STATE OF NEW JERSEY v. FRANCIS R. BENNETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5968-03T45968-03T4

A-2157-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS R. BENNETT,

Defendant-Appellant.

 

Submitted January 19, 2006 - Decided January 30, 2006

Before Judges Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 96-03-0371.

Yvonne Smith Segars, Public Defender, attorney for appellant in A-5968-03T4 (Mark S. Carter, Designated Counsel, on the brief).

Francis R. Bennett, appellant pro se, in A-2157-04T5.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent in A-5968-03T4 (Mary R. Juliano, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent in A-2157-04T5 (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In these consolidated cases, defendant appeals from Judge Del Bueno Cleary's order denying his petition for post-conviction relief (PCR) (A-5968-03T4), and her order denying his subsequent motion for discovery (A-2157-04T5). We affirm.

Defendant, Francis Richard Bennett, and his two co-defendants, brothers Jamie Pandure and Joseph a/k/a Joel Pandure, were indicted in Monmouth County in 1996 for multiple offenses related to the murder of Wanda Pandure, Jamie Pandure's wife. Co-defendant Joel Pandure pleaded guilty to conspiracy and "compounding," and received two consecutive eight-year terms with no parole disqualifiers. A jury found Jamie Pandure guilty of conspiracy and complicity to commit murder. The court imposed a seventy-five-year term with a thirty-year parole disqualifier.

Following an eight-day jury trial in November 1997, defendant was convicted of first-degree conspiracy to commit murder; first-degree murder; and fourth-degree hindering the apprehension of another. After merging the conspiracy conviction into the murder conviction, the court imposed a sixty-year prison term with a thirty-year parole disqualifier. On direct appeal, defendant raised the following issues:

POINT I

THE TRIAL COURT PERMITTED THE STATE TO WITHDRAW FROM ITS PLEA AGREEMENT WITH DEFENDANT AND THEN ALLOWED THE STATE TO USE DEFENDANT'S FACTUAL BASIS AGAINST HIM AT TRIAL. THIS WAS SUBSTANTIAL ERROR WHICH DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS OF LAW AND TO A FAIR TRIAL.

A. THE COURT WRONGLY GRANTED THE STATE'S MOTION TO VOID THE PLEA AGREEMENT BECAUSE DEFENDANT HAD SUBSTANTIALLY PERFORMED TO HIS DETRIMENT.

B. IT WAS THE STATE, NOT DEFENDANT, WHICH BREACHED THE AGREEMENT AND THE STATE CANNOT BE PERMITTED TO BENEFIT FROM ITS BREACH.

C. THE USE OF DEFENDANT'S FACTUAL BASIS AT TRIAL WAS NOT A CLEAR PROVISION OF THE PLEA AGREEMENT, AND IN ANY EVENT, THIS PROVISION WAS NOT PROPERLY ADDRESSED BY THE COURT WHEN ACCEPTING THE PLEA, AND THUS ENFORCEMENT OF THE PROVISION WAS ERROR.

D. THE ENTIRE PLEA AGREEMENT WAS VOID FROM THE BEGINNING AS THE COURT AND PROSECUTOR BOTH SUBSTANTIALLY MISREPRESENTED DEFENDANT'S POTENTIAL SENTENCE EXPOSURE. BECAUSE OF THIS MISREPRESENTATION DEFENDANT'S ACCEPTANCE OF THIS AGREEMENT COULD NOT HAVE BEEN VOLUNTARY.

E. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO CROSS-EXAMINE DEFENDANT BY INTRODUCTION OF THE FACTUAL BASIS HE GAVE IN SUPPORT OF HIS VOIDED PLEA, AS WAIVERS OF THE PROTECTIONS AGAINST SUCH USE VIOLATE THE LETTER AND SPIRIT OF THE LAW AND PUBLIC POLICY OF THIS STATE.

POINT II

THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF DEFENDANT'S POST-ARREST STATEMENTS ON AND AFTER MARCH 25, 1993, BECAUSE THOSE STATEMENTS WERE INVOLUNTARY AND OBTAINED UNLAWFULLY IN VIOLATION OF DEFENDANT'S RIGHTS TO COUNSEL AND NOT TO GIVE EVIDENCE AGAINST HIMSELF.

A. DEFENDANT'S STATEMENT TO DETECTIVES ON MARCH 25, 1993, WAS THE PRODUCT OF REPEATED, LENGTHY INTERROGATION INCLUDING THREATS AND THUS WAS INVOLUNTARY AS A MATTER OF LAW.

