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State v. Carpenter


August 27, 2007


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-09-1560.

Per curiam.


Submitted August 21, 2007

Before Judges Lisa and Holston, Jr.

Defendant, Edward N. Carpenter, appeals from the Law Division's January 13, 2006 order denying defendant's motion for post-conviction relief (PCR). Defendant alleges ineffective assistance of trial, appellate and PCR counsel in violation of the right to counsel guaranteed by both the Federal and State Constitutions. U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10.

Following a jury trial, defendant was found guilty on June 13, 2002 of conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:15-1 and 2C:5-2; armed robbery, contrary to N.J.S.A. 2C:15-1; aggravated assault, contrary to N.J.S.A. 2C:12-1b(4); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). Defendant was sentenced on August 2, 2002 to a fifteen-year term of imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the armed robbery conviction. Defendant was sentenced to two concurrent seven-year terms of imprisonment on the conspiracy and possession of a weapon for an unlawful purpose convictions, a concurrent one-year term of imprisonment on the aggravated assault conviction, and a concurrent seven-year term for the possession of a weapon for an unlawful purpose.

Defendant filed a notice of appeal to this court. We affirmed defendant's convictions but merged defendant's convictions for conspiracy, possession of a weapon for an unlawful purpose and aggravated assault with the armed robbery conviction for sentencing purposes. We affirmed defendant's sentence imposed on the armed robbery conviction. State v. Carpenter, No. A-3744-02T4 (App. Div. May 14, 2004). Defendant's petition for certification to the Supreme Court was denied on October 4, 2004. State v. Carpenter, 182 N.J. 140 (2004).

On December 17, 2004, defendant filed a petition for PCR and a pro se brief. Counsel was appointed and an amended petition and brief were filed. The petition was heard and denied by the court on January 13, 2006 in an oral opinion memorialized in the court's order of January 13, 2006. This appeal followed.

The evidence at trial recited in our opinion on direct appeal established that defendant and three co-defendants robbed a Kentucky Fried Chicken (KFC) store in Eatontown on December 2, 1999. "Two of the co-defendants were a current and former employee of the store. In addition to planning the robbery, defendant entered the premises wearing a mask and armed with a BB gun that he aimed at the victims and pulled the trigger causing the gun to make a 'popping noise.'" Carpenter, supra, A-3744-02T4 (slip op. at 3).

The testimony establishing these facts came from co-defendants Michael Ford, an employee of KFC, and Germaine Wharton, a former employee. Additional testimony was provided by the assistant manager of the KFC, Roy Kelly and employee Anthony Stone.

As respects defendant's role in the armed robbery, Ford testified that he, in accordance with the plan devised by him and the other co-defendants, left the rear door of the KFC opened at about 9:00 p.m. on December 2, 1999 so that defendant and co-defendant Marcell Gunther could enter the KFC to rob it. Gunther came in first followed by defendant. They had partial masks over their faces. They had handguns in their hands. Ford stated, "[t]he gun that [Gunther] pointed at me was silver, and it was, I guess, a real gun." Ford recognized defendant by his build, jacket and pants.

Kelly testified that while counting money in the office he felt a draft of cold air and as a result came out into the store, after placing the money he was counting from two of the store's three cash registers back into the office safe. Kelly stated:

A tall guy came running up from the right-hand side of the store which -- directly at me, saying don't move, don't move, had a gun pointing. Had a mask on his head. A tall guy. He was shooting, but it wasn't no bullets, I guess it was blanks at the time. We didn't really know.

Q: When you say shooting, what do you mean? What kind of noise was it?

A: It was aiming and was a popping noise.

Q: Where was he aiming at?

A: Directly at me; . . . .

I moved to the front around the front of the cooking area because I was nervous, and the other guy came to the front too with me and Anthony [Stone], and the guy -- the tall guy who had the gun followed me around to the front.

Q: . . . [T]his tall guy that you're talking about, can you give a description of that tall guy or do you remember giving a description to the police?

A: I know [he] was taller than me. I say about six one, six two. Weighing more than me at the time probably like a 160.

