STATE OF NEW JERSEY v. ENOCH TELLUS

NOT FOR PUBLICATION WITHOUT THE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.

ENOCH TELLUS,

Defendant-Appellant.

___________________________________________________________

December 3, 2014

Submitted October 21, 2014 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0590.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

Grace H. Park, Acting Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Enock Tellus1 appeals from the August 27, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

We discern the following facts from the record. On November 5, 2004, Clark "Biggie" Simon was inside the Oasis Bar, a neighborhood tavern with regular clientele. A person came into the bar and rushed toward Simon, an altercation began, and within seconds a gun was fired, mortally wounding Simon. Defendant was known to frequent the Oasis. Simon's friend, Kareem Boyd, identified defendant, also known as T-Mario, as the shooter. The police also showed photo arrays to Boyd and the other witnesses to the crime. Several witnesses identified defendant as the shooter or otherwise involved in the altercation. Thereafter, a Union County grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

On January 19, 2007, a jury found defendant guilty on all counts. The trial court subsequently sentenced defendant to forty-five years incarceration with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder charge, a four-year concurrent term on the unlawful possession of a weapon charge, and a seven-year concurrent term on the possession of a weapon for an unlawful purpose charge. The trial court ordered the sentences to run consecutively to a sentence that defendant was already serving for an unrelated charge.

Defendant appealed, arguing that the trial court erred in failing to instruct the jury on passion provocation manslaughter, and in imposing an excessive sentence. We affirmed defendant's conviction and found that trial court did not commit error in not instructing the jury on a passion/provocation manslaughter charge, and that the sentence imposed was proper given the particular facts of the case. State v. Tellus, No. A-6652-06 (App. Div. Mar. 2, 2010). Defendant subsequently filed a petition for certification to the Supreme Court, which was denied. State v. Tellus, 202 N.J. 45 (2010).

On or about October 1, 2010, defendant filed a pro se PCR petition. Defendant's petition alleged that his trial counsel was ineffective in failing to undertake any pretrial investigation, failing to call witnesses who could exonerate him by testifying that he was not at the bar at the time that Simon was killed, not requesting a Wade2 hearing as to the photo array presented to the witnesses, not requesting a passion/provocation manslaughter jury instruction, and failing to assert Brady3 violations. Similarly, defendant's PCR petition raised an ineffective assistance of counsel claim on the same issues against his appellate counsel. Defendant was assigned counsel, who submitted a brief incorporating the issues raised in defendant's pro se petition.

On August 27, 2012, Judge Stuart Peim, who had presided at the trial, denied defendant's PCR petition without an evidentiary hearing. Judge Peim held that defendant did not establish the necessary prima facie showing of suggestiveness required for a Wade hearing, because the witness shown an irregular photo array had known defendant for a year and saw him regularly in the neighborhood. Thus, the judge concluded that since a Wade hearing was not necessary, defendant did not meet his burden of showing that counsel was ineffective in failing to request such a hearing. Judge Peim further found that

[Defendant] has not provided a sufficient factual basis to determine that more investigation by trial counsel was warranted. No affidavits or certificates were submitted which in any way indicate that the enumerated witnesses had any evidence helpful to [defendant]. Similarly, [defendant] has not provided any proof of Brady violations by the prosecutor. [Defendant] has not enumerated why DNA testing of the victim's nail clippings would be exculpatory in any way. [Defendant] has also failed to include any affidavits, certifications, or good faith basis that show Philip Thomas was paid to say that [defendant] committed the murder, and no proof that he did not have shoulder-length braids to negate the word of two witnesses who testified that he did.

The judge concluded that "[defendant's] claims are vague, conclusory, and speculative." Judge Peim also held that defendant's claim concerning counsel's failure to request the passion/provocation jury charge was barred by Rule 3:22-5 as the substantive issue of the appropriateness of the charge was "argued and resolved on direct appeal to the Appellate Division[,]" which held that the evidence "[did] not support a passion provocation charge." This appeal followed.4

On appeal, defendant raises the following for our consideration

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel's Failure to Investigate the Five Exculpatory Defense Witnesses Deprived Defendant-Appellant of His Right to a Fair Trial and the Effective Assistance of Counsel.

B. Trial Counsel's Failure to Request Suppression of the Out-of-Court Identification by State Witness, Veronica Thomas, Deprived Defendant of Effective Assistance of Counsel.

C. Trial Counsel's Failure to Request a Passion Provocation Jury Charge Deprived Defendant-Appellant of Effective Assistance of Counsel.