B. DEFENDANT'S STATEMENTS WERE OBTAINED AS THE RESULT OF HIS UNLAWFUL DETENTION AND SHOULD HAVE BEEN SUPPRESSED.

C. DEFENDANT'S STATEMENTS WERE OBTAINED IN VIOLATION OF HIS RIGHT TO COUNSEL.

POINT III

IMPROPER INTRODUCTION OF SUBSTANTIAL HEARSAY TESTIMONY DEPRIVED DEFENDANT OF A FAIR TRIAL AND OF HIS RIGHT TO CONFRONT WITNESSES (PARTIALLY RAISED BELOW).

POINT IV

THE COURT ERRED IN FAILING TO CHARGE THE JURY SUA SPONTE OF THE NECESSITY FOR CORROBORATION OF DEFENDANT'S STATEMENTS TO POLICE (NOT RAISED BELOW).

POINT V

THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL AFTER A STATE'S WITNESS MADE AN INCURABLY PREJUDICIAL REMARK IDENTIFYING DEFENDANT AS "THE KILLER."

POINT VI

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AS THERE WAS NOT SUFFICIENT CORROBORATION OF DEFENDANT'S INCULPATORY STATEMENTS.

POINT VII

CUMULATIVE ERROR DENIED DEFENDANT A FAIR TRIAL.

POINT VIII

THE SENTENCE IMPOSED ON DEFENDANT WAS EXCESSIVE.

In a pro se brief, defendant contended:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON A CLAIM OF NEWLY DISCOVERED EVIDENCE AND ERRED FOR FAILURE TO MAKE A STATEMENT OF FINDINGS IN THE RECORD (PARTIALLY RAISED BELOW).

POINT II

THE STATE'S SUPPRESSION OF FAVORABLE EVIDENCE TO DEFENDANT, EITHER THROUGH CONCEALMENT OR DESTRUCTION, INCLUDING IMPEACHMENT EVIDENCE, AND KNOWING USE OF PERJUROUS TESTIMONY IS A VIOLATION OF THE RULES OF DISCOVERY AND PROSECUTORIAL MISCONDUCT, THEREBY VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS SECURED BY THE UNITED STATES CONSTITUTIONAL AMENDMENTS (NOT RAISED BELOW).

A. THE STATE'S SUPPRESSION OF VIDEO SURVEILLANCE TAPES OF THE RIVERVIEW MEDICAL CENTER, EITHER CONCEALMENT OR DESTRUCTION WAS FAVORABLE AND EXCULPATORY EVIDENCE AND THUS A VIOLATION OF THE RULES OF DISCOVERY, PROSECUTORIAL MISCONDUCT AND DENIAL OF DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS. U.S.C.A. CONST. AMEND. 6, 14; N.J. CONST., ART. I, PAR. 10 (NOT RAISED BELOW).

B. THE STATE'S KNOWING USE OF PERJUROUS TESTIMONY CONSTITUTES A BRADY VIOLATION, PROSECUTORIAL MISCONDUCT AND THUS A VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS. U.S.C.A. CONST. AMEND. 6, 14; N.J. CONST., ART. I, PAR. 10 (NOT RAISED BELOW).

POINT III

THE PROSECTOR'S IMPROPER COMMENTS AND MISSTATEMENT OF THE EVIDENCE MADE DURING OPENING STATEMENTS AND CLOSING ARGUMENTS CONSTITUTES PROSECUTORIAL MISCONDUCT AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS (PARTIALLY RAISED BELOW).

POINT IV

CUMULATIVE ERROR DENIED DEFENDANT A FAIR TRIAL.

On direct appeal, we affirmed. State v. Bennett, No. A-1279-98 (App. Div. May 24, 2000). The New Jersey Supreme Court denied defendant's petition for certification. State v. Bennett, 165 N.J. 531 (2000).

In October 2000, defendant filed a pro se PRC petition, which he amended the following February. Although his assigned counsel did not submit a brief in support of the petition and failed to appear for argument, the trial court denied defendant's PCR petition. We reversed on the grounds that PCR counsel provided no representation, let alone ineffective representation, and we remanded for further proceedings. State v. Bennett, No. A-6504-00 (App. Div. Dec. 24, 2002). We expressed no opinion on the merits of the PCR petition. (Ibid.)

