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State v. Arthur

July 19, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL ARTHUR, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This is an appeal from the denial of a petition for post-conviction relief based on the alleged ineffective assistance of trial counsel in the defense of a criminal prosecution for a sale of cocaine.

A jury found Michael Arthur guilty of various offenses involving cocaine, among them the distribution of cocaine within 500 feet of a public park and possession of cocaine within 500 feet of a public park with the intent to distribute. The trial court sentenced Arthur to concurrent fifteen-year terms of imprisonment, with five years of parole ineligibility. The Appellate Division affirmed the conviction and sentence. This Court denied Arthur's petition for certification.

Arthur filed a petition for post-conviction relief based on the alleged ineffective assistance provided by his trial counsel, which was supported by affidavits of a Robert Jackson and three other potential witnesses whom counsel did not call at Arthur's trial. Judge Barisonek, who also was the trial judge, conducted a two-day evidentiary hearing in which Jackson, Arthur, Arthur's brother, Arthur's fiancée Crystal Ross and defense counsel all testified.

At the hearing on Arthur's petition for post-conviction relief, Robert Jackson testified that Arthur brought him to the courthouse on the first day of the trial and that he told Arthur's lawyer that he was the one who sold drugs to a woman named Crittenden. According to Jackson, he also told an investigator from the prosecutor's office that he was the one who sold drugs to Crittenden. On cross-examination, Jackson was confronted by the investigator's notes, signed by Jackson, which did not include any statement that Jackson had sold drugs to Crittenden. Jackson also testified that on the second day of trial, defense counsel pulled him into the staircase and told him to take off, and that he then left the courthouse. Arthur's brother also testified that defense counsel came outside to the hall next to the courtroom in a rush and told him to get Jackson out of here.

Defense counsel gave the following account of his interview of Jackson. Originally, Jackson looked like an excellent witness because he was able to give the defense what it needed to establish that he was the seller. However, he changed his story. When he learned that he was going to be a suspect, he said he wasn't the seller but that he was there and knew that Michael Arthur didn't sell. Defense counsel further explained that he didn't know what Jackson was going to say and that was something he didn't want to risk. Defense counsel testified that he was pleased with Crittenden's testimony and thought they were going to get a not guilty verdict based on her testimony. In addition, he testified that Crittenden told him that Arthur had been selling drugs that day, but Jackson was the one who make the sale to her. On cross-examination, defense counsel indicated that he suggested Jackson leave the courthouse during the trial because he was concerned Jackson would be arrested and not because he had made a strategic decision not to call Jackson as a defense witness and wanted to prevent the State from calling him as a rebuttal witness. Defense counsel also testified that he made a tactical decision not to call Arthur's brother as a trial witness and that he was unable to call Arthur's two other proposed witnesses, Crystal Ross and Danielle Tomlison, because Arthur did not bring them to the courthouse. Judge Barisonek denied the petition. The Appellate Division affirmed the denial.

This Court granted Arthur's petition for certification, limited to the issue of whether he received ineffective assistance of trial counsel.

HELD: Defense counsel's representation of his client fell within the wide range of reasonable professional assistance to which an accused is entitled and the accused received a fair trial; the denial of the petition for post-conviction relief is sustained.

1. To be entitled to a new trial based on ineffective assistance of counsel, a defendant must make a two-part showing. First, the defendant must show that counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial. In determining whether defense counsel's alleged deficient performance prejudiced the defense, it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings. Defendant bears the burden of showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (pp. 10-12)

2. Judged by these standards, there is no basis for concluding that defense counsel provided Arthur ineffective assistance in failing to call Jackson as a defense witness. Initially, we reject Arthur's contention that counsel failed to make a strategic decision not to call Jackson. Judge Barisonek concluded that defense counsel's testimony that he did not tell Jackson to leave the courthouse was incredible and found that counsel told Jackson to leave and get out of here because he was going to hurt Robin Crittenden's testimony. An appellate court must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record. Judge Barisonek's finding is supported not only by the testimony of Arthur's brother and Jackson, but also the inherent improbability that an experienced criminal defense attorney such as defense counsel would think his duty of loyalty to his client was outweighed by an obligation to warn a potential defense witness that he could be arrested. Judge Barisonek also correctly concluded that Arthur failed to overcome the presumption that defense counsel's strategic decision not to call Jackson as a defense witness might be considered sound trial strategy. There was a reasonable basis for defense counsel's strategic decision not to call Jackson as a defense witness because his testimony was more likely to harm than to help Arthur's case. This perception of the probable impact of Jackson's testimony on the trial was obviously shared by the prosecutor, who made her own strategic decision to call Jackson as a rebuttal witness and strenuously urged the trial court to delay the trial to afford her the opportunity to locate him. There also is no basis for concluding that this strategic decision was affected by defense counsel's failure to conduct additional pretrial investigation. (pp. 12-18)

