On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 98-08-0401.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Baxter.
Defendant John W. Rogers appeals from a December 21, 2005 order denying his first petition for post-conviction relief (PCR). On July 30, 1999, defendant was convicted of one count of distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(3); three counts of second-degree distribution of CDS within 500 feet of public property, N.J.S.A. 2C:35-7.1; two counts of third-degree distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7; and one count of third-degree distribution of an imitation CDS, N.J.S.A. 2C:35-11(a)(1). The court sentenced defendant to an aggregate sentence of fourteen years imprisonment, with six years of parole ineligibility. On June 22, 2001, we affirmed the conviction and sentence on direct appeal. On October 24, 2001, the Supreme Court denied defendant's petition for certification.
On July 30, 2002, defendant filed a pro se petition for post-conviction relief, and on August 5, 2005, his attorney filed an amended petition that raised additional claims. In the amended petition, defendant alleged that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution.
As to his first claim, defendant asserted that his trial attorney breached her duty to conduct a thorough pretrial investigation and failed to present exculpatory evidence at trial. In particular, defendant alleged that trial counsel failed to present to the jury evidence of third-party guilt that would have exonerated him. He supported that claim by an investigator's report of an interview with Frank Davis, Jr. The investigator reported Davis's statement that while Davis was in prison with defendant's brother, Ray Rogers, Ray admitted that he was the person who sold narcotics on the day in question. Ray conceded that he gave police defendant's name rather than his own. Moreover, defendant presented evidence in his PCR petition that his brother's height and appearance matched the description of the person arrested on June 5, 1998, whereas defendant's actual physical attributes did not.
In further support of his claim that trial counsel failed to present exculpatory evidence of third-party guilt, defendant also presented an affidavit from Betty Ann Scott. Scott stated under oath that she was standing with Ray Rogers at the time he was arrested and she heard him give police the name of John Rogers, along with a date of birth that was not his own. The date of birth Ray Rogers provided was that of defendant. Although defense counsel was aware as early as March 1999 that Betty Ann Scott was a potential witness, counsel made no effort to locate or interview her. As a result of trial counsel's failure to call either Frank Davis, Jr. or Betty Ann Scott to testify, the only evidence of third-party guilt the jury heard was defendant's own testimony that his brother sometimes used his name, testimony which the jury rejected when it returned a verdict of guilty.
Defendant's second claim during the PCR proceeding involved trial counsel's ill-conceived and unethical plan to covertly present an "impostor" in defendant's chair at counsel table to trick police witnesses into an incorrect identification. Ultimately, the State became aware of defendant's plan to switch places with his brother, and the plan was aborted before it could be carried out. Nonetheless, the State cross-examined defendant about the plan and was able to damage his credibility:
Q: Yesterday, is it true, sir, that you tried to switch clothes with another person in the courtroom here to attempt to deceive either the officers of the jury?
A: Not the jury, but the officers.
Q: So you attempted to switch clothes with who?
Q: And you were going to . . . have him try to come up here and ...