STATE OF NEW JERSEY VS. HUGUES FRANCOIS (08-10-1788, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0626-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HUGUES FRANCOIS, a/k/a
JACKIE FRANCOIS, JACQUES
FRANCOIS, and JACK FRANCOIS,
Defendant-Appellant.
_______________________________________________
Submitted May 8, 2018 – Decided June 6, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
08-10-1788.
Joseph E. Krakora, Public Defender, attorney
for appellant (Charles H. Landesman,
Designated Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Jenny X. Zhang,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from an order dated June 10, 2016, which
denied his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
Defendant was charged under Bergen County Indictment No. 08-
10-1788 with first-degree murder of Thalia Stathis (Stathis),
N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree
disturbing or removing human remains, N.J.S.A. 2C:22-1(a)(1)
(count two); third-degree forgery, N.J.S.A. 2C:21-1(a)(2) and (3)
(counts three and four); fourth-degree theft by deception,
N.J.S.A. 2C:20-4 (count five); third-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); fourth-degree
violation of sex offender registration requirements, N.J.S.A.
2C:7-2(d) (count seven); and third-degree failure to register as
a sex offender, N.J.S.A. 2C:7-2(a)(3) (count eight). Counts seven
and eight were severed for trial. Counts one through six were
tried before a jury.
At the trial, evidence was presented which indicated that
Stathis met defendant in 2005, at her parents' diner where she
worked as a waitress. They developed a relationship, and she worked
six days a week while defendant did not have a steady job or
income. Soon thereafter, Stathis moved out of her parents' house
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and moved into an apartment. Her relationship with her parents
also became strained.
On September 7, 2007, Stathis told her mother she was going
to end her relationship with defendant and that she wanted to come
back home. On September 10, 2007, Stathis met her mother at a
local restaurant and told her she had broken up with defendant and
did not want to see him again. Stathis then returned to work.
Stathis was last seen at work on September 13, 2007. That
evening, she told two co-workers she was going to leave defendant.
She also told one of her co-workers she intended to return to her
apartment to pick up some clothes. Thereafter, Stathis went
missing. When Stathis' co-workers realized she was absent from
several shifts in a row, and no one could get in touch with her,
they contacted the police.
On September 26, 2007, Cliffside Park police officers went
to Stathis' apartment to check on her. There, they spoke with
defendant, who informed the police the apartment belonged to
Stathis and he was living there. Defendant was arrested on charges
unrelated to Stathis' disappearance. Defendant was transported to
the Cliffside Park police station, where he signed a consent-to-
search form for his automobile.
Officer Marc Moschella conducted a search of defendant's
vehicle. He testified the car was missing carpet padding on the
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left side of the trunk and a plate that covers the spare tire.
During the search, the police recovered two of Stathis'
prescriptions from an oral surgeon, her AT&T phone bill, and her
ATM card.
Detective James Brazofsky of the homicide unit of the Bergen
County Prosecutor's Office (BCPO) examined defendant's vehicle on
September 26, 2007. He noticed that the interior, passenger-side
floor mat was missing. A small red stain, possibly blood, was
located in the passenger-side rear section of the vehicle. The
officers also found clothing and a bottle of window cleaner in the
car.
Brazofsky testified that the car's trunk liner was missing,
and he noticed two separate reddish brown stains in the trunk,
which he suspected were blood. He noticed additional stains on the
CD player in the trunk of the car, which he also suspected to be
blood.
Detective Mark Bendul of the BCPO interviewed defendant and
searched the apartment defendant shared with Stathis. Three
suspected blood stains were identified in the bathroom. After the
stains were photographed, they were swabbed with distilled water
so that samples could be collected. Bendul testified that tests
indicated that the blood samples taken from the car matched
Stathis' blood.
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On July 9, 2008, Trooper Kevin Reppenhagen of the New York
State Police received a call to investigate a suspicious bag on
the Southern State Parkway. Reppenhagen located a plaid bag on the
side of the highway. He believed the contents of the bag were
decaying and could contain body parts. The area was secured as a
crime scene. The bag contained an entire human skeleton, situated
in the fetal position and covered with maggots.
The Nassau County Medical Examiner's Office performed an
autopsy of the body. The cause of death was determined to be blunt
force trauma and breaking of the hyoid bone, a sign indicating
strangulation. A forensic anthropologist indicated the body was
female, white, between thirty to fifty years old, and approximately
Stathis' height.
A forensic odontologist examined the teeth of the corpse, and
Stathis' dentist confirmed the body was Stathis' corpse. The
investigation revealed defendant previously lived in Nassau
County, New York, directly adjacent to the Southern State Parkway.
DNA samples taken from the remains were matched to DNA samples
provided by Stathis' parents, and the forensics analysis
determined the DNA taken from the car and apartment bathroom was
that of a female and also matched the DNA of Stathis' parents.