3. We reject Arthur's argument that defense counsel's representation was deficient in failing to call Arthur's brother to testify that Arthur did not sell the drugs to Crittenden and that Jackson said he was the one who sold the drugs. Defense counsel testified that he decided, with Arthur's concurrence, not to call Arthur's brother because he believe Crittenden had been an effective witness and that Arthur's brother would not be a credible witness. Defense counsel also stated that he considered calling Arthur's brother to testify that Jackson had initially admitted selling drugs to Crittenden but ultimately decided not to call him for that purpose. Such testimony would have posed obvious strategic risks to the defense. (pp. 18-19)

4. Arthur also argues that defense counsel was ineffective in failing to visit the area where he was alleged to have sold drugs to Crittenden, failing to interview potential defense witnesses before trial and failing to call any defense witnesses in addition to Crittenden at trial. There is no basis for concluding that there is a reasonable probability the result of the trial would have been different if defense counsel's pretrial preparation had included a visit. In the absence of evidence that defense counsel's failure to interview Jackson and Arthur's brother before trial affected those decisions, there is no basis for concluding that this failure constituted ineffective assistance. It is reasonable to infer that defense counsel made a strategic decision not to call Crystal Ross as a witness. In view of Ross's close personal relationship to Arthur and the risk that her version of the drug sale would conflict with Crittenden's, there is no basis for concluding that this decision was objectively unreasonable or that there is a likelihood Ross's testimony would have changed the outcome of the trial. Tomlinson was not produced as a witness at the hearing on the petition for post-conviction relief. Consequently, there is no evidence that she was even available to testify at the time of Arthur's trial and thus no foundation for concluding that the failure to call her constituted ineffective assistance of counsel. (pp. 20-23)

5. In addition to the ineffective assistance of counsel claims asserted by Arthur, the dissent contends that defense counsel was ineffective in other ways, none of which were raised by Arthur in his petition for post-conviction relief, his arguments at the hearing on the petition or his appellate brief. An appellate court ordinarily will not consider issues that were not presented to the trial court and an appellate court should be even more hesitant to raise an issue sua sponte that the parties have not had an opportunity to address. (pp. 23-24)

6. We consider it necessary to comment upon the dissent's assertion that it is highly unusual that three individuals would be willing to come forward and offer testimony not only exonerating a defendant, but also implicating another person in the neighborhood and still more unusual that the person implicated would actually admit his guilt to clear a wrongfully charged defendant. What may appear highly unusual to appellate judges may not be so unusual in the culture of street-level drug dealers. (pp. 25-26)

7. The complete trial transcript shows that defense counsel made an objectively reasonable decision regarding his overall strategy in defending the charges against Arthur by relying primarily upon Crittenden's identification of Jackson as the actual seller and that he conducted this defense in a reasonably effective manner. Defense counsel's effort to create reasonable doubt concerning Crawford's identification of Arthur as the person who sold drugs to Crittenden through Crittenden's testimony that Jackson was the actual seller would have been seriously undermined if Jackson had taken the stand and denied he was the seller. Defense counsel made a reasonable strategic decision to avoid this risk by not calling Jackson. (pp. 27-32)

8. This opinion should not be read to condone a defense attorney's failure to interview prospective defense witnesses until the day of trial. But even though defense counsel's pretrial preparation fell short of the professional standards to which the Public Defender should require adherence, the purpose of the constitutional guarantees of effective assistance of counsel is not to improve the quality of legal representation. The purpose is simply to ensure that criminal defendants receive a fair trial. Our review of the trial record shows that defense counsel made an objectively reasonable decision not to call Jackson as a defense witness based on his assessment of the effectiveness of Crittenden's trial testimony and his justifiable concern that Jackson could undermine Crittenden's testimony by denying he was the one who sold her drugs. We are satisfied that defense counsel's representation of Arthur fell within the wide range of reasonable professional assistance to which an accused is entitled and that Arthur received a fair trial. (pp. 32-34)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN filing a separate, DISSENTING opinion, in which JUSTICES ZAZZALI and WALLACE join, is of the view that counsel's defaults amounted to errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment and that there is a reasonable probability that the outcome of Arthur's trial would have been different had his counsel engaged in reasonable preparation.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and RIVERA-SOTO join in JUDGE SKILLMAN'S opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICES ZAZZALI and WALLACE join. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Judge Skillman (temporarily assigned)