Q: Now, the tall guy, after he clicks his gun at you, where does he go?

A: The guy named Anthony that works there went running toward the front door. He was scared. A young guy. He went to try to get out the front door. He was scared for his life. The tall guy then went after him to bring him back in front for him to lay down.

Kelly additionally testified:

A When I turn[ed] around at first I thought it was just a joke, I didn't realize really what was happening to be honest with you . . . It was a small gun. Like real small right in the hand. They could hold it in hand. Wasn't nothing big.

At the time when I went down to the police station, I told them it looked like it was a little small black silver gun. It made a little pellet sound pop, pop, pop like.

Stone testified that the man, who had a gun and told him to get to the ground was "six foot, six one." He had a stocking over his head. He pointed a gun at him and told him to get on the ground. When Stone started to run, the man grabbed him and again told him to get on the ground. He got on the ground and covered his head. While the gun was pointed at him he heard "like two or three clicks like of pulling a trigger, but no bullets."

Wharton testified as to the guns defendant and Gunther had in their hands when they perpetrated the robbery. He described the guns as two black BB guns, one small, one larger.

Defendant argued in his PCR petition that his NERA sentence was illegal because there was no evidence that the weapon used was a deadly weapon within the meaning of N.J.S.A. 2C:43-7.2. In his amended petition, defendant modified that ground to a contention that his trial counsel was ineffective for failing to call an expert "to address the inoperability issue." Defendant also contended that his trial counsel had been ineffective because he failed to "discuss sentencing exposure" with him.


With regard to the operability issue, the PCR judge recited some of the evidence adduced at the trial and the court's charge to the jury, before finding there was sufficient evidence in the record to support the jury's verdict on operability. The judge thereupon denied the petition. The court stated:

First of all, I look at what was in place at the time, the NERA statute. The NERA, No Early Release Act statute stated, "the court, in imposing the sentence of incarceration for a crime of the first or second degree, shall fix a minimum term of 85 percent of his sentence, during which time the defendant shall not be eligible for parole if a crime is a violent crime."

And then the statute goes on to define violent crimes three ways. Any crime in which the actor causes death or serious bodily injury; where the actor uses or threatens the immediate use of a deadly weapon; any aggravated sexual assault or sexual assault in which the actor uses or threatens the immediate use of physical force. The second one applies where the actor uses or threatens the immediate use of a deadly weapon.

In State v. Austin, [335 N.J. Super. 486 (2000), certif. denied, 168 N.J. 294 (2001),] . . . it was determined that an inoperable BB gun was not a deadly weapon for NERA purposes. [Defendant] argues that there was a question of operability of the weapon because, especially because the weapon was never recovered. He also says that the following testimony was dispositive of his argument. That's from one of the people, one of the victims, one of the people in the place was Roy Kelly. "He was shooting but there wasn't no bullets. I guess it was blanks at the time. I really don't know."

"When you say shooting, what do you mean?" is the [next] question. "What kind of noise was this?"

"Answer: It was aiming and a popping noise."

"Can you describe the gun you saw?" "Answer: At the time when I went down to the police station I told them it looked like a little black, silver gun. It made a little pellet sound. Pop, pop, pop like."

Also Anthony Stone, another witness: "Do you remember any sounds?"

"It was like two or three clicks of pulling the trigger but no bullets."

The petitioner says that because the sounds the gun made and because it was never recovered that there was an issue of operability and argues that an expert should have testified for an evidentiary hearing, and that there should be an evidentiary hearing now.

This Court took some pains with the jury in regard to imposition of the NERA issues. And when this trial was held, there was a separate question asked of the jury as to whether or not this was a violent crime within the meaning of NERA. This is what I told the jury in the charge and I told the attorneys at a charge conference.

"Under our law, violent crime is a crime in which the defendant used or threatened the immediate use of a deadly weapon. For purposes of this determination, a deadly weapon means any firearm or other weapon, device, instrument, material or such substance, which in the manner capable of producing death or serious bodily injury.

"To find the defendant guilty of committing a violent crime, you must find the defendant used or threatened the immediate use of a deadly weapon which is actually capable of producing death or serious bodily injury."

