State of New Jersey v. Lamont Richardson ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0106-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAMONT RICHARDSON,
a/k/a LAMONT T.
RICHARDSON,
Defendant-Appellant.
___________________________
Submitted October 29, 2024 – Decided November 7, 2024
Before Judges Firko and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 10-03-0271.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
Theresa L. Hilton, Acting Mercer County Prosecutor,
attorney for respondent (Peter Rhinelander, Special
Deputy Attorney General/ Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Lamont Richardson appeals from the August 28, 2023 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant contends his trial counsel rendered ineffective assistance.
Judge Sherry L. Wilson thoroughly considered defendant's contentions and
rendered an oral decision and comprehensive written statement of reasons, with
which we substantially agree. We affirm.
Following a jury trial, defendant was convicted of first-degree murder of
his ex-girlfriend, weapons charges, and evidence tampering. We affirmed his
conviction but remanded for resentencing. State v. Richardson, No. A-1134-12
(App. Div. Aug. 20, 2015). After resentencing, defendant appealed his sixty -
year term of imprisonment imposed, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2. We affirmed the sentence. State v. Richardson, No. A-
3731-17 (App. Div. Dec. 16, 2019).
Defendant timely filed a petition for PCR claiming his trial counsel was
ineffective. PCR counsel was assigned and filed an amended PCR petition
claiming trial counsel was ineffective because he: (1) failed to sufficiently
object to a medical examiner testifying at trial as to the contents of a report and
examination performed by a non-testifying examiner; (2) failed to object to
DNA evidence and the prosecutor telling the jury during opening statements that
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defendant's DNA was under the victim's fingernails, which was not proven; and
(3) failed to sufficiently object to and prevent beforehand a witness, Tonya
Thompson, from telling the jury defendant had been in jail.
Judge Wilson rejected those claims in her oral opinion and statement of
reasons1 and concluded that defendant had failed to establish any deficiencies in
trial counsel's representation and could not show he was prejudiced. The judge
noted defendant raised the first argument about trial counsel's failure to object
to the testifying medical examiner, Dr. Raafat Ahmad, as to the contents of an
examination and report performed by another medical examiner on direct
appeal.
The judge explained Dr. Ahmad was qualified as an expert and testified
that she was present when the victim's body was brought to the morgue,
examined the body, and personally made the pronouncement of death. Another
doctor performed the autopsy and authored the report; however, the judge
observed that Dr. Ahmad reviewed the report before it was sent out and testified
in place of the physician who authored the report, who was away on vacation at
the time of trial. The judge explained it was proper for Dr. Ahmad to testify as
1
Pursuant to Rule 2:5-1(d), the judge submitted an amplification of her prior
oral opinion rendered on August 28, 2023, which is the statement of reasons
referenced in our opinion.
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an expert about photographs of the victim's body and "reasonable" for trial
counsel not to object to Dr. Ahmad's testimony independent of the autopsy
report.
The judge relied on our opinion on this issue:
Opinions of the chief medical examiner provided at
trial regarding [the victim's] time of death and the
implement used to strangle her were based entirely on
the medical examiner's own examination of the body
and not the autopsy performed by her deputy. Because
the opinions rendered by the expert were based on her
own personal observations and the photographs taken
at the autopsy, which were properly authenticated and
admitted without objection, no [c]onfrontation [c]lause
issue was presented and the court properly admitted the
expert's testimony. Richardson, No. A-1134-12 (slip
op. at 33-34.)
In analyzing defendant's second argument, the judge found trial counsel
was not ineffective for failing to object to the DNA evidence referenced by the
prosecutor during opening statements. The prosecutor mentioned evidence was
obtained from the victim's fingernails, and the DNA taken from the scrapings
was "consistent" and "a mixture" of the victim's and defendant's DNA. At trial,
the State presented expert testimony from a forensic scientist, who opined that
defendant's DNA profile "matched" the DNA profile obtained from the victim's
right and left hand fingernails.
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The judge determined defendant did not satisfy his burden under the first
and second prongs of Strickland.2 Under the first Strickland prong, the judge
found defendant failed to "allege facts sufficient to demonstrate [trial] counsel's
alleged substandard performance." The judge also found that even if defendant
satisfied the first prong, he did not satisfy his burden under the second Strickland
prong because of the "overwhelming proofs" of defendant's guilt. In addition to
the DNA evidence, judge noted the evidence included testimony from more than
a dozen witnesses, cell phone records, DNA evidence found on a cigarette butt
at the crime scene, other physical evidence seized, and surveillance footage.
