A-1670-96T4 (App. Div. Nov. 12, 1998), certif. denied, 158 N.J. 71 (1999).

The facts are set forth fully in our opinion on direct appeal. This is a summary. In the early evening of October 24, 1995, fifteen-year-old Antonio Rosario was sitting on the porch of a house in Orange along with David Gary, Cherice Gary, and defendant. Defendant asked Antonio to give him some potato chips. Antonio refused. Defendant pulled out a gun and held it to Antonio's head, demanding the chips. Antonio gave him the chips and left to go to the park. David told defendant to "stop playing" and to leave. As defendant was about to leave, Shawn came walking up the street. Defendant asked Shawn for twenty dollars, but Shawn refused. Defendant pulled a gun out and pointed it at Shawn. Defendant put the gun away.

David told defendant to give Shawn the money back. Defendant pulled out the gun again and demanded that Shawn give him the keys to his car. Shawn complied, but refused to walk to the grocery store to get the car. Defendant became angry and before David and Shawn could flee, defendant fired his gun and shot a bullet into Shawn's chest. David called the police. Defendant ran away, telling David to stay away from Shawn. David testified at trial that he interpreted this to mean that defendant wanted Shawn to die. Ultimately, Shawn did die because the bullet severed his aorta and lungs.

At the scene of the crime, Detective Brian David found a spent bullet casing. After obtaining a description of the shooter, the detective and other officers went to arrest defendant. As the detectives approached the building, defendant stepped out, saw them, then ran back inside and shut the door. A family member allowed the detectives to come inside and arrest defendant. The detectives asked the relative where the gun was located. She said in a box behind the door. The detectives retrieved it and it matched the bullet casing found at the scene.

After being arrested, defendant was taken to the police station where he signed a Miranda warning form. He admitted to shooting Shawn because there was a "hit" on him and he thought Shawn was going to kill him. He said, "I shot the motherf * * * * r. That's it." He only shot Shawn once because "you don't need to shoot a n * * * r anymore if you know how to shoot." He admitted that he intended to kill Shawn. He wanted the keys to the car so he could destroy it. He also told his mother over the telephone that he shot Shawn.

During jury voir dire, defense counsel asked for a question relating to an intoxication defense. Judge Goldman cautioned defense counsel that, "there is a potential adverse effect, if I refer to it in my instructions to the jury and it turns out I do not make any charge on it, because you failed to present any evidence of it . . . . [t]hat may rebound against you." A question on intoxication was ultimately presented to potential jurors during voir dire. Additionally, during his opening statement, defense counsel told the jury, "We are going to show you that . . . my client had been drinking, had been drinking heavily all day long, [and] he was drunk."

At trial, David, Antonio, and Cherice all testified that they saw defendant shoot Shawn. David and Cherice also testified that defendant was drinking "Sisco" (an alcoholic beverage) prior to the shooting, but that he was not drunk and "knew what he was doing." According to David and Cherice, defendant was not slurring words, nor stumbling while walking. Defendant was able to converse with everyone. Antonio also testified that defendant spoke clearly when he asked for the potato chips and did not stumble or fall.

Defendant's mother, Debra Denson, testified that she saw her son late that night and that he had been drinking Sisco. She smelled alcohol on his breath. He was stumbling around the room and not speaking properly. In her opinion, defendant was intoxicated.

Defendant testified that before going to the scene, he drank two forty-ounce bottles of beer and smoked five marijuana blunts. Then he consumed half of a bottle of Sisco after he arrived there. Although he was "tipsy," he "knew what was going on." In trying to explain what happened that evening, defendant testified that David told him to "pretend" that he was going to rob Shawn. It was to be a joke. Shawn then gave defendant twenty dollars and his house keys. When David tried to grab the gun away from defendant, it accidentally went off and hit Shawn.

Prior to testifying, David was warned not to mention that he had previously committed crimes with defendant. On the witness stand, David was vague about his relationship with defendant and said they were merely acquaintances and that they "all grew up together." In an attempt to get David to concede that he and defendant had a relationship that might support defendant's claim that David asked him to "pretend" to rob Shawn, defense counsel specifically asked David about the robberies he committed with defendant and whether they had gone to prison together.

After all testimony was heard, Judge Goldman found there was insufficient evidence to charge the jury with an intoxication defense because "[d]efendant's own testimony denies that defense." The judge also gave a limiting instruction to the jury regarding David's testimony about defendant's prior crimes.

Defendant filed the present PCR petition. Counsel filed a supplemental brief. Defendant raised the following claims of ineffective assistance of trial counsel: failure to adequately investigate the defendant's mental status; failure to call an expert witness to adequately present the intoxication defense; failure to present any meaningful evidence at the suppression hearing to rebut the officers' testimony concerning the search of the family apartment; failure to argue that defendant's mother did not have automatic authority to consent to a search of defendant's bedroom; and failure to present adequate evidence in connection to defendant's sole affirmative defense. Defendant also claimed that the prosecution's failure to disclose pending criminal charges against a witness constituted a Brady violation and involved material evidence that prejudiced the proceedings and denied defendant his Sixth Amendment rights.

At a PCR evidentiary hearing, trial counsel, Edward Arlt, testified that he did not recall the extent of his investigation regarding the search of defendant's home. Arlt said he was "sure" that he had interviewed defendant's mother because he called her as a witness. He did not recall whether he interviewed others who were in the apartment at the time the police arrested defendant and found the gun. He hired Dr. Daniel Greenfield to look at all of defendant's psychological records and evaluate whether a psychological or intoxication defense was plausible. Dr. Greenfield told him there was neither a valid defense of intoxication nor an alcohol-induced psychiatric defense. However, Arlt said he would have been "remiss" if he had not asked the court to charge the jury with a defense of intoxication.