Then I told them, "I should tell you that our case law says that a BB gun, a pellet gun, if you find that there was used as a deadly weapon for purposes of this statute. However, another case says that an inoperable firearm does not qualify as a deadly weapon but an unloaded but operable handgun or pellet gun or BB gun qualifies as a deadly weapon."

That's what I told the jury. "If you are satisfied the State has proven beyond a reasonable doubt that the defendant committed a violent crime by using or threatening the immediate use of a deadly weapon, you must mark yes." This is on the jury questionnaire, the verdict sheet.

The jury decided that the petitioner used an operable deadly weapon at the time of the crime. And the jury decided the defendant was guilty and found that this was a violent crime under NERA. The only testimony regarding operability was the testimony which I just recited, but it wasn't that nobody talked about it.

When I recharged the jury, I also told them about the operability. The jury asked a question, asked me to recharge.

"If you are not satisfied the State has proven beyond a reasonable doubt that the defendant committed a violent crime by the immediate use of a deadly weapon, then you mark "no" on the verdict sheet. What this a violent crime? Yes or no. I think I told you yesterday, I'll tell you again, in the case law in the State of New Jersey says that a pellet gun or BB gun is a deadly weapon for purposes of this issue; however, an inoperable firearm does not qualify as a deadly weapon. Furthermore, unloaded but operable handgun does qualify as a deadly weapon. So those are some case law explanations of what a deadly weapon is." And then I sent them back inside.

[The prosecutor], in his closing argument, he tells you that the guy has a black and silver gun. He's clicking that gun. We know that gun works. He's clicking it. It's just there's no ammo in it. He's clicking that gun. He's referring to Mr. Kelly. We know, also according to [the prosecutor] again in his summation. We know based on the evidence that the suspects, everybody else that was spoken to is not over 5'9". Mr. Kelly identifies a person who says [defendant] as being 6'l".

Where else does it point to? Stone also tells you that the gun is clicking. He tells you about the stocking over the face which is consistent with what Ford tells you. He tells you about the small black and silver gun. He tells you what the tall guy does, so he discusses that.

In my charge I give the definition of a deadly weapon. I've just gone over that part where I recharge the jury. In my charge I give the definition of a violent crime. On the verdict sheet there is a separate question for separate counts of the indictments are asked the following.

Number five: "Do you find the State has proven beyond a reasonable doubt that the defendant used or threatened the immediate use of a deadly weapon?" It says "guilty or not guilty." It really should be "yes or no." Where it says "guilty" you should put yes. And below "not guilty" you should put no.

I told them about that. The jury came out with a question, asked me to recharge. I recharged the jury and I told you about that. Without going through all the cases, New Jersey uses the United States case of Strickland v. Washington, 466 U.S., 68 [,104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984),] adopted by [] State v. Fritz, 105 N.J. 42 (1987). There are two prongs. One, was the attorney ineffective? And two, even if he was ineffective, did that have any, would that have any significance in the ultimate verdict in the case? I don't think that the attorney was ineffective.

Mr. Escandon represented this defendant. And the real issue was whether or not he was involved. [Defendant] told the jury he wasn't involved; that he drove people to the place; didn't know what was going to happen and didn't participate. It was really a credibility issue. The jury didn't believe [defendant] and they believed the State's witnesses of [defendant] was the 6'1" person who had the weapon.

The jury also was faced with an issue as to whether or not this was an operable handgun. Was it an operable BB gun? They were asked to make that determination. I told them to do that. They made that determination that it was operable. How did they make it? Based upon what they heard from the witnesses. Pop, pop. No ammunition but they heard it being clicked and they heard the sounds coming form it.

. . . I find that Mr. Escandon was not ineffective in his representation. I find that appellate counsel was not ineffective. I find the jury was adequately told as to what burden the State had. I find the State met that burden.

I find that there's no requirement that an expert be called in to make a determination as to whether or not that BB gun was operable. The BB gun was never found. Is that fatal to the State's case.

