STATE OF NEW JERSEY VS. ERIC JAMESSTATE OF NEW JERSEY VS. REGINALD FELTONÂ (09-10-0966, UNION COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5561-14T2
A-2449-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC JAMES,
Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD FELTON, a/k/a REGGIE MOORE,
Defendant-Appellant.
___________________________________________________
Submitted May 2, 2017 – Decided July 21, 2017
Before Judges Messano and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 09-10-0966.
Joseph E. Krakora, Public Defender, attorney
for appellants (William Welaj, Designated
Counsel in A-5561-14, on the brief; Mark
Zavotsky, Designated Counsel in A-2449-15, on
the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondents (Bryan S. Tiscia,
Special Deputy Attorney General/Acting
Assistant Prosecutor in A-5561-14, of counsel
and on the brief; Meredith L. Balo, Special
Deputy Attorney General/Acting Assistant
Prosecutor in A-2449-15, of counsel and on the
brief).
PER CURIAM
In A-5561-14, defendant Eric James appeals from the order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. In A-2449-15, defendant Reginald Felton
appeals from the order denying his PCR petition without an
evidentiary hearing. We have consolidated the appeals to issue a
single opinion.
Defendants were tried together before Judge William A. Daniel
and a jury. The evidence demonstrated that police responded to
the report of a fight and saw the victim being pulled from a car
by one man while another was beating the victim over the head with
a furniture leg. The two men fled while police gave chase,
eventually losing sight of the suspects. Police entered an
abandoned house and found Felton in a second-floor bedroom and
James in the attic. They found a bloody wooden table leg in a
nearby empty lot, and DNA testing matched the victim's blood to
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that on the furniture leg. Both officers identified defendants
in court.
The jury convicted both defendants of two counts of aggravated
assault, unlawful possession of a weapon, and possession of a
weapon for an unlawful purpose. The jury also convicted Felton
of obstruction. We affirmed defendants' convictions and sentences
on appeal. State v. James, A-4049-11 (App. Div. Sept. 23, 2013);
State v. Felton, A-3529-11 (App. Div. Sept. 23, 2013). The Supreme
Court denied their petitions for certification. 217 N.J. 304(2014).
Defendants filed PCR petitions, and counsel were appointed
to represent each. James alleged trial counsel provided
ineffective assistance (IAC), asserting counsel failed to request
a Wade1 hearing regarding the officers' identification, failed to
thoroughly investigate the case, particularly the victim's
whereabouts prior to the assault, and failed to properly represent
defendant at sentencing. James' appointed PCR counsel also argued
trial counsel's cross-examination of the victim was insufficient,
and counsel failed to object to the admission of prejudicial
testimony.
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
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Felton also asserted an IAC claim. He, too, claimed trial
counsel failed to properly investigate and prepare for trial, and
failed to conduct forensic examinations of his clothing, the
furniture leg and the victim's car. Felton also alleged trial
counsel failed to make certain arguments, including Felton's
medical problems that allegedly made it unlikely he could have
fled the officers, and object at various times during trial.
Judge Stuart L. Peim considered oral argument and issued a
detailed written decision in support of his June 22, 2015 order
denying James' petition. After appropriately reviewing the trial
testimony and applicable legal standards, Judge Peim concluded
James failed to demonstrate what information counsel's "allegedly
unperformed investigation would have disclosed and that it would
have had an effect on the outcome of the case." Regarding the
alleged inadequate investigation of the victim's whereabouts,
Judge Peim concluded that "[e]ven if evidence was presented that
the victim was drinking and in a fight prior to the incident,"
that "would not have affected the outcome," given the overwhelming
strength of the State's case.
Judge Peim rejected James' assertions about counsel's
inadequate cross-examination, finding the evidence "was all
thoroughly before the jury." The judge also rejected any claim
that defendant was prejudiced by counsel's failure to object to
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certain testimony, or that counsel failed to adequately advocate
at the time of sentencing. Judge Peim concluded James failed to
satisfy either prong of the Strickland/Fritz2 standard.
