October 30, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL BLACKNALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Division, Monmouth County, Indictment No. 00-10-1644.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2006
Before Judges Parrillo and Sapp-Peterson.
In this consolidated appeal, defendant Michael Blacknall challenges the denials of his petition for post-conviction relief (PCR) and motion for a new trial. We affirm.
Tried by a jury, defendant was convicted of third-degree aggravated assault on a corrections officer, N.J.S.A. 2C:12-1b(5)(a), and with third-degree resisting arrest, N.J.S.A. 2C:29-2a. These charges arise out of an incident on April 29, 2000 in the parking lot of a VFW in Freehold, where corrections officers on duty at the nearby county jail had been summoned on reports of gunshots. Upon arrival, Officers Citarella and Georgalas observed defendant acting belligerently and yelling obscenities at the corrections officers while seated on the hood of his car. When told to get off the car and place his keys on the hood, defendant responded with an obscenity as he did when later ordered to put his hands on the hood, and then to submit to a pat down. Although he eventually complied, during the pat down defendant immediately removed his hands from the hood twice, causing Citarella to place him under arrest. When told to put his hands behind his back, defendant spun around and struck Citarella in the nose to chin area with the back of his arm close to the elbow. Citarella grabbed defendant, swept his legs out from under him, and wrestled him to the ground. After a brief struggle, Citarella finally was able to handcuff defendant with the assistance of another officer. Citarella later went to Jersey Shore Hospital to treat injuries sustained in the incident. According to Citarella, he suffered lacerations to his knee, a pulled hip, scrapes and bruises to the left elbow, a cut lip, and a small chip on one tooth.
Defendant offered a different version at trial. According to defendant, he was peaceably attempting to leave, became confused when faced with conflicting orders from the officers and scared because a gun was pointed at him, and did nothing to provoke Citarella's takedown. Defendant denied elbowing or punching Citarella and stated that during the ensuing scuffle, his face was scratched, his head pressed into the gravel, and he was left on the cold ground for five minutes before being escorted to a police vehicle.
Evidently crediting the State's account, the jury convicted defendant of both crimes charged. Denying the State's motion for an extended term, the judge sentenced defendant to two concurrent five-year terms with two years of parole ineligibility. Defendant appealed, and we affirmed in an unpublished opinion. State v. Blacknall, A-4318-00T4 (App. Div. Nov. 14, 2002). The Supreme Court denied defendant's petition for certification. State v. Blacknall, 175 N.J. 547 (2003).
Subsequently, defendant moved for a new trial on the grounds of newly discovered evidence. He argued that a recent affidavit of Citarella's treating physician, Dr. McDermott, describing injuries only to the officer's knee and hip, controverted Citarella's testimony as to the extent of his injuries. The court denied the motion finding the affidavit, based on medical records reasonably discoverable before trial and in fact received by counsel shortly before trial, did not constitute newly discovered evidence; was merely impeaching, and not material evidence; and would not, in all likelihood, have affected the outcome.
Defendant's appeal from the denial of his motion for a new trial was dismissed without prejudice to allow his PCR petition to proceed. In the instant petition, defendant claimed that counsel was ineffective for failing to: (1) obtain Citarella's emergency room medical records before trial; (2) object to their admission at trial because they were illegible; (3) use them to attack Citarella's credibility; and (4) present Dr. McDermott to explain his emergency room medical report. In requesting an evidentiary hearing, defendant posited that had the jury been able to read the medical records or hear corroborating testimony from Dr. McDermott, the outcome would have been different. The PCR judge disagreed and denied defendant's petition, reasoning:
The definition of a simple assault is just a minimal injury. It is not a significant injury, a third degree offense. It is not a serious bodily injury, a second degree offense where there need be some rather serious injuries in both of those cases. This is not that.
Both Georgalis and Cittarella [sic] testified this defendant assaulted the officer. The injury that the officer sustained to his mouth was minimal. He had a little cut. The chip to his tooth was a minimal thing. He didn't go to a dentist for it. The jury knew that.
First of all, I don't find that [defense counsel's] performance was ineffective. I don't find it was below standard. He did a very good job on this case. He worked very hard on this case.
The reason that the blows to the mouth were referred to so many times was [defense counsel] was questioning the officer about it, both officers. He got the other officer to admit that what he saw was different from what Cittarella [sic] testified to. The credibility of Cittarella [sic] was an issue. It was something for the jury to determine. And that was brought out not by [the prosecutor] but by [defense counsel]. He brought that out during the course of the trial. And he found an inconsistency there.
Would it make any difference? It made no difference whatsoever. Whether he assaulted his face or whether he assaulted his chest really didn't make any difference.
I am convinced this jury made its right decision. I am convinced that the attorney performed properly in the case. The fact that he didn't interview Dr. McDermott beforehand I would venture to say that probably no attorney would have interviewed a doctor in regard to an emergency record where the injury that the officer claims is so minimal.
And I am absolutely convinced that even if he had reviewed the record, presented the record, brought the doctor in, the result of this case would have been absolutely the same. So the motion for post conviction relief, the motion for a hearing, an evidentiary hearing on this is denied.
By order of April 13, 2005, we consolidated defendant's appeals from the dual orders denying his PCR petition and motion for a new trial. In this consolidated appeal, defendant, through counsel, raises each of the issues that he presented in the PCR petition and he argues that the judge erred in deciding the issues without affording him an evidentiary hearing:
I. AN EVIDENTIARY HEARING WAS REQUIRED FOR DEFENDANT TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel's Performance was Deficient when he Failed to Conduct a Proper Pre-Trial Investigation.
