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State v. Powell


October 11, 2007


On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, Ind. No. 01-06-0807.

Per curiam.


Submitted September 18, 2007

Before Judges Grall and Chambers.

Defendant, Daniel Powell, was convicted of second degree eluding, N.J.S.A. 2C:29-2(b) (count one), and third degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count five). In this appeal, defendant seeks reversal of the denial of his petition for post-conviction relief and a remand for an evidentiary hearing. With respect to the ineffective assistance of counsel claims addressed by the court below, an evidentiary hearing is unwarranted, and the decision below is affirmed. However, we remand for a ruling on defendant's pro se brief, and a ruling on three additional points raised by post-conviction relief counsel that were not addressed below.

The convictions arose out of events that transpired on the evening of January 21, 2001, when defendant remained in his car which was backed into his sister's driveway in Lakewood, New Jersey. Having observed defendant in the car for an extended period of time, the police officers patrolling the area went to the vehicle, obtained defendant's identification and confirmed with his sister that he had her permission to be there. The officers then asked defendant to exit the car. At this point, the car shot forward, went down the driveway, struck a police vehicle parked by the end of the driveway, and continued into the street. Defendant maintains that he was so upset about the police intrusion that he did not realize the car was in gear and, when it started to roll forward, he inadvertently stepped on the accelerator instead of the brake, and the car moved forward. Officer Clarke fired three shots at the fleeing vehicle. The Officer was later disciplined for this excessive use of force. Defendant fled in the car, and a four police car high speed chase ensued. Defendant maintains that he fled due to fear for his safety generated by the shots fired at the car. Defendant was able to escape to a cemetery where he left the vehicle. He maintains that he then flagged down a police car and surrendered. The arresting police officer testified that defendant had initially tried to avoid apprehension. When police then searched defendant's car, they found 3.2 grams of crack cocaine in a cigarette box and 8.1 grams of crack cocaine in clothing located in the trunk of the car.

On February 27, 2003, the jury found defendant guilty of second degree eluding, N.J.S.A. 2C:29-2(b) (count one) and third degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count five). He was acquitted of two counts of third degree aggravated assault, N.J.S.A. 2C:12-1(b) (2) (counts two and three), and fourth degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count four). The jury could not reach a verdict on third degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count six), and that count was later dismissed. On April 11, 2003, defendant was sentenced to ten years imprisonment with four years of parole ineligibility on count one and a concurrent five years imprisonment on count five, plus the requisite fines and penalties. His driver's license was suspended for one year on count one and six months on count five.

On appeal to this court, the convictions and sentences were affirmed. State v. Powell, No. A-5905-02T4 (App. Div. July 21, 2004) (slip op. at 4), certif. denied, 182 N.J. 428 (2005). Thereafter, on April 7, 2006, defendant's motion for post-conviction relief was denied. This appeal followed.

In this appeal, defendant raises the following issues:


The PCR Court erred in denying defendant an evidentiary hearing.


The PCR Court erred in denying the petition for post-conviction relief. (not raised below)


The PCR Court erred in making a factual finding not supported by the trial record. (not raised below)


The PCR Court failed to rule on the issues raised in defendant's pro se brief. (not raised below)


Defendant received ineffective assistance from his PCR counsel. (not raised below) Defendant also complains that the judge below failed to rule on the issues raised in defendant's pro se brief, which initiated this application for post-conviction relief. The following issues were raised in the pro se brief:


The petitioner's sentence was imposed in violation of the constitution or laws of the United States, and the sentence received was in excess of the maximum authorized by law.


Ineffective assistance of counsel denied defendant a fair trial and violated the Sixth Amendment to the United States Constitution, equal protection clause under the Fourteenth Amendment.


The trial Court committed reversible error in permitting prosecutor to allude to the defendant's prior criminal record. Ineffective assistance of counsel.


Powell's conviction should be reversed because the Petitioner hereby challenges the federal constitutionality of his conviction because the prosecutor knowingly use of perjured testimony and reversal of his sentence is warranted because of the misconduct influenced the jury.


Judicial misconduct - the evidence used to convict the petitioner was false, including false testimony given by the witness.


Prosecutor misconduct, and attitudes and actions of police officers in some way affected by his prior arrest on October 21, 2000.


Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant/petitioner evidence favorable to him.


Petitioner poor health and abuse by the prison officials and the prison system, lack of medical care Eighth Amendment violation of his civil rights.

