STATE OF NEW JERSEY v. GEORGE T. MARTIN, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0937-08T40937-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE T. MARTIN, JR.,

Defendant-Appellant.

_______________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-02 0384.

George T. Martin, Jr., appellant pro se.

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Peter J. Gallagher, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant George T. Martin, Jr. appeals from an order entered by the trial court on October 24, 2007, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Atlantic County Indictment No. 01-02-384 with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count one), and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count two). Defendant was tried before a jury.

At the trial, the State presented evidence which established that, sometime prior to January 2001, George Harrington loaned defendant $30,000. Defendant repaid Harrington $20,000 and believed that the debt had been satisfied because he had performed certain home improvement projects for Harrington. It seems that Harrington thought otherwise. At a Halloween party in October 2000, Harrington demanded repayment of the balance of the loan.

On January 10, 2001, at around 12:00 p.m., Harrington arrived at defendant's home with a package of thirty cans of beer. Defendant was home alone. His wife, Bonnie Martin, was working at the time. Defendant and Harrington spent the afternoon talking. They each consumed about ten cans of beer. At some point during the day, defendant observed a white male walk around a neighboring property and enter upon defendant's property. Defendant said that he was suspicious. He retrieved his revolver and put it in the pocket of his jacket.

Bonnie returned home at around 6:15 p.m., and placed an order for dinner at a local pizzeria. Defendant and Harrington went to the pizzeria to pick up the order and, when they returned, they had dinner with Bonnie. With their dinner, the three individuals consumed martinis that defendant had prepared earlier. Bonnie said that during dinner, she did not observe any problems between the two men and they were friendly with each other. After dinner, Bonnie went to the bathroom.

Several minutes later, Bonnie heard defendant and Harrington arguing. According to Bonnie, defendant repeatedly told Harrington to leave the house and Harrington replied that he would not do so. Bonnie then heard three shots fired in rapid succession. Bonnie emerged from the bathroom and saw Harrington lying on the floor with defendant standing over him. Harrington died as a result of the gun shot wounds.

The State Police were called to the scene. They advised defendant of his Miranda rights and took him into custody. He was again informed of his Miranda rights. Defendant signed a form indicating that he understood his rights and agreed to waive them. Defendant then was interviewed by State Police Detective Wilfred J. Blosser (Blosser).

According to Blosser, defendant did not deny shooting Harrington. Defendant said that he and Harrington had an altercation after Harrington refused to leave his house. The State maintained that defendant shot and killed Harrington purposely and/or knowingly and defendant did so in order to avoid payment of the balance due on the loan. Defendant claimed that the shooting was justified under principles of self-defense.

The jury did not find defendant guilty of first-degree murder, as charged in count one, but found him guilty of a lesser-included offense, first-degree manslaughter, contrary to N.J.S.A. 2C:11-4(a). The jury also found defendant guilty of possession of a weapon for an unlawful purpose, as charged in count two. At sentencing, the trial court merged the two counts and sentenced defendant to fifteen years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

II.

Defendant appealed and raised the following arguments:

POINT I

THE IMPROPER STATEMENTS MADE BY THE PROSECUTOR IN CLOSING ARGUMENTS WERE PREJUDICIAL IN THAT THEY COMMENTED ON FACTS NOT IN EVIDENCE WARRANTING A REVERSAL OF THE VERDICT ENTERED.

POINT II

THE DEFENDANT'S STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED DUE TO THE INTOXICATION OF THE DEFENDANT.

POINT III

THE TRIAL COURT SHOULD HAVE CHARGED THE JURY WITH THE PORTION OF THE CHARGE DEALING WITH THE USE OF FORCE IN ONE'S HOME AGAINST AN INTRUDER.

POINT IV

THE SENTENCE OF [FIFTEEN] YEARS INCARCERATION SUBJECT TO THE NO EARLY RELEASE ACT IS EXCESSIVE.

We rejected these arguments and affirmed defendant's conviction and sentence. State v. Martin, No. A-1160-03 (App. Div. May 31, 2005) (slip op. at 17). The Supreme Court denied defendant's petition for certification. State v. Martin, 185 N.J. 264 (2005).

Thereafter, defendant filed a petition for PCR and alleged that 1) the trial court's instruction on the weapons charge constituted plain error; 2) the State violated Brady v. Maryland, 373 U.S. 83, 88 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because it purportedly withheld certain material evidence favorable to his defense; and 3) he was denied the effective assistance of trial counsel.

Judge James Isman, who had presided over the trial, considered the petition on October 12, 2007. The court placed a lengthy decision on the record, finding that there was no merit in defendant's arguments. The court entered an order dated October 24, 2007, denying PCR. This appeal followed.

III.

Defendant raises the following argument for our consideration:

POINT I

THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY AS A DEFENSE TO THE CHARGE OF UNLAWFUL POSSESSION OF A WEAPON, THAT THEY COULD CONSIDER DEFENDANT'S STATEMENT TO LAW ENFORCEMENT THAT HOURS PRIOR TO THE SHOOTING, HE WAS ARMED AS A PRECAUTION AGAINST A SUSPICIOUS PERSON HE OBSERVED [WANDERING] ABOUT THE RURAL PROPERTY OF HIS HOME.