I don't think so. I think all the information necessary was presented to the jury. The application for an evidentiary hearing is denied.

Strickland, supra, adopted by this State in Fritz, supra, established a two-prong test that a defendant must satisfy to establish a prima facie claim of ineffective assistance of counsel. The first prong of the test requires defendant to show that counsel's performance was deficient. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The second and far more difficult prong requires that a defendant show the deficient performance prejudiced the defense. Ibid. Defendant must prove whether there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Preciose, 129 N.J. 451, 462 (1992) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed. 2d at 698). This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. Ibid.

Our review of the record convinces us that defendant has not shown that trial counsel's failure to secure testimony of an expert on the issue of operability of the BB guns, appellate counsel's failure to raise the issue on direct appeal, and PCR counsel's failure to present evidence supporting the necessity for expert testimony at the PCR hearing prejudiced the defendant, given the testimony of the witnesses at trial supporting operability and the lack of any support for the contention that expert testimony would have established that the BB guns used were not operable.


Defendant further asserts that he was misadvised as to the consequences of rejecting a plea bargain and going to trial and that misadvice is what motivated his decision to go to trial. Defendant further claims whether his contention is true can only be determined by taking his testimony, subjecting him to cross-examination and perhaps taking the testimony of his trial counsel.

Defendant concedes that he did not produce at his PCR hearing an affidavit/certification as to what his testimony would have been had he testified at an evidentiary hearing concerning the advice he was given. However, defendant argues his PCR counsel rendered ineffective assistance by not including his affidavit or certification, at least by way of an offer of proof.

In Preciose, supra, 129 N.J. at 462, the Supreme Court made clear that Rule 3:22-1 does not require evidentiary hearings to be held on PCR petitions. "Rule 3:22-10 recognizes judicial discretion to conduct such hearings." Ibid. Trial courts should ordinarily grant evidentiary hearings to resolve ineffective assistance claims if a defendant has presented a prima facie claim in support of PCR. Ibid. To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland/Fritz test. Id. at 463.

At the PCR hearing, the State pointed out to the court that a plea cut-off form was filed which had been reviewed by defendant. It was signed by him and indicated that his maximum sentence exposure was a total of forty-one years imprisonment. Indeed, PCR counsel admitted that he was in possession of the plea cut-off paperwork but that "[defendant] would like me to bring [the] argument [that the exposure faced by going to trial was inadequately discussed by trial counsel.]" See State v. Rue, 175 N.J. 1, 13 (2002) (quoting R. 3:22-6) ("'counsel should advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit.'").

We are satisfied that defendant's claim is without merit and that the Preciose requirements for an evidentiary hearing on the issue of defendant being informed adequately by his trial counsel of the potential penal consequences of trial versus a plea have not been met. In light of the information concerning the penal consequences, which according to the prosecutor's representation at the PCR hearing which was apparently agreed to by defense counsel, were contained on the plea form which was signed by defendant, we are satisfied defendant is unable to show ineffective assistance of PCR counsel under either prong of the Strickland/Fritz two-prong test on this issue.*fn1 Clearly, there has been no showing that but for PCR counsel's actions the outcome of the PCR petition would have been different. Fritz, supra, 105 N.J. at 58.


Defendant contends trial, appellate and PCR counsel rendered ineffective assistance by not challenging the trial court's lack of a limiting instruction with respect to the guilty pleas, pursuant to plea agreements, entered into by his alleged accomplice co-defendants, Ford and Wharton, both of whom testified at trial after earlier entering their pleas. Defendant claims the trial court failed to give the two-fold instruction required by State v. Murphy, 376 N.J. Super. 114, 122-23 (App. Div. 2005), that the guilty pleas of the testifying co-defendants were admissible only to affect the credibility of those witnesses and could not be used as "substantive evidence of defendant's guilt."

In this case, as required by State v. Gross, 121 N.J. 1, 16 (1990), the trial court gave the following cautionary limiting instruction with regard to the plea agreements entered into by Ford and Wharton:

Michael Ford and Germaine Wharton, both witnesses for the State, stated that their testimony results from one of the terms of the plea agreement that both of them entered into with the State.

