STATE OF NEW JERSEY v. ERIC HINES
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2765-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC HINES, a/k/a GREGORY
MAYS, TOM JONES, THOMAS
JONES, TERRANCE KENNEDY,
TERRANCE KERNEY and
TERRANCE KERNNEY,
Defendant-Appellant.
___________________________
Submitted September 14, 2017 – Decided March 5, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
09-10-3535.
Joseph E. Krakora, Public Defender, attorney
for appellant (Andrew P. Slowinski, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from the October 30, 2015 Law Division
order denying his petition for post-conviction relief (PCR)
without granting an evidentiary hearing. We affirm.
Following a jury trial, on July 1, 2010, defendant was
convicted of second-degree robbery,
N.J.S.A. 2C:15-1 (count one);
second-degree burglary,
N.J.S.A. 2C:18-2(a) (count two); third-
degree theft,
N.J.S.A. 2C:20-3 (count three); fourth-degree
resisting arrest,
N.J.S.A. 2C:29-2(a)(2) (count four); and third-
degree burglary,
N.J.S.A. 2C:18-2(a) (count five). On August 6,
2010, after appropriate mergers, defendant was sentenced as a
persistent offender, N.J.S.A. 2C:44-3(a), to twenty years'
imprisonment subject to the provisions of the No Early Release Act
(NERA),
N.J.S.A. 2C:43-7.2, on count one, a consecutive eighteen-
month term with a nine-month parole disqualifier on count four,
and a concurrent five-year term with a two-and-one-half year parole
disqualifier on count five.
Briefly, the facts underlying the convictions stemmed from
defendant burglarizing the victim's home in the middle of the
night, awakening her from a sound sleep, and assaulting her while
she tried to call 911. Although defendant successfully evaded
apprehension at the scene, a Combined DNA Index System (CODIS) hit
from a knit hat worn by the fleeing suspect, found outside in the
bushes in proximity to items stolen from the victim's home, matched
2 A-2765-15T1
defendant's DNA. The CODIS hit was confirmed by buccal swabs
taken from defendant without a warrant while he was in custody on
unrelated charges. DNA from a beer can found inside the victim's
ransacked home also matched defendant's DNA, notwithstanding the
fact that the victim never identified defendant as her assailant
and her initial description of her intruder did not match
defendant.
We affirmed defendant's convictions and sentence on direct
appeal, and his petition for certification was denied by the
Supreme Court. State v. Hines, No. A-2944-10 (App. Div. Sep. 5,
2013), certif. denied,
217 N.J. 294 (2014). Thereafter, defendant
filed a timely pro se petition for PCR in which he alleged
ineffective assistance of counsel. Defendant claimed that trial
counsel was ineffective primarily for failing to challenge the
admissibility of the DNA evidence and for withdrawing a motion to
suppress the DNA evidence over his objection. Defendant also
claimed that appellate counsel was ineffective primarily for
failing to raise the withdrawal of the suppression motion in his
direct appeal and for "refus[ing] to order pre-trial transcripts"
to facilitate a complete appellate review of the issues. PCR
counsel was appointed and submitted supporting briefs and
documentary exhibits challenging the DNA evidence, including the
abandoned suppression motion and the chain of custody proofs.
3 A-2765-15T1
After oral argument, in a thorough oral decision, Judge Edward
J. McBride, Jr., considered each contention and denied defendant's
petition.1 The judge concluded that defendant failed to establish
a prima facie case to satisfy the two-prong test of Strickland v.
Washington,
466 U.S. 668, 687 (1984). First, Judge McBride
recounted the pertinent facts. He noted that after police
responded to a 9-1-1 call of a robbery in progress and the victim
reported that the intruder fled the area,
[t]he police encountered a male on a bicycle
carrying a bag a short while later. The male
ignored orders from the police to stop and
instead fled, ultimately escaping. A search
of the area revealed a bag containing items
from the victim's home, including her purse.
Police . . . recovered a knit hat and a tube
sock.
Police conducted further investigation
at the victim's home. A search yielded open
bottles and cans of alcohol. Those were
seized by the police as evidence. Those items
along with the hat and the tube [sock] were
submitted for DNA testing. Test results using
the CODIS system revealed that the DNA matched
the defendant whose DNA had been on file
stemming from a prior arrest. Defendant, who
was incarcerated in the [c]ounty jail at the
time, was charged with the crimes that
ultimately led to the indictment.
