STATE OF NEW JERSEY v. AVERY HAMILTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3011-07T43011-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AVERY HAMILTON,

Defendant-Appellant.

_____________________________________

 

Argued September 14, 2009 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-10-1015-I.

John Vincent Saykanic argued the cause for appellant.

Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

PER CURIAM

Defendant, Avery Hamilton, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In February 2002, following a jury trial, defendant was convicted of first degree murder, N.J.S.A. 2C:11-3a(1) or (2); felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; possession of a deadly weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and unlawful possession of a firearm, N.J.S.A. 2C:39-5b. These convictions stem from the killing of Norberto Hidalgo, who was defendant's partner in an illicit narcotics selling enterprise. Hidalgo was shot to death in his apartment in Paterson, during the early morning hours of July 16, 1998. After appropriate merger of convictions, the judge imposed a life term with a thirty-year period of parole ineligibility on the murder conviction, a concurrent eighteen-year term with a NERA period of parole ineligibility on the robbery conviction, and a consecutive five-year term with a thirty-month period of parole ineligibility on the weapon conviction. The aggregate sentence was a life term, with a thirty-two-and-one-half-year parole disqualifier and a five-year term of parole supervision upon release from incarceration. We affirmed on direct appeal. State v. Hamilton, No. A-928-02 (App. Div. April 16, 2004), certif. denied, 180 N.J. 458 (2004).

The facts are fully set forth in our opinion on appeal. Briefly outlined, Hidalgo and defendant sold marijuana, crack cocaine, and LSD together until May 1998 when defendant was arrested on a drug-related charge. Hidalgo did not assist defendant in making bail. Defendant consequently offered to cooperate with the police, which included supplying them with Hidalgo's personal information. Defendant was eventually released when his then girlfriend, Jacqueline Acevedo, and the mother of his son, Lu-Keisha Flynn, raised the money for bail.

After defendant was released, he and Hidalgo had a falling out. Hidalgo claimed defendant owed him $1,500. Defendant moved in with Lu-Keisha and began working at E&J Pizza and Grill, owned by Hani El Alfy. There, he continued to sell drugs. El Alfy was married to Melissa Gearhart.

The night of the murder, defendant was with a friend, Antonio Trujillo. The two men met up around 9:00 p.m., drove around for several hours, and consumed three bottles of brandy.

Around 2:00 a.m., the two returned to Trujillo's apartment. At about 3:00 a.m., defendant left. He borrowed a bicycle because Trujillo was too drunk to drive him home. He also borrowed a shirt because it was "smelly . . . from the liquor." He later arrived at Lu-Keisha's house, where her mother and sister, Latresha also lived. Although defendant alleged that he arrived at 3:30 a.m., both Lu-Keisha and Latresha said he arrived between 4:35 a.m. and 4:47 a.m. Trujillo lived two-to-three blocks from Hidalgo.

There were no eyewitnesses to the shooting. However, Edith Ancieta, who lived in the apartment above Hidalgo's, testified that she heard someone knock on Hidalgo's apartment door. Hidalgo opened the door and had a conversation with a male visitor. She heard shots and Hidalgo saying "no, no, no." Shortly thereafter, the police found Hidalgo laying on the floor, with gunshot wounds to his face, torso, and right arm.

Gearhart testified that defendant admitted to her that he had killed Hidalgo. In addition, Lu-Keisha confirmed that defendant and Hidalgo argued about money in her presence. Subsequently, defendant told Lu-Keisha that he would get the money from Hidalgo by "[w]hatever means necessary."

Acevedo testified that defendant planned to rob Hidalgo because he was angry at him for not bailing him out of jail. She witnessed an argument between defendant and Hidalgo. During the argument, Hidalgo told defendant "[p]ay back is a bitch" to which defendant responded, "revenge is a mother fucker." Latresha testified that defendant came to their home on the morning of the shooting and stated that "he had done something."

