STATE OF NEW JERSEY v. JAMES DAVIS

NOT FOR PUBLICATION WITHOUT THE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.

JAMES DAVIS,

Defendant-Appellant.

_______________________________________________________

October 29, 2014

Submitted September 16, 2014 Decided

Before Judges Nugent and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-05-0670.

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

Joseph L Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, James Davis, appeals from an order denying his petition for post-conviction relief (PCR) after oral argument, without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted, among other things, of the murder of N.W., the attempted murder of W.W., and possession of a handgun without a permit. The court sentenced defendant to a life term with a thirty-year mandatory minimum period of parole ineligibility for the murder conviction, a consecutive twenty-year term with a ten-year mandatory minimum period of parole ineligibility for the attempted murder conviction, and a concurrent five-year term for the weapons conviction.

Defendant appealed. We affirmed the convictions and sentence. The New Jersey Supreme Court denied defendant's petition for certification. State v. Davis, No. A-1071-05T4 (App. Div. June 22, 2007), certif. denied, 192 N.J. 480 (2007).

In November 2007, defendant filed a petition for post-conviction relief. In April 2011, following argument, the court delivered an oral decision outlining its reasons for denying PCR. On October 16, 2012, defendant filed a notice of appeal.

Defendant raises the following issues on appeal

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S OPENING STATEMENT, WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

After a careful review of the record, we agree with Judge Edward M. Neafsey's oral decision denying PCR. We add the following

The test for ineffective assistance of counsel was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the following two-pronged Strickland/Fritz test: (1) that counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A defendant must overcome a strong presumption that counsel rendered reasonable professional assistance. State v. Parker, 212 N.J. 269, 279 (2012). If a defendant establishes one prong of this test, but not the other, the petition for PCR must fail. Id. at 280. Thus, both prongs of the Strickland/Fritz test must be satisfied before post-conviction relief may be granted. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

On appeal, defendant argues that the PCR judge erred by failing to find his trial counsel was ineffective for not objecting to improper comments by the prosecutor in the opening statement. Defendant notes particularly the following comments by the prosecutor.

May it please the Court, Mr. Corbin, ladies and gentlemen of the jury. As we all know, early December of any year is a time of great anticipation. We've had the family gatherings of Thanksgiving. They've been concluded, and the holiday season officially begins. And really, the holiday season is an exciting time, especially for young children. However, for three-and-a-half year old [M.W.], the holiday season, December 2000, was a time of terror, a time of tragedy, and a time of sorrow. On the evening of December 7, 2000, her mother, [N.W.], was shot in the head before her very eyes. She saw her grandmother, [W.W.], run in fear from her mother's apartment being chased by a man with a gun, a man who'd fatally wounded her [m]other, a man named James Davis.

Judge Neafsey found these remarks did not constitute prosecutorial misconduct but rather were fair comment. As fair comment, the judge held, trial counsel would not be required to object. Further, the judge concluded even if the comments could be construed as prosecutorial misconduct, it was not prejudicial as the jury was instructed that the comments made by counsel in both opening and closing arguments were not evidence.

"Prosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (citation omitted). A prosecutor is "entitled to argue the merits of the State's case 'graphically and forcefully.'" State v. Smith, 212 N.J. 365, 403 (2012) (citations omitted), cert. denied, ____ U.S. ____, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper,' and 'so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citations and quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

The prosecutor provided context in his opening by noting that the murder occurred between Thanksgiving and Christmas. The prosecutor's statement that this particular holiday season was, "a time of terror, a time of tragedy, and a time of sorrow" for M.W., a witness to her mother's shooting, was consistent with the evidence. When considered with the leeway afforded to prosecutors, as well as the instruction to the jury that the comments of the attorneys were not evidence, we are satisfied that the prosecutor's comment was not "so egregious that it deprived . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).

Judge Neafsey also noted as an "additional" finding that the claim of ineffective assistance of counsel was procedurally barred from assertion as not having been raised on appeal. R. 3:22-4. Notwithstanding, the judge determined defendant's PCR on the merits which we now affirm. As such, we need not address defendant's argument that his petition was not procedurally barred.

We next address the court's determination to dispense with an evidentiary hearing. The court has discretion to make this decision, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . or that the defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing . . . ." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 462-64) (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). From our review of the record, and extending to defendant all favorable inferences, the judge's decision to forego an evidentiary hearing was not mistaken.

We apply the Strickland standard and review the reasonableness of counsel's assistance with "'a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Judge Neafsey applied this standard and concluded that the defendant's arguments did not support a finding of ineffective assistance of counsel. The judge's conclusion that trial counsel's tactical decision to not object to the opening had no adverse impact upon the result of the trial is amply supported.

Affirmed.