On count one, the jury found defendant not guilty of murder,
but guilty of the lesser included offense of aggravated
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manslaughter. The jury found defendant guilty on counts two through
six. The court sentenced defendant on count one, (aggravated
manslaughter), to a thirty-year custodial term, and required
defendant to serve eighty-five percent of that sentence before
becoming eligible for parole, pursuant to the No Early Release
Act, N.J.S.A. 2C:43-7.2.
In addition, on count two (disturbing human remains), the
court imposed a concurrent ten-year term, with five years of parole
ineligibility. On count three (forgery), the court sentenced
defendant to a consecutive five-year term, with two-and-one-half
years of parole ineligibility. Moreover, on count six (hindering),
the court imposed a consecutive five-year term, with two-and-one-
half years of parole ineligibility.
Defendant appealed from the judgment of conviction dated
October 28, 2010. We affirmed defendant's convictions and the
sentences imposed. State v. Francois, No. A-0757-10 (App. Div.
Oct. 4, 2012). Defendant then filed a petition for certification
with the Supreme Court. The Court denied the petition, State v.
Francois, 216 N.J. 366 (2013).
On August 6, 2015, defendant filed a PCR petition in which
he claimed he was denied the effective assistance of trial counsel.
He claimed his attorney was deficient because counsel failed to:
(1) file a motion to allow defendant to represent himself at trial;
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(2) argue that the State failed to prove its case beyond a
reasonable doubt; (3) object to inadmissible expert testimony; (4)
object to the admission of certain "other crimes" evidence; (5)
move for a severance of the charges against him; and (6) object
to the testimony regarding a spare tire. In addition, defendant
argued that the prosecutor's comments during summation were
improper and so prejudicial that they denied him a fair trial.
The PCR judge assigned counsel to represent defendant and
counsel submitted a brief on defendant's behalf. On May 31, 2016,
the PCR judge heard oral argument, and on June 10, 2016, the judge
filed a written opinion, finding that defendant had not presented
a prima facie case of ineffective assistance of counsel and an
evidentiary hearing was not required on the petition. The judge
entered an order dated June 10, 2016, denying PCR. This appeal
followed.
II.
On appeal, defendant argues he was denied the effective
assistance of counsel because: (1) his trial attorney did not file
and argue a motion for waiver of his right to counsel so that he
could represent himself at trial; (2) trial counsel failed to
argue in summation that the State had failed to prove he committed
the charged offenses beyond a reasonable doubt, and appellate
counsel erred by failing to raise that issue on appeal; (3) trial
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counsel failed to object to Detective Bendul's testimony regarding
the blood sample taken from his vehicle because Bendul was not
qualified as an expert; and (4) trial counsel failed to object to
certain remarks by the prosecutor in summation. In addition,
defendant argues that the PCR court erred by denying his request
for an evidentiary hearing.
A defendant is entitled to an evidentiary hearing on a PCR
petition if the defendant presents a prima facie case in support
of PCR, the court determines there are material issues of fact
that cannot be resolved based on the existing record, and the
court finds that an evidentiary hearing is required to resolve the
claims presented. R. 3:22-10(b); see also State v. Porter, 216
N.J. 343, 354 (2013) (citing R. 3:22-10(b)).
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
criminal defendants the right to the effective assistance of
counsel. State v. O'Neil, 219 N.J. 598, 610 (2014) (citing
Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz,
105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective
assistance of counsel, the defendant must meet the two-part test
established by Strickland, 466 U.S. at 686, and adopted by our
Supreme Court in Fritz, 105 N.J. at 58.
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Under Strickland, a defendant first must show that his or her
attorney made errors "so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687. Counsel's performance is deficient
if it "[falls] below an objective standard of reasonableness." Id.
at 688.
A defendant also must show that counsel's "deficient
performance prejudiced the defense." Id. at 687. The defendant
must establish that "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A "reasonable probability"
is a "probability sufficient to undermine confidence in the
outcome" of the proceeding. Ibid.A. Motion for Self-Representation
Defendant argues his trial attorney was deficient because he
did not file a motion to waive his right to counsel, after
defendant said he no longer wanted the attorney to represent him
at trial. Defendant contends the attorney should have urged the
court to conduct a hearing so that the court could inform him of
his right to self-representation, as explained in State v. DuBois,
189 N.J. 454 (2007).
On direct appeal, defendant argued that his right under the
Sixth Amendment to the United States Constitution was violated
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because the trial judge denied his request for self-
representation. We rejected that claim, noting that defendant had
not sought permission to represent himself until the close of
testimony on the second day of trial. Francois, No. A-0757-10,
slip op. at 18–19. We held that under the circumstances, the judge
did not abuse his discretion in denying defendant's application.
Id. at 23.
Here, the PCR court found that defendant's claim of
ineffective assistance of counsel was barred by Rule 3:22-5 because
the issue had been raised on direct appeal and we had determined
that the judge did not abuse his discretion by denying defendant's
request to proceed pro se. Even if defendant's claim was not barred
by Rule 3:22-5, defendant failed to show that counsel was deficient
in failing to file a motion to allow defendant to represent himself
at trial.
