STATE OF NEW JERSEY v. EDWARD TETZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2689-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD TETZ,

Defendant-Appellant.

__________________________________

June 29, 2012

Submitted May 16, 2012 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 98-01-0070.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from an order denying post-conviction relief without an evidentiary hearing. Defendant argues the trial court erred in rejecting his claim of ineffective assistance of counsel. He asserted his trial attorney was ineffective because he failed to investigate other suspects; failed to investigate possible degradation of a blood sample used in an incriminating DNA analysis; and failed to move for a change of venue. We affirm.

I.

After an eight-day trial in February-March 2001, a Cumberland County jury found defendant guilty of the first-degree murder on February 11, 1997 of his wife Kimberly,1 N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon (a shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a shotgun without having first obtained a firearms purchaser identification card, N.J.S.A. 2C:39-5c(2). The court sentenced defendant to thirty years without parole on the murder charge. We affirmed the conviction, but remanded for resentencing of the weapons charges, State v.Tetz, No. A-4914-00 (App. Div. March 27, 2003), and the Supreme Court denied certification. State v.Tetz, 177 N.J. 495 (2003).

We incorporate our prior opinion's description of the evidence in support of the conviction. Suffice it to say here that the trial evidence included both scientific DNA evidence and other circumstantial evidence. In December 1996, defendant began an affair with Michelle Melini roughly six months after his marriage to his wife. Defendant had discussed divorce with his wife in January 1997, and Melini told defendant he would have to choose between his wife and her.

At 8:44 p.m. on February 11, 1997, Vineland police officers discovered Kimberly slumped over in her small car in Giampietro Park. She was shot twice at close range by a shotgun. Substantial evidence supporting the conviction included: the affair and defendant's request for divorce; defendant drove a white pickup truck and eyewitnesses saw both a truck and a small car, like defendant's and Kimberly's, in the park shortly before the homicide; defendant's statements to police regarding his affair and his whereabouts before the homicide were belied by other evidence; defendant owned shotguns and police discovered in defendant's home partially empty boxes of ammunition like that used in the murder; and a blood sample found near the truck's gas tank lid matched the DNA of a sample of Kimberly's blood. Actually, two samples of Kimberly's blood were collected and provided to police. One was provided to a police officer present at the autopsy. A second sample was provided later, by a person at Shore Memorial Hospital where Kimberly was taken after the murder. A Vineland police officer retrieved the sample from the hospital and transported it unrefrigerated to Vineland.

In affirming defendant's conviction, we rejected his argument that the trial court erred in failing to exclude DNA test reports linking the blood on the truck to the victim. Without discussion, we rejected as without merit his argument challenging the chain of custody of one of the vials of blood taken from the victim. We also rejected defendant's argument that the trial court erred in prohibiting him from calling three Vineland police officers to testify that they had received information that Kimberly had told a friend that a certain individual had been stalking her, they interviewed the individual who denied the allegation, and they did not pursue the matter further.

Defendant filed his pro se petition for post-conviction relief on August 20, 2004. In a brief filed by appointed counsel on June 19, 2009,2 defendant argued his trial counsel was ineffective because he failed to properly investigate the chain of custody of the blood samples in the case; he failed to investigate the person who allegedly stalked Kimberly and another person in the park; and he failed to seek a change in venue due to pretrial publicity.

After hearing oral argument on September 21, 2009, Judge Richard J. Geiger denied the petition. Defendant filed his notice of appeal February 3, 2011 and raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel was ineffective in failing to investigate other potential suspects.

B. Trial counsel was ineffective in failing to investigate whether the blood evidence had degraded prior to DNA testing and in failing to object to admission of the DNA test results absent proof that the blood evidence had not degraded.

C. Trial counsel was ineffective in failing to seek a change of venue based on pretrial publicity.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

II.

Having reviewed the record, we affirm substantially for the reasons set forth in Judge Richard J. Geiger's oral opinion. Judge Geiger applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel. A petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and(2) counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v.Washington, 466 U.S. 668, 688, 689, 695, 104 S. Ct. 2052, 2064, 2065, 2068, 80 L. Ed. 2d 674, 693, 694, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). We add the following comments.

A.