Argued March 15, 2005

This is an appeal from the denial of a petition for post-conviction relief based on the alleged ineffective assistance of trial counsel in the defense of a prosecution for a sale of drugs. Defendant's primary claim is that his counsel was ineffective in failing to call as a defense witness Robert Jackson, who initially told defense counsel that he was the one who sold the drugs but then retracted this admission when informed he could be subject to prosecution. We conclude that defense counsel's decision not to call Jackson was a reasonable strategic decision because the buyer of the drugs, Robin Crittenden, testified that Jackson was the one who sold her the drugs and defense counsel could reasonably have believed Jackson would harm the defense case by denying Crittenden's allegation that he was the seller. We also reject defendant's arguments that trial counsel provided ineffective assistance by failing to visit the scene of the drug transaction or to interview potential defense witnesses before trial and by failing to call other witnesses who could have testified defendant did not sell drugs to Crittenden.

I.

A jury found defendant guilty of distribution of cocaine, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); distribution of cocaine within 500 feet of a public park, in violation of N.J.S.A. 2C:35-7.1; possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and possession of cocaine within 500 feet of a public park with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. The trial court granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed concurrent fifteen-year terms of imprisonment, with five years of parole ineligibility, for distribution of cocaine within 500 feet of a public park and possession of cocaine within 500 feet of a public park with the intent to distribute. The Appellate Division affirmed defendant's conviction and sentence in an unreported opinion, State v. Arthur, No. A-1892-00T4 (App. Div. Apr. 23, 2002), and this Court denied his petition for certification, 174 N.J. 545 (2002).

Defendant filed a petition for post-conviction relief based on the alleged ineffective assistance provided by his trial counsel, which was supported by affidavits of Jackson and three other potential witnesses whom counsel did not call at defendant's trial. Judge Barisonek, who also was the trial judge, conducted a two-day evidentiary hearing in which Jackson, defendant, defendant's brother James Arthur, defendant's fiancée Crystal Ross and defense counsel all testified. Based on the evidence presented at that hearing and the trial record, Judge Barisonek concluded that defendant had failed to prove his ineffective assistance claim and denied the petition.

The Appellate Division affirmed in an unreported opinion, which concluded that defense counsel had not provided ineffective assistance by failing to call Jackson as a defense witness and also rejected defendant's other arguments. This Court granted defendant's petition for certification limited to the issue of whether he received ineffective assistance of trial counsel. 182 N.J. 628 (2004).*fn1

Defendant's convictions were based primarily on the testimony of Andre Crawford, a detective in the Narcotics Bureau of the Plainfield Police Department. While Crawford was conducting an undercover narcotics surveillance from an undisclosed location in the late afternoon on June 23, 1998, he observed defendant place some items behind bushes located at 969 West 3rd Street in Plainfield. Defendant then got into a car that left the area for a brief period. When he returned, defendant went to the bushes, bent down to check the items he had placed there, and walked back to the street. Shortly thereafter, defendant was approached by a woman named Robin Crittenden. After defendant and Crittenden spoke briefly, defendant went to the bushes, retrieved an item, and walked back to Crittenden, who handed him money in exchange for the item. Crawford testified that he had an unobstructed view of the apparent drug transaction from a distance of less than thirty feet and that he knew defendant before observing him on this occasion.

Crawford radioed the officers in his back-up unit to come to the area. The officers arrived within a short time and immediately detained defendant and Crittenden. Because there were other people in the area, the officers brought them onto the porch of 969 West 3rd Street. Crawford confirmed by radio from his surveillance location that they were the two persons he had observed engage in an apparent drug transaction.

Crittenden said to one of the officers: "I don't have anything. What's going on here." She then dropped a vial from her hand, which was subsequently determined to contain cocaine. At this point, the officers placed defendant and Crittenden under arrest.

Crawford directed one of the officers to the bushes where he had observed defendant retrieve the item that he handed to Crittenden. The officer found a brown bag at that location, which contained a Kentucky Fried Chicken box with forty-five vials of what was subsequently determined to be cocaine. A subsequent examination of the evidence disclosed that the vial dropped by Crittenden had the same kind of white cover as forty-three of the forty-five vials found behind the bushes.

