STATE OF NEW JERSEY v. RICHARD HOCKENBERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0995-07T40995-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD HOCKENBERRY,

Defendant-Appellant.

________________________________

 

Submitted: January 6, 2010 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-12-4326.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robert K. Uyehara, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Hockenberry appeals from a September 7, 2007, order denying post-conviction relief (PCR) in connection with his conviction of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and -3a(2); second-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b. At sentencing on June 30, 2000, the second-degree weapons offense was merged into the murder conviction, and a term of life imprisonment subject to the parole ineligibility terms of the Graves Act and the No Early Release Act (NERA) was imposed. Defendant also received a concurrent term of five years on the third-degree weapons offense. For the reasons expressed hereafter, we affirm the denial of defendant's PCR petition.

The evidence at trial established the following facts:

Defendant and three friends, Michael and Dominick Jones and Tony Rutherford, all from Pennsylvania, visited Camden for an overnight stay on October 8, 1997. Ruther ford, age fourteen, had an argument with defendant, age twenty-six, the week before coming to Camden, and defendant was heard to say he was "going to get" Rutherford. Defendant brought a .22 caliber semi-auto matic handgun and Rutherford carried a .38 caliber revolver to New Jersey.

On the night of October 8, 1997, the four friends went for a walk and turned down an alley. Michael and Dominick[] heard a gunshot, looked up and saw defendant with his gun in his hand and Rutherford on the ground. Defendant had shot Rutherford in the back of the head. Defendant handed Rutherford's .38 to Dominick and told him to shoot Rutherford or he would wind up just like Rutherford. Dominick aimed the gun at the left side of Rutherford's head and pulled the trigger. The shooting occurred at approximately 2:00 a.m., after which defendant, Dominick and Michael returned to the apartment where they were spending the night. The three concocted a story that Rutherford sold fake cocaine to a "crack geezer" who shot him.

The next morning, defendant and Dominick gave the .22 and the .38 to Michael and told him to sell them for money to get back to Pennsylvania. Michael sold the .38 and bought bus tickets to leave Camden. Michael then sold the .22 in Williamsport, Pennsylvania, to buy additional bus tickets to continue home to Altoona, Pennsylvania.

At 7:44 a.m. on October 9, 1997, an emergency medical technician (EMT) was dis patched to the alley where Rutherford's body was found. Several days later, defendant admitted to friends in Pennsylvania, including Kevin Stevens, that he shot Rutherford.

During the week between Christmas and New Years in 1997, Julie Vaughn, a friend of both defendant and Rutherford, called defen dant and asked if he had killed Rutherford. Defendant told Vaughn to "shut up." Vaughn repeated the question and defendant admitted he had killed Rutherford. Vaughn then informed a detective with the Altoona Police Department. In April 1998, defendant met Vaughn at a mall in Altoona and demanded that Vaughn tell him what she told the police. When she said she had not told the police anything, defendant threatened her and left.

After the Altoona police reported Vaughn's tip to the Camden Prosecutor, Investigator Jim Koslowsky went to Altoona to interview people about the shooting. On April 30, 1998, Koslowsky interviewed defendant's girlfriend, Heather Hand. Dur ing the interview, defendant paged Hand numerous times. At the same time, defendant was calling the Altoona Police Department. When advised of defendant's calls, Koslowsky invited defendant to come in and talk. Defendant arrived at the Altoona Police Department and admitted to Koslowsky that he was in Camden on the day of the shooting, but claimed he was not present when the shooting occurred. Defendant was not taken into custody and left the police department after the interview.

On May 18, 1998, Koslowsky signed a com plaint charging defendant with Ruther ford's murder and traveled to Altoona to arrest him. Defendant, who was not at his home, was ultimately located at a campsite, arrested and transported to the Altoona Police Department.

At the Altoona Police Department, defen dant was advised of his Miranda[] rights. He initially claimed that he was not present at the shooting, but then changed his story, stating that he was six feet away from Dominick when Dominick fired the shots. When Koslowsky told defendant that this was contrary to information provided to the police, defendant admitted that he shot Rutherford with the .22 and that Dominick shot Rutherford with the .38. Defendant then gave a taped statement.