Defendant argues his trial counsel was ineffective by failing to adequately investigate other potential suspects, including a former boyfriend, Ronald Portadin. According to police reports, Portadin stopped dating Kimberly five years before her death, married within a year after that, and had not seen her since 1993. While witnesses reported to police that Kimberly had stated that Portadin had stalked her, Portadin denied that to investigators. Other witnesses in addition to Portadin explained that Kimberly tended to embellish stories. Defense counsel nonetheless attempted to introduce those hearsay statements, but the court barred the evidence as hearsay, and we affirmed the trial court in an extensive discussion in our opinion on direct appeal.

Judge Geiger rejected the argument that defense counsel was ineffective by failing to investigate Portadin, noting that defendant had failed to demonstrate what information an independent investigation would have produced. The judge also found defendant had failed to demonstrate that the failure to develop proofs as to Portadin were prejudicial. We agree.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland[.]" State v. Preciose, 129 N.J. 451, 463 (1992). "[B]ald assertions" are not sufficient to establish a prima facie case of ineffective assistance of counsel. State v. Cummings, 321 N.J.Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). For example, "when a petitioner claims his trial attorney inadequately investigated 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 makingthecertification." Ibid.

We alsorecognize adefendanthas aconstitutionalright topresentevidencetending toshow athird partycommittedthe crimeof whichthedefendantis accused. Statev.Timmendequas,161 N.J.515, 620(1999). Where adefendantseeks tointroduceevidence ofthe guiltof aspecificthirdparty, suchas Portadinin thiscase,"[t]heevidence,in orderto beadmissible,need notestablish aprobabilityof athird-partyguilt. There needonly beproofcapable ofraising areasonabledoubt onthe issueofdefendant'sguilt." Statev.Millet,272 N.J.Super.68, 99-100(App. Div.1994)(citationsomitted)(trialcourt erredinexcludingevidencethatthird-partyseenwalkingaway fromgas stationon eveningof murderclose intime andplace tocrime).

However, evenifdefendanthadobtainednon-hearsayevidencethat atsomeearliertimePortadinfollowedKimberly orcontinuedto pursueher, thatmay stillhave beeninadmissible,as "it[is] notenough toprove somehostileevent andleave itsconnectionwith thecase tomereconjecture." Statev.Sturdivant,31 N.J.165, 179(1959),cert.denied,362 U.S. 956, 80 S. Ct. 873, 4L.Ed.2d 873(1960). "Somewherein thetotalcircumstancesthere mustbe somethreadcapable ofinducingreasonablemen [andwomen] toregard theevent asbearingupon theState'scase." Ibid. In Statev.Koedatich,112 N.J.225, 302-03(1988)cert.denied,488 U.S. 1017, 109 S. Ct. 813, 102L.Ed.2d 803(1989), thedefendantwas accusedofmurdering ahigh schoolcheerleader. The Courtupheld asremote andspeculativeevidencethat acoach hadmadeobscenephone callsto atelephoneoutside thecheerleaders'lockerroom,reactednervouslywhenquestioned,and owneda carmatchingthe generaltypeobservednear themurderscene.

Here, defendanthas failedto show what additional facts an investigation of Portadin would have produced, let alone that they would have been sufficient to be admissible as evidence of third-party guilt at trial. Defendant thus failed to establish a prima facie case of ineffective assistance, or prejudice therefrom.

B.

In his second point, defendant argues that his trial counsel failed to investigate whether the DNA tests were unreliable because blood evidence collected at Shore Memorial Hospital may have degraded after its collection, during its unrefrigerated transportation to Vineland and subsequent storage by police. Defendant distinguished this point from a challenge to the chain of custody. In other words, in seeking PCR, defendant did not challenge the identity of the blood sample, but its quality. He also asserts the sample was destroyed, precluding a current assessment of it.

Judge Geiger noted that defendant had failed to present expert evidence that a blood sample was susceptible to degradation or transformation during transportation or storage, so as to undermine the validity of DNA tests. He also questioned whether the Shore Memorial sample was even used in the DNA analysis.

