STATE OF NEW JERSEY v. EARL MICHAEL HAMMOND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6471-05T46471-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL MICHAEL HAMMOND,

Defendant-Appellant.

_________________________________

 

Submitted April 23, 2008 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, No. 96-02-280.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alan I. Smith,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

A jury found defendant guilty of murder, N.J.S.A. 2C:11-3(a)(1), (2), a crime of the first degree; two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree; robbery while armed, N.J.S.A. 2C:15-1, a crime of the first degree; and two counts of aggravated assault, pointing a firearm, N.J.S.A. 2C:12-1(b)(4), a crime of the fourth degree. At sentencing, the trial court merged the weapons offenses into the convictions for murder and robbery. It also merged one of the aggravated assault convictions into the robbery conviction. It sentenced defendant to thirty years in prison for murder, with a thirty-year period of parole ineligibility. In addition, it sentenced defendant to a consecutive fifteen-year term, together with a five-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), for armed robbery. Finally, it imposed a concurrent eighteen-month sentence for the remaining aggravated assault conviction. The events having occurred prior to the adoption of N.J.S.A. 2C:43-7.2 (No Early Release Act), defendant was not subject to its eighty-five percent parole disqualifier. Defendant's aggregate sentence was forty-years in prison, with a thirty-five year period of parole ineligibility.

Defendant appealed his convictions and sentence, and we affirmed. State v. Hammond, 338 N.J. Super. 330 (App. Div. 2001). The Supreme Court thereafter denied certification. 169 N.J. 609 (2001). Defendant filed a timely petition for post-conviction relief. Defendant now appeals from the trial court's order denying his petition.

In our opinion affirming defendant's conviction, we briefly summarized the State's case.

Defendant allegedly committed an armed robbery of Glen (Goon Goon) Edward, John (Dash) Robinson, and Robert (Bashie) Etienne in July 1995. Three days after the robbery, the victims[,] together with others[,] allegedly attacked defendant in retaliation for the robbery. Badly beaten in the attack, defendant was hospitalized for about six weeks. The State's theory was that after defendant's release from the hospital, he killed "Frankie" Paul Robinson in retaliation for the assault by shooting him numerous times, late at night or in the early morning of September 14-15, although Robinson apparently had no involvement in the assault.

[338 N.J. Super. at 332-33.]

At defendant's trial, the State produced two witnesses, Skylyn Hagins and Gregory Ingram, who testified they saw defendant shoot the victim, and another witness, Jermaine Ingram, who testified that he had seen defendant leading the victim toward the alley where the shooting occurred and then heard a number of shots being fired. All three men had initially denied any knowledge of the event. The State also presented the testimony of John "Dash" Robinson to establish the events leading up to the fatal shooting. Although John Robinson and "Frankie" Paul Robinson shared their last name and had a close relationship, they were not related by blood. Defendant did not testify.

On appeal, defendant raises the following arguments:

POINT I THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL

(A)

TRIAL COUNSEL'S FAILURE TO DETERMINE THAT JOHN "DASH" ROBINSON TESTIFIED AS A STATE'S WITNESS WITH AN EXPECTATION THAT HIS COOPERATION WOULD RESULT IN A REDUCTION OF HIS 7 YEAR CUSTODIAL SENTENCE, AND TRIAL COUNSEL'S FAILURE TO PRESENT A MOTION FOR A NEW TRIAL BASED ON A BRADY V. MARYLAND VIOLATION, SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL

(1)

THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF

(2)

THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF

POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION

The law which must govern our analysis of defendant's claim is well known. Every defendant in a criminal matter is entitled to the effective assistance of counsel. State v. Sugar, 84 N.J. 1, 17 (1980). To sustain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694, (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The "benchmark" for judging an ineffective assistance claim "must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692-93. A defendant claiming such ineffective representation must demonstrate first that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A showing, moreover, that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The 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. This two-pronged standard has been expressly adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).

We have reviewed the record of defendant's trial and are satisfied that it does not support defendant's arguments to us. Contrary to defendant's assertions, defense counsel at trial extensively cross-examined John "Dash" Robinson, both about his criminal history and the fact that he had recently entered a negotiated plea bargain to drug-related charges in return for a sentence of seven years, with a three-year period of parole ineligibility. Defense counsel specifically asked Robinson during cross-examination whether, in connection with that guilty plea, he was promised anything in return for his testimony against defendant. Robinson clearly answered that he had received no such promise.

Robinson was sentenced on January 28, 1998, one day before defendant's trial got underway. According to the transcript of that sentencing, he had entered negotiated pleas of guilty to one count of second-degree possession of cocaine with intent to distribute and one count of fourth-degree distribution of marijuana in return for the State's agreement to recommend a custodial term of seven years, with a three-year period of parole ineligibility. During the course of the sentencing proceedings, there were several references to the fact that Robinson was scheduled to testify as a witness against this defendant. Robinson's attorney, however, clearly stated to the sentencing court that Robinson's willingness to appear as a witness was not part of the plea bargain. The sentencing court rejected Robinson's plea for a shorter period of parole ineligibility and sentenced him, in accordance with the negotiated agreement, to seven years, with a three-year mandatory minimum.

Following the conclusion of defendant's trial, Robinson's attorney filed a motion for a modification of his sentence, citing the fact that Robinson had testified against defendant at his murder trial. After listening to Robinson's attorney and the assistant prosecutor who had handled defendant's trial, the court reduced Robinson's sentence to an aggregate five years in custody, with a two and one-half-year period of parole ineligibility. Throughout the transcript of that proceeding, however, are the repeated statements of Robinson's attorney and the sentencing court that there had been no agreement that Robinson would receive consideration with respect to his sentence in return for his testimony against defendant.

Because the trial record clearly establishes that there was no agreement that Robinson would receive a reduced sentence in return for his testimony, defendant's attorney could not be considered ineffective for not pursuing that issue at trial and thereafter.

The order under review is affirmed.

 

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A-6471-05T4

July 24, 2008