The terms of that plea agreement were explored in his examination and cross-examination -- in their examination and cross-examination so that you would be aware of their existence and can consider it and its terms as one more factor in evaluating the testimony of the two witnesses.

In weighing . . . that testimony, you can consider it whether in order to obtain terms favorable to each, that witness told an untruth to the investigators and to you.

Or whether in order to obtain . . . terms favorable to himself, each agreed to tell the truth and did.

If[,] considering all factors[,] you believe each of these people to be a believable and reliable witness, treat[ing] each one separately[,] you have the right to accept that person's testimony as that of any other witness.

If you find that person unbelievable or unreliable as a witness, then you reject his testimony.

In weighing that person's testimony, therefore, you may consider whether that person has a special interest in the outcome of this case and whether that person's testimony was influenced by the hope or expectation of any favorable treatment or reward or by any feelings of revenge or reprisal.

If you believe each of these witnesses to be credible and worthy of belief, you treat each one separately, you have the right to convict the defendant on the testimony of these people alone provided of course that upon a consideration of the whole case you are satisfied beyond a reasonable doubt of defendant's guilt.

In considering . . . the testimony of Michael Ford or Germaine Wharton if you consider it's worthy of belief, you may consider such corroborating evidence the State has offered; and following consideration of all the evidence you are left with reasonable doubt -- let me go back.

In considering whether the testimony of Michael Ford or Germane Wharton is worthy of belief, you may consider such corroborating evidence [which the] State has offered; and if following the consideration of the evidence you are convinced that it is credible, you can accept it.

On the other hand, if you're left with a reasonable doubt as to the defendant's guilt based upon their testimony, you should find him not guilty.

Thus, in considering a co-defendant witness's testimony, the jury was told it needed to be mindful that the co-defendant's testimony may have been motivated by the witness's own desire to maintain the terms of his plea agreement and therefore may or may not be truthful.

Although the court did not specifically charge the jury that these witnesses' guilty pleas could not be used as substantive evidence of defendant's guilt, this issue was not raised at the trial level or on appeal. See R. 3:22-4.

For a defendant to merely allege that he has suffered prejudice by a failure to charge is not enough. Defendant must show by a preponderance of the evidence that he has suffered a "fundamental injustice" within the meaning of Rule 3:22-4(b). State v. Mitchell, 126 N.J. 565, 586 (1992). Similarly, "[c]loaking the claim in constitutional language is insufficient to guarantee relief." Ibid. To sustain his burden, a defendant must allege specific facts of injustice. Id. at 579.

We are satisfied that defendant has failed to show that the failure in the court's charge on the use of the co-defendants' pleas caused defendant to suffer a fundamental injustice, and but for trial counsel's failure to request the charge, appellate counsel's failure to raise the issue on direct appeal or PCR counsel's failure to raise the issue at the PCR hearing that the result would have been different. Fritz, supra,, 105 N.J. at 58.


Defendant also alleges ineffective assistance of counsel because the oral statement given by defendant to Detective Sergeant Goldfarb was not objected to by trial counsel, raised on appeal by appellate counsel, or raised on PCR by PCR counsel. Defendant asserts his alleged oral statement was in direct contradiction of his trial testimony with respect to his knowledge, when he transported his co-defendants to the KFC in Eatontown, as to whether they intended to commit a robbery of the restaurant.

Defendant asserts that the Judge improperly charged the jury by failing to caution them of the unreliability of oral statements, see State v. Kociolek, 23 N.J. 400 (1957), as well as of their obligation to decide if the defendant's statements were credible. See N.J.R.E. 104(c); State v. Hampton, 61 N.J. 250 (1972). Defendant therefore alleges that trial counsel was ineffective for failing to request a Kociolek and Hampton charge. Moreover, defendant asserts that appellate counsel and PCR counsel were ineffective for not having raised this claim.

