STATE OF NEW JERSEY v. ALBERT BOWSER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0849-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT BOWSER,

Defendant-Appellant.

_____________________________________________________________

June 10, 2011

 

Submitted October 26, 2010 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

05-04-0896.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

of counsel and on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent (LeeAnn

Cunningham, Special Deputy Attorney General/

Assistant Essex County Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant Albert Bowser appeals from an order dated April 7, 2009, denying his petition for post-conviction relief (PCR). We affirm.

In a three-count indictment, defendant was charged with felony murder, N.J.S.A. 2C:11-3(a)(3); the purposeful or knowing murder of Fred Bush (Bush), N.J.S.A. 2C:11-3(a)(1) and (2); and robbery, N.J.S.A. 2C:15-1. Following a jury trial, defendant was acquitted of felony murder and robbery, but he was convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), a lesser-included offense of purposeful or knowing murder. In addition, prior to sentencing, defendant pled guilty to fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), as charged in a separate indictment.

Defendant was sentenced on January 13, 2006. Based on his criminal history, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Defendant was sentenced to a sixteen-year prison term on the manslaughter conviction with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent eighteen-month term for the resisting arrest offense.

On appeal, we affirmed defendant's reckless manslaughter conviction. However, we remanded the matter for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), because defendant's sixteen-year prison term exceeded the former presumptive term for a second-degree extended sentence. State v. Bowser, No. A-4890-05 (App. Div. Oct. 19, 2007), certif. denied, 193 N.J. 276 (2007). At the resentencing hearing on March 13, 2008, the court imposed a fifteen-year term subject to NERA.

We need not repeat all of the facts supporting defendant's conviction because they are set forth in our prior opinion. As we previously indicated, the "[o]fficers who responded to the scene testified that they found Bush lying on his back with a 'hawk bill type knife' in his right hand." Id. at 3. We also noted that "Bush was pronounced dead at the scene, and the Essex County Medical Examiner, Dr. Nobby Mambo, testified that the cause of his death were injuries to the head. Mambo described the injuries as an 'abrasion on the back of the head, a fractured skull, and a hemorrhage over the lobes and base of the brain.'" Id. at 4. Mambo testified that "Bush was most likely struck in the face" because his dentures were broken. Ibid.

We also noted that when defendant testified he admitted punching Bush in the face:

Defendant testified in his own behalf. Admitting that he supported himself by cutting hair and dealing drugs, defendant testified that Bush did not have enough money to buy drugs from him so he, Bush, offered his cell phone instead. Defendant testified at trial that during the course of the drug deal, an argument ensued and Bush pulled out a knife and "came at" him. Acting in self-defense, defendant punched Bush once in the face, saw Bush fall to the ground, and then fled the scene.

 

[Id. at 5-6.]

 

In our prior opinion, we also observed that defense counsel had "vigorously argued the circumstances of the confrontation between Bush and defendant, reminding the jury that his client was unarmed, and that Bush had a knife." Id. at 11. We also concluded that the trial court "clearly placed the essential issue for the jury to decide in its proper context" by instructing the jury as follows:

Self-defense is also the right of a person to defend against serious threatened and unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him of unlawful force.

 

[Ibid.]

 

On May 12, 2008, after defendant had been resentenced, he filed a PCR petition alleging that his trial attorney was ineffective for failing "to raise self-defense as an affirmative defense," and for failing to request a jury instruction "on the fact that the defendant was unarmed." PCR counsel raised additional issues in an amended petition dated September 30, 2008.

 

Following oral argument on March 24, 2009, the PCR court detailed its reasons for denying defendant's petition in a twenty-page written decision. The court's findings included the following:

The forensic evidence from the medical examiner was that decedent weighed 160 pounds . . . . He had a broken dental plate and a fresh bruise on the back of his head. He had some fractures at the base of the skull and evidence of bleeding into the tissue of the membrane which covers the brain. The brain hemorrhage covered a large area, including both lobes and the base. There was evidence of bleeding from the nose as a result of the head injury. The cause of death was homicide as a result of an assault or injury to the head and brain. The medical examiner was of the opinion that decedent was struck in the mouth and then fell. . . .

 

It was the State's theory that defendant struck decedent in the face with enough force to break his dental plate and cause him to fall backward hard enough to sustain the fatal skull and brain injuries. Defendant himself essentially admitted to striking the decedent in the face and causing the death . . . .

 

. . . .

 

. . . The facts and the fair inferences to be drawn from them show that a 300 pound man hit a much older 160 pound man hard enough to break his dental plate and cause him to fall backward with enough force to cause several skull fractures and a massive brain hemorrhage, fatal injuries.

 

 

The PCR court concluded that defendant was not entitled to relief because "none of the arguments have been sustained." In addition, the court determined that an evidentiary hearing was not required because defendant failed to demonstrate a prima facie claim of ineffectiveness "under the Strickland/Fritz standards."1

On appeal to this court, defendant presents the following arguments:

POINT I

 

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

A. TRIAL COUNSEL FAILED TO REQUEST A CHARGE ON THE LESSER INCLUDED OFFENSE OF PASSION/PROVOCATION.

 

B. TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S INAPPROPRIATE COMMENTS DURING OPENING STATEMENT.

 

C. TRIAL COUNSEL FAILED TO OBJECT TO, OR REQUEST A LIMITING INSTRUCTION CONCERNING, THE ADMISSION OF EVIDENCE THAT DEFENDANT HAD COMMITTED PAST WRONGS.

 

D. TRIAL COUNSEL FAILED TO DEVELOP A TIMELY, VIABLE STRATEGY ON SELF-DEFENSE.

 

E. TRIAL COUNSEL FAILED TO OBJECT TO, OR REQUEST A LIMITING INSTRUCTION CONCERNING, THE ADMISSION OF HEARSAY STATEMENTS.

 

F. TRIAL COUNSEL FAILED TO REQUEST A CHARGE ON CAUSATION AND ACCIDENT.

 

G. TRIAL COUNSEL WAS INEFFECTIVE DURING CLOSING ARGUMENT.

 

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 RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE.

 

POINT IV

 

THE LOWER COURT ORDER MUST BE REVERSED SINCE IMPOSITION OF THE SENTENCE WAS ILLEGAL.

 

POINT V

 

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

 

POINT VI

 

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

 

POINT VII

 

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

 

We conclude from our review of the record that these arguments are clearly without merit. R. 2:11-3(e)(2). The PCR court carefully considered each of defendant's claims; the court's findings are supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 472 (1999); and the court correctly applied well-settled legal principles. We therefore affirm substantially for the reasons stated by Judge Patricia K. Costello in her comprehensive written decision on April 7, 2009.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).