September 24, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES CONNORS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 99-07-0717.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2007
Before Judges Cuff and Simonelli.
Defendant Charles Connors is serving a seventeen-year term of imprisonment subject to an 85% No Early Release Act*fn1 (NERA) parole ineligibility term following his conviction of first degree robbery and fourth degree possession of a weapon by a convicted person. Defendant appeals from the order denying his petition for post-conviction relief. We affirm.
Defendant's armed robbery conviction arises from a shoplifting at a pharmacy in Trenton. When he was confronted by store personnel, defendant became belligerent and stuck his hand into the pocketbook he was carrying. As he did so, defendant informed store personnel he was armed with a knife and would use it against them. A store security officer followed defendant as he left the store. Outside of the store, defendant removed the knife from the pocketbook, held its blade upward and threatened to kill the officer.
In an unpublished decision, State v. Connors, No. A-5605-00 (App. Div. Oct. 9, 2002), we affirmed the conviction but remanded for resentencing. The trial judge had originally imposed an extended term of thirty years imprisonment with a fifteen-year term of parole ineligibility. We held that the first degree robbery conviction was subject to NERA and remanded for sentencing in accord with this statute. On remand, the trial judge imposed a sentence consistent with our direction. The Supreme Court denied certification. 175 N.J. 80 (2002). In May 2003, defendant filed a pro se petition for post-conviction relief.
Following assignment of counsel, an amended petition was filed. Defendant alleged that trial and appellate counsel provided ineffective assistance of counsel because they did not argue that the statement made by defendant in the store that he had killed before and would kill again should not have been admitted at trial. He also asserted that trial and appellate counsel were ineffective because they failed to argue that the instruction provided to the jury regarding defendant's alleged statements was erroneous. Defendant also alleged that trial and appellate counsel were ineffective for failing to object to the omission of an instruction to carefully weigh defendant's statements and failing to object to the omission of an adverse inference instruction due to a missing witness. Defendant also asserts that trial counsel was ineffective because he did not insist that a surveillance videotape should have been placed in the jury room with other exhibits. Defendant also argued that he was entitled to a new trial because the prosecutor entered the jury room during deliberations and that defendant should be sentenced to a fifteen-year base term because the jury did not find any aggravating factors.
Following oral argument, Judge Smithson denied the petition. In a written opinion, the judge held that the threats to kill the security personnel were an integral part of defendant's actions inside and outside the store. The words uttered by defendant in the course of the theft transformed a shoplifting to a robbery. Furthermore, the judge held that the limiting instruction properly informed the jury that it was to consider these statements only in their evaluation of defendant's actions at the pharmacy. The judge ruled that he was not obliged to include a Hampton*fn2 or Jordan*fn3 instruction in the final charge because those instructions concern only statements made by defendant after the commission of a crime, usually in the context of a post-event statement.
Judge Smithson also found that trial counsel could not be criticized for failing to request an adverse inference charge when the State did not call the store manager or store cashier at trial. Defendant did not demonstrate that either person had evidence superior to that presented at trial or that either person was within the exclusive control of the State. Judge Smithson also noted that only a five minute segment of the four hour surveillance videotape was relevant and it was available for review by the jury during their deliberations.
Finally, the judge held that defendant provided no factual support to his allegation that the prosecutor entered the jury room during jury deliberations. He also held that that the jury expressly found that defendant had threatened the security guard with immediate bodily injury thereby satisfying the criteria of NERA at the time of the commission of the offense.
On appeal, defendant raises the following arguments:
TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THE IMPROPER ADMISSION OF DEFENDANT'S ALLEGED STATEMENTS THAT HE HAD KILLED BEFORE AS WELL AS SUBSEQUENT OBSCENE STATEMENTS MADE TO ARRESTING POLICE OFFICERS, WHICH WERE IRRELEVANT BUT EXTREMELY PREJUDICIAL.
TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THE ERRONEOUS INSTRUCTION REGARDING DEFENDANT'S ALLEGED STATEMENTS THAT HE HAD KILLED BEFORE AS WELL AS SUBSEQUENT OBSCENE STATEMENTS MADE TO ARRESTING POLICE OFFICERS, WHICH WERE IRRELEVANT BUT EXTREMELY PREJUDICIAL.
TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR NOT RAISING THE OMISSION OF AN INSTRUCTION REGARDING THE JURY'S OBLIGATION TO ASSESS THE CREDIBILITY AND ACCURACY OF DEFENDANT'S STATEMENTS.
TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR NOT RAISING THE ISSUE REGARDING THE OMISSION OF AN INSTRUCTION THAT THE JURY COULD DRAW AN ADVERSE INFERENCE AGAINST THE STATE FOR FAILURE TO PRESENT TWO MATERIAL EYEWITNESSES.
THE "85%" PAROLE BAR OF THE FORMER NO EARLY RELEASE ACT (NERA) SHOULD BE VACATED SINCE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE CLEAR TO THE APPELLATE COURTS THAT THE JURY DID NOT FIND DEFENDANT GUILTY OF A "VIOLENT CRIME" PURSUANT TO THE FORMER N.J.S.A. 2C:43-7.2d.
In order to establish ineffective assistance of counsel, a defendant must prove that 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). With respect to the second prong, a defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial"; rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Measured by this standard, defendant failed to establish a prima facie case of ineffective assistance of trial or appellate counsel. We are further satisfied that Judge Smithson properly analyzed each contention. We, therefore, affirm the order denying defendant's petition for post-conviction relief substantially for the reasons expressed by Judge Smithson in his April 27, 2006 opinion.