1
The judge also rejected defendant's additional arguments that
appellate counsel was ineffective for failing to pursue alleged
violations under Brady v. Maryland,
373 U.S. 83 (1963) and United
States v. Wade,
388 U.S. 218 (1967), and for putting a statement
in the appellate brief that had been ruled inadmissible at trial.
4 A-2765-15T1
Next, Judge McBride considered defendant's contention that
any evidence generated from the CODIS hit was the fruit of the
poisonous tree and should have been suppressed because the DNA
"exemplar was withdrawn against his will and more importantly was
not conducted pursuant to a [c]ourt order . . . ." Relying on
State v. Johnson,
365 N.J. Super. 27, 35 (App. Div. 2003), the
judge concluded that while "trial counsel did not file a motion
ultimately to suppress the DNA evidence[,] the defense cannot
establish that such a motion would have been meritorious" in order
to prevail on an ineffective assistance of counsel (IAC) claim.
He explained:
Generally a warrant is needed to take a
buccal swab unless there's an exception to the
warrant requirement. However, the inevitable
discovery doctrine can . . . permit the
admissibility of evidence that would otherwise
be the product of an illegality when the
evidence in question would inevitably have
been discovered without reference to the
police error or misconduct.
As the trial judge made clear on a couple
of occasions[,] had the State been required
to obtain a new buccal swab that request would
have been granted because probable cause to
issue an order compelling the taking of the
. . . swab still would have existed in the
form of the CODIS hit, whether that hit came
from a beer can or it came from something else.
The CODIS hit . . . itself was not the
product of the taking of the exemplar from the
. . . defendant without a [c]ourt [o]rder
5 A-2765-15T1
. . . . [T]he taking of that exemplar resulted
from the CODIS hit.
The judge carefully reviewed the pre-trial transcripts
identified by defendant to support his claim that trial counsel
was ineffective for withdrawing his suppression motion against his
will. Judge McBride noted that in those transcripts, the trial
judge repeatedly informed defendant and trial counsel that a
suppression motion would be "fruitless" because, ultimately, his
DNA "would have been compelled" by court order even if the first
buccal swab was suppressed. After reviewing the case law, trial
counsel later conceded "that the acquiring of a second DNA swab
or buccal swab would be inevitable discovery." Judge McBride
concluded:
So, the supplemental transcripts
submitted to this [c]ourt do not further
advance the defendant's argument about
ineffective assistance of counsel on the
failure to pursue a [m]otion to [s]uppress the
DNA evidence that resulted from the buccal
swab that was taken without a [c]ourt [o]rder
because there would have been a subsequent
[c]ourt [o]rder entered had it been applied
for.
Turning to defendant's contention regarding trial counsel's
ineffectiveness in failing to adequately challenge "the chain of
custody on the DNA[,]" Judge McBride painstakingly reviewed
numerous exhibits submitted by defendant to support his claim. In
rejecting defendant's claim, the judge explained:
6 A-2765-15T1
First, defense counsel did not stipulate
to the chain of custody. She cross-examined
every witness and there were multiple
witnesses presented . . . by the State. . . .
All of them were extensively cross-examined
about chain of custody issues.
And . . . this alleged discrepancy from
the documents that I just reviewed[,] . . .
those discrepancies are explainable. They do
not demonstrate opportunities for defense
counsel to have undermined the State's
evidence on chain of custody because they were
consistent with the testimony in the trial.
Likewise, the judge rejected defendant's assertion that trial
counsel failed to challenge documents pertaining to "the movement
of evidence" following its "initial retrieval" and "leading up to
the trial" that were allegedly inconsistent, altered, fabricated
or inappropriately redacted. The judge noted that to conclude
that the State fabricated and manufactured evidence against him,
would require a conclusion that about a half
a dozen people who testified in this case
about chain of custody and about the conduct
of the DNA extraction and DNA testing
testified falsely. And even if it is, in fact,
a discrepancy in [these] document[s,] there's
no basis to make that kind of a conclusion at
all.
In specifically addressing defendant's claim that his trial
attorney was ineffective for failing to "consult[] with an expert
to either assist in the cross-examination of the [State's]
expert[s] or to present a contrary analysis[,]" Judge McBride
explained
7 A-2765-15T1
When there's a claim on a PCR petition
such as this, that claim, in order to generate
the right to an [e]videntiary [h]earing, would
need to be supported by an affidavit from an
expert who reviewed the documents and said,
yes, there does appear to be discrepancies
here that affected the integrity or accuracy
of the extraction or the testing. We do not
have that here.
