STATE OF NEW JERSEY v. EUGENE BERTA

NOT FOR PUBLICATION WITHOUT THE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.

EUGENE BERTA,

Defendant-Appellant.

___________________________________________________________

June 5, 2014

Submitted April 1, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 83-08-1146.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eugene Berta appeals the August 3, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

The record reveals that on August 16, 1983, a Middlesex County grand jury charged defendant with murder, N.J.S.A. 2C:11-3 (count one), and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two). The indictment arose from the July 16, 1983 discovery of Cathy Warner's partially decomposed body in the bathtub of her home in Metuchen. An autopsy revealed that Ms. Warner died from a gunshot to the back of her head. An investigation eventually led to the arrest of defendant, the victim's paramour, who was married and was also carrying on affairs with other women.

On October 2, 1984, after a three-week trial, a jury convicted defendant as charged. On December 3, 1984, the judge merged count two with count one and sentenced defendant to life imprisonment with thirty-years of parole ineligibility.

On January 18, 1985, defendant appealed arguing:

POINT I: THE SENTENCE IMPOSED IS EXCESSIVE AND THEREFORE AN ABUSE OF DISCRETION.

POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE ADMISSION OF PHOTOGRAPHS OF THE VICTIM AND THE AUTOPSY SINCE THEIR PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK THAT THEY WOULD CREATE SUBSTANTIAL DANGER OF UNDUE PREJUDICE.

POINT III: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO COMPEL DISCOVERY OF PRIOR AUTOPSIES PERFORMED BY THE MEDICAL EXAMINER.

POINT IV: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE ADMISSION OF TESTIMONY CONCERNING THE VICTIM'S CUSTOM OF MARKING OFF CALENDAR DATES.

POINT V: THE TRIAL COURT ERRED IN PRECLUDING THE DEFENDANT FROM ADMITTING EVIDENCE OF THE VICTIM'S SEXUAL EXPLOITS PRIOR TO HER MARRIAGE TO MR. WARNER.

POINT VI: THE COURT ERRED IN ALLOWING THE ADMISSION OF HEARSAY STATEMENTS OF THE VICTIM CONCERNING HER RELATIONSHIP WITH DEFENDANT.

We affirmed defendant's conviction and sentence, and on May 24, 1988, the Supreme Court denied certification. State v. Berta, No. A-2147-84 (App. Div. Jan. 22, 1988), certif. denied, 111 N.J. 590 (1988).

On April 13, 2010, defendant filed a pro se petition for PCR with an accompanying certification and brief. Defendant raised the following contentions:

POINT I: THE PROCEDURAL BARS UNDER R. 3:22-3, -4, -5, AND -12, SHOULD BE RELAXED IN VIEW OF THE CONSTITUTIONAL GROUNDS RAISED[;] THAT FAILURE TO REACH THE MERITS WOULD RESULT IN A FUNDAMENTAL INJUSTICE[;] AND THAT THE INTERESTS OF JUSTICE WARRANT SUCH.

POINT II: THE MANNER IN WHICH STATE OFFICIALS OBTAINED INCRIMINATING STATEMENTS FROM DEFENDANT WAS ILLEGAL AND VIOLATED HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION, AND UNDER ART. I, PARAGRAPHS 8, 9, AND 10, N.J. CONSTITUTION (1947).

A. Miranda[1] Warnings Should Have Been Provided at the Time Police Officials Took Defendant Into Custody.

POINT III: THE PROSECUTOR'S CONDUCT THROUGHOUT THE TRIAL WAS SO EGREGIOUS AS TO HAVE DENIED DEFENDANT HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL, CONTRARY TO THOSE GUARANTEES UNDER THE SIXTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION, AND CONTRARY TO THOSE PROTECTIONS AFFORDED UNDER ART. I, PARAGRAPHS 8, 9, AND 10, N.J. CONSTITUTION (1947).

POINT IV: TRIAL COUNSEL'S PERFORMANCE DURING PRE-TRIAL, TRIAL, CLOSING AND SENTENCING PROCEEDINGS WAS SO DEFICIENT AS TO HAVE RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, CONTRARY TO THOSE RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION, AND CONTRARY TO THOSE PROTECTIONS AFFORDED UNDER ART. I, PARAGRAPHS 8, 9, AND 10, N.J. CONSTITUTION (1947).

A. Law of the Issue.

B. Defense Counsel's Failure to Object.

C. Defense Counsel's Failure to Present Witnesses.

D. Appellate Counsels' Failure to Present Trial Counsel's Ineffectiveness During Direct Appeal Also Rises to Ineffective Assistance of Counsel.

On January 30, 2012, defendant's assigned counsel filed a supplemental brief that raised the following points:

POINT I: THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

A. The Petition Should Be Heard as the Claim of Ineffective Assistance of Counsel is Appropriate.

B. The Petition is Not Time Barred Because the Petitioner's Failure to File His Petition Within Five Years of His Conviction Was Due to [Excusable] Neglect and Because the Interests of Justice Warrant Relaxation of the Time Bar.

POINT II: THE PETITIONER HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

On February 28, 2012, defendant filed a pro se addendum to his petition, which raised the following points:

POINT I: THE TRIAL COURT ERRED WHEN, OVER THE OBJECTION OF BOTH DEFENSE COUNSEL AND THE PROSECUTOR, IT INSISTED ON CHARGING THE JURY WITH LESSER INCLUDED INSTRUCTIONS ON THE SINGLE COUNT OF MURDER, ESPECIALLY WHEN NO RATIONAL BASIS IN THE RECORD SUPPORTED SUCH CHARGE.