Notwithstanding the taped confession, defendant testified at trial that he was not present when Rutherford was shot and that Michael and Dominick told defendant that Rutherford was shot by a "crack geezer." Defendant claimed he lied in his taped confession to "get it over with."

[State v. Hockenberry, No. A-0234-00T4 (App. Div. Mar. 30, 2004) (slip op. at 2-5).]

Defendant was convicted on all counts and sentence was imposed thereafter.

On direct appeal from his conviction, defendant raised the following issues for our consideration:

POINT I - THE TRIAL COURT ERRED IN REFUSING DEFENDANT'S REQUEST TO CHARGE THE JURY ON SELF-DEFENSE, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT II - THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER, AND THE CONCEPT OF IMPERFECT SELF-DEFENSE, CONSTITUTED A VIOLA TION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Partially Raised Below.)

POINT III - THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE OF A PRIOR THREAT TO THE VICTIM BY THE DEFENDANT, AND IMPROPERLY PER MITTED THE UNLIMITED USE OF THAT THREAT, NECESSITATING REVERSAL. (Partially Raised Below.)

POINT IV - DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE COMMITTED A BRADY[] VIOLATION WHICH INVOLVED MATERIAL EVIDENCE.

POINT V - THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE PROSECUTOR PLAYED DEFENDANT'S TAPED STATEMENT IN WHICH DETEC TIVE KOSLOWSKY ASKED WHY "NUMEROUS PEOPLE" TOLD THE POLICE THAT DEFENDANT HAD BRAGGED ABOUT SHOOTING TONY RUTHERFORD. (Not Raised Below.)

POINT VI - DEFENDANT'S SENTENCE IS EXCESSIVE.

A. State v. Manzie[] Requires Vacation Of The 85% Parole Bar.

B. The Life Term Of Imprisonment Is Not Supported By The Aggravating And Mitigating Factors.

[Id. at 5-6.]

We affirmed in all respects save a required amendment to the judgment of conviction in order to comply with Manzie. Id. at 17-18. The Supreme Court denied certification. State v. Hockenberry, 182 N.J. 148 (2004).

Defendant filed this PCR application in or about July 2005. In that verified petition, defendant alleged that his trial counsel was ineffective because he failed to retain and call a psychiatrist, an expert in police interrogations and coerced confessions, and an expert in crime scene reconstruction, all to testify at defendant's Miranda hearing and at trial. He also asserted his trial counsel was ineffec tive in failing to adequately cross-examine the State's wit nesses both at the Miranda hearing and at trial. He further claimed that he had new evidence that would warrant a rehearing on the Miranda issue and a new trial. Finally, defendant con tended that his appellate counsel was ineffective because she failed to argue that the trial court erred in denying his motion for a new trial based on the weight of the evidence, failed to argue that he was entitled to a directed judgment, and failed to argue that the trial court erred in permitting evidence of his statement to the police.

In support of his PCR petition, defendant filed a July 20, 2005, certification from Michelle Mills, defendant's sister, which he prepared. She certified to events occurring three nights prior to the mur der in question, during which she claimed that Rutherford shot Scott Potts in the presence of Kevin Stevens. After the shoot ing, Stevens barged into her brother's home in Altoona, Pennsyl vania, and told defendant that Rutherford "shot some guy." The next morning defendant was seeking a place for Rutherford to hide, and the Jones brothers stated they had relatives in Camden where Rutherford could "lay low for awhile." Mills' certified that she did not witness or hear of anything after that because she was admitted to the hospital for six days to treat her bronchitis. She then continued:

17. I then saw it on the television news about Rutherford being killed. It made no sense to me because he was going there to hide out.

18. I did see my brother and Stevens while I was in the hospital. I asked my brother, "what had happened[.]" And he replied, "I don't know, I really don't know[.]" My brother was sad and didn't say anymore about it. I gave my brother a tis sue because his eyes were getting watery. He and Stevens then left the hospital.

