STATE OF NEW JERSEY v. OMAR N. DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR N. DAVIS,

Defendant-Appellant.

________________________________________________________________

October 23, 2013

Argued October 8, 2013 Decided

Before Judges Fisher, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-06-1292.

A. Harold Kokes argued the cause for appellant.

Mario C. Formica, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Formica, on the brief).

PER CURIAM

Defendant Omar N. Davis appeals from the October 30, 2012 denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

After an initial mistrial due to the improper testimony of a police witness, a jury convicted defendant of first-degree murder of Raamah Huggins-El, N.J.S.A. 2C:11-3a(1)(2), and possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was sentenced to life imprisonment with thirty years parole ineligibility for the murder conviction and a concurrent ten-year term for the weapons conviction. We affirmed on direct appeal. State v. Davis, Docket No. A-0058-03 (App. Div. April 19, 2006). As we indicated in that opinion, defendant shot the victim several times with a shotgun. He was convicted largely on the basis of circumstantial evidence and his incriminating statements to others. Defendant testified on his own behalf, denying his guilt and indicating his whereabouts away from the crime scene on the night of the shooting.

On appeal defendant raises the following issues:

POINT I: THE LOWER COURT ERRED IN DENYING PETITIONER'S POST-CONVICTION RELIEF APPLICATION WITHOUT SCHEDULING AN EVIDENTIARY HEARING.

POINT II: THE LOWER COURT ERRED IN DENYING PETITIONER'S REQUEST THAT THE RECORD REMAIN OPEN PENDING THE STATE'S SUPPLYING AN OFFICIAL TRANSCRIPT OF THE NOVEMBER 7, 2001 PROCEEDINGS.

POINT III: THE LOWER COURT ERRED IN REFUSING TO SHIFT THE BURDEN TO THE STATE IN LIGHT OF PETITIONER'S UNREBUTTED SUBMISSIONS THAT NO MEANINGFUL PRETRIAL CONFERENCE, WHATSOEVER, OCCURRED.

POINT IV: THE LOWER COURT ERRED IN FAILING TO REQUIRE THE STATE TO COMPEL THE PRESENCE OF PETITIONER'S FORMER TRIAL COUNSEL, NOW PENNSYLVANIA TRIAL JUDGE HOLLY FORD.

POINT V: THE LOWER COURT ERRED IN ITS FAILURE TO FIND ANY INEFFECTIVE ASSISTANCE OF COUNSEL, WHATSOEVER; INCLUDING, BUT NOT LIMITED TO, FORMER TRIAL COUNSEL'S (1) NOT HAVING PETITIONER EVALUATED; (2) NOT RETAINING ANY EXPERTS, WHATSOEVER, FOR EITHER VOLUNTARY INTOXICATION OR PASSION/PROVOCATION AND (3) FAILURE TO OBJECT TO THE FLIGHT CHARGE.

POINT VI: PETITIONER ARGUES THAT THE STATE PURPOSELY CREATED THE INITIAL MISTRIAL BECAUSE PETITIONER BELIEVES THE STATE KNEW THE CONTENT OF DET. HIRES' IMPROPER TESTIMONY BEFORE SAME IMPROPER TESTIMONY WAS ELICITED.

POINT VII: PETITIONER ARGUES THAT DET. HIRES' INABILITY TO TESTIFY AT THE SECOND TRIAL WAS NOT SUPPORTED BY SUFFICIENT MEDICAL DOCUMENTION. THE TRIAL COURT'S DETERMINATION THAT DET. HIRES WAS MEDICALLY EXCUSED FROM TESTIFYING AT THE SECOND TRIAL VIOLATED PETITIONER'S RIGHT TO CONFRONT HIS ACCUSER (DET. HIRES), AND PETITIONER'S TRIAL COUNSEL'S STIPULATION THAT CERTAIN PORTIONS OF DET. HIRES' TESTIMONY BE READ INTO THE RECORD IS FURTHER EVIDENCE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT VIII: EVEN IF THE COURT FINDS THAT EACH OF THE ABOVE POINTS, INDIVIDUALLY, IS NOT SUFFICIENT EVIDENCE OF A "PRIMA FACIE" FINDING THAT REQUIRES THAT PETITIONER IS ENTITITLED TO AN EVIDENTIARY HEARING, THE CUMULATIVE EFFECT OF SAME ERRORS SHOULD COMPEL THE COURT TO GRANT SAME EVIDENTIARY HEARING.

