STATE OF NEW JERSEY v. SELWIN MARTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3994-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SELWIN MARTIN,

Defendant-Appellant.

_____________________________________________

December 18, 2014

Submitted October 21, 2014 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-09-3108.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Selwin Martin, appeals from the dismissal of his petition for post-conviction relief. We affirm.

Defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder of the same victim, N.J.S.A. 2C:11-3a(3); first degree kidnapping of the victim, N.J.S.A. 2C:13-1b(1) and (2); third degree criminal restraint, N.J.S.A. 2C:13-5a(1); second degree possession of a firearm for the purpose of using it unlawfully against another, N.J.S.A. 2C:39-4a; third degree illegal possession of a handgun, N.J.S.A. 2C:39-5b; and first degree conspiracy to commit murder or kidnapping or both, N.J.S.A. 2C:5-2. Defendant was acquitted of first degree attempted murder of a second victim. The court merged the felony murder conviction into the conviction of purposeful or knowing murder, and imposed a discretionary extended term of life imprisonment, subject to a thirty-five year period of parole ineligibility, to be served consecutively to a federal sentence defendant was then serving. The court also imposed a concurrent thirty-year term subject to a fifteen-year parole ineligibility term on the first degree kidnapping conviction, into which the criminal restraint conviction was merged, and a concurrent five-year sentence subject to a two-and-a-half year parole disqualifier on the third-degree weapon offense. The remaining convictions were merged into the murder and kidnapping convictions. Appropriate fines and penalties were also imposed. Defendant appealed, raising the following issues

I. BECAUSE DEFENDANT WAS TRIED JOINTLY WITH HIS BROTHER, WHO WAS ALSO HIS CO-DEFENDANT, THE INEFFECTIVE TRIAL PERFORMANCE OF CO-COUNSEL IRREPARABLY TAINTED DEFENDANT'S RIGHT TO A FAIR TRIAL.

II. BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF ASPORTATION, THE COURT ERRED IN SUBMITTING THE CHARGE OF FIRST-DEGREE KIDNAPPING TO THE JURY (Not raised below).

III. THE COURT ERRED IN FAILING TO CHARGE THE JURY ON SELF-DEFENSE WITH REGARD TO THE CHARGE OF ATTEMPTED MURDER OF [C.W.].

IV. THE COURT ERRED IN IMPOSING A DISCRETIONARY EXTENDED TERM FOR THE MURDER OF [G.W.].

In a per curiam decision issued on September 21, 2001, we affirmed defendant's convictions. State v. Selwin Martin, A-1742-99 (App. Div. September 21, 2001) (slip op. at 3). We noted that having considered each of the issues raised by defendant and "in light of the record, the applicable law, and the arguments of counsel," we found none of them was "of sufficient merit to warrant discussion in a written opinion." Ibid.; R. 2:11-3(e)(2).

Defendant's petition for certification was denied by the New Jersey Supreme Court on January 10, 2002. Defendant's initial petition for post-conviction relief was filed on October 21, 2001. His counsel's supporting brief was filed on April 14, 2004.

On April 30, 2004, Judge Samuel D. Natal, who was the trial judge, denied defendant's application after considering the arguments of counsel and offering defendant the opportunity to present witness testimony in support of his claims. An order was signed the same day.

Defendant did not appeal that ruling until on or about April 6, 2012, almost eight years after entry of the order. On June 27, 2012, we granted defendant leave to file his notice of appeal as within time.

On appeal, defendant presents the following arguments

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE AN ISSUE ON APPEAL RELATING TO THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

In his pro se supplemental brief, defendant presents the following arguments

POINT I

PCR COUNSEL VIOLATED RULE 3:22-6(D) DURING HIS REPRESENTATION OF PETITIONER.

a) PCR counsel failed to meaningfully communicate with petitioner.

b) PCR counsel failed to investigate and evaluate petitioner's claims.

c) PCR counsel failed to list and/or incorporate by reference petitioner's claims.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Natal's comprehensive opinion. We add the following.

In considering a PCR petition, we begin with a presumption that a defendant who was represented at the trial level received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Loftin, 191 N.J. 172, 197 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J. at 198.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced 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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the Strickland test, "defendant must show 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. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).

"[A] reviewing court must assess the performance of counsel with a 'heavy measure of deference to counsel's judgments.'" State v. DiFrisco, 174 N.J. 195, 220 (2002) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Ineffective assistance of counsel is not proven by showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. Ibid.; see State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).

"In determining whether defense counsel's alleged deficient performance prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). The Arthur Court reconfirmed the Strickland standard and emphasized that "[a] reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." Ibid.

Defendant claims that despite improper comments in the prosecutor's summation, his counsel did not object. 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) (quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

During summation the prosecutor commented that a pager found at the scene of the homicide belonged to defendant.

Ladies and gentlemen, this is S-53 in evidence. This is a pager Investigator Pavlik recovered from the floor of [G.W.'s] home on the morning of the murder. You heard testimony, please, from the defendant's own wife [G.M.]

(Playing of videotape testimony begins)

Q "We spoke to you a month ago and you told us about this incident with Kyan, right?

A Yes."

MR. GILFERT: Turn that up, please.

Q "You talk about paging Alwyn, right?

A Um-hmm."

Q "And you told us, had given a pager number, right?

A Yes."

Q "And what was that pager number?

A XXX-XXX-5015"

Q "5015?

A 5015."

Q "And that that was Alwyn's page Thank you."

(Playing of videotape testimony ends)

There you have it, ladies and gentlemen. By those coincidences, mystery men who are just like these two, mystery men who carried Alwyn's pager. There's no mystery men here, ladies and gentlemen. The mystery men are these two . . .

We conclude that even if the pager did not belong to defendant, the prosecutor's argument was "fair comment" on the evidence. To be sure, notwithstanding the ownership of the pager, a fair inference was the pager and where it was found linked both defendant and the co-defendant (his brother) to the crime scene. When considered with the leeway afforded to prosecutors in closing arguments, 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 the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Finally, when considering the entire record, there is no basis to conclude even if counsel's failure to object was error, the result would have been different.

Affirmed.