We need not resolve the issue of whether the second sample was used, because defendant has failed to establish that, under the circumstances, the blood was susceptible to degradation so as to bring into question the validity of the DNA analysis. Although defendant apparently could not obtain an affidavit regarding the current quality of the sample because it was destroyed, he could have provided cognizable evidence on the general subject of a blood sample's susceptibility to significant degradation that would alter a DNA test result. As he failed to do so, he falls short of establishing a prima facie case of ineffective assistance of counsel and prejudice. See Cummings, supra, 321 N.J.Super. at 170-71.

C.

Defendant also argues his trial counsel was ineffective in failing to seek a change of venue in the face of widespread publicity over the four-year period beginning with Kimberly's murder, and including defendant's arrest, indictment, and the commencement of trial. Articles appeared primarily in the Vineland Daily Journal and the Press of Atlantic City, although one article appeared in 1997 in the Philadelphia Inquirer. Judge Geiger noted that of the seventy-one articles presented, half were three or more years old, and a quarter were published after jury selection. He concluded the subset of pre-trial articles less than three years old did not create an atmosphere that would have prevented trial in Cumberland County. He noted that the voir dire did not indicate that prospective jurors were knowledgeable about the case and unable to be fair and impartial. He noted that only a few jurors even remembered any details about the case, and defendant did not use all of his peremptory challenges. He concluded that a motion to change venue would have been denied if made; therefore, there was no ineffective assistance or prejudice from the failure to move to change venue.

We agree. On a motion to change venue because of pre-trial publicity, a court must determine "[w]hether an impartial jury can be obtained from among the citizens of the county, or whether they are so aroused that they would not be qualified to sit as a jury to try the case." State v. Ravenell, 43 N.J. 171, 181 (1964) (quotation and citation omitted), cert. denied, 379 U.S. 982, 85 S. Ct. 690, L. Ed.2d 572 (1965). This was not a case whether the trial atmosphere was "so corrupted by publicity that prejudice may be presumed." State v.Biegenwald, 106 N.J. 13, 33 (1987).

Where there is no presumed prejudice from pre-trial publicity, a court must determine whether there is actual prejudice. Id. at 33-36. It would be appropriate for an Assignment Judge or his or her designee, Rule 3:14-2, to hold a motion to change venue in abeyance, or to deny it without prejudice, until it could be determined whether actual, as distinct from presumed prejudice, could be demonstrated.

The ultimate question for the Assignment Judge is whether it is possible to select a fair and impartial jury. In many cases the Assignment Judge should either defer ruling on the motion until after some voir dire examination of prospective jurors, or should deny the motion without prejudice to the motion being renewed if the prospective jurors are found by the trial judge to be tainted by the publicity.

[31 N.J. Practice, CriminalPractice and Procedure 15:12, at 749 (L. Arnold) (2011-2012 ed.) (citing UnitedStates v. Haldeman, 559 F.2d 31, 63-64 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977)).]

In this case, defendant has not identified a sitting or deliberating juror who should have been excused because of an inability to be fair or impartial. "The appropriate inquiry is whether the jury selection process actually resulted in a fair and impartial jury." Biegenwald, supra, 106 N.J. at 35-36. Defendant also did not utilize all his peremptory challenges, to remove a juror he believed was tainted by pre-trial publicity, even if court concluded the juror was not.

Although we have found no New Jersey published decision addressing a PCR petition claiming ineffective assistance arising out of the failure to move to change venue, the analysis of the Court of Appeals in Campbell v. Bradshaw, 674 F.3d 578 (6th Cir. 2012) is persuasive. In that case involving a petition for habeas corpus after the state court denied post-conviction relief, the court acknowledged there was prominent pre-trial media coverage, and "most of the prospective jurors were aware of the case." Id. at 594. Yet, as we have here, the court found insufficient facts to demonstrate presumptive prejudice from a circus-like, inflammatory atmosphere, and concluded defendant had failed to show he suffered actual prejudice, based on its review of the actual voir dire. "[Defendant] has not identified any juror who was actually seated that indicated an inability to set aside any prior knowledge about the case or to judge the case fairly and impartially." Ibid. The court concluded that as defendant had not demonstrated prejudice from pretrial publicity, "he suffered no prejudice from his counsel's failure to move for a change in venue." Ibid. We reach the same conclusion with respect to defendant here.

To the extent not specifically addressed, defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A

1 We mean no disrespect by using her first name for clarity's sake.

2 The record does not reflect the reason for the extended delay.