Steven Cruz corroborated that defendant and Hidalgo often argued about money from their drug business. Greg Marrero testified that he gave a .40 caliber Smith & Wesson to defendant the day before the shooting. A few days later, Marrero asked for the gun back, but defendant said he had it "stashed" and could not get to it "because it was too close to the house of the murder." Marrero testified that defendant told him he wore socks on his hands so that no prints could be found. Defendant told Marrero that he took approximately $60,000 from Hidalgo.

Lisa Temprano testified that defendant asked her to drive him and Marrero to an old factory in Paterson. Defendant directed Temprano to a brick building. There, both men proceeded to search the area. This was the location where the gun was found by a resident who reported it to the police.

Defendant testified and denied going to Hidalgo's home on the morning of the shooting or killing him. However, he acknowledged that he and Hidalgo were drug-dealing partners. He also acknowledged having an argument with Hidalgo before the shooting over a dice game. Defendant said Marrero tried to sell him the .40 caliber Smith & Wesson, but he never saw it. According to defendant, Marrero killed Hidalgo.

After his direct appeal was unsuccessful, defendant filed a timely PCR petition, alleging ineffective assistance of trial counsel based on, among other things, the failure to procure Gearhart's ex-husband, El Alfy, as a witness. Defendant contends that El Alfy would verify: that defendant did not sleep at El Alfy's house the night defendant allegedly confessed to Gearhart; that Marrero never gave defendant a gun; and that defendant told El Alfy that Marrero and Melissa were having an affair. Defendant also asserted: that trial counsel twice promised to meet with him but failed to do so; that she committed a variety of trial errors; and that she failed to file a timely appeal.

The judge denied the petition, finding "the evidence was very, very compelling with regard to [Defendant's] guilt" and defendant had presented no real basis to support the claim that El Alfy would say anything new or provide evidence suggesting that the conviction be vacated. In particular, he declined to allow the court to be used as "the investigative arm of the defense," especially where "there's nothing to indicate that [El Alfy] would in any way be cooperative with the defense, or have any information that would be helpful to the defense."

On appeal, defendant contends:

DEFENDANT AVERY HAMILTON WAS DENIED HIS UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION DUE TO THE NUMEROUS [PRE-TRIAL] AND TRIAL ERRORS; A PRESUMPTION OF PREJUDICE EXISTS OR, AT THE VERY LEAST, A REASONABLE PROBABILITY EXISTS THAT[,] BUT FOR THE ERRORS[,] THE RESULT OF THE TRIAL WOULD HAVE BEEN DIFFERENT; TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT AN EFFECTIVE PRE-TRIAL INVESTIGATION CONCERNING HANI EL ALFY AND BY FAILING TO PRODUCE HIM AS A WITNESS AT TRIAL.

We disagree.

Defendant argues that trial counsel rendered ineffective assistance by failing to present El Alfy as a trial witness because El Alfy was in the best position to impeach the testimony of Gearhart and Marrero. However, we agree that defendant failed to make a prima facie showing of deficient representation.

A collateral attack on a conviction based on ineffective assistance of counsel is permitted. R. 3:22-2(d). The two-pronged analysis for determining whether a defendant received ineffective assistance of counsel was set by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). First, defendant must show that counsel's performance was deficient, i.e., this deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Moreover, because it is too easy to second-guess trial counsel's decisions after the fact and deem a failed strategy "deficient," "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. Where a defendant establishes a prima facie claim for ineffective assistance of counsel, the defendant is entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim, defendant must demonstrate the reasonable likelihood of succeeding pursuant to the Strickland/Fritz standard. Id. at 463-64.

Here, the judge correctly noted that defendant did not submit any evidence that El Alfy would provide the testimony that defendant alleged. Neither the prosecutor nor trial counsel had evidence that El Alfy had any relevant knowledge to convey. The police met with El Alfy once and he declined to give a sworn statement. The State did not subpoena him. There is some suggestion that El Alfy refused to talk at all. In short, there is no evidence to suggest that any of the parties at the time of trial believed El Alfy had any relevant testimony to offer. This fact, coupled with the lack of any certification or other factual basis for defendant's allegations as to what El Alfy would say, leads to the conclusion that the judge properly denied defendant's PCR petition.

