STATE OF NEW JERSEY v. ERIC WHITE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3648-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIC WHITE, a/k/a BUS DRIVER,

     Defendant-Appellant.
________________________________

              Submitted October 23, 2017 – Decided November 2, 2017

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 06-03-0291.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David A. Snyder, Designated
              Counsel, on the brief).

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Stephen
              C. Sayer, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Eric White, who was convicted in 2011 of murder and

the unlawful possession of a weapon, appeals the trial court's
denial of his petition for post-conviction relief ("PCR").                      We

affirm.

       The State's proofs are discussed at length in this court's

2014 opinion affirming defendant's conviction and sentence.                     We

incorporate that recitation here.            State v. White, No. A-1988-11

(App. Div. Dec. 18, 2014), certif. denied, 
221 N.J. 287 (2015).

The    homicide        victim     was    defendant's        fifty-four-year-old

girlfriend.       She was in the apartment when defendant, who was

seventy-three years old at the time, slashed her throat. Defendant

called    9-1-1   to    report    the   situation.     He    was   difficult    to

understand on the phone, apparently due to his foreign accent.

Police responded to the location and discovered defendant there,

looking dazed and soiled with urine.             He gave an incriminating

statement to the police at the station after receiving Miranda1

warnings.

       The trial court sentenced defendant on the murder to a forty-

year     custodial      term     with   an   eighty-five       percent    parole

ineligibility period pursuant to the No Early Release Act, 
N.J.S.A.

2C:43-7.2. The weapons offense was merged for sentencing purposes.

       On direct appeal, defendant's main argument was that he was

deprived of his right to a speedy trial. We rejected that argument


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

                                         2                               A-3648-15T4
because we agreed with the trial court that the delay in proceeding

with the trial was substantially the result of defense motions or

joint motions by the defense and the prosecutor.            Id. at 24-26.

We also found defendant's other arguments on appeal lacked merit.

Id. at 3.

       After the Supreme Court denied certification, defendant filed

the present PCR petition with the trial court.        Defendant contends

that    the   two   attorneys   who   represented   him    at   trial   were

constitutionally ineffective in two respects.             First, defendant

faults his trial counsel for not arguing that he lacked the

physical capability as an elderly man to have committed the murder

of the younger victim. Second, he contends that his trial counsel,

in attempting to impeach his confession, should have emphasized

more vigorously his language barriers and his weakened condition.

       Upon considering defendant's written submissions, the State's

opposition, and oral argument, Judge Robert G. Malestein 2 denied

the PCR petition.      The judge set forth his reasons for doing so

in a detailed written opinion dated February 24, 2016.           The judge

discerned no deprivation of defendant's constitutional right to

the effective assistance of his trial counsel.            To the contrary,

the judge determined from the record that trial counsel had



2
    A different judge had presided over the trial.

                                      3                             A-3648-15T4
"zealously and effectively" represented defendant, including their

efforts to impeach the State's witnesses, highlight defendant's

difficulties in communicating, and point out shortcomings in the

police's investigation.       The judge also noted trial counsel had

used these and other points in closing arguments to the jury.             The

judge   found    without   legal   merit   defendant's    claim   that    his

attorneys had not sufficiently emphasized these points, deeming

the choice of what weight to place upon arguments raised at trial

to be a "strategic decision for trial counsel."           The judge found

no need for an evidentiary hearing.

     In   his    present   appeal,   defendant   raises    the    following

argument in his brief:

           POINT ONE

           THE   DEFENDANT   MET   HIS   BURDEN   BY   A
           PREPONDERANCE OF THE EVIDENCE AND ESTABLISHED
           A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE
           OF   COUNSEL   UNDER   THE   STRICKLAND/FRITZ
           STANDARD.   THE PCR COURT COMMITTED ERROR BY
           DENYING THE PCR PETITION WITHOUT GRANTING AN
           EVIDENTIARY HEARING.

Having duly considered this argument, we affirm the rejection of

defendant's PCR petition substantially for the reasons expressed

in Judge Malestein's soundly-reasoned written opinion.               We add

only a few comments.

     Judge      Malestein's   analysis     adhered   to    several     well-

established legal principles respecting a criminal defendant's

                                     4                               A-3648-15T4
constitutional right to the effective assistance of counsel.                  To

establish a deprivation of that right, a convicted defendant must

demonstrate that:      (1) counsel's performance was deficient, and

(2) the deficient performance actually prejudiced the accused's

defense.     Strickland v. Washington, 
466 U.S. 668, 687, 
104 S. Ct.
 2052, 2064, 
80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz,


105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in

New Jersey).

