June 4, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREEM MCCARGO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-1316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2007
Before Judges Wefing, Parker and C.S. Fisher.
Defendant Kareem McCargo appeals from an order entered on June 3, 2005 denying his petition for post-conviction relief (PCR).
Defendant was sentenced on December 21, 2001 after a jury found him guilty of first degree carjacking, N.J.S.A. 2C:15-2a(2); first degree armed robbery, N.J.S.A. 2C:15-1; second degree burglary, N.J.S.A. 2C:18-2; and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. After the appropriate mergers, defendant was sentenced on Count 1 to a term of seventeen years subject to 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and on Count 3 to a term of eight years subject to three years parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6g.
The facts giving rise to the charges against defendant occurred on October 27, 2000 when Amanda Miller drove her friend, Amy Schlump, to Cooper Hospital in Camden to pick up Schlump's boyfriend. Miller and Schlump parked in Miller's purple Neon and waited for the boyfriend for about fifteen minutes. When Schlump's boyfriend did not arrive, Schlump went into the hospital to call him from a pay phone. Schlump testified that she was in the hospital for five to ten minutes and when she returned, Miller was "crying" and "hysterical."
Miller testified that while she was waiting for Schlump in the car, two men approached the driver's side window and "one boy had a gun in his hand and he told me to get the fuck out of the car," as he pointed a gun at her head. When Miller exited the car, the two men got in and drove off. Miller testified that the man with the gun was wearing a "black or navy blue sweatshirt . . . [with] a zipper in the front and . . . a hood." The other man was wearing "a gr[e]y sweatshirt . . . [with] some kind of writing across the front."
Camden Police Officer Jeffrey Frett testified that on the evening of October 28, 2000, he received information about the carjacking through the local dispatcher. At about 3:00 a.m., Frett spotted Miller's purple Neon with two occupants. Frett followed the suspects as they were parking and put his lights on. At that point, the suspects fled from the car on foot, leaving the car in drive and causing it to hit another parked vehicle.
Frett radioed the police station that the suspects were fleeing on foot as he continued to follow them in his car. During the chase, Frett lost sight of one of the men, but followed the other, who was later identified as Shaheed Dotson. Backup officers arrived and set up a perimeter around the area where Frett lost sight of defendant. Sergeant Strang found defendant in an abandoned garage. He also found a black sweater with a pink panther on it in the same garage where he found defendant.
Defendant testified on his own behalf that on the evening in question he was at a friend's house playing cards until 1:35 a.m. He presented two alibi witnesses, Tiray Jones and Darcell Holmes. Both witnesses testified that defendant was with them playing cards at a friend's house on the night of the carjacking. Defendant testified that when he left his friend's house, a car flashed its lights at him and "Bopbop" (Fernando Smalls) and Dotson were in the purple Neon. Defendant asked them for a ride to his girlfriend's house. Defendant claimed "Bopbop" and Dotson told him the Neon was not stolen.
Dotson had previously pled guilty to the carjacking in juvenile court and testified that defendant was involved. By the time of defendant's trial, however, Dotson advised an investigator from the Prosecutor's Office that he was afraid of defendant's family, if he testified against defendant. Dotson testified at trial that "Bopbop" was with him when they took the purple Neon. He acknowledged, however, that when he entered his plea, he testified that defendant participated in the carjacking and had the gun.
Defendant appealed the conviction and sentence and we affirmed on April 11, 2003 in an unpublished opinion, Docket No. A-3686-01T4. The Supreme Court denied his petition for certification on September 22, 2003. State v. McCargo, 177 N.J. 577 (2003). Thereafter, defendant filed his PCR petition.
At the PCR hearing on June 3, 2005, defendant testified that his trial counsel was ineffective because counsel failed to investigate letters defendant received from his co-defendant, Shaheed Dotson, implicating another individual, "Bopbop," in the carjacking. Defendant claimed further that he never reviewed a copy of the discovery in the case, never reviewed trial strategy with trial counsel, never "practice[d]" his testimony, and trial counsel never explained the advantages or disadvantages of his testifying or told him how to behave during his testimony.
After hearing defendant's testimony and considering the arguments of counsel, the trial court rendered a lengthy and thorough decision on the record, finding that (1) defendant's testimony lacked credibility; (2) there was no basis for defendant's claims that another individual was involved; and (3) there was no evidence that counsel failed to adequately investigate the case. The PCR petition was denied.
In this appeal, counsel for defendant argues:
THE JUDGE ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED
THE JUDGE ERRED IN HOLDING THAT THE DEFENDANT'S PAROLE INELIGIBILITY PURSUANT TO THE NO EARLY RELEASE ACT WAS LEGALLY IMPOSED In his pro se supplemental brief, defendant argues:
THE STATE[']S FAILURE TO BRING IT'S [SIC] WITNESS TO THE GRAND JURY. INFRINDGED [SIC] UPON THE DECISION MAKING PROCESS OF THE GRAND JURY.
DEFENDANTS [SIC] STATE AND FEDERAL CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS "HELD TO ANSWER" FOR OFFENSES NOT CHARGED IN THE INDICTMENT NOR FOUND BY THE JURY AT TRIAL BEYOND A REASONABLE DOUBT.