The Hampton and Kociolek charges are given to caution jurors to use discretion when evaluating testimony concerning out-of-court statements by defendants. State v. Harris, 156 N.J. 122, 182 (1998). The Hampton charge requires that once a judge determines admissibility, the jury shall be instructed that it should decide "whether in view of all of the circumstances the defendant's confession is true. If they find it is not true, then they must treat it as inadmissible and disregard it for purposes of discharging their function as fact finders . . . " Hampton, supra, 61 N.J. at 272.

The Kociolek charge specifically warns that in assessing out-of-court oral statements, the jury should "receive, weigh and consider such evidence with caution in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." State v. Jordan, 147 N.J. 409, 420 (1997) (quoting Kociolek, supra, 23 N.J. at 421). In Jordan, supra, the Court held that the charge should be given regardless of whether a request for it is made. However, when no request is made, failure to give the charge does not constitute per se reversible error. Ibid.

Goldfarb recited his recollection of an oral statement given by defendant at the Eatontown Police Department. Defendant testified as to his recollection. They agreed that defendant told Goldfarb that he had been asked by the co-defendants to give them a ride to the KFC in Eatontown, he had borrowed a car to do so, and he had given them a ride to and from the store. However, in his trial testimony, defendant denied having overheard a conversation by the co-defendants in which they discussed robbing the KFC. He said he did not tell Goldfarb that he heard Wharton say he had checked the store receipts and they could get lots of money. Defendant also denied that he told Goldfarb the others discussed a need to obtain money to pay their rent. Goldfarb testified that defendant had told him all of those things in an oral statement.

We are satisfied that a manifest injustice was not created by the failure of the trial judge to charge either Hampton or Kociolek. The credibility charge given by the trial judge, although not a specific charge with respect to the oral statement of defendant to Goldfarb, was sufficient to inform the jury that it should determine the credibility of defendant's statements. Additionally, the trial judge charged the jury to use caution regarding an oral statement as required under Kociolek. The court stated:

We have in this case an oral statement made by [defendant] to . . . . Sergeant Goldfarb.

This statement has been introduced by the prosecution not as evidence of the defendant's guilt of the crime charged but to affect his credibility on the condition that you first determine that the statement was made.

You recall that [defendant] it is alleged told Detective Goldfarb that the night before that he heard them talking about this robbery that was going to be committed and that he knew somebody had --was looking at receipts from the premises, from the Kentucky Fried Chicken and that there were going to be guns involved.

That's my recollection. As I said, your recollection governs.

Prior to considering this statement for the purpose of affecting defendant's credibility of the witness, you must determine whether this statement as testified by Sergeant Goldfarb [was] actually made.

In considering whether or not the statement was made by the defendant you may take into consideration the circumstances and facts surrounding the giving of the statement.

So you recall the defendant said I didn't say those things. All I said was that I went over there, I gave [co-defendant] a ride to Country Club Apartments to pick up Ford. Picked up -- they didn't pick up Ford. I went back, dropped them off.

If you find that the statement was not made, that is a statement testified by Sergeant Goldfarb is not made, then you don't consider it for any purpose.

If you find that only a part of the statement was made, then you may consider only that part of it as it may affect [defendant's] credibility.

If you find the statement was made, it may be considered solely to determine the defendant's credibility if you believe it does in fact affect such credibility not as evidence of his guilt.

In this regard all fairness you'll want to consider all the circumstances under which the claimed prior inconsistent statement occurred. The extent and importance or lack of importance of the inconsistency on the overall testimony of the defendant as bearing on his credibility. Including such factors as here and when the prior statement occurred and the reasons, if any, therefore.

The extent to which defendant's credibility is affected by such inconsistencies, if any, is for you to determine. Consider the materiality and the relationship of such contradictions to the entire testimony and all the evidence in the case.

We are satisfied that the charge informed the jury of its responsibility to determine if the oral statement was even made. Moreover, the jury was instructed to assess the statement in terms of the defendant's credibility. Jurors were told to consider when and where the statement occurred and the reason the statement was offered. While the trial judge did not specifically utilize the language of Hampton or Kociolek, the jurors did receive the benefit of an overview of each charge. The jurors were told to take into account both defendants' credibility in making the statement and to consider if the statement was actually made, thereby addressing the reliability of oral statements.