Defendant's pro se supplemental brief raises the following additional points

POINT I: THE CONVICTION WAS OBTAIN[ED] BASE[D] ON FALSE PERJURED TESTIMONY KNOWN TO AUTHORITY TO BE FALSE, GIVEN TO THE JURY BY THE DEFENDANT['S] PRIOR ATTORNEY, STATE KEY WITNESS, THE PROSECUTOR AND TRIAL COUNSEL, IN REGARD TO KEY WITNESS AFFIDAVIT AND DEFENDANT['S] FINGERPRINT DNA RESULT FOR THE LIVE ROUND AND THE SPENT SHELL CASING FOUND AT THE CRIME SCENE, AND MEDICAL EXAMINER.

POINT II: [DEFENDANT] WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. U.S. CONST. AMENDS. VI, XIV AND NEW JERSEY CONST. ART. 1, PARA. 10.

POINT III: [DEFENDANT] WAS A VICTIM OF A BRADY VIOLATION AND PROSECUTORIAL MISCONDUCT.

POINT IV: THE COURT ERRED BY PERMITTING THE PROSECUTOR TO LEAD HIS WITNESS TO STATE TO THE JURY THAT DEFENDANT, WHO DID NOT GET ON THE STAND, WAS IN THE COUNTY JAIL, AND DEFENDANT'S NAME AND PICTURE WAS IN [THE] POLICE DEPARTMENT AND SHERIFF'S DEPARTMENT COMPUTER SYSTEM, AND SUBMIT[TED] TWO DIFFERENT PHOTO ARREST[S] OF THE DEFENDANT TO THE JURY.

POINT V: THE COURT ERRED BY NOT STRIKING OR WITHDRAWING, FALSE, IMPROPER, AND HIGHLY PREJUDICIAL REMARKS MADE BY THE PROSECUTOR DURING OPENING STATEMENT AND CLOSING SUMMATION.

POINT VI: THE COURT COMMITTED ABUSE OF DISCRETION BY PUTTING TRIAL COUNSEL BACK ON THE CASE WHEN COUNSEL WAS ALREADY TAKEN OFF THE CASE AFTER DEFENDANT COMPLAINED NUMEROUS TIMES AND PROVED THAT COUNSEL WAS NOT PERFORMING HIS DUTY.

POINT VII: THE COURT ERRED BY INSTRUCTIONS TO THE JURY AS TO THE IMPORTANT FORCE OF AN[] INDICTMENT WERE IMPROPER.

POINT VIII: THE COURT ERRED BY PERMITTING THE PROSECUTOR TO DRAW HIS OWN CRIME SCENE [AND] HAVE WITNESSES MARK WHERE THEY WERE AND THEN SUBMITTED IT TO THE JURY AND THE PROSECUTOR ALSO SUBMITTED GRAPHIC INFLAMMATORY DEATH AUTOPSY PHOTOGRAPHS OF THE VICTIM TO THE JURY.

POINT IX: THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON SELF-DEFENSE ACCIDENTAL DEATH OR PASSION/PROVOCATION MANSLAUGHTER WAS REVERSIBLE ERROR.

POINT X: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF DIRECT AND PCR APPELLATE COUNSELS.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes New Jersey's "analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014), (citing State v. Afanador, 151 N.J. 41, 49 (1997)). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

"[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." Jones, supra, 219 N.J. at 312.

To protect against courts addressing endless issues in a piecemeal fashion, certain PCR procedural rules exist. A PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5.

Having considered defendant's contentions5 in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Peim's thorough written opinion of August 27, 2012. We are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel as he has failed to produce evidence that shows his counsel's performance was deficient or that it resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Moreover, defendant is not entitled to an evidentiary hearing as he has not demonstrated a reasonable likelihood of success on the merits. See Marshall, supra, 148 N.J. at 158. Defendant made many assertions of trial mistakes, but failed to set forth with particularity those facts that would support the claims presented. See Jones, supra, 219 N.J. at 312. As more than bald assertions are required to support a PCR petition, Judge Peim properly denied defendant's claims. See Cummings, supra, 321 N.J. Super. at 170.

Affirmed.

1 The correct spelling of defendant's name is Enock; however, the record spells his name at times as Enoch.

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

3

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

4 On or about March 8, 2013, defendant filed a motion with this court for permission to waive his appointed counsel in order to proceed pro se. On April 10, 2013, we remanded the matter to the Law Division for a Coon hearing, State v. Coon, 314 N.J. Super. 426 (App. Div. 1998). Defendant withdrew his motion at the Coon hearing on July 15, 2013.

5 To the extent that defendant raised issues concerning alleged trial errors and alleged inefficiency of PCR counsel that were not raised in his petition below or considered by the PCR court, we decline to address them. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229 (1973); State v. Robinson, 200 N.J. 1, 20 (2009).