Following oral argument, Judge Daniel rendered an oral
decision in support of his December 1, 2015 order denying Felton's
PCR petition. After thoroughly reviewing the trial evidence,
appropriately setting forth the Strickland/Fritz standard and
reviewing each of Felton's claims, Judge Daniel concluded Felton
failed to make a prima facie IAC showing.
Before us, James argues we should reverse for an evidentiary
hearing on his IAC claims, specifically, that trial counsel failed
to adequately investigate the whereabouts of the victim and the
victim's girlfriend and cross-examine the victim at trial. Felton
urges us to reverse and remand for an evidentiary hearing on his
petition. He contends trial counsel failed to adequately
investigate and "adopt a defense strategy against the charge of
aggravated assault," failed to object to the prosecutor's
summation and failed to request a mistrial based on inadmissible
testimony given by one of the officers. Felton argues these
"cumulative error[s]" require a new trial.
2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
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These arguments lack sufficient merit to warrant extensive
discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm
substantially for the reasons expressed by Judges Peim and Daniel.
We add only the following.
Under the two-prong Strickland/Fritz standard, a defendant
must first show "that counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." 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).
We apply a "highly deferential standard, which requires us to
avoid viewing counsel's performance through the 'distorting
effects of hindsight.'" State v. Hess, 207 N.J. 123, 147 (2011)
(quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694).
To satisfy prong one, [a defendant] ha[s] to
overcome a strong presumption that counsel
exercised reasonable professional judgment
and sound trial strategy in fulfilling his
responsibilities. [I]f counsel makes a
thorough investigation of the law and facts
and considers all likely options, counsel's
trial strategy is virtually unchallengeable.
Mere dissatisfaction with a counsel's exercise
of judgment is insufficient to warrant
overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013)
(citations and internal quotation marks
omitted) (third alteration in original).]
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Second, a defendant must show by a "reasonable probability"
that the deficient performance affected the outcome. Fritz, supra,105 N.J. at 52. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v.
Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra,105 N.J. at 52).
Our Rules anticipate the need to hold an evidentiary hearing
"only upon the establishment of a prima facie case in support of
post-conviction relief." R. 3:22-10(b). A "prima facie case"
requires a defendant "demonstrate a reasonable likelihood that his
or her claim, viewing the facts alleged in the light most favorable
to the defendant, will ultimately succeed on the merits," ibid.,
and must be supported by "specific facts and evidence supporting
his allegations." State v. Porter, 216 N.J. 343, 355 (2013). "In
order for a claim of ineffective assistance of counsel to entitle
a PCR petitioner to an evidentiary hearing, bald assertions are
not enough — rather, the defendant must allege facts sufficient
to demonstrate counsel's alleged substandard performance." State
v. Jones, 219 N.J. 298, 311-12 (2014) (internal quotation marks
omitted).
Here, James asserts that he requested counsel investigate the
victim's whereabouts before the assault, alleging that the victim
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was in a fight in a tavern, something the victim denied at trial.
As Judge Peim noted, these assertions lack any support in the
record. Defendant also claims he requested counsel interview the
victim's girlfriend, who may not have corroborated the victim's
version of the night's events, but there is nothing to support
this claim either.
Felton's assertions that forensic tests would have revealed
his clothing lacked any trace of the victim's blood, and his
fingerprints were not on the door of the victim's car lack any
support in the record. Moreover, as Judge Daniel noted, the lack
of such forensic evidence hardly mattered, given the strength of
the State's case. As to Felton's remaining claims, trial counsel's
failure to object or ask for a mistrial do not amount to reversible
error, and, therefore, cannot support a prima facie IAC claim.
State v. Echols, 199 N.J. 344, 361 (2009).
Affirmed in A-5561-14; affirmed in A-2449-15.
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