POINT II

THE STATE FAILED TO DISCLOSE EXCULPATORY INVESTIGATIVE REPORTS THAT WERE MATERIAL TO THE DEFENDANT'S CLAIM OF SELF-DEFENSE.

POINT III

AN EVIDENTIARY HEARING IS REQUIRED FOR THE APPELLANT TO ESTABLISH THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

(A) TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL DEFENSE WITNESSES THAT WOULD HAVE TESTIFIED TO THE VICTIM'S REPUTATION AND PROPENSITY FOR VIOLENCE.

(B) TRIAL COUNSEL FAILED TO OBTAIN THE ADVICE OF A FORENSIC EXPERT IN THE FIELD OF FIREARMS TO COUNTER THE STATE[']S CLAIM THAT THE VICTIM WAS SHOT AT A DISTANCE EXCEEDING SEVENTY SIX INCHES.

We have carefully considered the record in light of these contentions and the applicable law. We are convinced that defendant's arguments are entirely without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Isman in the decision placed on the record on October 12, 2007. We add the following.

Defendant argues that the trial court erred when it instructed the jury on the charge of possession of a weapon for an unlawful purpose. We disagree. Here, the trial court instructed the jury that it should find that the State failed to carry its burden of proof if it determined that "[d]efendant had a lawful purpose, . . . to use the firearm to protect himself against the use of unlawful force or to protect his property or if [it had] a reasonable doubt as to the [d]efendant's purpose[.]" Defendant acknowledges that the instruction was based upon the model jury charge.

Defendant maintains, however, that the instruction was flawed because the court did not tailor the instruction to his contention that he was continuously armed on the day of the incident, not to protect himself from Harrington, but to protect himself "against a suspicious person [wandering] about the rural property of his home." However, as the PCR court found, defendant was charged with possession of a weapon for the unlawful purpose of shooting Harrington. The instruction was primarily tailored for that particular allegation. Even so, the instruction was sufficiently tailored to encompass the defense claim that defendant was armed to protect himself from the suspicious person on his and the adjoining property.

Defendant also argues that the State failed to disclose material exculpatory information in violation of Brady. Again, we disagree. The information in question is said to concern the interview of Harrington's girlfriend, Barbara Bowman (Bowman), by the police.

However, as the PCR court found, the State furnished the defense with Blosser's report, which indicated that the police had interviewed Ms. Bowman. The report noted the fact that defendant says was material to his defense, specifically that Harrington intended to confront defendant concerning a financial problem.

Defendant asserts that the jury might have been more inclined to accept his self-defense claim if it had known "the victim's intent as the aggressor[.]" This assertion is without merit. According to Blosser's report, Bowman only said that Harrington intended to confront defendant concerning a financial issue.

The record does not indicate that Bowman's statement would have established that Harrington planned to engage in any violent, aggressive actions. As the PCR court pointed out in its decision, there was "nothing to suggest that any of this [information] would have been any more helpful [than] what the defense already knew and brought out in the trial that there was an underlying, unsettled issue, . . . between the two men of money owed[.]"

Defendant also argues that the PCR court erred by denying his claim that he was denied the effective assistance of trial counsel. Defendant's claim is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A defendant also must show that there exists 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. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims under our State constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant maintains that his trial attorney erred by failing to call certain witnesses who would have testified as to the victim's propensity to engage in violent acts. Defendant also argues that his trial counsel was deficient because he failed to present forensic testimony to point out the dissimilarity between the fabric of the victim's clothing and the fabric tested by the State, as well as the distance between the muzzle of defendant's weapon and the victim's body.

The PCR court found that counsel did not err by failing to call the additional witnesses because they did not know what had transpired in defendant's home on the night of January 10, 2001. The court noted that defendant apparently thought that these witnesses would have testified that at certain Halloween parties, Harrington revealed "a violent, criminal nature or activity[.]"

The court observed that the fact that someone may have dressed up and come to the party with a weapon was not a "credible indicia of" the individual's propensity to commit violent acts. The court therefore concluded that the testimony would not have been admissible. We are convinced that the PCR court correctly determined that trial counsel's failure to present this testimony did not constitute the ineffective assistance of counsel.

We are also convinced that the PCR court correctly determined that trial counsel's failure to present forensic testimony was not the ineffective assistance of counsel. The court pointed out that the expert testimony would not have made a difference to the outcome of the case. The court noted that neither "[t]he real distance of firing [nor] the type of material that was tested was really not ever a significant issue" in the case.

The court also pointed out that the forensic evidence was a "two-edge sword" because, although it could be argued that "the closer the decedent is, the more the threat," it could also be argued that a gun fired at close range "is more likely to result in death than a warning, or something less than death, or something less than fatal bodily injury." In our view, the record clearly supports the court's findings.

Defendant additionally contends that the PCR court erred by failing to conduct an evidentiary hearing on his ineffective-assistance-of-counsel claim. However, an evidentiary hearing was not required in this case because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-63 (1992).

 
Affirmed.

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

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A-0937-08T4

March 18, 2010