Moreover, the trial court gave the following general credibility charge:

Let me tell you certain things that you can use in this case when you determine the credibility, the believability of the various witnesses.

You can consider the appearance and demeanor of the witness, the manner in which the witness testified. A witness's interest in the outcome of the case, if any, the witness's means of obtaining knowledge of the facts, how did that person find out about this?

The witness's power to discernment, meaning, their judgment their understanding. The witness's ability to reason, to observe, to recollect to remember and to relate. Any possible bias in favor of a side for whom the witness testified.

The extent to which, if at all, a witness is either corroborated or contradicted, that is supported or discredited by other evidence.

Did a witness testify with the intent to deceive you. The reasonableness or unreasonableness of the testimony the witness has given. And probably that's most important.

The general credibility instruction was to be applied to every witness, including Goldfarb and defendant. We are satisfied, therefore, that the general credibility charge, taken in conjunction with the more detailed charge surrounding the defendant's oral statement to Goldfarb, as well as the corroborating testimony of other witnesses, is sufficient to negate the claim of prejudice defendant now asserts.

Moreover, as the Supreme Court noted in Jordan, supra, 147 N.J. at 425, an unjust result typically occurs "when the defendant's statement is critical to the State's case." However, "if the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt. . . the failure to give a Hampton charge would not be reversible error." Id. at 425-26. We are satisfied that defendant's oral statement was not crucial to the State's case. Testimony was offered by both Ford and Wharton attesting to defendant's involvement in the robbery. Additionally, the testimony of Stone and Kelly implicate a man fitting the description of defendant. Kelly noted that one of the armed men was tall and thin, carried a gun and emptied the drive-through window cash register. This description was corroborated by the testimony given by both Ford and Wharton. Accordingly, sufficient evidence existed to determine defendant's guilt aside from defendant's oral statement. Because defendant's statement was not critical to the State's case, the failure to charge either Hampton or Kociolek did not result in a fundamental injustice. Accordingly, we are satisfied that defendant has failed to show that he was afforded ineffective assistance of counsel at any level and that but for counsel's failure to request a Hampton and Kociolek charge, the outcome of the trial would have been different.


Defendant further contends that the trial testimony of Wharton and Ford, in which they were asked about their statements to the police, as well as statements contained in their plea allocutions amounted to inadmissible hearsay. Defendant contends that trial counsel was ineffective for failing to object to the admission of such testimony.

Although the statements are hearsay, we are satisfied that their admissions constituted harmless error. Harmless error is assessed by determining whether the evidence likely contributed to the jury's verdict. State v. Macon, 57 N.J. 325, 338 (1971). Our review of the record satisfies us that there was overwhelming testimony provided by the co-defendants aside from the colloquy involving their statements to the police and plea allocutions. Both Ford and Wharton gave testimony surrounding the conspiracy to commit the robbery, as well as the events that took place during the actual robbery. In response to who entered the KFC, Ford stated that defendant came in second. Additionally, Ford described what defendant was wearing upon entering the store and confirmed that defendant was at the motel where the co-defendants met following the robbery. Further, Wharton testified that both defendant and Gunther had guns when they entered the store. Wharton further detailed how the defendant went through the drive-through window's cash register and Wharton corroborated Ford's testimony that defendant was at the motel room after the robbery. Thus there was extensive testimony implicating defendant from both Ford and Wharton as well as from Kelly and Stone.

While defendant argues that admission of such testimony was a violation of his constitutional right to effective assistance of trial counsel, a reviewing court must scrutinize the claim to ensure that constitutional rights are truly at stake. Mitchell, 126 N.J. at 589. A defendant must actually suffer a fundamental injustice. R. 3:22-4(b). An error of constitutional dimension will be found harmless unless there is reasonable doubt that the error contributed to the verdict. Macon, supra, 57 N.J. at 338. We are satisfied the admission of Wharton's and Ford's hearsay testimony did not likely contribute to the jury's ultimate determination of guilt. Thus, defendant has failed to substantiate a claim of ineffective assistance of counsel. Defendant cannot show that but for counsel's failure to object, the outcome would have been different. As noted, the jurors had already received a tremendous amount of testimony from Ford and Wharton concerning the robbery, as well as, from Kelly and Stone. All of that testimony implicated defendant.


