STATE OF NEW JERSEY v. WILLIAM SEVERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0798-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM SEVERS,

Defendant-Appellant.

______________________________________

March 14, 2014

Submitted January 27, 2014 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0181.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Severs appeals from an order of the Law Division, dated September 22, 2011, which denied his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Cumberland County Indictment No. 04-02-0181, with third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count one); fourth-degree criminal contempt, N.J.S.A. 2C:29-9 (count two); first-degree murder, N.J.S.A. 2C:11-3(a) (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1); fourth-degree obstructing the administration of the law, N.J.S.A. 2C:29-1 (count six); and third-degree impersonating, obtaining and using the identification of another person, N.J.S.A. 2C:21-17(a)(4) (count seven).

Defendant was tried before a jury on counts one, three, four, five and six. At the trial, the State presented evidence which established that Tina Labriola separated from her husband in 1999. Sometime thereafter, Labriola entered into a relationship with defendant, which was at times stormy and marked by violence. Defendant and Labriola separated in November 2000, although they continued to see each other.

In 2001, Labriola was engaged to marry Ralph Kearney. Late in December 2001, defendant was at a tavern with Edward Hackett, and threatened to kill Labriola. Hackett did not take the threat seriously. Theresa Northam testified that, on another occasion, defendant threatened to put Labriola in a wheelchair.

Melinda Harris was Labriola's best friend. Harris's father was residing with her in Vineland in early January 2002. He testified that on two days, he saw a red van drive into the park across from Harris's home. An individual got out of the van, sat on a bench and stared at Harris's home. On two subsequent days, Harris's father saw a red car pull into the park. On both days, a person exited the car, sat on the bench and looked towards the house. According to Harris's father, it appeared to be the same person on all four occasions.

Wilbert Creamer, one of defendant's friends, testified that on the morning of January 10, 2002, defendant appeared at his residence. Defendant was driving a red car. According to Creamer, defendant was upset, apparently because Labriola planned to marry Kearney.

That evening, Labriola and Kearney went to visit Harris at her home. After they pulled into the driveway, Kearney wanted to add oil to his car's engine. He exited the car to get oil from the back seat. Labriola got out of the car to assist him. While they were standing next to the car, Kearney heard a "bang" that seemed to emanate from the park. Labriola fell to the ground. Harris ran out and discovered that Labriola had been shot. Labriola died while being transported to the hospital.

The police responded to the scene. They found a bullet in the driveway of Harris's home. They determined that the shot had been fired from the park across the street. Approximately 220 yards from the crime scene, the police found a rifle and guitar case. Creamer testified that he had sold the rifle to defendant in 2000. Defendant's palm print was found on the scope of the rifle.

The police also found several guitars in a search of a trailer where defendant kept his belongings. The only guitar without a case was a bass guitar. The case found in the park was a case for that type of guitar. A witness, who taught defendant to play the guitar, testified that when he helped defendant move, he observed a guitar case. It was, he said, the same case found in the park after the shooting.

Julian Gonzalez, who lived near Harris's home, testified that, on the night of January 10, 2002, he heard a gunshot. He saw several police cars and an ambulance drive by. Gonzalez drove in the direction that the police cars and ambulances had travelled. Near the crime scene, Gonzalez observed a man coming out of the park. He testified that defendant was the man he saw leaving the park.

A week after Labriola was shot, defendant went to see Theresa Northam and told her he needed help in leaving New Jersey. Northam drove defendant to her niece's home in Virginia. During the trip, defendant crouched down in the rear seat. He told her that Creamer had given him a gun, and said he would not "go down" alone. The police later arrested defendant in Ocean City, Maryland.

The jury found defendant guilty of murder, possession of a weapon for an unlawful purpose, unlawful possession of a weapon, and fourth-degree obstruction of justice. Defendant was sentenced to an aggregate sixty-year term of incarceration, and required to serve 85% of his maximum term without parole, as required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed from the judgment of conviction entered by the trial court. In an unpublished opinion, we affirmed defendant's convictions and the sentences imposed, with the exception of the sentence for possession of a weapon for an unlawful purpose. State v. Severs, No. A-2634-05 (App. Div. May 19, 2009) (slip op. at 2). We remanded the matter to the trial court for merger of the murder conviction with the conviction for possession of a weapon for an unlawful purpose. Ibid.

Thereafter, defendant filed a petition for certification with the Supreme Court, seeking review of our judgment on his appeal. The Supreme Court denied the petition. State v. Severs, 200 N.J. 370 (2009).

II.

On November 5, 2009, defendant filed a pro se PCR petition in the trial court. The court appointed PCR counsel for defendant, who filed a brief in which counsel argued that: (1) defendant was entitled to an evidentiary hearing on his petition; (2) defendant was denied the effective assistance of trial counsel because counsel did not seek a mistrial or an alternate juror after Juror No. 11 said she had been a victim of domestic abuse, failed to adequately prepare for trial, did not object to prosecutorial misconduct during summation and failed to object to certain jury instructions; (3) defendant was denied the effective assistance of appellate counsel; (4) the trial judge should have recused himself; and (5) defendant's claims were not procedurally barred.

