STATE OF NEW JERSEY VS. GARY SUTTLE (04-10-1327, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1255-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY SUTTLE, a/k/a BOBBY
B. SUTTLE, and GARY WILLIAMS,
Defendant-Appellant.
_______________________________
Submitted January 8, 2019 – Decided January 22, 2019
Before Judges Fisher and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 04-10-1327.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (James C. Brady,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals the denial of his post-conviction relief (PCR) petition.
We find no error and affirm.
Lois Zukowitz was murdered in her Elizabeth apartment on March 11,
2004. Police investigation led to defendant, who was charged with first-degree
murder, N.J.S.A. 2C:11-3(a), and possession of a weapon (a hammer) for an
unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant's first trial, which occurred
in April 2008, produced an acquittal on the weapons offense and a hung jury on
the murder charge. A second trial in July 2008 resulted in defendant's conviction
of first-degree murder and a fifty-five-year prison term. Defendant appealed,
and we reversed and remanded for a new trial. State v. Suttle, No. A-2417-08
(App. Div. June 10, 2011). At a third trial, which occurred in June and July
2012, defendant was again convicted of first-degree murder, and, in August
2012, he was again sentenced to a fifty-five-year prison term subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed
the conviction and the fifty-five-year NERA prison term but remanded for
amendment of the judgment to eliminate a separate thirty-year parole
disqualifier. State v. Suttle, No. A-1692-12 (App. Div. Feb. 2, 2016).
Defendant filed a PCR petition in July 2016, arguing attorney
ineffectiveness. The PCR judge denied relief, and defendant appeals, arguing
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the PCR judge erroneously denied relief without conducting an evidentiary
hearing. We find insufficient merit in defendant's arguments to warrant further
discussion in a written opinion. R. 2:11-3(e)(2). We add only the following
comments.
To put defendant's ineffectiveness claims into context, some
understanding of the evidence adduced during his third trial is warranted. The
State put on witnesses and offered evidence that linked defendant to Lois's
murder. The State showed that, at sometime after 10:00 p.m., on March 11,
2004, Lois's neighbor heard: her scream; a male voice command her to "shut
up"; and noises that suggested someone was being punched. The neighbor called
9-1-1 sometime after 11:00 p.m., and by 11:25 p.m., police arrived, finding Lois
dead and her body face down in a pool of blood. A bloody towel was found, as
well as numerous blood-stained areas in the apartment. Near Lois's body, police
observed a bloody impression from a Reebok sneaker. Lois's bedroom and
kitchen appeared to have been ransacked.
Testimony was offered to show Lois was struck numerous times with a
blunt instrument. Police found on her bed a black rubber-handled claw hammer
wrapped in a plastic bag. A small clump of hair was found on the claw end;
blood was found on the striking end. No fingerprints were found on the hammer,
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but a mixture of DNA was found on the hammer's handle. The State offered
testimony that Lois could not be excluded as a potential contributor to that DNA
mixture and that the other DNA probably came from a female. Defendant was
excluded as a contributor to that DNA.
In the apartment, police found a black jacket with a fur collar. The jacket
contained a set of keys. Investigators later determined that a key in the jacket
was for the Mravlag Manor apartment of Joseph Lopez and his mother, Nilda
Vargas. Vargas was defendant's girlfriend at the time. When police entered the
Lopez-Vargas apartment, a partially-clothed defendant appeared from one of the
rooms. Lopez went to get him some clothes and when Lopez returned with a
pair of Reebok sneakers, defendant said to him, "[n]o, not those shoes." Aware
of the shoe print left in Lois's apartment, police became suspicious about
defendant's comment to Lopez; they obtained a search warrant for the apartment
and seized the Reeboks. No blood was found on them, but, at trial, the
prosecution offered evidence that the bloody shoe prints left at the crime scene
were made by Reeboks.
In his testimony, Lopez confirmed the jacket was his and the keys
belonged to defendant. Both Lopez and Vargas provided testimony that
suggested defendant left the apartment on the day of Lois's murder and did not
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return until March 17, 2004. According to Lopez, when defendant departed he
was in possession of Lopez's jacket but when he returned, he had neither the
jacket nor his keys. Lopez testified that when defendant returned after the
week's absence, he said he had been "locked up" and that the jacket was taken
at the jail.
The State called Arthur Barber, who testified that defendant told him "he
had gotten himself in a little bit of trouble and he needed to get out of town."
Barber also testified that defendant admitted to killing a "white woman" but that
he did not mean to do it.