On January 9, 2003, defendant filed an amended PCR petition. It is the denial of that petition that is now on appeal under docket number A-5968-03T4. He raises the following legal arguments:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS, OR IN THE ALTERNATIVE DEFENDANT HAD PRESENTED AT LEAST A PRIMA FACIE PROOF THAT HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

A. TRIAL COUNSEL FAILED TO IMPEACH THE CREDIBILITY OF DETECTIVE DOWLING AT THE MIRANDA HEARING AND THE TRIAL.

B. TRIAL COUNSEL FAILED TO PRESENT VIDEOTAPE EVIDENCE AT THE MIRANDA HEARING AND AT TRIAL OF DET. INGLING'S ADMISSION OF HIMSELF AND PAGLINO'S UNANNOUNCED VISIT AT DEFENDANT'S APARTMENT AND THAT HE WAS SUPPOSED TO KILL HIM.

C. TRIAL COUNSEL FAILED TO INTERVIEW AND CALL BARBARA BENNETT TO TESTIFY AS AN ALIBI WITNESS.

D. TRIAL COUNSEL FAILED TO INTERVIEW AND CALL TO TESTIFY MARGIE BENNETT IN SUPPORT OF DEFENDANT'S ALIBI DEFENSE AND SUBPOENA TELEPHONE RECORDS.

E. APPELLATE COUNSEL FAILED TO ARGUE THAT THE PROSECUTOR'S USE OF A WRIT COMMANDING DEFENDANT'S APPEARANCE IN COURT WHEN IN FACT HE WAS TAKEN TO AN INTERROGATION ROOM OF THE PROSECUTOR'S OFFICE WITHOUT HIS EVER APPEARING IN COURT VIOLATED HIS CONSTITUTIONAL RIGHTS OF FREE ACCESS TO THE COURTS.

POINT II

BECAUSE DEFENDANT PRESENTED AT LEAST A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING ON THE ISSUES RAISED IN HIS PETITION.

In a pro se supplemental brief, defendant raises the following arguments:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS, AND DEFENDANT HAVING PRESENTED AT LEAST A PRIMA FACIE PROOF THAT HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WARRANTED THE GRANTING OF AN EVIDENTIARY HEARING.

A. FAILURE TO PRESENT EXCULPATORY EVIDENCE

1. RECONSTRUCTION EXPERT

2. INVESTIGATOR THOMAS BEATTY

3. ALIBI EVIDENCE

4. VIDEOTAPES

B. TRIAL COUNSEL FAILED TO IMPEACH THE CREDIBILITY OF DETECTIVE DOWLING AT THE MIRANDA HEARING AND AT THE TRIAL.

C. TRIAL COUNSEL FAILED TO INTRODUCE VIDEOTAPE EVIDENCE AT THE MIRANDA HEARING AND AT THE TRIAL CONCERNING AN UNDERCOVER STING OPERATION, DETECTIVE INGLING'S AND PAGLINO'S UNOFFICIAL VISIT AT MR. BENNETT'S APARTMENT AND THE EVENTS FOLLOWING MR. BENNETT'S ARREST ON MARCH 26, 1992.

D. TRIAL COUNSEL FAILED TO PRESENT EVIDENCE OF CONSPIRACY.

E. TRIAL COUNSEL FAILED TO IMPEACH DETECTIVE DONOVANS CREDIBILTY.

F. TRIAL COUNSEL FAILED TO IMPEACH THE CREDIBILITY OF DETECTIVES COUTU AND MCCARTHY.

G. TRIAL COUNSEL FAILED TO ADMIT RELEVANT NEWSPAPER ARTICLES.

H. TRIAL COUNSEL FAILED TO IMPEACH THE CREDIBILITY OF NICOLE BALES.

I. APPELLATE COUNSEL FAILED TO PROPERLY PHRASE ARGUMENT.

J. TRIAL COUNSEL FAILED TO MEET WITH CLIENT AND PROVIDE DISCOVERY.

K. CUMULATIVE ERRORS.

Under docket number A-2157-04T5, defendant claims:

POINT I

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR DISCOVERY, WHICH PRECLUDED ORAL ARGUMENT, WAS IN ERROR AND DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

Appellate review of a decision for post-conviction relief is based on the findings and conclusions of the trial court. R. 3:22-11; R. 2:2-1(a)(3). While we afford deference to a trial court's factual findings when supported by adequate, substantial and credible evidence, we are not bound by and give no deference to the trial court's legal conclusions. State v. Harris, 181 N.J 391, 415 (2004), cert. denied, ____ U.S. ____, ___ S. Ct. ___, ___ L. Ed.2d ___ (2005).

