STATE OF NEW JERSEY v. DELRICE CUNNINGHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A5862-05T4-5862-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DELRICE CUNNINGHAM,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 19, 2007 - Decided November 2, 2007

Before Judges Cuff, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-10-1049.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the briefs).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Delrice Cunningham appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel, as well as other State misconduct, and a request for a plenary hearing. We find no error or abuse of discretion by the PCR judge in his review. We affirm.

I.

After a nine-day jury trial, defendant was convicted of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1), and weapon offenses in the shooting death of Huberston Dieujuste. Initially, the trial judge sentenced defendant to a fifty-year term of imprisonment with an eighty-five-percent period of parole ineligibility under the "No Early Release Act" (NERA), N.J.S.A. 2C:43-7.2, on the murder charge, and a concurrent five-year term with a two and one-half year period of parole ineligibility for the unlawful possession of a handgun. In an unpublished opinion, we affirmed defendant's conviction and remanded for resentencing, as NERA was inapplicable to the murder conviction. State v. Cunningham, No. A-1513-00 (App. Div. Apr. 11, 2003). After remand, the trial court imposed fifty-years imprisonment with a period of thirty years of parole ineligibility. Defendant's petition for certification was denied by the Supreme Court on July 21, 2003. State v. Cunningham, 177 N.J. 496 (2003).

Defendant's PCR application asserted issues of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and evidence tampering by the police. After argument, Judge Malone found: no deficient conduct by counsel, the prosecutor's comment to the grand jury insufficient to warrant a new trial, and nothing to suggest the State engaged in misconduct. He concluded defendant presented no basis for a plenary hearing and denied the PCR petition on May 24, 2006.

On appeal, defendant presents the following arguments for consideration:

POINT I.

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO MAKE A TIMELY REQUEST FOR THE RECORDINGS OF THE POLICE RADIO TRANSMISSIONS DURING THE SURVEILLANCE.

B. TRIAL COUNSEL FAILED TO INVESTIGATE AND RETAIN AN EXPERT ON MENTAL COMPETENCY.

C. TRIAL COUNSEL FAILED TO MORE AGGRESSIVELY ARGUE THE INADMISSIBILITY OF EVIDENCE OF DEFENDANT'S POSSESSION OF A GUN ONE MONTH PRIOR TO THE SHOOTING.

POINT II.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV.

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT V.

NOTIONS OF FUNDAMENTAL FAIRNESS REQUIRE THAT THE CONVICTION BE REVERSED AND THE INDICTMENT DISMISSED SINCE THE STATE TAMPERED WITH EVIDENCE.

POINT VI.

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT VII.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VIII.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT IX.

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (Not presented below).

II.

In points I to III, defendant argues that he received ineffective assistance of trial and appellate counsel such that he should be granted a new trial. To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate that his attorney's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must 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."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]

Defendant maintains that trial counsel should have obtained copies of the police radio transmissions on the night he was arrested because the circumstances surrounding his arrest were markedly different than presented by police testimony. Defendant believes the radio transmission made that evening corroborate his testimony; however, counsel's delayed request, submitted after the tapes were destroyed by police in the normal course, prevented their production.

Also, defendant argues that trial counsel should have obtained a mental health expert to attest to his lack of capacity to knowingly waive his right to counsel during his custodial interrogation, administration of a polygraph, and confession.

Defendant's third argument aimed at trial counsel's ineffectiveness is that "counsel should have more forcefully challenged the testimony of the co-defendant" who said defendant had possessed a gun one month before the murder.

The PCR court determined that defendant failed to meet both prongs of the Strickland/Fritz test because no evidence showed the result of the proceeding would have been different had counsel acted as suggested. We agree. A defendant's "bald assertions" that counsel was ineffective will not sufficiently satisfy defendant's prima facie burden; the defendant must allege specific facts demonstrating the deficient performance. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant's contentions regarding the contents of the radio transmissions are speculative. Also, his mother's statement that "the system failed her son because they knew that he has a mental problem and he needed help" is insufficient to sustain a determination that defendant was unable to comprehend his rights or appreciate his circumstance while in custody. Finally, defense counsel subjected Ronald Curry, the co-defendant/State's witness to extensive cross-examination. Defendant identifies nothing additional that would have changed the trial result.

Defendant asserts appellate counsel failed to argue that the police were required to repeat the previously issued Miranda warnings prior to additional questioning resulting in his confession. The police had recited defendant's Miranda rights, for a second time, before administering a polygraph test. Defendant was told he failed the polygraph and would be questioned again. During this interrogation, he confessed to the murder.

The trial court admitted the post-polygraph statement finding no need for an intervening rendering of Miranda rights. The court concluded "there was no interruption in the interrogation . . . it was a continuous event." We conclude defendant's argument is without merit. First, we determine that the trial court's finding on the continuity of the interrogation is amply supported by the evidence in the record.

Second, we note that on appeal of his conviction, defendant raised as error the admission of his statements, arguing he was denied his right to counsel. We found "no basis to disturb the admissibility of defendant's three statements." Cunningham, supra, No. A-1513-00 (App. Div. Apr. 11, 2003) (slip op. at 8). Therefore, PCR relief is unavailable. R. 3:22-5.

Finally, the Supreme Court recently reviewed this issue in State v. Dispoto, 189 N.J. 108, 124-25 (2007). The Court held that where "pre-custodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warning that had been given, then there would appear to be no need to require that another warning be given." Ibid.

We determine the quality of counsel's performance, at trial and on appeal, was not ineffective and defendant was not deprived of a fair trial. State v. Castagna, 187 N.J. 293, 314-15 (2006); State v. Buonadonna, 122 N.J. 22, 42 (1991). Accordingly, defendant's suggestion that cumulative deficiencies of trial and appellate counsel deprived him of a fair trial is without sufficient merit to warrant discussion. R. 2:11-3(E)(2).

III.

Defendant cites prosecutorial misconduct before the grand jury as a basis for relief. Prior to trial, defendant moved to dismiss the indictment. R. 3:10-2(c). The application was denied. Defendant did not raise the issue on appeal. R. 3:22-4. Nevertheless, defendant's claim is not a basis for PCR relief.

"'[P]rocedural irregularities in a grand jury proceeding are rendered harmless where defendant is ultimately found guilty by petit jury.'" State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994) (quoting State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996)), certif. denied, 140 N.J. 277 (1994).

Also, we reject defendant's arguments suggesting the police engaged in evidence tampering substantially for the reasons expressed by Judge Malone in his May 5, 2006 opinion.

IV.

Also, we reject defendant's argument that Judge Malone improperly denied his PCR petition without an evidentiary hearing. Evidentiary hearings on PCR petitions are neither mandated, Rule 3:22-10, nor necessary to fully and properly evaluate each issue asserted in a request for relief. Marshall, supra, 148 N.J. at 157-58; State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). Defendant failed to establish a prima facie case of ineffective assistance of counsel, or other cause, and, therefore, was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992).

V.

The arguments presented in points VII and VIII are subsumed in those previously presented, which we have addressed and rejected.

Finally, defendant asserts ineffective assistance by PCR counsel. This assertion is bottomed on a finding that prosecutorial misconduct occurred before the grand jury yet PCR counsel failed to obtain the grand jury transcript. Success on this argument is obviated by defendant's conviction. Warmbrun, supra, 277 N.J. Super. at 60.

We affirm Judge Malone's determination to deny post-conviction relief.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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

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A-5862-05T4

November 2, 2007