State of New Jersey v. Christopher Dalzell

• Court: New Jersey Superior Court Appellate Division
• Decided: February 21, 2025
• Docket: A-3420-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3420-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER DALZELL,

Defendant-Appellant. ___________________________

Submitted February 6, 2025 – Decided February 21, 2025

Before Judges Natali and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 15-12-2524.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Brian Plunkett, Designated Counsel, on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel; Cheryl L. Hammel, Assistant Prosecutor, on the brief).

PER CURIAM Defendant Christopher Dalzell appeals from the March 28, 2023 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm substantially for the reasons set forth in Judge Guy P. Ryan's

thorough and well-reasoned written opinion.

We previously discussed the underlying facts and procedural history of

defendant's case when we affirmed his conviction and sentence. State v. Dalzell,

No. A-5481-16 (App. Div. June 25, 2020) (slip op. at 1-2).1 We include a brief

summary of the facts for purposes of addressing defendant's arguments.

On March 29, 2015, while out with his fiancée, R.M.,2 at the local Knights

of Columbus, defendant was drinking "shots [of vodka] and a bunch of beers,"

having also taken Ambien and Oxycodone. On the way home, they stopped at

a liquor store and purchased alcohol. At home, a heated argument ensued,

during which defendant referred to R.M. profanely, telling her "[he] should

probably f[***]ing kill [her]."

At one point, defendant pushed R.M.'s head into a wall. She remembered

defendant saying something about a knife. The "[n]ext thing [she] kn[e]w[, she]

1 On September 29, 2020, our Supreme Court denied defendant's petition for certification. See State v. Dalzell, 244 N.J. 255 (2020). 2 We utilize initials to protect the confidentiality of the victim. R. 1:38-3(c)(12). A-3420-22 2 looked down and [she] had a knife in [her]." Defendant "just walked away,"

going to their bedroom and sitting on the bed. With the knife protruding from

her abdomen, R.M. retrieved her cell phone from the bedroom and called 9-1-1.

On the 9-1-1 call, R.M. identified defendant as the person who stabbed her. She

was stabbed multiple times in her chest and abdomen. Defendant was indicted

for first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and

fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

At trial, defendant testified that on the day of the incident, he drank

alcohol, took painkillers, blood pressure, and thyroid medication, and took

Ambien "when [he] decide[d] he want[ed] to sleep." Defendant recalled he had

"a bunch of shots and . . . beers" while at Knights of Columbus.

After leaving Knights of Columbus, he stopped at a liquor store with R.M.

to purchase "beer and a bottle of vodka" and then went home around "dinner

time." While at home, he and R.M. consumed "the beers and . . . vodka." He

remembered "[s]itting on the couch watching" television. The next thing he

remembered was "[s]itting with shackles on in a Tyvek suit, paper suit, asking

where [he] was."

A-3420-22 3 During summation, defense counsel argued the evidence and testimony

supported an intoxication defense:

Now when we[ are] talking about intoxication, we [are] talking about a disturbance of physical or mental capabilities. There[ is] an "or" there. The behavior of [defendant] is consistent with someone who[ is] suffering from that type of disturbance of mental capabilities. And it[ is] consistent with intoxication as an explanation.

....

. . . [Defendant] lost his ability to reason to the point that from the time that the police come in and he[ is] sitting on the bed to the time that he[ is] handcuffed, to the time that he[ is] photographed down at the police headquarters, he[ is] just sitting in his underwear.

The trial court properly instructed the jury as to the defense of

intoxication. The jury convicted defendant on all counts. After appropriate

mergers, the court sentenced defendant to a custodial term of fifteen years

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for first-degree

attempted murder.

Defendant filed a pro se petition for PCR contending trial counsel failed

to "communicat[e]" and "properly investigate the case and prepare a strategic

defense." PCR counsel was appointed, filed a supplemental brief, and argued

trial counsel failed to: (1) "persuade the court to apply relevant aggravating and

A-3420-22 4 mitigating factors in sentencing"; (2) file motions to dismiss or suppress the

victim's testimony as "expert" testimony and the "recording of the [9-1-1] call

and body camera footage . . . on the night of the stabbing" as repetitive and

"unnecessary"; (3) request the jury be polled after a juror conducted internet

research regarding jury deliberations; and (4) "test defendant[']s blood samples

to determine the level of intoxication in aid of an intoxication defense."

PCR counsel specifically incorporated by reference all issues raised by

defendant in his pro se PCR petition. Counsel simultaneously filed a

certification executed by defendant contending trial counsel failed to "request

that the entire jury be polled when it became apparent that one of the jurors had

conducted internet research," provide "appropriate legal advice," and "get [his]

blood samples . . . tested for alcohol content."

After hearing oral argument, on March 28, 2023, the court entered an order

denying defendant's petition for PCR supported by a thirty-five-page written

opinion. The court found trial counsel appropriately and effectively argued all

applicable aggravating and mitigating factors at sentencing. It rejected

defendant's argument trial counsel failed to move to bar R.M.'s testimony or the

9-1-1 call and body camera footage because those arguments lacked merit and

were raised and rejected on direct appeal. It also rejected his claim trial counsel

A-3420-22 5 failed to request the entire jury be polled because the trial court confirmed the

juror who conducted the internet research did not share the information with any

other jurors and the same argument was raised and rejected on direct appeal.