We have counsel making a best effort to
advance arguments on behalf of his client
about different issues that may exist or may
not exist in these documents. But none of us
in this room have the expertise to be able to
draw any conclusions from these . . .
documents.
. . . .
That . . . would require submission of
an affidavit from an expert not to prove that
the State's evidence was tainted but to at
least raise a[n] issue that required
exploration of an [e]videntiary [h]earing.
In rejecting defendant's challenge to the effectiveness of
his appellate attorney, the judge noted
Appellate counsel is not obligated to
pursue every argument advanced by an
appellant. Counsel is only required to
present arguments that are reasoned and
reasonable. . . . [I]n the Appellate
Division's practice here in this State[,]
defendants are permitted to submit their own
briefs in the Appellate Division. So, that
further . . . supplements the notion that the
[a]ppellate counsel is not there to simply
parrot every argument that the client wishes
to be made.
The standard to review a claim of
ineffective assistance of . . . [a]ppellate
8 A-2765-15T1
[c]ounsel is the same as the [Strickland]
standard for trial counsel . . . . The
defendant has not established that the
arguments that . . . he says should have been
made had any merit.
. . . .
So, since there has not been a
demonstration that defense counsel was
ineffective in failing to advance arguments
that . . . did not have any merit then that
claim of ineffective [a]ppellate [c]ounsel
fails and no evidentiary hearing is required
on that fact.
On appeal, defendant raises the same contentions that he
unsuccessfully presented to Judge McBride as well as an argument
pertaining to PCR counsel raised for the first time on appeal. He
asserts:
POINT I
THE PCR COURT'S DECISION SHOULD BE REVERSED
AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL AT TRIAL IN VIOLATION OF HIS RIGHTS
UNDER THE SIXTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE 10, PARAGRAPH 11 OF
THE NEW JERSEY CONSTITUTION.
a. Defense Counsel Failed To Retain An
Expert Or Consultant Knowledgeable in DNA
Testing, Allowing the State to Present
Uncontested, Unexamined DNA Evidence in
a Case Where No Other Evidence Linked
Defendant to the Crime Scene.
b. Defense Counsel Failed to Demonstrate at
Trial That the State's Chain of Custody
Evidence Was Deficient.
9 A-2765-15T1
(1) The State's Chain of Custody
Documentation Showed Clear Evidence
of Falsified Signatures.
(2) The State's Chain of Custody
Documentation Showed Clear Evidence
of Subsequent Alterations.
c. Defense Counsel Withdrew A Meritorious
Motion to Suppress DNA Evidence Taken
From Defendant Without a Warrant in
Violation of His Fourth Amendment Rights.
POINT II
THE PCR COURT ERRED IN DENYING DEFENDANT'S
REQUEST FOR AN EVIDENTIARY HEARING.
POINT III
THE PCR COURT'S DECISION SHOULD BE REVERSED
AND THIS MATTER REMANDED TO THE LAW DIVISION
AS PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
BY REPEATING TRIAL COUNSEL'S ERROR AND FAILING
TO RETAIN A DNA EXPERT TO REVIEW THE STATE'S
EVIDENCE. (NOT RAISED BELOW).
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings,
321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should
grant evidentiary hearings and make a determination on the merits
only if the defendant has presented a prima facie claim of
ineffective assistance, material issues of disputed facts lie
outside the record, and resolution of the issues necessitates a
hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013).
10 A-2765-15T1
We review a judge's decision to deny a PCR petition without
an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992). Where, as in this case, "no evidentiary
hearing has been held, we 'may exercise [de novo] review over the
factual inferences drawn from the documentary record by the [PCR
judge].'" State v. Reevey,
417 N.J. Super. 134, 146-47 (App. Div.
2010) (second alteration in original) (quoting State v. Harris,
181 N.J. 391, 421 (2004)).
To establish a prima facie claim of ineffective assistance
of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors "so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment." An attorney's
representation is deficient when it "[falls]
below an objective standard of
reasonableness."
Second, a defendant "must show that the
deficient performance prejudiced the
defense." A defendant will be prejudiced when
counsel's errors are sufficiently serious to
deny him a "fair trial." The prejudice
standard is met if there is "a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." A
"reasonable probability" simply means a
"probability sufficient to undermine
confidence in the outcome" of the proceeding.
