STATE OF NEW JERSEY v. CHARLES GAMBLE

NOT FOR PUBLICATION WITHOUT THE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.

CHARLES GAMBLE,

Defendant-Appellant.

________________________________________________________________

July 7, 2014

Submitted February 26, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-09-1483.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Roberta DiBiase, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Gamble appeals from the January 15, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

A jury convicted defendant of conspiracy to commit the murder of Terry Jackson, N.J.S.A. 2C:11-3(a) and 2C:5-2 (count one); murder, N.J.S.A. 2C:11-3(a) (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count three). The court imposed a sentence of life imprisonment with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a). We affirmed the conviction and sentence on direct appeal. State v. Gamble, No. A-5811-07 (App. Div. September 3, 2010), certif. denied, 205 N.J. 81 (2011).

The sole issue raised in this petition is defendant's contention he received ineffective assistance of counsel because his counsel failed to retain an expert to conduct a comparative analysis of footprints found at the scene to his boots, "thereby negating any nexus between [] defendant and the victim's shooting."

The salient facts adduced at trial are as follows. On the night of April 24, 2006, Jackson suffered two gunshot wounds to his head after visiting his cousin at the Highpoint apartments in Lakewood. During the course of the five-day trial, the court and jury heard testimony from twenty-one fact and expert witnesses. Two witnesses testified to hearing "two bangs that sounded like firecrackers" between 9:00 and 9:30 p.m. Other witnesses found Jackson's hat in the bushes and his car parked on the street. Another witness found a blue and gray cell phone, later identified as belonging to defendant, on the ground in the area of the apartments.

Between 10:00 and 10:30 p.m., defendant and co-defendants, Isiah Thomas and Raphael Powell, visited a friend at the Highpoint apartments. Defendant began to boast about shooting Jackson, and claiming surprise that no police responded to the loud gunshots. He added that his 9mm gun jammed after two shots and he hoped the police would not find the cell phone he dropped while running away.

Detective Jamie Phillips of the Ocean County Sheriff's Department was the crime scene investigator for the case. She explained she did not make cast molds of the footprints found near the crime scene because "the footprints that were in the backyard were [] nondescript[] [and] they weren't of any value." Sergeant Eugene Thatcher, the State's fingerprint expert, also testified about the footprints. On cross-examination, he further expounded on why casts of the footprints were not made stating,

There didn't appear to be enough impression due to the soils and the sand for any detail of any strict manner [to] be made, and being as light as it was, by training and experience, the other detective realized that they weren't going to get anything out of this and it was more or less a shadow or something of a print in the sand.

At oral argument on the petition, PCR counsel argued that if trial counsel had engaged an expert to evaluate the footprints found at the scene of the crime, then a strategic decision may have been made, enabling the defense to "present something of a more concrete nature to the jury." The State explained the case was grounded on "great police work," a "wealth of circumstantial evidence," and "extensive testimony" linking defendant to the crime. The prosecutor noted trial counsel cross-examined Detective Phillips and Sergeant Thatcher extensively "and got them to admit that maybe they should have taken casts of the footprints." She argued that defendant did not carry his burden to show what a footprint expert would have offered to negate the overwhelming evidence in the case.

After assessing defendant's claim, Judge James M. Blaney found he did not meet the standards under Strickland/Fritz.1 In his opinion he reasoned as follows:

Despite a thorough cross-examination on the issue, [defendant] urges that his counsel should have hired a footprint expert. If he had done so, it would not have produced the casts of the boot prints that [defendant] so desires. Certainly, it is not counsel's fault that casts were not taken of the print that was a decision made by the State in its investigation of the case. It is unclear how a footprint expert's opinion would have exonerated the defendant based on only photographic evidence, as the casts did not exist and a footprint expert certainly could not have negated any other evidence in the case.

[Defendant] has not detailed to the [c]ourt how hiring a footprint expert to expand on this issue would have led to his exoneration or how[,] in the alternative, he has been prejudiced by his counsel's failure to further investigate this issue. Such information necessarily should have been presented in his petition in the form of an expert opinion, as under State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), [defendant] must do more than make a mere bald assertion and in order to establish a prima facie claim of ineffective assistance of counsel, [defendant] must submit certifications or affidavits in support of his claim. [Ibid. at 170]. [Defendant] has not submitted anything to the [c]ourt to support his contention that the boot prints would have exculpated him from all of the evidence in the case, he has merely said that an expert may have been able to provide the jury with more information. This is insufficient support for his claim and thus [defendant] has failed to establish a prima facie claim of ineffective assistance of counsel.

[Defendant] has further failed to establish that[,] but for counsel's errors, the results of the trial would have been different. Under the second prong of the Strickland/Fritz test, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of a proceeding would have been different. The [c]ourt cannot find that counsel's conduct was deficient for failing to further investigate the boot prints, as the [defendant] has not shown that he was prejudiced by this inaction or that he would have been found innocent at trial had his counsel done more. There is no reason to disturb the jury verdict on a petition for post-conviction relief.

Indeed, as clearly explained above, [defendant's] claims do not meet the standard under Strickland/Fritz. [Defendant's] contention that he received ineffective assistance of trial counsel simply cannot be established based on the record presented to the [c]ourt at this time. Further, no reasonable probability that the outcome would have been different has been established. There is no basis presented here upon which to determine that trial counsel was ineffective; [defendant's] Constitutional rights have not been infringed upon and he is not entitled to an evidentiary hearing.

Accordingly, the judge denied defendant's petition.

On appeal, defendant raises the following issue:

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. Since the Defendant Presented a Prima Facie Case of Ineffective Assistance of Trial Counsel as a Result of Counsel's Failure to Conduct a Thorough Pretrial Investigation Regarding Footprints Found at the Scene, as Well as to Utilize the Services of a Footprint Expert at Trial, the Trial Court Erred in Denying the Defendant's Petition For Post-Conviction Relief Without Affording Him an Evidentiary Hearing to Fully Address This Contention.

After a careful review of the record, we conclude the issue raised in this appeal is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm, substantially for the reasons set forth by Judge Blaney in his comprehensive and thorough written decision of August 14, 2012. We add only the following brief comments.

The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his or her defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also Fritz, supra, 105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).

We are satisfied, as the PCR judge found, trial counsel was not ineffective. Defendant failed to show how a footprint expert's opinion would have exonerated him or negated other evidence in the case. Moreover, defendant failed to show how he had been prejudiced by his counsel's failure to further investigate this issue. The alleged deficiencies here clearly fail to meet both the performance and the prejudice prongs of the Strickland test.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).