Both the Sixth Amendment to the United States Constitution as well as Article I, Paragraph 10 of the New Jersey Constitution accord defendants in criminal cases the right to effective assistance of counsel. U.S. Const. amend. VI, N.J. Const. art I, ¶ 10. In order to establish a claim of ineffective assistance of counsel, warranting overturning a verdict, the defendant must show that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984).

To meet this standard, defendant must satisfy two prongs. The first prong is that the attorney's conduct was deficient and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The attorney's conduct must be measured in light of the professional norms governing such representation. Id. at 688. The second prong is that the attorney's conduct was so deficient that it deprived defendant of a fair trial and that the result of the trial was not reliable. Id. at 687. "The defendant must show 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." Id. at 694. The Strickland test, based on federal constitutional law, applies to the right to counsel under the New Jersey Constitution as well. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant claims ineffective assistance of counsel, contending that his trial attorney failed to introduce evidence of disciplinary proceedings against Officer Clarke. Specifically, defendant asserts that his attorney should have proffered evidence that Officer Clarke was disciplined for firing his gun during this incident and that, Officer Clarke had also been suspended for six months for improper behavior at a motor vehicle stop involving another motorist. As the court below properly noted, that information was irrelevant and hence would have been inadmissible at the trial.

Relevant evidence is evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. For the evidence to be relevant it must make a "logical connection" to a fact in issue. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Defendant argues that the fact that the officer wrongfully fired at him would have helped establish that he was justified in fleeing for his life. However, whether the officer's conduct at the time conformed to the standard of appropriate police conduct or not was not the issue. On the eluding charge, the issue for the jury to decide was whether defendant was fleeing for his life, as he claims, or whether he was eluding the law enforcement officers in violation of the criminal statute. The fact that the officer had been subject to a disciplinary proceeding involving another motorist at another time also was not relevant in this case, since it shed no light on what happened regarding this defendant. As a result, it was not error for counsel to refrain from proffering this evidence, and the first prong in Strickland is not met. Further, as the motion judge correctly noted, if the information involving the officer's disciplinary charges had been known to the jury, it is improbable that the outcome of the trial would have been different. Thus, the second prong under Strickland has not been established.

Defendant maintains that he is entitled to an evidentiary hearing to resolve his claim of ineffective assistance of counsel. Indeed, evidentiary hearings may be held on post-conviction relief claims where defendant has demonstrated the likelihood of success under the Strickland test. State v. Preciose, 129 N.J. 451, 462-63 (1992). However, a defendant making a post-conviction relief application is not automatically entitled to an evidentiary hearing. Rather, a hearing will be held where it will aid in the court's analysis of whether or not defendant is entitled to post-conviction relief. State v. Marshall, 148 N.J. 89, 158 (1997). Here defendant is not entitled to an evidentiary hearing on his claims that his attorney should have proffered evidence regarding Officer Clarke's conduct, because as noted above, even if the facts as alleged by defendant were true with respect to the disciplinary actions, that information was not relevant and, hence, inadmissible at the trial.

Defendant contends that the judge below erred when he stated that defendant had "put the car in gear." Defendant argues that the car had been in gear and that it shot forward when he put his foot on the accelerator accidentally. He contends that this mistake about the facts effected the judge's evaluation of whether the outcome of the trial would have been different if the evidence concerning the officer's disciplinary matters had been admitted. As noted above, since the evidence was inadmissible in any event, there is no need to reach the question of whether the evidence would have made a difference in the trial's outcome. Further, the judge was merely stating the facts as they were, apparently, believed by the jury and supported by the evidence presented at trial.

Defendant points out that the court below did not rule on three points raised in the brief that post-conviction relief counsel filed below, namely, points IV, V and VII, which maintain that petitioner was deprived of a fair trial due to prosecutorial misconduct; petitioner was denied a fair trial because the chief witnesses against him were biased against him due to his civil action against them; and petitioner's current sentence amounts to cruel and unusual punishment. We remand in order that these issues may be addressed by the court below.

Finally, defendant notes that the judge below did not rule on the points made in his pro se brief and contends that his post-conviction relief counsel was ineffective for not arguing those points. While the judge did allow defendant to make a statement at the argument below, the judge did not rule on the points in the pro se brief. While we recognize the difficulty in sorting out the issues being raised in that brief, we nevertheless remand this case to the lower court for a statement of findings and conclusions on the pro se brief.

We remand for a ruling on Points IV, V and VII in counsel's post-conviction relief brief filed below and for a ruling on defendant's pro se brief. We affirm the lower court's rulings on the balance of the issues raised in defendant's post-conviction relief application. We do not retain jurisdiction.


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