As noted, defendant's apparent dissatisfaction with his
attorney first arose while the trial was underway. Indeed, on
direct appeal, defendant argued that his dissatisfaction with his
attorney was "unknown and unknowable" prior to trial. Francois,
No. A-0757-10, slip op. at 23. When the trial judge told defendant
he could not speak in front of the jury and he had to communicate
through his attorney, he stated, "If that's the case, why don't
you let me represent myself then?" Id. at 19.
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Defendant made six further requests to represent himself, and
the judge repeatedly instructed defendant on the rules of courtroom
behavior. Ibid. He told defendant that his attorney was "extremely
capable," but defendant disagreed and again requested permission
to represent himself. Ibid. The trial judge found the application
was untimely. Ibid.
Thus, the record shows that at trial defendant made a motion
for self-representation, and he has not shown that the application
would have been granted if it had been made by his attorney. In
addition, defendant has not shown that he was prejudiced by
counsel's failure to make the motion. The result would have been
the same. The motion was untimely, and as we held in defendant's
direct appeal, the trial judge did not abuse his discretion by
denying it.
B. Trial Counsel's Summation
Next, defendant argues his trial attorney should have argued
in summation that the State failed to prove beyond a reasonable
doubt that he committed the charged offenses. The PCR court
correctly found that this claim was barred by Rule 3:22-4 because
it could have been, but was not, raised on direct appeal. However,
the PCR court also addressed the claim on the merits and found
that defendant had not met either prong of the Strickland test for
ineffective assistance of counsel.
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The PCR court noted that in summation, defendant's attorney
had criticized the State's case. Moreover, the trial judge had
instructed the jury that the State had the burden of proving all
elements of the charged offenses beyond a reasonable doubt. The
PCR court found that defendant had not shown his attorney was
deficient in his summation, or that he had been prejudiced by
counsel's summation. The record supports the PCR court's
determination that defendant had not raised a prima facie claim
of ineffective assistance of counsel with regard to defense
counsel's summation. For the same reasons, we reject defendant's
claim that his appellate counsel was deficient for failing to
raise the issue on direct appeal. Appellate counsel had no
obligation to raise this meritless claim, and the result of the
appeal would not have been different if the issue had been raised.
C. Detective Bendul's Testimony
Defendant further argues his trial attorney was deficient
because he failed to object to Detective Bendul's testimony
regarding the samples taken from stains in his vehicle, which
tested positive for blood and were determined to be Stathis' blood.
Defendant contends Bendul's testimony was expert testimony and his
attorney should have objected because Bendul had not been qualified
as an expert.
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The PCR court correctly found this claim was procedurally
barred by Rule 3:22-4 because it could have been, but was not,
raised on direct appeal. The court nevertheless addressed the
merits of this claim, finding that counsel was not deficient in
failing to object to Bendul's testimony because he was not
testifying as an expert.
The detective merely provided the jury with a summary of the
results of the tests performed on the stains. The court noted that
at trial, the State had also presented testimony from a forensic
scientist at the New Jersey State Police lab, who confirmed that
Stathis was the source of the bloodstains found in defendant's
car.
Thus, the PCR court correctly determined that defense counsel
was not deficient in failing to object to Bendul's testimony
regarding the results of the tests on the blood stains. Even if
counsel erred by failing to object, defendant failed to show he
was prejudiced by the error. Defendant failed to show the trial
court would have barred Bendul from testifying about the facts if
counsel had objected. Moreover, the State's forensic scientist
testified that Stathis was the source of the bloodstains found in
the car.
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D. The Prosecutor's Summation
Defendant also argues his trial attorney was deficient
because he failed to object to the assistant prosecutor's statement
in summation that the murder did not take place in the victim's
bathroom or apartment. Defendant notes that in the opening
statement, the prosecutor referred to red stains found in the
bathroom, which were presumed to be blood. Defendant argues that
the crime was not committed in the bathroom, and the blood stains
found there were irrelevant.
The PCR court correctly found that this claim was barred by
Rule 3:22-4 because it could have been, but was not, raised on
direct appeal. Nevertheless, the court addressed the issue and
concluded that defendant had not shown he was denied the effective
assistance of counsel because his attorney failed to object to the
prosecutor's remarks.
In its decision, the PCR court noted that in his closing, the
prosecutor had argued that the blood evidence in the bathroom
could support a finding that Stathis had been killed there, but
it was more likely that she was killed in defendant's car. The PCR
court pointed out that the State did not have to prove where
Stathis was killed. The State only had to prove that defendant
murdered Stathis. The court found that the prosecutor's remarks
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were not improper and defense counsel was not deficient in failing
to object.
We agree defendant's arguments on this point are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
E. Evidentiary Hearing
In addition, defendant argues that the PCR court erred by
failing to conduct an evidentiary hearing on his petition. However,
because defendant failed to raise a prima facie case for relief,
and the existing record was sufficient to resolve defendant's
claims, the court correctly found he was not entitled to an
evidentiary hearing. Porter, 216 N.J. at 354 (citing R. 3:22-
10(b)).
Affirmed.
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