      When reviewing such claims of ineffectiveness, courts apply

a   strong   presumption    that   defense   counsel    "rendered   adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment."           Id. at 690, 
104 S. Ct. at
 2066, 
80 L. Ed. 2d at 695.         "[C]omplaints 'merely of matters of

trial strategy' will not serve to ground a constitutional claim

of inadequacy[.]"      Fritz, supra, 
105 N.J. at 54 (quoting State v.

Williams, 
39 N.J. 471, 489, cert. denied, 
374 U.S. 855, 
83 S. Ct.
 1924, 
10 L. Ed. 2d 1075 (1963), overruled in part on other grounds

by State v. Czachor, 
82 N.J. 392, 402 (1980)); see also State v.

Echols, 
199 N.J. 344, 357-59 (2009).

      "The   quality   of   counsel's     performance    cannot   be    fairly

assessed by focusing on a handful of issues while ignoring the

totality of counsel's performance in the context of the State's

evidence of defendant's guilt."         State v. Castagna, 
187 N.J. 293,

                                      5                                A-3648-15T4
314 (2006) (citing State v. Marshall, 
123 N.J. 1, 165 (1991),

cert. denied, 
507 U.S. 929, 
113 S. Ct. 1306, 
122 L. Ed. 2d 694

(1993)).   "As a general rule, strategic miscalculations or trial

mistakes are insufficient to warrant reversal 'except in those

rare instances where they are of such magnitude as to thwart the

fundamental guarantee of [a] fair trial.'"             Id. at 314-15 (quoting

State v. Buonadonna, 
122 N.J. 22, 42 (1991)).                "'[A]n otherwise

valid   conviction   will   not   be       overturned   merely   because     the

defendant is dissatisfied with his or her counsel's exercise of

judgment during the trial.'"      State v. Allegro, 
193 N.J. 352, 367

(2008) (quoting Castagna, supra, 
187 N.J. at 314).

     The record here substantiates Judge Malestein's assessment

that defendant's trial counsel advocated his interests at trial

professionally and zealously, and that he was not prejudiced by

any alleged defective performance.              At multiple points before

trial in extensive motion practice and at the trial itself, trial

counsel pursued a contention that defendant had mental health and

communication deficits.      They also asserted that, as an elderly

man with health problems, he was not likely to have overcome and

killed the younger female victim.              At trial, counsel combined

those arguments with repeated attacks on the alleged insufficiency

of   the   State's   investigation,         engaging    in   vigorous    cross-

examination of many of the State's witnesses.

                                       6                                A-3648-15T4
     During summation to the jury, trial counsel appropriately

underscored      these   points,   as       illustrated   by   the   following

excerpts:

            Eric's clearly confused. You hear on the 911
            tape, he cannot remember his own house number.
            It even sounds like -- when you listen to the
            tape, see if it sounds like there's someone
            in the background, telling him his actual
            number of his house. He mixes his 'me' and
            'him' and 'I' and who; he's very difficult to
            understand a whole sentence from Eric.     The
            operator is constantly, during that phone
            call, trying to make sense out of what Eric
            is saying.

            (Emphasis added).

                  . . . .

                 What we do know is that many people have
            been exonerated through DNA testing after
            falsely confessing something. So, we know it
            happens. We don't understand why it happens
            that people would falsely say they did
            something, but we know that it happens. And,
            that's when the people concerned are speaking
            the same language. God forbid you or I should
            go to another country and be trying to explain
            what we found at a murder scene in a country
            where we only speak a very poor version of the
            language.    Maybe we'd have to resort to
            actions such as (indicating) to describe what
            we think, in order to explain what we've woken
            up to find.

            (Emphasis added).

Contrary    to   defendant's   PCR      claim,    trial   counsel    expressly

suggested to the jury that a younger, stronger man would have been

more likely to be able to commit the killing, arguing:

                                        7                              A-3648-15T4
          And, we can see that Eric could not have got
          behind her and cut her throat. But, this could
          have been the result of an attack by someone
          younger, stronger, or maybe more than one
          person.

          (Emphasis added).

     Defendant essentially asserts in his PCR petition that his

trial counsel should have pressed the "confusion" and "weakness"

arguments with more vehemence.            As Judge Malestein correctly

determined, these criticisms fall squarely within counsel's zone

of discretion over trial strategy, as recognized in the case law.

See, e.g., Allegro, supra, 
193 N.J. at 367.

     There was no need for an evidentiary hearing to be conducted

here to confirm what is plainly obvious from the trial record:

that defendant received the effective assistance of his trial

attorneys.       State   v.   Preciose,    
129 N.J.   451,   462    (1992)

(establishing that an evidentiary hearing on a PCR application is

not necessary where the petition and the record fail to present a

prima facie case of a constitutional deprivation).

     Affirmed.




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