STATE OF NEW JERSEY v. JUDE PHILLIPS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUDE PHILLIPS,

Defendant-Appellant.

October 21, 2013

Submitted September 18, 2013 Decided

Before Judges Lihotz, Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3003.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jude Phillips appeals from the July 14, 2011 Law Division order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. For the reasons that follow, we affirm.

We need not repeat at length the salient facts that are detailed in our unpublished opinion affirming defendant's first-degree aggravated manslaughter conviction, N.J.S.A. 2C:11-4a. State v. Phillips, No. A-1307-05 (App. Div. August 23, 2007), certif. denied, 195 N.J. 520 (2008).

Defendant's offenses arise from the November 22, 2002 fatal stabbing of Joan Joaquin in her Verona apartment, which was then set on fire. Defendant, a cable technician, went to Joaquin's apartment to install internet services two days before her murder. That day, defendant encountered a complication and requested that a specialist complete the work on November 22, 2002. On that date, defendant declined assignments from his supervisor, stating he was going to "finish a prior job" relating to "a computer problem."

The police soon identified defendant as a suspect in the murder investigation. Four days later, the police arrested defendant for driving while on the revoked list and transported him to the station for questioning. According to the State, defendant received and waived his Miranda1 rights. While defendant initially denied his presence at the victim's apartment on the date of the murder, he would eventually handwrite a confession and then sign a typed confession.

Defendant was indicted for murder, second-degree arson, and related offenses. He moved to suppress his confession, alleging the police coerced and beat the confession out of him. At a suppression hearing, all four officers denied using any form of coercion against defendant. The motion was denied.

The first trial resulted in a hung jury. Upon retrial, defendant was convicted of the lesser included offense of aggravated manslaughter, along with arson and unlawful possession of a weapon. Defendant was sentenced to consecutive sentences resulting in an aggregate term of thirty-four years imprisonment, with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, eighty-five percent period of parole ineligibility.

Defendant appealed from his judgment of conviction, claiming prosecutorial misconduct and trial error. Defendant did not challenge the denial of his suppression motion on his direct appeal.

On February 23, 2009, defendant filed the PCR petition under review, wherein he alleged that he "was not properly, or effectively represented by my attorney during the pretrial preparation process, and during my trial." On July 14, 2011, Judge Paul J. Vichness, the same judge who presided at both of defendant's trials, as well as his suppression hearing, heard oral argument on defendant's petition. The judge denied the petition, without conducting an evidentiary hearing, finding no "prima facie evidence that there was ineffective assistance of counsel."

In this appeal, defendant presents the following arguments for our consideration:

POINT I

THE PCR COURT ERRED IN DENYING PHILLIPS AN EVIDENTIARY HEARING BECAUSE PHILLIPS' PETITION AND THE INDEPENDENT RECORD ESTABLISHED THAT TRIAL COUNSEL HAD FAILED TO INVESTIGATE AND ADEQUATELY PREPARE FOR THE SECOND TRIAL.

A. Phillips' Counsel Was Ineffective For

Failing To Seek A Miranda Hearing At

The Second Trial When Case Law

Established That Phillips Was

Entitled To A Second Miranda Hearing.

B. Counsel Was Ineffective Because He

Failed To Request An Adverse Inference

Charge For The Testimony Of

Investigators Saraband And Stolarz Who

Had Destroyed Their Handwritten Notes.

C. Counsel Was Ineffective Because He

Failed To Request A Wade2 Hearing Or An

Adverse Inference Charge When Marcia

Zakharia Committed Perjury At The

Second Trial.

POINT II

THE TRIAL COURT ERRED IN DENYING PHILLIPS'S PETITION BECAUSE APPELLATE COUNSEL WAS INEFFECTIVE (Not Raised Below).

Based upon our review of the record and applicable law, we are satisfied that defendant's arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant has not established a prima facie case of ineffective assistance of counsel, as he has failed to show his attorney's performance was deficient or resulted in prejudice. We add the following comments.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.

The determination of whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013).

Defendant first contends that his trial attorney provided ineffective assistance because he did not seek a second Miranda hearing before his retrial. Importantly, defendant does not point to any new evidence or new controlling authority that would have provided a basis for his attorney to request the trial court to modify its initial Miranda determination. As Judge Vichness stated at the PCR hearing,

[N]othing changed as far as what the proofs were on the Miranda hearing . . . . [I]t's not like there was newly discovered evidence.

. . . .

We had a full Miranda hearing the first time. And I found there was no violation of his Miranda rights. If, in fact, people didn't agree . . . that's what they make appellate courts for. It doesn't mean you get to argue on the same facts before the same judge the same law two times. You get to argue it once.

Once an issue has been litigated and correctly decided, relitigation of that issue should be avoided "in the absence of some new or overriding circumstance." State v. Reldan, 100 N.J. 187, 204 (1985) (quoting State v. Hoffler, 174 Conn. 452, 389 A.2d 1257 (Conn. 1978)). Moreover, the record is clear that a second Miranda hearing would not have been granted if requested. As Judge Vichness noted, "[h]ad he filed it, it would have made no difference in the outcome of the case, because he [would not] have [received] a hearing. There had already been one." We agree with the judge's conclusion that defendant cannot claim his attorney was ineffective for failing to file a meritless motion.

Defendant next argues that his trial attorney should have requested an adverse inference charge relating to the testimony of two investigators who destroyed their handwritten notes. The claim lacks merit because State v. W.B., 205 N.J. 588, 608-09 (2011), which mandated retention of police notes, was not decided until well after defendant's direct appeal, and the Court specifically provided that its holding would only be prospective.

Defendant also claims that his attorney should have requested a Wade hearing or an adverse inference charge regarding the testimony of Marcia Zakharia, a witness for the State. Zakharia, a housekeeper the victim interviewed earlier in the day of the murder, testified that defendant was in the victim's apartment during her interview. These points should have been raised on direct appeal. State v. Robinson, 200 N.J. 1, 20 (2009); R. 2:10-2. Regardless, the record does not show any basis for requesting a Wade hearing. The record does indicate, as Judge Vichness noted, that defendant's attorney completed a "vigorous" cross examination, and otherwise rendered effective representation to defendant.

We first note that pursuant to Rule 2:10-2 a reviewing court is not obligated to consider errors not previously asserted unless the questions raised involve the jurisdiction of the trial court or subjects of great public interest. Robinson, supra, 200 N.J. at 20. On the other hand, we retain the ability to consider "plain error not brought to the attention of the trial court" so long as it is "in the interests of justice." Ibid. (quoting R. 2:10-2). However, the exception provided by Rule 2:10-2 is not intended to replace defendant's basic duty to build a complete record by preserving issues for appeal.

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

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).