IN ESTABLISHING IT'S [SIC] PRIMA FACIE CASE AGAINST ACCUSED, STATE MAY NOT DECEIVE GRAND JURY OR PRESENT IT'S [SIC] EVIDENCE IN [SIC] WAY THAT ISTANTAMOUNT [SIC] TO TELLING GRAND JRUY [SIC] A "HALF TRUTH"
Defendant first contends that the trial court erred in finding that defendant failed to establish ineffective assistance of counsel and in failing to grant him an evidentiary hearing. An evidentiary hearing is not required for PCR and it is within the trial court's discretion to determine whether one is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-1 to -10. An evidentiary hearing will generally not be held when a petitioner's claims are vague or speculative.
To establish a prima facie claim of ineffective assistance of counsel, petitioner must demonstrate that (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
Here, defendant claims that trial counsel was ineffective because counsel: (1) "failed to prepare adequately and investigate the case;" (2) "failed to explain to defendant the consequences of his testimony;" (3) "failed to call additional witnesses who would have supported the defense theory of the case;" (4) "failed to properly prepare the alibi witnesses to testify;" and (5) "failed to impeach the victim regarding prior convictions."
Defendant's claims are nothing more than bald assertions without any supporting affidavits or certifications. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The trial court found that defendant failed to provide any evidence of what preparation he believed counsel should have undertaken "or how it would have affected the witness's testimony at trial . . . or what [an] investigation would have yielded, what discussions regarding the defendant's testimony would have taken place, and how those things would have aided [the] defendant." As to "Bopbop's" purported involvement in the carjacking, defense counsel addressed that issue on his cross-examination of the State's witnesses and direct examination of defense witnesses.
Defendant argues further that he would not have testified if he had known he would be "shown to be a liar" and "he would have tailored his testimony differently." We find it remarkable that defendant claims that counsel was ineffective because counsel did not warn defendant to tell the truth when he testified. Defendant's exposure for lying does not render trial counsel ineffective.
With respect to impeachment of the victim, the trial court stated that defendant failed to show which "hearsay exception counsel could have used to admit the [disorderly persons] conviction into evidence. Second . . . they're not indictable convictions and, therefore, they [could not be used] to challenge [the victim's] credibility under Evidence Rule 609." The trial court noted:
Defense counsel's actions and strategies are wholly in line with the proffered alibi by the defense which the defendant admitted he signed and sent to his attorney to be filed. The defendant claims that defense counsel did not cross-examine the victim thoroughly enough at trial, but defense counsel's cross-examination of the victim was entirely in line with the defendant's theory of the case. The victim could not identify the defendants who took her car. She gave no physical description of the individuals other than their sex, race and [that] one looked younger than the other and a detailed description of their clothes.
Defense counsel's cross-examination of the victim was designed to highlight discrepancies between her description of the individual's clothing and the clothing worn by the defendant on the night of his arrest . . . . Based on the information elicited during cross-examination of the victim, defense counsel argued to the jury during closing that these discrepancies constituted reasonable doubt. Defense counsel argued that when the victim was approached by her assailant, the man in the black hoodie, [defendant], was elsewhere.
We agree with the trial court's findings and conclusions on defendant's ineffective assistance of counsel arguments.
In his sentencing arguments, defendant maintains that the 85% parole ineligibility pursuant to NERA is illegal. He claims that his sentence was subject to the pre-2001 version of NERA that did not specifically enumerate carjacking as a NERA offense. The 2001 amendments added carjacking as a specifically enumerated offense.
The pre-2001 version of NERA applied to first and second degree "violent crimes," defined as "any crime in which the actor causes death, causes serious bodily injury . . . or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:43-7.2(d)(2000). A "deadly weapon" is defined as "any firearm or other weapon, device, instrument, material or substance whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury." Ibid.
Here, the jury unanimously found that defendant's conduct constituted a violent crime by finding that he used or threatened "the immediate use of . . . a deadly weapon." Thus, although the NERA parole ineligibility was imposed on the carjacking count, it was imposed because the jury unanimously found that defendant "use[d], threatened the immediate use of or was . . . armed with a deadly weapon." Accordingly, there is no merit in this argument.
In his pro se supplemental brief, defendant argues for the first time that the indictment was deficient because the State failed to provide Dotson's testimony to the grand jury. The State responds that defendant's arguments are procedurally barred because defendant failed to raise them on direct appeal or to the trial court in his PCR petition. State v. Mitchell, 126 N.J. 565, 583-84 (1992); State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973), aff'd, 64 N.J. 566 (1974); R. 3:22-4; R. 3:10-2.
Rule 3:10-2 states that any "objections based on defects in the institution of the prosecution or in the indictment must be raised by motion before trial and that failure to do so constitutes a waiver, absent a showing of good cause." State v. Mello, 297 N.J. Super. 452, 461 (App. Div. 1997) (emphasis added) (citing R. 3:10-2 and noting that this rule is firmly applied). Moreover, New Jersey's policy of "almost complete discovery of the prosecutor's file, including the right to move for a bill of particulars under R. 3:7-5, obviates the potential for prejudice," from flaws in the indictment process. Id. at 463. We, therefore, decline to consider this argument.
We have considered defendant's remaining arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We affirm the trial court's denial of defendant's PCR petition substantially for the reasons set forth by Judge Samuel D. Natal on the record of June 3, 2005.
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