The State also called two of Lois's neighbors who testified they saw Lois
on the afternoon of her murder with an African-American man wearing a black
coat with a fur hood. Two other women testified they had accompanied Lois on
separate occasions to buy heroin from an African-American man who lived in
Mravlag Manor. In addition, the State offered testimony that police obtained
statements from others: Corrine Hartley, and her brother James Hartley, as well
as Deborah Silverstein, who was a friend of Lois and who stated she had
observed James Hartley with Lois in the weeks leading up to the murder.
Defendant called Corrine Hartley to testify. She testified that she did not
remember giving a statement to the police. But the statement she gave was read
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to the jury during a detective's testimony and included information such as:
shortly after the murder her brother James gave her a bag of dirty clothes, which
included a pair of bloody jeans; James owned sneakers that were "either Reebok,
or Nike or Avia"; and James was often in the building where Lois lived.
Evidence also suggested that James attended the same methadone clinic as Lois.
In arguing ineffectiveness, defendant contends his trial attorney failed to
conduct a proper investigation which, in his view, required that Corrine Hartley,
James Hartley, and Deborah Silverstein be interviewed. He also argues that his
trial attorney should have obtained DNA from them to determine whether it
matched the DNA on the hammer. And he argues that his trial attorney failed
to adequately cross-examine Barber. We find no merit in these arguments.
The judge soundly rejected defendant's argument regarding the
sufficiency of counsel's pretrial investigation concerning Corrine and James
Hartley, and Deborah Silverstein:
[Defendant] has not established what would have been
revealed if trial counsel were to have interviewed
the[m]. [Corrine] and [Deborah] gave recorded
statements to the police. These were certainly available
to the defense through discovery. [Corrine] was
interviewed by the police, and the notes of that
interview were presumably available to the defense
through discovery. [James's] father was interviewed by
the police and provided an alibi for his son.
[Defendant] has not come forward with any information
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from these witnesses that differs from that already in
the record.
Furthermore, both [Corrine] and [Deborah] testified at
trial. [Corrine's] trial testimony and what appears to be
her whole, if not a substantial portion, of her March 18,
2014 statement were placed before the jury.
Accordingly, all of her favorable testimony about
[James's] purported incriminating comments and blood
on his clothes were presented to the jury.
[Deborah] was called as a witness during [defendant's]
case in chief and was asked about her relationship with
James Hartley.
The State attempted to call [James] as a witness on
rebuttal, but he could not be located. It is highly
doubtful that his testimony at trial would have differed
from his statements to the investigating officers or been
as favorable to [defendant] as the inferences, which
were drawn from his statements to [Corrine].
As noted above, [defendant] has not established that an
"interview" of these witnesses[] would have presented
information that was either not before the jury already,
or more favorable than the evidence presented to the
jury.
For these reasons, the judge denied this aspect of the PCR petition. We agree
that this result was compelled by a proper application of the Strickland/Fritz
test.1
1
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987).
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The PCR judge also properly rejected defendant's contentions regarding
trial counsel's decision not to obtain DNA samples from Corrine and James
Hartley and Deborah Silverstein. As the judge recognized, the prosecution
provided testimony that the DNA belonged to a female, thus exculpating him
from that link to the hammer; for the same reason it exculpated James Hartley.
But, rather than run the risk that samples from the other potential targets of
defendant's third-party guilt theory would exculpate them as well, defense
counsel "used the lack of DNA testing," as the PCR judge said, "skillfully to his
advantage," pointing out a number of passages from defense counsel's
summation along those lines. Again, because counsel took a reasonable tactical
approach to this circumstance, Strickland, 466 U.S. at 689, defendant was unable
to present a prima facie case of ineffectiveness.
And lastly, we agree with the PCR judge's analysis of the sufficiency of
the Barber cross-examination. The nature and extent of cross-examination are
matters that fall within the "broad zone of attorney discretion." State v.
Hightower, 120 N.J. 378, 432 (1990). But, even if we were to second guess trial
counsel in this regard, the only fair conclusion is that counsel's cross-
examination was rigorous and productive. Barber testified that defendant's
incriminating statements were made to him around Labor Day 2004, yet counsel
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elicited through cross-examination testimony that revealed such a claim was
false because defendant was incarcerated from March 24, 2004 until January
2005; Barber had no opportunity to speak with defendant at the time he claimed
defendant made incriminating statements. This and other inconsistencies in
Barber's testimony were revealed to great effect not only during cross-
examination but during counsel's summation as well.
Affirmed.
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