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. 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, 57-58 (1987).

In cases brought by a defendant who has entered a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The second component is shown by establishing a reasonable probability that the defendant would not have pled guilty, but for his counsel's errors. Id. at 279-80 (citations omitted).

In order to prevail on a claim of ineffective assistance of counsel, a petitioner may need to rely on facts outside of the trial record to prove constitutionally deficient representation. The trial court is vested with discretion under Rule 3:22-10 to conduct an evidentiary hearing to determine additional facts surrounding counsel's trial representation as well as to elicit the attorney's testimony. State v. Preciose, 129 N.J. 451, 462 (1992). However, the trial court should hold an evidentiary hearing only "if a defendant has presented a prima facie claim in support of [PCR]." Ibid. In order to establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington. . . ." Id. at 463. When determining whether defendant has set forth a prima facie case, the court will view the factors in a light most favorable to the defendant. Id. at 462. See also State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant's central contention is that his defense counsel did not communicate the State's plea offer to him, nor inform him of his sentence exposure if he were convicted at trial. In support of this position he offers only his own sworn statement. Defendant did not supply a certification from defense counsel, who he indicates is now a judge in Pennsylvania, nor a certification from the assistant prosecutor. Defendant's claim is not supported in any way by the record.

The transcript of the November 7, 2001 pre-trial status conference, provided for the first time by defendant on appeal, references the fact that the State made an initial offer to defense counsel.1 During the status conference, the assistant prosecutor explained that "the State has made a proffered a tentative offer in this case which we discussed with counsel, and my understanding is that there really isn't a meeting of the minds [] close to resolving along the terms proposed by the State." Defendant argues that he may not have been present at that conference, and that the State has the burden of producing proof that he was informed of a plea offer. To the contrary, the burden rests on defendant. State v. Nash, 212 N.J. 518, 541 (2013) (quoting State v. Preciose, supra, 129 N.J. at 459).

On appeal, defendant relies primarily on State v. Taccetta, 200 N.J. 183 (2009). In Taccetta, the trial court granted the defendant's PCR based on a judicial finding of ineffective assistance of counsel due to trial counsel's failure to inform the defendant of the sentencing consequences. Id. at 185. Our Supreme Court determined as a matter of law that the defendant was "legally disabled from taking a plea offer" because he maintained his innocence. Id. at 195. Similarly, here defendant maintained his innocence throughout the trial and sentencing and cannot now argue he would have taken a favorable plea.

Defendant's remaining arguments are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. Defendant supplied only selected portions of the trial transcript. 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. Cummings, supra, 321 N.J. Super. at 170. Here, defendant failed to set forth any facts whatsoever that indicate trial counsel's failure to hire an expert to demonstrate intoxication or the passion/provocation defense was substandard. Defendant's asserted defense at trial, that he did not shoot the victim, makes intoxication and passion/provocation irrelevant.

Defendant also raises in Points VI and VII that trial errors were made. These claims of trial error will not be considered because they were not raised before the PCR judge. R. 2:10-2 (we will disregard claims or error by the trial court that were not properly preserved for appeal or brought to the attention of the trial court unless the error is capable of producing an unjust result). More importantly, these arguments should have been raised on direct appeal and thus cannot be raised in a PCR petition. R. 3:22-4(a)(1).

1 This transcript was not submitted to the PCR court and we would therefore not ordinarily consider it. R. 2:5-4(a). We have read the transcript because the State does not object to our consideration and the transcript sheds some light on defendant's likely awareness of a plea offer.