Lastly, defendant asserts that co-defendant Gunther's statements were improperly used during the trial as Gunther did not testify. In particular, defendant asserts that there were three instances in which Gunther's statements were improperly used. The first was when the prosecutor indicated that Gunther had provided a statement implicating defendant during Goldfarb's direct examination. Second, the prosecutor used Gunther's statement to cross-examine defendant. Finally, the prosecutor indicated during his summation that Gunther implicated defendant in the robbery. Defendant contends the admission of such hearsay testimony violated his Sixth Amendment right to confrontation.

Defendant relies on State v. Bankston, 63 N.J. 263, 268 (1973), which held that an officer's statement is inadmissible when the officer testifies to an out-of-court statement relayed to him concerning the defendant's guilt. Further, defendant argues Bankston made clear that direct statements do not need to be testified to by the officer. It is enough that the jury is led to believe that an individual not present in court and not subjected to cross-examination has informed the officer that defendant was involved in a crime. Id. at 271.

However, the holding in Bankston was limited by State v. Branch, 182 N.J. 338 (2005). "The common thread that runs through Bankston, supra, [State v. Irving, 114 N.J. 427 (1988)] and [State v. Tilgham, 345 N.J. Super. 571 (App. Div. 2001),] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Branch, supra, 182 N.J. at 351.

"In the event that there has been a violation of the hearsay rule, the reviewing court may scrutinize the error either as plain error or harmless error, which ever is appropriate." State v. Douglas, 204 N.J. Super. 265, 272 (App. Div.), certif. denied, 102 N.J. 378 (1985). Whether an error is harmless depends upon "some degree of possibility that it led to an unjust verdict." Id. at 273 (quoting Bankston, supra, 63 N.J. at 273). Branch, supra, 182 N.J. at 353; see R. 2:10-2 (plain error occurs when an error is capable of producing an unjust result).

A mere potential that prejudice occurred is not sufficient. Rather, "[t]he possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. Thus, the erroneous admission of the testimony must constitute a reasonable probability that the evidence contributed to the conviction. Douglas, supra, 204 N.J. Super. at 273. "It is axiomatic that [n]ot every admission of inadmissible hearsay . . . can be considered to be reversible error . . . ; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." State v. Brown, 325 N.J. Super. 447, 452 (1999) (internal quotations and citations omitted), (certif. denied, 163 N.J. 76 (2000). "[W]hen a case is fortified by substantial credible evidence -- for example, direct identification of the defendant -- the testimony is not likely to be prejudicial under the 'plain error' rule." Irving, supra, 114 N.J. at 448.

We are satisfied the use of Gunther's statement, while constituting inadmissible hearsay, amounted to a very small portion of the overall evidence in the trial and therefore cannot have impacted the jury sufficiently to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. Macon, supra, 57 N.J. at 336.

Unlike in Branch and Bankston, there was substantial properly admitted evidence indicating the defendant was a participant in the robbery. In Branch, supra, there was no physical evidence linking the defendant to the crime scene and there were conflicting descriptions of the defendant, thereby rendering the hearsay statement a determining factor for the jury. 152 N.J. at 353-54.

Here, the State's case contained direct positive evidence implicating defendant in the robbery. Defendant was identified by both Ford and Wharton as one of the individuals who entered the KFC with a gun. Further, Kelly and Stone corroborated Ford's and Wharton's testimony. A conviction should not be impugned when there is competent evidence on the record overwhelming supported by properly admitted evidence. State v. Stefanelli, 78 N.J. 418 (1979).

Because, the case was replete with properly admitted evidence of defendant's guilt, we are satisfied that even had trial counsel objected to the questioning, defendant has not shown that the outcome would likely have been different. Therefore, the failure of either appellate or PCR counsel to raise the issue likewise does not satisfy the second prong of the Strickland/Fritz test for ineffective assistance of counsel.


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