Trial courts typically should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant presents a prima facie case. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case of ineffective assistance of counsel, a defendant must: (1) demonstrate that counsel's performance was so deficient that he "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) establish that the attorney's deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland standard in New Jersey). A prima facie claim of ineffective assistance of counsel requires the petitioner to allege facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Bald assertions are insufficient to establish a prima facie claim. Ibid.

Under Strickland, supra, reviewing courts are instructed to be "highly deferential," and to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)); see also Harris, supra, 181 N.J. at 431.

We will not repeat the facts of the crimes for which defendant was convicted, which we set forth at length in our May 24, 2000 opinion. See State v. Bennett, supra, No. A-1279-98. Suffice it to say that the evidence of defendant's guilt was substantial, and included a statement he gave to the police that was found admissible following a five-day Miranda hearing. In that statement, defendant gave a detailed explanation of how the murder occurred. The substance of his statement was set forth in our prior decision as follows:

His detailed statement was consistent with what [Joseph Deslonde, a fellow inmate] had disclosed that defendant had told him in jail. It also was consistent with other information the police had previously obtained. Specifically, defendant stated that the plan to kill Wanda precipitated out of an argument that had occurred between her and Jamie about "fooling around with Joel." During that argument Jamie told her that if she ever left him he would kill her. Defendant recounted that after that he and his brothers-in-law discussed murdering Wanda. The three determined that killing her was an equitable solution to their dispute "about who was going to fool around with Wanda" and that "both [brothers] would [also] profit from" the victim's insurance policies. According to defendant, about three days after that discussion they purchased a gun. Defendant's details as to the encounter with the prostitute who led them to Gray[] and with Gray were consistent with Deslonde's and Gray's accounts of what had occurred.

Defendant recounted the sequence of events on the day of the murder. He and Joel had driven to Red Bank and arrived there at approximately 6:10 p.m. They positioned their car across the street from Wanda's office, waiting for all the employees to leave. Additionally, Jamie had called Wanda from their condominium and then called Joel to confirm that Wanda was alone in the office.

Defendant's description of the homicide itself was consistent with the murder scene as it was found the night of July 5, 1991. He described how they had locked the elevator in the open position at the fifth floor so that "nobody else could take [it]," how Joel had knocked on Wanda's office door and announced himself and how Wanda apparently had attempted to close the door before Joel had stopped it with his foot. He recalled that Joel had fired three shots that had struck her in the arm and the right cheek. He also recounted that Wanda was left "laying on the floor on her back slightly on one side in front of the office door." This was the position in which she was ultimately found. Defendant noted that while in the building he had smoked two Marlboro Light cigarettes. As we have previously set forth, Marlboro Light cigarette butts were found in the stairwell. He also said that he and Joel had worn gloves and had left the scene by the stairwell. Finally, defendant recounted the manner in which they had disposed of the weapon by throwing it in the Mansaquan Inlet.

Defendant did not just give a detailed statement. In addition, the following day he showed the police the route that he and Joel had taken to the murder scene and on a visit to Wanda's office essentially recreated the murder. On April 1, 1993, he directed the police to the location in Lakewood where they had purchased the gun, and on April 8, assisted police divers in their search for the murder weapon in the Manasquan Inlet. The gun was never located. In January 1994, the police interviewed defendant a second time. He confirmed his previous statement. Also, in August 1994, defendant assisted the police in preparing a reconstruction animation of the murder.

Given defendant's detailed statements, as well as the other evidence presented at the trial, the PCR judge found that defendant's uncorroborated allegations in his PCR application were insufficient to demonstrate that defense counsels' conduct fell outside the range of reasonable professional standards. The judge also concluded that even if defendant's attorneys' performance was deficient, it did not deprive him of a fair trial. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

 
We have carefully reviewed the record in light of defendant's contentions and the applicable law. We are satisfied that his arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Del Bueno Cleary in her oral decision on May 14, 2004. Defendant has not demonstrated that either trial counsel's or appellate counsel's performance was deficient so that, but for their alleged errors, the result of the proceedings would have been different. See Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Nor has defendant presented any justifiable basis to grant his discovery request. Accordingly, we affirm the orders denying defendant's petition for post-conviction relief and his request for additional discovery.

Affirmed.

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

William Gray, according to Deslonde, obtained a gun for defendant and Jamie Pandure.

(continued)

(continued)

14

A-5968-03T4

January 30, 2006