STATE OF NEW JERSEY v. GJELOSH DOCAJ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2557-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GJELOSH DOCAJ,

Defendant-Appellant.

________________________________________________________________

July 3, 2012

 

Submitted May 1, 2012 - Decided

 

Before Judges Espinosa and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-1477.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count three). The sentencing court merged count three into count one and imposed a sentence of life imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), with five-years parole supervision on count one, a concurrent term of five years on count two, and appropriate fines and penalties. The court also required defendant to pay $7,750 in restitution to the Victims of Crime Compensation Board.

Defendant filed a direct appeal in which he raised the following issues:

POINT I

 

THE INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER MISSTATED THE LAW. (NOT RAISED BELOW)

 

POINT II

 

IN HER OPENING STATEMENT, THE PROSECUTOR IMPROPERLY URGED THE JURY TO CONSIDER "THIS . . . A TRIAL TO SEEK JUSTICE OF [SIC] HER DEATH."

 

POINT III

 

THE DETECTIVE WHO INTERROGATED DEFENDANT REPEATEDLY TESTIFIED THAT DEFENDANT "WAS NOT TELLING THE WHOLE TRUTH" AND "WAS TRYING TO HIDE SOME THINGS."

 

POINT IV

 

THE COURT TOLD THE JURY, WITH RESPECT TO THE ADMISSION OF DEFENDANT'S STATEMENT, THAT IT HAD ALREADY RULED ON "THE QUESTION OF MIRANDA RIGHTS." (NOT RAISED BELOW)

 

POINT V

 

THE EMERGENCY-MEDICAL TECHNICIAN REPEATEDLY CHARACTERIZED THE SHOOTING AS A "MURDER." (NOT RAISED BELOW)

 

POINT VI

 

THE POLICE DETECTIVE READ A PASSAGE FROM A BIBLE FOUND DURING THE SEARCH OF DEFENDANT'S HOME. (NOT RAISED BELOW)

 

POINT VII

 

DEFENSE COUNSEL'S FAILURE TO OBJECT AT TRIAL TO THE ERRORS RAISED IN POINTS I, IV, V, AND VI DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT VIII

 

THE TRIAL WAS SO RIDDLED WITH ERRORS THAT THEIR CUMULATIVE EFFECT RENDERED THE TRIAL UNFAIR.

 

POINT IX

 

A LIFE TERM, WHICH IS THE MAXIMUM SENTENCE AND WHICH CARRIES A MANDATORY PAROLE DISQUALIFIER OF MORE THAN 63 YEARS, IS GROSSLY EXCESSIVE.

 

 

We affirmed defendant's conviction and remanded for re-sentencing. State v. Docaj, 407 N.J.Super. 392 (App. Div. 2009).1 Defendant filed a petition for certification, which was denied by the Supreme Court, 200 N.J. 370 (2009). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.

Defendant filed a petition for PCR on January 15, 2010, in which he argued

POINT I

 

TRIAL COUNSEL FAILURE TO REQUEST A COMPETENCY HEARING BASED ON THE MEDICAL REPORT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)

 

POINT II

 

THE TRIAL COURT'S [SIC] COMMITTED REVERSIBLE ERROR BY ALLOWING LAW ENFORCEMENT OFFICER [SIC] TO INTERJECT THEIR PERSONAL OPINION AND INADMISSIBLE HEARSAY EVIDENCE OVER DEFENSE OBJECTION. (NOT RAISED BELOW)

 

POINT III

 

THE PROSECUTOR ENGAGED IN PROSE[C]UTORIAL MISCONDUCT BY VOUCHING FOR THE CREDIBILITY OF KEY STATE'S [SIC] USURPING THE FUNCTION OF THE JURY. (NOT RAISED BELOW)

 

POINT IV

 

THE LOWER COURT'S FAILURE TO ADEQUATELY VOIR-DIRE POTENTIAL JURORS COUPLED WITH THE STATE'S FAILURE TO SERVE DEFENDANT WITH DISCOVERIES IN HIS NATIVE LANGUAGE AND PROVIDE AN INTERPRETER THROUGHOUT THE PROCEEDINGS, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND A FUNDAMENTALLY FAIR TRIAL. (NOT RAISED BELOW)

 

The PCR court denied defendant's petition by order dated August 30, 2010.

Defendant presents the following issues for our consideration in his appeal.

POINT I

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF HIS FAILURE TO REQUEST THE APPROPRIATE RELIEF ARISING OUT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

 

 

 

 

POINT II

 

RULE 3:22-4 DID NOT OPERATE AS A PROCEDURAL BAR TO PRECLUDE THE DEFENDANT'S CONTENTION FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.

 

We are not persuaded by either of these arguments and affirm.

In his direct appeal, one of the issues raised by defendant was that the prosecutor committed misconduct by making improper comments in her opening statement. Defendant did not challenge any comment made by the prosecutor in summation.

Rule 3:22-4(a) states in pertinent part:

Any ground for relief not raised in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:

 

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

 

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

 

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

Defendant contends that, although an argument was made in his direct appeal that the prosecutor made improper comments during her opening statement, his present argument regarding her summation could not have reasonably been raised in his direct appeal. He claims that the argument was not reasonably available because he was denied the effective assistance of counsel on appeal. However, the rule limits the application of this exception as follows:

A ground could not reasonably have been raised in a prior proceeding only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.

 

[Ibid.]

Therefore, this exception does not apply.

In addressing this issue, the PCR court stated:

[T]he petitioner made a vague claim of prosecutorial misconduct. The Court noted that the petitioner did not assert this claim with any specificity. Petitioner simply asserted that the prosecutor vouched for certain witnesses but could not support this argument with any reference to the record. Thus, this claim failed.

 

On appeal, defendant concedes that "neither the defendant nor post conviction relief counsel presented any references whatsoever to the trial record in support of this contention[.]" Defendant bore the burden to establish by a preponderance of the evidence that he is entitled to relief. "To sustain that burden, specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). The PCR court correctly denied relief because the submission to the PCR court failed to present a factual basis for granting relief to defendant based upon alleged improprieties in the prosecutor's summation.

On appeal, defendant attempts to cure this deficiency by quoting passages from the prosecutor's summation that purportedly represent misconduct. To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v.Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (internal quotation marks omitted)). We are satisfied from our review of the comments cited that the prosecutor's comments did not rise to that level.

Moreover, trial counsel interposed objections to certain of the comments and the trial court gave appropriate instructions both during the trial and in the charge. Therefore, even considering the supplemental argument made on appeal, defendant has failed to show he was deprived the effective assistance of counsel as a result of the alleged failure of his trial counsel to respond to alleged improprieties in the prosecutor's summation. See Stricklandv. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, l 05 N.J. 42 (l987).

Affirmed.

 

1 Following remand, defendant appealed his sentence while this appeal was pending. We remanded the matter for resentencing a second time. State v. Docaj, No. A-002542-09 (App. Div. November 21, 2011).