Defendant also contends:

TRIAL COUNSEL WAS INEFFECTIVE IN NOT PROPERLY PRESENTING THE DEFENSE OF INTOXICATION.

Defendant's argument is that, given the evidence that he consumed marijuana, cocaine, and brandy the night of the shooting, trial counsel was ineffective in failing to advance an intoxication defense, which might have resulted in the murder charge being reduced to manslaughter or defeat the mens rea for the robbery count. We disagree.

At trial, defendant requested that the jury be charged that it could consider intoxication when evaluating witness credibility. The judge found the essence of this charge was already in the standard credibility charge. However, the judge added "and whether or not these abilities were impaired by the consumption of drugs and/or alcohol" to the standard charge on assessing credibility. The judge also expanded the scope of the charge to include all witnesses and defendant. He further charged the jury with intoxication as a defense to all of the charged offenses.

Pursuant to N.J.S.A. 2C:2-8a, evidence of voluntary intoxication can be used to disprove the "purposeful" or "knowing" element of a crime. State v. Cameron, 104 N.J. 42, 52-53 (1986). Voluntary intoxication in the appropriate circumstance can reduce a murder charge to manslaughter. State v. Vandeweaghe, 351 N.J. Super. 467, 477 (App. Div. 2002), aff'd on other grounds, 177 N.J. 229 (2003). "However, the degree of intoxication sufficient to negate an element of an offense 'must be of an extremely high level.'" Ibid. (quoting Cameron, supra, 104 N.J. at 54). Robbery also incorporates a "knowing" standard of culpability for a second degree offense and a "purposeful" standard for a first degree offense. N.J.S.A. 2C:15-7. Thus, voluntary intoxication is a potential defense to any robbery charge. See State v. Nero, 195 N.J. 397, 408 (2008). Finally, a conviction for felony murder requires the defendant be convicted of the predicate offense. State v. Spencer, 319 N.J. Super. 284, 308-09 (App. Div. 1999).

Here, defendant's intoxication was presented to the jury, principally through defendant's testimony. However, the main thrust of the defense's case was that Marrero committed the crime. Moreover, given the degree of intoxication necessary to negate the intent element of an offense, defendant was unlikely to succeed in proving that he was incapable of forming the knowing or purposeful element of the charged offenses. First, defendant was able to recall many events from the night of the murder, including details relating to when he left Trujillo's apartment and when he arrived at Lu-Keisha's apartment. Second, defendant was aware that his shirt was "stinky" from alcohol and managed to ride a bicycle back to Lu-Keisha's apartment. By way of contrast, Trujillo remembered very little detail from the night of the murder and both Trujillo and defendant testified that Trujillo was lying on the floor and unresponsive when defendant left. Third, as the State points out, if defendant committed the crime as described, he was lucid enough to unscrew the lights over the door and wear a sock on his hand to avoid leaving fingerprints. He also had the presence of mind to search two hiding places for money and to hide the gun when the police arrived.

Therefore, we affirm the judge's denial of the claim of ineffective assistance of counsel for failing to pursue an intoxication defense. Judged against the Strickland/Fritz standard, trial counsel's performance was not deficient.

Defendant also contends:

APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING ON APPEAL THE LACK OF CORROBORATION OF DEFENDANT'S TWO ALLEGED "CONFESSIONS;" HAD THE ISSUE BEEN PROPERLY PRESENTED THE TRIAL JUDGE (AND/OR THE APPELLATE COURT) WOULD HAVE GRANTED THE MOTIONS FOR JUDGMENT OF ACQUITTAL.

We are not persuaded.

The Supreme Court has held:

Our corroboration standard requires that the trial court "determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy." [State v. Lucas, 30 N.J. 37, 62 (1959)]. The corroboration requirement has both legal and factual components. As a matter of law, the trial court initially must determine whether the State has presented independent corroborative evidence of the trustworthiness of the confession. If the State presents "some" corroboration, the confession is submitted to the fact finder to "resolve arguments and speculation about its weight and sufficiency." [State v. Di Frisco, 118 N.J. 253, 271-72 (1990)].