[State v. O'Neil,
219 N.J. 598, 611 (2014)
(citations omitted) (quoting Strickland, 466 U.S. at 687-88, 694).]
11 A-2765-15T1
Furthermore,
Where, as here, defense counsel's failure to
litigate a Fourth Amendment claim is the
principal allegation of ineffectiveness, "the
defendant must also prove that his Fourth
Amendment claim is meritorious and that there
is a reasonable probability that the verdict
would have been different absent the
excludable evidence in order to demonstrate
actual prejudice."
[Johnson,
365 N.J. Super. at 35 (quoting
Kimmelman v. Morrison,
477 U.S. 365, 375
(1986)).]
In addition, an appellate attorney is not ineffective for failing
to raise every issue imaginable. State v. Gaither,
396 N.J. Super.
508, 515 (App. Div. 2007). Instead, appellate counsel is afforded
the discretion to construct and present what he or she deems are
the most effective arguments in support of their client's position.
Id. at 516.
"[I]n order to establish a [prima facie] claim, [the
defendant] must do more than make bald assertions that he was
denied the effective assistance of counsel. He must allege facts
sufficient to demonstrate counsel's alleged substandard
performance." Cummings,
321 N.J. Super. at 170. The defendant
must establish, by a preponderance of the credible evidence, that
he is entitled to the required relief. State v. Nash,
212 N.J.
518, 541 (2013).
12 A-2765-15T1
"[A]n otherwise valid conviction will not be upset because
of ordinary dissatisfaction with counsel's exercise of judgment
in his conduct of the trial. To warrant reversal, counsel must
have been so inadequate as to render the trial a farce or mockery
of justice." State v. Coruzzi,
189 N.J. Super. 273, 320 (App.
Div. 1993) (citation omitted). Simple mistakes, bad strategy, or
bad tactics "do not amount to ineffective assistance of counsel
unless, taken as a whole, the trial was a mockery of justice."
State v. Bonet,
132 N.J. Super. 186, 191 (App. Div. 1975). "Merely
because a trial strategy fails does not mean that counsel was
ineffective." State v. Bey,
161 N.J. 233, 251 (1999). "[A] court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound
trial strategy.'" State v. Sheika,
337 N.J. Super. 228, 241 (App.
Div. 2001) (quoting Strickland,
466 U.S. at 689).
Here, defendant renews his arguments that his trial counsel's
failure "to seek the assistance of a DNA expert," combined with
counsel's abandonment of "a viable motion to suppress against her
client's wishes," as well as her failure "to challenge clear
deficiencies in the State's chain of custody proofs" violated
defendant's right to effective assistance of counsel. We disagree
13 A-2765-15T1
and are in accord with Judge McBride's reasoning in rejecting
defendant's arguments. Defendant's challenge to the DNA evidence
was unsupported by any report, affidavit or certification from a
DNA expert. Defendant's challenge to the chain of custody proofs
is unavailing because the witnesses were subjected to extensive
cross-examination. The inevitable discovery doctrine would have
compelled defendant's buccal swab despite any police illegality
in obtaining the initial exemplar. See State v. Sugar,
108 N.J.
151, 158-59 (1987).
Moreover, even assuming counsels' performance could in some
way be characterized as deficient, which we do not find, defendant
has failed to meet the heavy burden of proof that but for counsels'
performance, the result would have been any different given the
damning evidence of his guilt. Accordingly, we discern no abuse
of discretion in the denial of defendant's PCR petition without
an evidentiary hearing, as defendant failed to present a prima
facie claim of ineffective assistance of counsel warranting an
evidentiary hearing.
Defendant also raises for the first time on appeal that PCR
counsel was ineffective in failing to obtain the assistance of a
DNA expert to support his petition. However, "issues not raised
below, even constitutional issues, will not ordinarily be
considered on appeal unless they are jurisdictional in nature or
14 A-2765-15T1
substantially implicate public interest." State v. Walker,
385 N.J. Super. 388, 410 (App. Div. 2006). Here, because neither
interest is implicated and the record is insufficient to permit
the adjudication of this belated challenge, we decline to consider
this argument.2 See also State v. Robinson,
200 N.J. 1, 21 (2009)
Affirmed.
2
We note that inasmuch as PCR counsel is being accused of
ineffectiveness by virtue of the very same omission he found
objectionable by trial counsel, it lends support to the State's
contention that expert evidence to counter the States DNA evidence
was unobtainable.
15 A-2765-15T1
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