Crittenden testified on defendant's behalf that the person who sold her cocaine was not defendant but instead Robert Jackson, who resided at 969 West 3rd Street. Crittenden testified that she told Crawford and the other police officers that Jackson, not defendant, sold her the drugs but "they didn't want to hear it" and kept insisting defendant was the seller. Crittenden testified that even though she eventually named defendant as the seller when she pled guilty to charges based on her role in the transaction, she did so only because the prosecutor required her to identify defendant to get the benefit of her plea bargain.

On cross-examination, Crittenden was confronted with the parts of the plea transcript in which she identified defendant as the seller. She also acknowledged that she had three prior criminal convictions.

On redirect, defense counsel brought out that when her guilty plea was being taken, she initially identified Jackson, not defendant, as the seller. However, the judge indicated he would not accept the plea and declared a recess. According to Crittenden, she identified defendant as the seller at this point because she was scared that she would lose the benefit of her plea bargain.

After Crittenden completed her testimony, the prosecutor stated that she wanted to call Jackson as a rebuttal witness but that, after speaking with defense counsel, Jackson had "left the building" and was "nowhere to be found." The prosecutor asked the trial court to delay the trial to afford her an opportunity to locate Jackson, but the court denied the application.

At the hearing on defendant's petition for post-conviction relief, Jackson testified that defendant brought him to the courthouse on the first day of the trial and that he told defendant's trial counsel that he, not defendant, was the one who sold drugs to Crittenden. Jackson was then interviewed by an investigator from the prosecutor's office. According to Jackson, he also told this investigator that he was the one who sold drugs to Crittenden. However, on cross-examination, Jackson was confronted by the investigator's notes, signed by Jackson, which did not include any statement that Jackson had sold drugs to Crittenden. Jackson also testified that on the second day of trial defense counsel "pulled me into the staircase and told me to take off, leave," and that he then left the courthouse.

Defendant's brother, James Arthur, also testified regarding defense counsel's request to Jackson to leave the courthouse:

[Defense counsel] came outside [to the hall next to the courtroom] like in like a rush, like something had happened and told me to get him out of here, speaking of Robert Jackson, disappear. So I said I wanted to know why but I was more like thinking, well, if the lawyer said get him out of here, I think I better get him out of here. I'll find out later. I spoke to Mr. Jackson later on that day and he had told Mr. Jackson to disappear, get out of here .

Defense counsel gave the following account of his interview of Jackson and assessment of Jackson's value as a defense witness:

Originally he looked like an excellent witness because he was able to give the defense what we needed essentially to establish that he was the seller. In fact I gave a proffer to the prosecutor. I even wrote it down because the prosecutor wanted to know what the proffer was. There was nothing in discovery to indicate that Robert Jackson was going to be the seller. When I interviewed him, he indicated that he was and I wrote that proffer for the prosecutor.

However, he changed his story. When he learned that he was going to be a suspect in this, he said, oh, no, no, I wasn't the seller. I was there. I know that Michael Arthur didn't sell and it was at that point that he was interviewed by the Prosecutor's Office and my understanding of what he told them, although I never saw the notes that you just discussed, was that he basically told them that he didn't indicate he was the seller.

Defense counsel further explained: "I didn't know what [Jackson] was going to say and that was something I didn't want to risk."

Defense counsel also testified that he was "pleased" with Crittenden's testimony and "thought we were going to get a not guilty based on her testimony." In addition, he testified that Crittenden told him that defendant had been selling drugs that day, but Jackson was the one who made the sale to her.

Defense counsel gave the following account of Jackson's departure from the courthouse:

I went out in the hallway and out of fairness to Mr. Jackson I said you are going to be arrested. Are you going to adhere to what you told me before that you were the seller? Otherwise, you better take off because you are about to be arrested but it's your call. I can't tell you what to do and at that point he literally got out in the nick of time because the entire building was scoured and the doors were shut downstairs and they didn't find him.

On cross-examination, defense counsel indicated that he suggested Jackson leave the courthouse because he was concerned Jackson would be arrested rather than because he made a strategic decision not to call Jackson as a defense witness and wanted to prevent the State from calling him as a rebuttal witness:

I wanted to be fair to him. I felt like he was going to stick his neck out for [defendant]. I wanted to make sure he knew what he was getting into.

Defense counsel also testified that he made a tactical decision, in which defendant concurred, not to call his brother, James Arthur, as a witness and that he was unable to call defendant's two other proposed witnesses, Crystal Ross and Danielle Tomlinson, because defendant did not bring them to the courthouse.

Judge Barisonek delivered a comprehensive oral opinion denying defendant's petition. The judge found defense counsel's testimony that he did not tell Jackson to leave the courthouse but instead told him to ...


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