STATE OF NEW JERSEY v. PARKER CUSTIS

N

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3284-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PARKER CUSTIS,

Defendant-Appellant.

_______________________________________

June 3, 2013

Submitted May 7, 2013 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-08-0795.

Joseph E. Krakora, Public Defender, attorney for appellant (Jeffrey R. Jablonski, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Parker Custis appeals from an order entered by the Law Division on May 14, 2010, denying his petition for post-conviction relief (PCR). We affirm.

A Cumberland County grand jury charged defendant with second-degree attempted robbery, N.J.S.A. 2C:5-1 and 2C:15-1(a)(1) and (2) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree possession of certain weapons for an unlawful purpose, N.J.S.A. 2C:39-5(d) (count three); and third-degree hindering his own apprehension, prosecution, conviction or punishment, N.J.S.A. 2C:29-3(b) (count four).

Count four was dismissed prior to trial, and defendant was tried before a jury on the remaining counts. At the trial, the State presented evidence which established that on the evening of August 3, 2004, shortly before midnight, a black male entered a convenience store, wearing a mask or scarf and white gloves. He appeared to be holding a knife. He told the cashier to open the register. According to Bessie Bennett, the store's cashier, the man told her to give him the money. He said he had a knife.

Bennett panicked and was unable to open the register. The man ran out the door. Bennett phoned the police and reported that the store had been robbed. She said she could not see the perpetrator's face, but provided the police with a description of his clothing, the car in which he fled, and the direction he traveled. At trial, Bennett identified the clothing worn by the robber, including the mask or scarf with which he was covering his face. Bennett also identified the object wrapped in a paper bag, which she believed was the knife he used. A surveillance camera at the store recorded the attempted robbery. The State played a videotape for the jury.

Trooper Jeffrey G. Reitz of the New Jersey State Police testified that he received a broadcast concerning the incident over his car radio. Reitz drove in the direction of the store and observed a green automobile traveling at a high rate of speed. He confirmed that the car matched the description given by the cashier, and he followed the car. However, before Reitz could effectuate a motor vehicle stop, the car pulled over and stopped. Reitz and his partner exited their police vehicle, and told the driver to exit the car. The driver was later identified as defendant.

Defendant was placed in handcuffs. Reitz shone a flashlight into the car and observed items of clothing that matched the description of the clothes the perpetrator had been wearing, specifically a yellow shirt, gray knit hat, blue T-shirt, and a pair of brown pants. Reitz also observed the suspected knife that the cashier believed the perpetrator carried.

The vehicle was secured in a towing lot. A State Police detective found a pair of boots, a blue shirt and a pair of vinyl or latex gloves in the car. The items recovered from the car were sent to the State Police Laboratory for forensic analysis. The parties stipulated that "the only item which analysis suggested had any connection to [defendant] was . . . the light blue shirt."

After the State presented its case, defendant moved for a judgment of acquittal on all counts. The judge denied the motion as to count one, which charged defendant with attempted robbery. The judge found that the State had presented sufficient evidence to support a conviction on that count. The assistant prosecutor agreed, however, that the State had not carried its burden of proof on the weapons charges. Accordingly, the judge dismissed counts two and three.

Defendant then testified that, on the night in question, he borrowed the car from a friend to take his family shopping. He said he later met James McNair, who he knew from a previous incarceration. Defendant was going to return the car when McNair called and asked if defendant could drive him to a relative's home. McNair said he would pay defendant ten dollars for the ride.

Defendant testified that, after he picked up McNair, they purchased some beer and drove to the home where McNair's relatives resided, which was near the convenience store where the attempted robbery occurred. Defendant said he was smoking a marijuana "cigar" in the car, when McNair ran back to the car. According to defendant, McNair had changed his clothes, and he was sweating and panting.

Defendant and McNair drove to an auto repair shop, where McNair exited the car and left clothing in the rear seat. Defendant drove off, but he had only traveled a short distance when he noticed that he was being followed by a police vehicle. Defendant stopped the car. Defendant testified that when he was arrested, he immediately suspected that McNair committed the robbery.

The jury found defendant guilty on count one. Defendant was sentenced on March 16, 2007. The judge sentenced defendant to nine years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2(a), and imposed appropriate fines and penalties. Thereafter, the judge modified the sentence to add the mandatory three-year period of parole supervision, pursuant to N.J.S.A. 2C:43-7.2(c).

Defendant appealed and raised the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS THE INDICTMENT BASED UPON DOUBLE JEOPARDY, MANDATORY JOINDER AND FUNDAMENTAL FAIRNESS.