As to the third claim of ineffective assistance of trial counsel, the judge
found trial counsel did in fact object to the witness—Thompson—telling the jury
that defendant was in jail and moved for a mistrial. The judge concluded
defendant did not satisfy his burden under the first and second Strickland prongs.
Defendant appeals, reprising his arguments about the ineffectiveness of
trial counsel in the following point:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING.
2
Strickland v. Washington, 466 U.S. 668, 694-95 (1984).
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Our de novo review of the record convinces us Judge Wilson
conscientiously considered all of defendant's claims and appropriately denied
him relief. We agree defendant failed to establish a prima facie case of trial
counsel's ineffectiveness at trial. We are unpersuaded that defendant is entitled
to an evidentiary hearing because there are "extensive proofs outside the record"
pertaining to trial counsel's ineffective performance. Nor are we persuaded that
trial counsel's testimony is required to adjudicate the issues.
Having conducted a de novo review of the record, we are satisfied the
judge correctly denied defendant's petition. In analyzing defendant's claims of
ineffective assistance of trial counsel, the judge made adequate findings of fact
and conclusions of law on each of defendant's contentions.
On direct appeal, defendant unsuccessfully raised virtually the same
argument as he did in his PCR petition about the purported improper admission
of a non-testifying medical examiner's autopsy findings through the testimony
of another medical examiner, which he argued denied him of his constitutional
right to confront witnesses and denied him a fair trial. His petition as to that
issue is barred under Rule 3:22-5, which states that "[a] prior adjudication upon
the merits of any ground for relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction proceedings brought
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pursuant to this rule . . . or in any appeal taken from such proceedings." Thus,
Rule 3:22-5 bars consideration of a contention presented in a PCR petition "if
the issue raised is identical or substantially equivalent to that adjudicated
previously on direct appeal." State v. Marshall, 148 N.J. 89, 150 (1997) (quoting
State v. Bontempo, 170 N.J. Super. 220, 334 (Cnty. Ct. 1979)).
We also reject defendant's claim that his trial counsel was ineffective
because he failed to object to a DNA reference made by the prosecutor during
opening statements. Defendant also cites to cases where courts found counsel
was ineffective for not obtaining independent medical evaluations or expert
reports. This claim could have been raised on direct appeal but was not. PCR
"is neither a substitute for direct appeal, Rule 3:22-3, nor an opportunity to
relitigate matters already decided on the merits, Rule 3:22-5." State v. Afanador,
151 N.J. 41, 50 (1997). "Further, PCR cannot be used to circumvent issues that
could have, but were not raised on appeal, unless the circumstances fall within
one of three exceptions[,]" none of which apply here. Ibid. (emphasis omitted)
(citing R. 3:22-4).
Moreover, the testifying forensic scientist established the "significant
possibility" that the DNA evidence belonged to defendant. Defendant simply
makes the bald assertion that the DNA evidence was "not proven." A prima
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facie ineffective assistance of counsel claim must be supported by "specific facts
and evidence supporting [defendant's] allegations." State v. Porter, 216 N.J.
343, 355 (2013). Allegations that are "too vague, conclusory, or speculative"
will not suffice. Ibid. (quoting Marshall, 148 N.J. at 158).
Indeed,
[i]n order to establish a prima facie claim, a petitioner
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. Thus, when a petitioner
claims his trial attorney inadequately investigated his
case, he must assert the facts that an investigation
would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the
affiant or the person making the certification.
[Ibid. (quoting State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999)).]
Here, as the judge pointed out, the DNA issue was likely not raised on
appeal by defendant because it was devoid of merit. We reiterate there was
substantial credible evidence in the record to support defendant's convictions ,
and the State met its burden beyond a reasonable doubt. Defendant has made
no showing that his trial counsel's failure to object to the DNA references and
evidence at trial or his failure to obtain an expert prejudiced him at trial.
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Finally, defendant's contention that his trial counsel failed to object to
Thompson telling the jury defendant was in jail is unsupported by the record.
Contrary to defendant's assertion, the record confirms his trial counsel did object
and moved for a mistrial on that ground.
Defendant failed to establish that the performance of his trial counsel was
substandard, or but for any of the alleged errors, the result would have been
different. See Strickland, 466 U.S. at 687-88. Moreover, an evidentiary hearing
is necessary only if a petitioner presents sufficient facts to make out a prima
facie claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451,
462-63 (1992); R. 3:22-10(b).
Judge Wilson correctly determined an evidentiary hearing was
unwarranted. Accordingly, we affirm substantially for the reasons expressed in
her oral opinion and statement of reasons.
Affirmed.
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