POINT II: TRIAL COUNSEL OBJECTED TO THE PROCEEDINGS OF THE GRAND JURY HEARING FOR THE INDICTMENT, SPECIFICALLY THE QUESTION AND ANSWER DISCUSSION BETWEEN A MEMBER OF THE JURY AND THE WITNESS WHO WAS TESTIFYING (A DETECTIVE INVOLVED IN THE CASE). FURTHER, TRIAL COUNSEL'S OBJECTION WAS IGNORED BY APPELLATE COUNSEL DURING DIRECT APPEAL.

POINT III: TRIAL COUNSEL OBJECTED TO THE PROCEEDINGS RELATIVE TO THE "SEARCH WARRANT" HEARING HELD BEFORE JUDGE GEORGE NICOLA, IN WHICH THE PROSECUTOR PRESENTED UNSWORN TESTIMONY TO THE COURT WHILE ASKING FOR A SEARCH WARRANT FOR THE DEFENDANT'S HOME AND WORK VAN.

POINT IV: THE ABOVE ISSUES DEMONSTRATE HOW, FROM THE BEGINNING OF THIS CASE, THE COURT PERMITTED THE PROSECUTOR MUCH GREATER LATITUDE THAN ALLOWED BY THE RULES OF COURT AND COMMON COURTROOM PROTOCOL. THIS CONTINUED THROUGHOUT THE TRIAL AS INDICATED IN DEFENDANT'S PRO SE BRIEF (UNDER THE GROUND RAISING "PROSECUTORIAL MISCONDUCT").

Judge Robert J. Mega heard oral argument on July 13, 2012. On August 3, 2012, Judge Mega rendered a written opinion, which he incorporated by reference into the record, denying defendant's petition on both procedural and substantive grounds without an evidentiary hearing.

Judge Mega held that the substantive claims of reversible trial error raised in defendant's petition could have been raised on direct appeal and were therefore barred under Rule 3:22-4. The judge further held that defendant's petition was time barred under Rule 3:22-12. The judge rejected defendant's argument of excusable neglect due to his former PCR counsel's sudden fatal heart attack in 1992, which defendant alleged caused his file to disappear, requiring him to rely on his family to reconstruct the record of proceedings. The judge also found that a petition filed in 1992 would have been time barred, defendant failed to present any argument as to why that petition's time bar should have been relaxed, and defendant failed to offer any reason as to why he waited so many years to attempt to re-file. The judge further determined that requiring the State to obtain witnesses and evidence from a trial that occurred more than two decades ago would be fundamentally unfair, and there was no fundamental injustice that would warrant relaxing the time bar as defendant's contentions in his current petition were meritless.

Despite the procedural bars, the judge addressed defendant's substantive arguments. Judge Mega reviewed the transcripts of defendant's Miranda hearings and determined that the trial judge carefully considered the facts and properly applied the law in admitting defendant's statements. Judge Mega also reviewed the record regarding defendant's claim of prosecutorial misconduct and found that the trial judge properly denied defendant's motion for a new trial on that basis. Additionally, Judge Mega reviewed the transcript of defendant's charge conference and found that the trial judge did not err in instructing the jury on lesser included offenses, and was in fact obligated to do so, as a reasonable basis existed for their inclusion.

Regarding defendant's argument that his trial counsel was ineffective for failing to object to comments made during the State's summation, Judge Mega determined that defendant failed to establish a prima facie claim of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge determined that trial counsel's performance did not fall below the level of reasonable professional competence, and furthermore, defendant failed to show that but for his trial counsel's errors, the outcome of the proceedings would have been different. The judge also found that defendant's appellate counsel's performance did not fall below a level of reasonable professional competence for failing to raise any of the foregoing arguments on direct appeal. This appeal followed.

Before us, defendant raises the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL ARISING OUT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S SUMMATION OR TO REQUEST APPROPRIATE RELIEF ARISING THEREFROM.

POINT III: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE ON APPEAL THAT THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.

POINT IV: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

We begin with a review of the well-settled principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (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).

A petitioner must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). "[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. A defendant is generally entitled to an evidentiary hearing if he or she makes 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). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. (citing Preciose, supra, 129 N.J. at 462-64); see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) (citing Preciose, supra, 129 N.J. at 460), certif. denied, 158 N.J. 72 (1999).

To protect against courts addressing endless issues in a piecemeal fashion, certain PCR procedural rules exist. For example, Rule 3:22-12(a)(1) imposes a five-year limitation after the judgment sought to be attacked for the filing of a first petition, and Rule 3:22-12(a)(2) limits the time for filing subsequent petitions. Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rule must be viewed in light of its dual purpose to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, 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.

We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Mega in his thorough August 3, 2012 written opinion. We are satisfied that defendant's petition, filed more than twenty five years from the date of his conviction, and more than eighteen-years from the time his initial PCR counsel allegedly began preparing his PCR petition, is clearly time-barred. R. 3:22-12. We also agree that defendant's claims of reversible error at trial are barred by Rule 3:22-4 as they could have been raised on direct appeal. Even were defendant's claims not procedurally barred, we are in accord with Judge Mega that they are meritless.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).