[State v. Cook, 179 N.J. 533, 564-65 (2004).].

Here, at the close of the State's case, trial counsel moved for a judgment of acquittal for the murder and robbery counts. The judge denied the motion, finding that there was sufficient evidence of defendant's guilt, independent of the alleged confessions, to submit the case to the jury. We agree, noting that the trial proofs showed that defendant was acquainted with Hidalgo, had been to his apartment before, knew where Hidalgo hid his drugs and money, and knew about a motion-sensor light over the door. Defendant bore a grudge against Hidalgo for not providing bail money after defendant was arrested. Defendant had several public arguments with Hidalgo regarding money each claimed the other owed. Latresha and Acevedo both heard defendant say he would rob Hidalgo. Marrero and Temprano both saw defendant search for the murder weapon around the "factory," where it was eventually found after the murder took place. Additionally, both confirmed that defendant directed them to the factory area. Defendant claimed to have left Trujillo's apartment at 3:00 a.m. and both Lu-Keisha and Latresha agreed that the earliest he arrived at their apartment was 4:35 a.m. Although defendant at one point claimed to have arrived at 3:30 a.m., he never accounted for why he arrived over ninety minutes later. Therefore, based on a careful review of the proofs, we conclude that the judge properly found significant corroboration of defendant's confession. Moreover, for the same reason, appellate counsel did not render ineffective assistance, nor was defendant prejudiced by the failure to raise this meritless claim on appeal.

Defendant also contends:

APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING ON APPEAL THE ISSUE CONCERNING THE ADMISSION INTO EVIDENCE OF TAPED CONVERSATIONS OF DEFENDANT IN WHICH DEFENDANT ADVISES GREGORY MARRERO ON HOW TO LIE AND MANIPULATE A POLYGRAPH.

Defendant argues the prejudicial effect of this evidence far outweighed its probative value. We disagree.

The judge found the conversation, in context, was not about the admissibility of the lie detector test but was about defendant's attempts to assuage Marrero's fears. In this light, the judge found the evidence "relevant and probative and there's no basis for any reason why it should be redacted . . . ."

"Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Here, we conclude that the judge did not abuse his discretion in finding the lie detector conversation had substantial probative value and relevance and a lack of undue prejudice. Moreover, given the small likelihood such a challenge would succeed on appeal, appellate counsel could not be faulted for not making the argument, nor was defendant prejudiced by the failure to raise the claim. We stress that, in order not to waste this court's time, it is essential that a party on appeal present an adequate legal argument. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).

Finally, defendant contends:

APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE ISSUE THAT THE TRIAL JUDGE ERRED IN ADMITTING TAPES CONTAINING THE WORD "NIGGA[;"] ANY PROBATIVE VALUE WOULD BE FAR OUTWEIGHED BY THE PREJUDICE.

We disagree.

At trial, defendant requested the tapes of his conversation with Marrero be excluded or sanitized. The judge found no prejudice in admitting the full tapes, noting the word "nigga" was simply the language Marrero and defendant used. It was not intended to be pejorative. The judge previously admitted testimony that included the word "nigger," finding the inclusion of the word necessary to understand the meaning of the sentence. He also found that the word carried no pejorative meaning in the context it was used.

A court must be sensitive to the potential for racial prejudice to infect trial proceedings. State v. Harvey, 159 N.J. 277, 366 (1999), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). However, a trial judge's evidentiary rulings are subject to the abuse of discretion standard. Verdicchio, supra, 179 N.J. at 34.

Here, although the word could carry a pejorative meaning, there is no evidence to suggest that it was used in a pejorative manner. Rather, it appeared to be language used in ordinary conversation between defendant and Marrero. Defendant is African-American. Moreover, there is no evidence to suggest that the jury verdict was in any way actually tainted by the admission of that term. It is unlikely that appellate counsel would have succeeded in raising this point on appeal. Therefore, appellate counsel's performance was not deficient and defendant was not prejudiced by the failure to raise this argument.

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

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A-3011-07T4

November 6, 2009