19. Additionally, I also know where the weapon from the Camden shooting may have come from. Mike and Dominic Jones had bro ken into a police car in Altoona, PA. I witnessed them with several items which came from a police car. They possessed a bullet proof vest; a flashlight; and a black 38 [c]aliber handgun. They had kept all the items except for the vest which they gave away. They told me directly that they robbed a police car as they showed me the items to prove it.

20. I am disclosing the foregoing information for the first time because after the crime initially occurred I was being threatened by phone calls without caller I.D., also by word of mouth from other peo ple, and even some of my family members were told "if I spoke they would get rid of me[.]"

21. I am no longer afraid of these threats because I have moved out of Altoona, PA, and feel a little safer. Nor do I any longer care what these other people think they can do to me.

Defendant's PCR petition was argued on August 24, 2007, with out a plenary hearing. After argument, the judge placed his thorough findings of fact and conclusions of law upon the record. First, the judge reviewed the testimony at trial, the motion for a new trial, imposition of sentence, and the issues raised on appeal. The judge then discussed the standard for granting an evidentiary hearing and the law governing claims of ineffective assistance of counsel. With respect to defendant's claims that his counsel was ineffective for failing to obtain experts, the court noted that defendant had not submitted a cer tification from any type of expert to demonstrate that he was prejudiced by the alleged ineffective assistance of counsel.

With respect to the alleged failure to cross-examine the State's witnesses, the judge found that defendant had not sub mitted any affidavits stating what defendant believed his attor ney failed to ask on cross-examination. As such, the judge found defendant again failed to demonstrate any prejudice from the alleged ineffective assistance of counsel.

With respect to defendant's claims that his counsel was ineffective for failing to request lesser-included charges, the judge again found that petitioner failed to provide an affidavit stating the factual basis for his belief that trial counsel should have asked for such a charge. Furthermore, the judge found that we had determined the issue when we found there was "no rational basis for giving the manslaughter charges, as there was no error here, much less plain error. If there is no warrant than there's no basis to have raised it."

With respect to defendant's claim that his trial counsel was ineffective for failing to adequately investigate the case, the judge again noted that defendant had not provided any affi davits explaining what he believed trial counsel failed to investigate or how that investigation would have changed the outcome. As to the sister's certification, the judge noted that she did testify at trial as a character witness, and the judge found that defense counsel was aware of her scope of knowledge and chose as a matter of strategy not to submit it to the jury because it would "only inflict additional prejudic[ial] material to the defendant." Additionally, the sister would be subject to cross-examination for showing bias to her brother. Further, the subject of her certification would not have changed the outcome of the case, because there was so much other overwhelming evi dence that the minor contradiction established by her certification would not have affected the outcome.

The judge then turned to defendant's claims of ineffective assistance of appellate counsel. The judge noted that defendant had "not stated any grounds on which he believes the motion for [a] new trial should have been granted." As a result, he found defendant was not entitled to an evidentiary hearing on that matter. The judge also relied on Rule 3:22-5 with respect to the claim that trial counsel was ineffective for failing to argue for lesser-included charges. He found that some of the issues raised by defendant could have been raised on direct appeal and were barred from PCR consideration under Rule 3:22-3, but noted that he elected to address the issues on the merits. Accordingly, the judge denied the PCR application in its entirety. This appeal followed.

Defendant presents the following issues for our consideration:

POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.

A. Trial Counsel Failed To Retain An Expert Witness At The Miranda Hearing In Order To Support That His Confession To The Police Was Coerced.

B. Trial Counsel Failed To Ques tion Michelle Mills As A Fact Witness.

POINT II - THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO SUBPOENA TWO ALIBI WITNESSES. (Not Raised Below.)

Defendant subsequently filed a supplemental brief in which he raised an additional issue for our consideration, which we have renumbered to run consecutively to the points raised in his main brief on appeal. That issue is:

POINT III - THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO DISCUSS WITH HIM HIS OPTION, OR RIGHT, TO TESTIFY AT THE MIRANDA HEARING. (Not Raised Below.)