B. Trial Counsel Erred in Relying on Illegible Medical Records in Lieu of Direct Testimony from the Treating Physician.
C. Trial Counsel Was Ineffective When He Failed to Object to Prejudicial Testimony.
D. Trial Counsel was Ineffective for Failing to Consult with Defendant Prior to Trial.
In addition, in a pro se supplemental brief, defendant raises the following issues:
I. DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL WARRANTING AN EVIDENTIARY HEARING.
II. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS DIRECT APPEAL WARRANTING REVERSAL OF HIS CONVICTION AND THE GRANTING OF A NEW TRIAL.
III. DEFENDANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WHERE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF CORRECTIONS OFFICERS DURING HIS SUMMATION WARRANTING A NEW TRIAL.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
As to the need for an evidential hearing, it is well-settled that no such hearing is required in the absence of a prima facie showing of remediable ineffectiveness. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Remediable ineffectiveness requires a showing that counsel's performance was deficient as measured by the community standard and that the defective performance prejudiced defendant's right to a fair disposition. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42 (1987). No such showing was made here.
The gist of defendant's claim of ineffectiveness is that had trial counsel procured Citarella's medical records in advance of trial and subpoenaed the treating physician to testify, such evidence could have been used to discredit Citarella to a degree that would have changed the outcome. Defendant's argument, however, overlooks the crucial undisputed fact that regardless of its extent, Citarella sustained "bodily injury" during the incident sufficient to establish the necessary element of both crimes charged.
Third-degree resisting arrest requires only that an individual "[u]ses or threatens to use physical force," or creates "a substantial risk of . . . physical injury." N.J.S.A. 2C:29-2a(3)(a) to -2a(3)(b). On the other hand, a person is guilty of third-degree aggravated assault if he:
(5) Commits a simple assault as defined in subsection a.(1) . . . of this section upon:
(a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority . . .;
A simple assault, in turn, involves the "attempt to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another." N.J.S.A. 2C:12-1a(1). And "bodily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. The term includes a sore leg, back, hip and chest and elevated blood pressure, State v. Sewell, 127 N.J. 133, 135-36 (1992), a slap in the face causing a stinging sensation, State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988), and physical discomfort and non-specific pain caused by a kick, State ex rel. S.B., 333 N.J. Super. 236, 243-44 (App. Div. 2000).
Significantly, neither crime of which defendant has been convicted requires proof of the exact nature, severity or particularity of the corrections officer's injuries. Therefore, any attempt by counsel to minimize the extent of injuries actually suffered by Citarella in the arrest encounter would be at best inconsequential and at worst damaging because the effort would only serve to corroborate, if not emphasize, the fact that Citarella sustained at least some bodily injury, irrespective of its extent.
In any event, as noted by the PCR judge, trial counsel did engage in an exhaustive cross-examination of Citarella and exposed inconsistencies on this and other issues. For instance, counsel's cross-examination of both Citarella and Georgalas elicited inconsistent testimony as to the exact area of defendant's blow. To further discredit Citarella, counsel also focused on the officer's failure to document injuries to his mouth and tooth in his incident report. Moreover, counsel used Citarella's report and complaint to show inconsistencies in the officer's version of the assault and events leading thereto. Under the circumstances, counsel's claimed failure to subpoena the treating physician or use the medical records more effectively does not fall so wide of the mark of reasonable professional assistance. Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. However, even if counsel's performance had been defective, the asserted deficiency is not remediable because, as noted, defendant has failed to meet the prejudice prong of the Strickland test.
The only other issue of note is defendant's claim of prosecutorial misconduct in summation and appellate counsel's ineffectiveness for not raising the asserted error on direct appeal. We find no merit to these interrelated claims.
Defendant argues the prosecutor impermissibly vouched for the credibility of the State's law enforcement witnesses in these following remarks during summation:
There's been a lot of testimony about, well, they're sheriff's officers. They're correction officers. They're not real police officers.
Whether or not they've broken up a basketball fight or gotten a kitten out of a tree is not relevant. Between them they have 48 years of experience. Not only in booking in the jail, not only in the jail, in the perimeter around the jail. These two officers are CERT officers and you heard testimony as to what that means.
When bad things happen in the jail riots, fights, these are the guys they call. These are the guys who respond to dangerous situations. These are not men who panic. Did they strike you as being the type of people who when confronted with somebody would suddenly lose control? These are not men who panic. These are trained officers doing their job. That's what they're doing.
Those are all the reasons why the police officers or law enforcement officers' testimony is credible.
Considered in full context, these remarks do not constitute a personal voucher for the officers' credibility, but rather fall within the range of permissible argument. The prosecutor simply referenced information in the record independently supporting the trustworthiness of the officers' version of the events in question. Moreover, the challenged comments were in direct response to defense counsel's accusation on summation that the State's witnesses were merely corrections officers, rather than police officers, who were completely inexperienced and who ultimately overreacted to the situation by assaulting the defendant even though unprovoked. There being no error in the prosecutor's responsive commentary, a fortiori counsel was not ineffective for either failing to object at trial or raising the issue on direct appeal.
The orders appealed from are affirmed.
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