Defendant testified at his PCR hearing that he told his mother he consented to the search of his room. Defendant said Arlt never met with him prior to trial and never asked for the names of witnesses to the search. He also said that Dr. Greenfield never asked him about his alcohol or drug use. Defendant again admitted to shooting Shawn, but insisted it was an accident.

In a June 27, 2007 written opinion, Judge Goldman denied the PCR petition. With regard to the intoxication defense, Judge Goldman said that defendant was "his own worst enemy" because defendant testified that he knew what he was doing when he shot the victim and that the alcohol was consumed after the shooting. Defendant failed to present evidence that any experts would have testified in support of an intoxication defense. The judge found it unlikely that any expert would have testified as such, given that several eyewitnesses said defendant was not intoxicated and defendant himself said he "knew what was going on." Thus defendant did not "demonstrate a reasonable likelihood that the jury would have accepted the [intoxication] defense, especially considering the evidence to the contrary."

Similarly, Judge Goldman found that defendant's testimony that he gave his mother consent for the search of his room undermined his arguments that the search was illegal. The judge found that "a claim of incompetence evidenced by a failure to call witnesses must be buttressed by production of the testimony that such witnesses should have given," and defendant did not meet this requirement. Ultimately, the judge found that defendant did not meet the burden of showing "a likelihood that the motion to suppress would have been granted and that if that motion were granted, the outcome of the trial would have been different."

On appeal, defendant contends:

THE MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED AND A NEW TRIAL ORDERED BECAUSE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PRESENT A DEFENSE CONSISTENT WITH THE FACTS, IN UNDERMINING HIS OWN CLIENT'S DEFENSE[S] AND IN FAILING TO ADEQUATELY INVESTIGATE THE SEIZURE OF KEY EVIDENCE.

We disagree.

The standard of review is well-settled. A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 686-89, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 692-95 (1984), which has been adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, a defendant must show that "counsel's performance was deficient" and that counsel's "deficient performance prejudiced the defense." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Further, a petitioner "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999.) In a case where the petitioner alleges counsel failed to investigate or call witnesses, the petitioner must provide the details of what the investigation or testimony would have revealed, supported by certifications. Ibid.

Defendant presented no certifications to the PCR court that another expert witness would have testified as to his intoxication. Defendant's own testimony indicated that he was not intoxicated and defense counsel's expert reviewed all records pertaining to defendant's drug and alcohol use and found no valid defense. Though defendant now argues on appeal that counsel should not have pursued an intoxication defense, this argument is undermined by his own PCR brief, which conceded that defendant's "apparent drinking problem and the intoxication defense were all trial counsel really had to work with in terms of fending off the State's substantial proofs." As Judge Goldman noted, defendant's case was "largely defenseless because of all the eyewitnesses to the murder, [defendant's] confession, and the results of the search." Thus, defendant has failed to establish that "but for" counsel's alleged errors, "the result of the proceeding would have been different." State v. Castagna, 187 N.J. 293, 315 (2006).

Defendant argues his trial counsel was ineffective in failing to keep defendant's prior criminal record from the jury. However, trial counsel questioned David about his prior robbery with defendant in an attempt to establish that defendant and David were friends and to prove the plausibility of defendant's claim that David had encouraged him to jokingly rob Shawn. We note that, after David was questioned about his robbery with defendant, Judge Goldman issued an appropriate limiting instruction to the jury. Thus, defendant waived his objection to the introduction of this evidence and indeed sought to benefit from it as part of a trial strategy.

Defendant also opened the door to impeachment by testifying that he and David had known each other for their whole lives and that David told him to pretend to rob Shawn as a joke. After he took the stand, the prosecution asked defendant about his prior convictions for robbery, unlawful possession of a weapon, and terroristic threats as a means of impeaching him, which was allowable pursuant to N.J.R.E. 609. Given the strong direct evidence against him, defendant has also not established with reasonable probability that "but for" the prior convictions evidence, "the result of the proceeding would have been different." Castagna, supra, 187 N.J. at 315.

Defendant argues trial counsel failed to interview or present any witnesses to counter the police testimony surrounding the search and seizure of evidence at his house. However, defendant has provided no evidence to establish what an investigation would have revealed and whether any witnesses exist to counter the officers' testimony. Without such evidence, defendant's argument fails. See Cummings, supra, 321 N.J. Super. at 170.

Defendant also argues his PCR counsel was ineffective for failing to investigate the circumstances surrounding the seizure of evidence and "conceding" to the judge that "even if trial counsel had erred, [those] errors would have made no difference in the outcome of the trial." However, the record shows that PCR counsel met with defendant prior to the hearing, cited to the record, investigated the claims asserted by defendant, and utilized the most effective argument in light of the facts and applicable law, as required by State v. Rue, 175 N.J. 1, 14-19 (2002), and State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). The transcript reveals the PCR counsel's zealous advocacy for defendant, even when the arguments appear to be without merit. Despite significant questioning from the court, PCR counsel refused to concede that defendant had not satisfied the Strickland test. This is exactly what is required of PCR counsel. Rue, supra, 175 N.J. at 19.

Finally, defendant argues that if this court denies relief on any individual ground, it should then grant relief on the basis of "cumulative error," pursuant to State v. Orecchio, 16 N.J. 125, 129 (1954). Here, we perceive no error, let alone cumulative prejudice to defendant.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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A-0789-07T4

July 2, 2010