PCR counsel filed a supplemental brief in which he argued that trial counsel was ineffective because counsel: (1) did not retain a palm print expert; (2) failed to retain a ballistics expert; (3) did not challenge the admissibility of the palm print recovered from the rifle; (4) failed to seek a change of venue; and (5) did not challenge wording of the verdict sheet, which was allegedly confusing and inaccurate. In addition, counsel argued the trial court deprived him of his right to exercise a peremptory challenge regarding Juror No. 5.

The PCR court considered the petition on September 22, 2011 and, on that date, placed its decision on the record, concluding that the petition should be denied. The court concluded that many of the issues raised were barred by Rule 3:22-5, because they had been decided in defendant's direct appeal, or barred by Rule 3:22-4 because they could have been raised in the appeal. The court nevertheless considered defendant's claims and determined that they were without merit.

The court entered an order dated September 22, 2011, denying PCR. The court later filed a written opinion dated October 4, 2011, amplifying the reasons for denying PCR. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I:

The trial court erred in denying the defendant's petition foR post conviction relief without affording him an evidentiary hearing to fully address his contention that he failed to receive adequate legal representation at the trial level.

A. The prevailing legal principles regarding claims of ineffective assistance of counsel, evidentiary hearings and petitions for post conviction relief

B. The defendant did not receive adequate legal representation from trial counsel as a result of counsel's failure to request a mistrial or, in the alternative, to request that juror no. 11 be removed and replaced with an alternate juror once counsel learned during deliberations the juror had omitted critical information during the voir dire regarding her prior experiences as a victim of domestic violence.

point ii:

The trial court erred in denying the defendant's petition for post conviction relief, in part, on procedural grounds pursuant to [RULE] 3:22-5.

III.

Defendant argues that he was denied the effective assistance of trial counsel. He contends that after Juror No. 11 acknowledged during deliberations that she had been a victim of domestic violence, his trial counsel should have requested the court to declare a mistrial or replace the juror with an alternate.

A defendant's claim that he was denied the effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of such claims under the New Jersey Constitution.

In order to prevail on a claim of ineffective assistance of counsel, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. 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.

The record shows that during deliberations, Juror No. 11 informed the court that the trial had brought back a lot of "memories." The juror said that her former husband "used to abuse" her and her children. She said that, one day, he got mad. She locked herself in the bedroom with the two children, because her former husband tried to kill himself and "then tried to kill us."

The juror said that she had to get this information out because if she did not, it would "come back and haunt [her]." She stated that she had been having "bad dreams lately" and it was "more or less hurting [her] inside." The juror indicated that she wanted to provide the information to the court because it would be "out in the open" and she could be "fair" in her decision.

The court asked the juror whether she could put "those bad remembrances" aside and decide the case solely upon the evidence that she heard in the courtroom. The juror replied, "Yes." The court asked the juror whether she could be fair and impartial to defendant, and she again replied, "Yes."

We are convinced that, even if counsel erred by failing to seek a mistrial or the juror's replacement with an alternate, defendant was not prejudiced by the error. As the colloquy between the juror and the court indicates, the juror assured the court that she could put her past experiences aside and decided the case based solely upon the evidence presented. Under the circumstances, the trial court was not required to declare a mistrial or replace Juror No. 11 with an alternate.

As the PCR court found, there is no evidence that Juror No. 11's presence on the jury had the capacity to influence the jury improperly. The court stated that:

It is clear that Juror [No.] 11 was not improperly influenced by her experiences as indicated in her colloquy. Further, the statements that were made regarding her experiences were made solely to the court and counsel, they were not made to other individuals or the other jurors. Therefore, it appears that [defendant's] constitutional rights . . . were upheld in regards to an impartial jury.

The court added that Juror No. 11's post-trial statements to the press did not indicate that she was impartial. The juror reportedly mentioned that Labriola had obtained a domestic violence restraining order. The trial court had stricken that evidence and instructed the jury not to consider it. The juror reportedly stated that the jury had not discussed the restraining order. She also stated that the State had presented a strong case, and the palm print on the rifle was the State's strongest evidence.

The PCR court found that Juror No. 11's comments showed she had "remained impartial." The court said that, the juror had "indicated that the evidence brought by the State was so strong and that the evidence produced by the State regarding the palm print on the rifle was what determined the verdict, not the restraining order." The court added that the juror's statements showed that her own experience with the restraining order did not influence other members of the jury because that subject "did not come up during the jury's deliberations."

The record therefore supports the PCR court's determination that Juror No. 11 remained impartial and her prior experiences did not have the capacity to improperly influence the jury. The court correctly found that even if trial counsel erred by failing to seek a mistrial or question the other jurors, defendant has not shown that the error affected the outcome of the case.

Defendant additionally argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Again, we disagree. As we have explained, defendant failed to present a prima facie case of ineffective assistance of counsel. Therefore, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

In addition, defendant contends that the PCR court erred by finding that some of defendant's claims were barred by Rules 3:22-4 and 3:22-5. We note, however, that the PCR court addressed the merits of defendant's claims and found that they were without merit. Thus, we need not address defendant's contention that the PCR court erred by finding that some of his claims were barred by the court rules.

Affirmed.