STATE OF NEW JERSEY v. ROBERT SPENCER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3589-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT SPENCER,

Defendant-Appellant.

________________________________________________________________

April 4, 2011

Submitted January 11, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 91-07-0599.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

RobertD. Bernardi,Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, AssistantProsecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the 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.

After the State's motion to try defendant as an adult was granted, pursuant to N.J.S.A. 2A:4A-26, a jury convicted defendant of conspiracy to commit robbery, N.J.S.A. 2C:5-2, felony murder during the commission of a sexual assault, N.J.S.A. 2C:11-3a(3); robbery, N.J.S.A. 2C:15-1a(1); two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and N.J.S.A. 2C:14-2a(5)(a); burglary, N.J.S.A. 2C:18-2a(1); and three counts of theft, N.J.S.A. 2C:20-3a. Defendant appealed, and we affirmed his conviction and sentence. State v. Spencer, No. A-3771-93T3 (App. Div. August 6, 1997).

In that opinion, we set forth the factual basis underlying defendant's conviction:

Defendant was involved in a burglary of a private residence in the early morning hours of May 22, 1989. The victim, who suffered from physical illnesses including a heart condition, was home at the time. She was sexually assaulted and died as the result of "stress cardiomyopathy" or a "cardiac infarction."

. . . .

Tried alone, defendant denied any participation in the event. He asserted that his statements to the police, including a recorded statement in which he admitted his involvement in the burglary and theft but not the sexual assault, were coerced and involuntary due to his age. He also asserted that because he was at home or going to work at the time the incident had to have occurred, he could not have been involved.

[slip op. at 3].

The Supreme Court denied defendant's petition for certification. State v. Spencer, 152 N.J. 189 (1997).

On January 14, 1999, defendant, represented by counsel, filed a PCR1 petition. On March 13, 2008, defendant, represented by new counsel, filed another PCR petition incorporating by reference the earlier petition as well as a motion for a new trial based on newly discovered evidence. This motion was based on a certification from a witness, Donna Herbst Ridgeway, who, in 1989, visited one of defendant's unindicted co-conspirators, Keith Chambers, in jail. She certified that Chambers, who died in 1994, told her that defendant "had nothing to do with" the murder. Ridgeway certified that she wrote defendant and was subsequently contacted by both of defendant's PCR attorneys.

The trial court denied defendant's motion for a new trial and his PCR petition after oral argument without conducting a plenary hearing, and this appeal followed. Defendant raises the following contentions on this appeal.

POINT I -

DEFENDANT'S MURDER CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN ITS JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THIS ISSUE.

(Partially Raised Below)

POINT II -

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS DUE TO HIS FAILURE TO INVESTIGATE ADEQUATELY AND/OR TO CONSULT ADEQUATELY WITH DEFENDANT.

POINT III -

DEFENDANT MUST BE AFFORDED A NEW TRIAL, OR AN EVIDENTIARY HEARING REGARDING HIS MOTION FOR A NEW TRIAL, BASED ON NEWLY DISCOVERED EVIDENCE.

I

Defendant argues in Point I of his brief that the trial court erred in its charge on accomplice liability. We found no evidence of plain error when we reviewed the court's accomplice liability charge on direct appeal. State v. Spencer, supra, slip op. at 13-16. We noted that,

[a]t trial defendant adopted an "all or nothing" strategy and denied being in the house. He did not contend that he was there but not responsible for the aggravated sexual assault or the felony murder based thereon.

[Id. at 16].

In his PCR appeal, defendant argues that the court should have charged the jury on "lesser-included offenses for the sexual assault area" and "that it was possible for an accomplice to have a purpose to commit a lesser offense than the principal." Defendant relies on State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), which was decided after defendant's trial, but prior to our decision on direct appeal.

Given our consideration of the court's accomplice charge on direct appeal and defendant's "all or nothing" defense, we do not find this argument persuasive.

II

In Point II of his brief, defendant argues that his trial counsel was ineffective in that he did not consult with defendant sufficiently nor sufficiently investigate his case. Defendant claims his trial counsel only met with him "a few times" and only "at the last minute" obtained his time cards from his employment, which were introduced into evidence at trial. Defendant contends that the trial court should have conducted an evidentiary hearing based on these claims. We disagree; defendant provides no explanation as to how he was prejudiced by the point at which his trial counsel obtained defendant's time cards.

The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled and well-known. To prevail on 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. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).

A defendant claiming that his attorney was ineffective in his representation of the defendant 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." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A showing 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 2064, 80 L. Ed. 2d at 698. This two-pronged standard has been expressly adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987); State v. Cooper, 410 N.J. Super. 43, 58 (App. Div. 2009). A defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

An evidentiary hearing is not necessary in every PCR matter where a defendant alleges ineffective assistance of counsel. R. 3:22-1. Rather, Rule 3:22-1 grants trial courts discretion as to whether or not to hold one. "Trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. In determining whether defendant has established a prima facie case, the court should construe the facts in the light most favorable to the defendant. Cummings, supra, 321 N.J. Super. at 170.

Defendant did not present a prima facie case for ineffective assistance of counsel as, other than the broad generalizations that are insufficient under Cummings, supra, he did not point to any particular error that would have affected the result of his trial. Accordingly, the trial court did not err by dismissing defendant's PCR petition without conducting an evidentiary hearing.

III

Finally, defendant argues that the trial court should have granted him a new trial based on newly discovered evidence. Defendant based this application on Ridgeway's certification that her friend, Chambers, an unindicted co-conspirator, told her in 1989, when he was in jail, that defendant had no involvement in the crime. Ridgeway certifies that she wrote defendant "one time" to tell him. She does not indicate if this was before or after defendant's trial in this matter. The trial court correctly observed that a new trial would not assist defendant if Ridgeway's testimony would be inadmissible. Chambers died in 1994. Defendant argues that this statement is "implicitly" a statement against Chambers' interest, N.J.R.E. 803(c)(25) and also has other clear "indicia of reliability." State v. Bunyan, 154 N.J. 261 (1998).

We do not find that Chambers' statement implicated himself in the crime. Chambers claimed to know that defendant did not commit the crime without admitting that he was himself involved. He did not risk prosecution by telling a friend that defendant was not involved with the crime. See State v. White, 158 N.J. 230, 238 (1999) (explaining that "statements that so disserve the declarant are deemed inherently trustworthy and reliable"). A jailhouse comment to a friend does not have any other particular indicia of reliability. See State v. Rivera, 351 N.J. Super. 93, 101 (App. Div. 2002) (stating that the "indicia of reliability" requirement will be met where "the hearsay statement falls within a firmly rooted hearsay exception, or where it is supported by a showing of particularized guarantees of trustworthiness.") (internal quotation marks and citations omitted). In Bunyan, supra, 154 N.J. at 270-71, the Court did not admit a deceased witness' exculpatory statement because it was neither spontaneous nor against the witness' interest. She made it years after the crime occurred, she immediately threatened to recant the statement after making it, and there was no opportunity to cross-examine her. Ibid. Here too the witness is deceased. The statement is only being brought forward many years after it was made, and it is not a statement against the witness' interest. This statement is not admissible evidence and therefore does not provide a basis to grant defendant a new trial.

The order under review is affirmed.

1 The record does not reveal any reason for the delay in hearing this petition.