The court found trial counsel was not ineffective for failing to test

defendant's blood samples because "no blood sample was taken from

[d]efendant; rather only swabbing of defendant's left hand and left thigh

occurred. . . . Thus, there was no blood drawn from defendant to test for the

presence of intoxicants." It rejected defendant's claim trial counsel failed to

communicate with him and properly investigate the case because the claims

were nothing more than bald assertions, and "defendant failed to assert facts that

an investigation would have revealed."

The court rejected the claim trial counsel was ineffective for failing to

prepare a strategic defense because "[o]ther than testing the non-existent blood

sample, defendant fail[ed] to show what else could have been done." It found

trial counsel both "thoroughly questioned defendant regarding his intoxication

on the evening of the incident[,] including the ingestion of prescription drugs

and alcohol" and addressed the intoxication defense during summation. The

court concluded "an objective review of the record demonstrates trial counsel

zealously pursued an intoxication defense, albeit unsuccessfully."

A-3420-22 6 On appeal, defendant raises the following point for our consideration.

POINT I

BECAUSE PCR COUNSEL ABANDONED HIS DUTY TO THOROUGHLY PRESENT LEGAL ISSUES, DEFENDANT'S SEVERAL MERITORIOUS PRO SE ALLEGATIONS THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WERE NEVER DEVELOPED OR PRESENTED TO THE COURT BY PCR COUNSEL IN EITHER HIS BRIEF OR ARGUMENT TO THE COURT REQUIRING THAT THE MATTER BE REMANDED FOR A NEW PCR HEARING WITH NEW PCR COUNSEL. (Not raised below)

Because the court did not hold an evidentiary hearing, we review both the

factual inferences drawn by the judge from the record and the judge's legal

conclusions de novo. State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div.

2020) (citing State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018)); see

also State v. Nash, 212 N.J. 518, 540-41 (2013) (citing State v. Harris, 181 N.J.

391, 415-16 (2004)). To establish a PCR claim of ineffective assistance of

counsel, a defendant must satisfy the two-pronged test formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors

so serious that counsel was not functioning as the 'counsel' guaranteed . . . by

the Sixth Amendment," then by proving he suffered prejudice due to counsel's

A-3420-22 7 deficient performance. Strickland, 466 U.S. at 687; accord Fritz, 105 N.J. at 52.

Defendant must show by a "reasonable probability" the deficient performance

affected the outcome of the proceeding. Fritz, 105 N.J. at 58.

A defendant bears the burden of establishing a prima facie claim for PCR.

State v. Gaitan, 209 N.J. 339, 350 (2012). Defendants must "do more than make

bald assertions that [they were] denied the effective assistance of counsel" to

establish a prima facie claim. State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999). "The failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596,

625 (1990).

There is a strong presumption counsel "rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, the defendant must demonstrate "how specific errors of counsel

undermined the reliability of the" proceeding. United States v. Cronic, 466 U.S.

648, 659 n.26 (1984); see also Fritz, 105 N.J. at 52 ("[P]rejudice must be

proved . . . it is not presumed."). "The test is not whether defense counsel could

have done better, but whether [they] met the constitutional threshold for

effectiveness." Nash, 212 N.J. at 543 (citing Fritz, 105 N.J. at 52). The court

A-3420-22 8 should review counsel's performance in the context of the evidence against

defendant at the time of the plea or trial. State v. Castagna, 187 N.J. 293, 314-

15 (2006).

We are satisfied Judge Ryan properly denied defendant's petition for PCR.

As he correctly determined, defendant's claims trial counsel failed to move to

suppress R.M.'s testimony, the 9-1-1 call, and the body camera footage lack

merit and were rejected on appeal. His claim trial counsel failed to test his

"blood samples" lacks merit because no such blood samples exist. Defendant's

remaining claims are based on nothing more than bald assertions of ineffective

assistance. He does not identify any evidence counsel failed to discover or

present at trial, nor does he set forth any meritorious argument trial counsel

failed to present.

We are unconvinced by defendant's argument first raised on appeal that

PCR counsel "abandoned his duty to thoroughly present" defendant's arguments.

A defendant has a constitutional right to effective assistance of counsel in a

petition for PCR when raising for the first time ineffective assistance of trial

counsel. State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). "Rule

3:22-6(d) imposes an independent standard of professional conduct upon an

A-3420-22 9 attorney representing a defendant in a PCR proceeding." State v. Hicks, 411

N.J. Super. 370, 376 (App. Div. 2010). Rule 3:22-6(d) provides PCR counsel

should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.

PCR counsel presented every issue raised in defendant's pro se brief and

certification. His claim PCR counsel failed to argue "Ambien is well known for

its side effect of producing unintended behavior, a sleepwalking condition,

referred to as 'Ambien Blackout,'" is based on nothing more than inadmissible

hearsay and speculation. Defendant does not offer any admissible evidence to

support such a claim. "The failure to raise unsuccessful legal arguments does

not constitute ineffective assistance of counsel." Worlock, 117 N.J. at 625.

The intoxication defense was properly advanced by trial counsel and on

PCR. Defendant's claim PCR counsel abandoned his duty to raise legal

arguments, including all arguments identified by defendant, legitimate or

otherwise, lacks merit.

A-3420-22 10 To the extent we have not addressed any remaining arguments, it is

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

A-3420-22 11