As to defendant's Points II and III, it is well-settled that we "will decline to consider questions or issues not prop erly presented to the trial court when an opportunity for such presentation [was] available." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also State v. Arthur, 184 N.J. 307, 327 (2005). The only exceptions to that rule are for questions that "'go to the jurisdiction of the trial court or concern mat ters of great public interest.'" Ibid. (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Neither exception is trig gered here. As a consequence, we decline to consider the issues raised by defendant in Points II and III. These issues could and should have been raised as part of defendant's PCR petition and supported with evidence, which they are not at this point.

With respect to defendant's first point on appeal, we review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, as here, we "may exercise de novo review over the factual infer ences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).

We briefly review the law governing claims of ineffective assistance of counsel. The right to counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const. amend. VI, XIV; N.J. Const. art. I, 10. In New Jersey, this guarantee requires not just the presence of an attorney, but the effective assistance of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A] criminal defendant is entitled to the assis tance of reasonably competent counsel, and . . . if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey under Fritz, supra, 105 N.J. at 57-58. Whether the defendant's constitutional right to counsel has been abridged is "measured by applying a 'simple, two-part test.'" State v. O'Neal, 190 N.J. 601, 629 (2007) (quoting Fritz, supra, 105 N.J. at 52).

First, the defendant must show that coun sel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance preju diced the defense. This requires showing that counsel's errors 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.]

To meet the first prong of the Strickland/Fritz test, a con victed defendant must identify acts or omissions by trial counsel that were not the result of reasonable professional judgment. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002); Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. The defendant must show that "coun sel's representation fell below an objective standard of reason ableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A court analyz ing a defendant's argument under this first prong "must give great deference to counsel's performance and must strongly pre sume that the attorney's conduct constituted reasonable profes sional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22 (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). The court should not review the attor ney's performance with the benefit of hindsight, but rather should evaluate the conduct from the attorney's perspective at the time. Id. at 22 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). This prong requires the court to determine whether counsel's acts or omis sions, in light of the existing circumstances, were squarely outside the ambit of professionally competent assistance. Ibid. Consequently, informed strategic choices "are virtually unchal lengeable." Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the defen dant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. "[T]he defendant must show that there is a reasonable probability that, but for counsel's unpro fessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.) (quoting Fritz, supra, 105 N.J. at 60-61), certif. denied, 130 N.J. 17 (1992). The reviewing court "should presume . . . that the judge or jury has acted according to the law." Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Thus, relief should only be granted where a defendant demonstrates that the counsel's error is "so serious as to undermine the court's confidence in the jury verdict or the results reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

To make out a prima facie claim for post-conviction relief "when a petitioner claims his trial attorney inadequately inves tigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

With respect to the alleged failure to retain experts to testify at the Miranda hearing and the trial, defendant has not submitted an affidavit from an expert opining that defendant's confession was not voluntary and knowing. Without such an affi davit, he has not met his burden of establishing a prima facie claim of ineffective assistance of counsel. Ibid. After all, if no expert could so opine, counsel could hardly be judged ineffective for failing to secure an expert.

With respect to the certification from defendant's sister, she did not aver that she never spoke with defendant's trial counsel, and defendant did not aver in his verified petition that he told his attorney that his sister possessed some useful information that should be considered in developing a defense. In any event, even if we assume that trial counsel was ineffec tive in failing to investigate Mills as a potential fact witness, defendant had not demonstrated prejudice from that failure, as he must. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. He has not shown "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 (holding that "[a] reasonable probability is a prob ability sufficient to undermine confidence in the outcome").

As the PCR judge correctly observed, Mills did testify at trial, albeit as a character witness, and the evidence contained in her certification would not have changed the outcome of the trial, because the evidence of defendant's guilt was overwhelming and her testimony would not have rebutted that evidence. Further, Mills indicates in her certification that she had remained silent for years as a result of threats made against her. There is nothing to suggest she would have set aside those fears and disclosed the information in her certification to defendant's counsel prior to the trial had counsel only asked her what she knew. As a result, defendant has not established that his coun sel was ineffective in failing to investigate Mills' knowledge of the crimes at issue.

 
Affirmed.

N.J.S.A. 2C:43-6.

N.J.S.A. 2C:43-7.2.

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).

State v. Manzie, 168 N.J. 113 (2001).

(continued)

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A-0995-07T4

July 13, 2010