POINT II

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A STATE TROOPER INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT (NOT RAISED BELOW).

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant filed a pro se supplemental brief in which he incorporated the arguments presented by his attorney and raised the following additional contentions:

POINT ONE

DEFENDANT['S] [] [F]IFTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION WAS VIOLATE[D], [SPECIFICALLY HIS] PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT TWO

PETITIONER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF SENTENCE AND DURING TRIAL, WHICH VIOLATED [] DEFENDANT'S SIXTH AMENDMENT[] RIGHT TO THE UNITED STATES CONSTITUTION.

In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Custis, No. A-5881-06 (Oct. 16, 2008). The Supreme Court subsequently denied defendant's petition for certification. State v. Custis, 197 N.J. 260 (2008).

Thereafter, defendant filed a PCR petition in the Law Division, alleging that he was denied the effective assistance of trial and appellate counsel. He claimed that his trial attorney was ineffective because he (1) failed to retain a DNA expert; (2) diminished the State's burden of proof during his opening statement; (3) failed to make certain objections during the trial; (4) did not seek a mistrial; (5) did not investigate a witness who reported seeing other persons fleeing the scene of the attempted robbery; and (6) failed to address the Kociolek1 charge during his closing argument. Defendant alleged that the cumulative impact of these errors constituted the ineffective assistance of counsel. He additionally alleged he was denied the effective assistance of appellate counsel because these issues had not been raised on appeal.

The PCR court considered the petition and filed a written opinion on May 14, 2010, in which the court concluded that defendant had not established a prima facie case of ineffective assistance of trial or appellate counsel, and defendant was not entitled to an evidentiary hearing on the petition. The court entered an order dated May 14, 2010, denying PCR. This appeal followed.

Defendant argues that the PCR court erred by denying his petition for PCR and by failing to conduct an evidentiary hearing to evaluate his claim of ineffective assistance of counsel. We are satisfied from our review of the record that defendant's arguments are entirely without merit. We affirm the denial of PCR substantially for the reasons stated in the PCR court's thorough and comprehensive written opinion dated May 14, 2010. We add the following.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). First, the defendant must show that his attorney "'made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant 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 his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must establish that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

In his PCR petition, defendant claimed that his trial counsel was ineffective because he did not retain a DNA expert. The PCR court found that this claim was without merit. The record indicates that the videotape of the incident showed the perpetrator using a cloth to cover his face. The parties stipulated that laboratory analysis connected a T-shirt found in the car to defendant.

The PCR court noted that defendant had presented a report from a DNA expert, who agreed with the State's finding that DNA found on the T-shirt recovered from the car matched defendant's DNA sample. Defendant's expert stated, however, that the DNA on the T-shirt was from "epithelial cells, which are typically skin cells, and that no saliva was determined to be on the T-shirt."

The PCR court noted that defendant's DNA expert had not directly contradicted the State's evidence or the stipulation entered into by the parties at trial. Therefore, the PCR court correctly determined that trial counsel had not been effective in failing to retain a DNA expert for the trial.

The PCR court also correctly concluded that trial counsel did not err by failing to object to what defendant claimed was a mischaracterization of the evidence by the assistant prosecutor in his summation. The assistant prosecutor stated, "Ask yourselves why would the lab come back with evidence linking [defendant] to this, the part of this that was over his face, over his mouth."

The court noted that the assistant prosecutor never said that the DNA material found on the T-shirt came from defendant's mouth. Instead, the assistant prosecutor indicated that the T-shirt was connected to defendant, and the T-shirt had been identified as the cloth the perpetrator used to cover his face during the robbery. These statements were fair comment on the evidence. Therefore, defendant's attorney did not have any basis to object to the assistant prosecutor's remarks.

In addition, defendant claims that his trial attorney was ineffective because he did not advise him before he entered into the stipulation concerning the T-shirt. This argument was not raised in the PCR court. We are nevertheless convinced the argument is without merit.

Even if we agreed that defense counsel should have consulted with defendant before entering the stipulation, defendant has not shown that he was prejudiced thereby. The State could have presented the evidence without the stipulation, and defendant had no basis to contest the evidence that connected him to the T-shirt found in the car.

Defendant also argues that the PCR court erred by refusing to conduct an evidentiary hearing on the petition. Again, we disagree. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

We have considered defendant's other contentions and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 State v. Kociolek, 23 N.J. 400 (1957).