On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Ind. No. 99-06-1134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 26, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant Tamika Archie appeals from the May 16, 2006 order denying her petition for post-conviction relief (PCR), in which she alleged ineffective assistance of trial counsel, prosecutorial misconduct, and sentencing errors. We affirm.
Following a jury trial, defendant was convicted of attempted murder, three counts of vehicular assault, and possession of a weapon for an unlawful purpose. The convictions arose out of an incident following a domestic violence altercation and physical struggle between defendant and Kwashon Anderson, whom she believed was the father of her daughter, in which defendant ran over Anderson with her car, continued down the driveway, and left the scene. The victim testified, as did several eyewitnesses to the "hit and run," including a neighbor who claimed defendant shouted at the victim that she was going to run him over, lined up her car directly where Anderson was walking, and accelerated as she drove over him and dragged him. Defendant testified she was disoriented because the victim had struck her several times in the face while she was sitting in her car and she accidentally accelerated. She also presented an accident reconstruction expert who testified that the lack of damage to defendant's car indicated the "accident" was more consistent with the victim falling under the car from the side as defendant tried to escape from him rather than having purposefully "sucked" him under the wheels of her car. The jury apparently found the State's witnesses more credible and convicted defendant on all counts charged under the indictment.
The trial judge merged the other counts into the attempted murder conviction. He sentenced defendant to a ten-year custodial term with an 85% term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 We affirmed defendant's conviction on appeal. State v. Archie, No. A-3064-00T4 (App. Div. December 11, 2002). The Supreme Court denied defendant's petition for certification on April 28, 2003. State v. Archie, 176 N.J. 280 (2003).
This PCR petition ensued and was denied by Judge Connor on May 5, 2006, following oral argument but without an evidentiary hearing. In her pro se PCR petition, defendant asserted challenges to the indictment; prosecutorial misconduct; and ineffective assistance of trial counsel in not arranging for a psychological evaluation of her regarding alcohol and/or drug dependency, trauma, and the like, and in not performing a proper investigation or obtaining an accident reconstruction expert. PCR counsel added error by the court in applying NERA, emphasized trial counsel's failure to demonstrate a strong self-defense argument and strong provocation by the victim on behalf of defendant at trial, and claimed there was a prima facie showing of ineffective assistance of counsel to merit an evidentiary hearing.
Defendant's claims were rejected by the trial court. Judge Connor found that trial counsel expended much effort during the pretrial process and did his best by procuring an accident reconstructionist who testified at trial on behalf of defendant. The judge further found there were no psychiatric or other medical proofs advanced demonstrating that defendant had any condition, let alone one that could have been a defense. Furthermore, the jury found the use of a deadly weapon and serious bodily injury, predicates under NERA.
On appeal, defendant asserts error by the court in finding she failed to demonstrate ineffective assistance of trial counsel and in denying her request for an evidentiary hearing on that issue. She further asserts ineffective assistance of PCR counsel in failing to advance all of her arguments and zealously argue her case.
We consider defendant's claims in light of well-settled principles. The standard for determining whether counsel's performance was ineffective for purpose of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed. 2d at 693, 698.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. Hence an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We echo the comments made by Judge Connors. Moreover, it is insufficient to allege generically that the failure of trial counsel to call defendant's uncle as a witness at trial constituted ineffective assistance without a showing that had he been interviewed or presented at trial he would have offered information of material exculpatory worth. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Even if defendant's uncle had been called, at most he would have corroborated defendant's testimony that the victim started the altercation and also struck defendant in the face three times while she was seated in the car. Most likely, however, he would have corroborated much of the evidence against defendant as well, not denied by her, including that she pursued the victim back to his apartment after the fight and, in anger, broke through the public door and then his apartment door. From this conduct alone, the jury was poised to find that defendant's subsequent conduct in running over the victim was not accidental but, rather, was intentional. Thus we can presume that trial counsel's decision not to call defendant's uncle as a witness was strategic. Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695 (recognizing that in our analysis of attorney performance, we must indulge a strong presumption that counsel made all significant decisions in the exercise of his or her reasonable professional judgment and sound trial strategy).
We further conclude that defendant failed to demonstrate PCR counsel's performance was deficient under the Strickland/Fritz standard. In State v. Rue, 175 N.J. 1, 18 (2002), the Supreme Court noted that PCR counsel is required to communicate with his or her client and investigate the claims and then "'fashion the most effective arguments possible.'" (quoting State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000)). In State v. Webster, 187 N.J. 254 (2006), the Court stated:
[C]counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. That ...