October 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN W. ROGERS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 9, 2007
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?
A: My brother.
Q: And you were going to . . . have him try to come up here and deceive somebody?
A: No. I was just going to sit in the back and see if the officers really knew who I was.
Q: But you changed your mind?
Q: How far did you get? Did you actually give him your jacket and pants?
Q: Was he actually sitting in the court at one point in time dressed like that?
Q: How far did you get?
A: Outside the door.
On redirect, defense counsel attempted to establish that it was she who had devised the plan to seat defendant's brother at counsel table. The prosecutor objected to that question, arguing that the question sought to elicit hearsay and was irrelevant. At sidebar, the judge expressed surprise that counsel had concocted the impostor plan. The judge stated, "[s]urely you are not going to tell me that this was your idea?" Counsel admitted that she was indeed the person who originated the plan. The judge sustained the prosecutor's objection. Defense counsel's failed attempt to take the blame for the impostor plan was the last question the jury heard before the defense rested. The State called no rebuttal witnesses and counsel immediately proceeded with their summations.
In his petition, defendant also alleged that trial counsel was ineffective when she failed to object to improper comments by the prosecutor in his opening statement; failed to request a jury charge on cross-racial identification; and failed to request a Wade*fn1 hearing.
At the hearing on defendant's petition for post-conviction relief, the judge, who had also presided at the trial, held that defendant had not presented sufficient evidence to warrant an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). She then denied defendant's petition for post-conviction relief.
The judge explained her reason for rejecting defendant's claim that counsel was ineffective when counsel failed to call Davis and Scott as witnesses on third-party guilt by stating that those witnesses would not have been credible. The judge reasoned that trial counsel could have concluded, in a hypothetically reasonable tactical choice, that she should not call them as witnesses because the jury would not have believed them.
When the judge rejected defendant's claim that counsel was ineffective when she devised the ill-conceived "defendant-substitution" plan, the judge explained that the botched plan simply demonstrated that counsel's representation was vigorous, albeit somewhat misguided. Without explanation, the judge concluded that the cross-examination of defendant on this point had not prejudiced him.
We agree with defendant that the trial court erred when it rejected his claim that counsel's plan to have defendant switch places with his brother at counsel table constituted ineffective assistance of counsel. We also agree that the scheme so damaged defendant's credibility as to deny him a fair trial and warrant reversal of his conviction.
Pursuant to the Sixth Amendment to the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, ¶ 10.
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-prong test established by Strickland. First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland and its test have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is rarely presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 688 n.26 (1984).
Our review of defendant's ineffective assistance of counsel claim requires an analysis of counsel's plan to substitute defendant's brother at counsel table during the trial. Long before defendant's trial in 1999, one federal circuit had recognized the professional impropriety of covertly placing an imposter in the defendant's chair as a ploy to mislead the court or witnesses. United States v. Thoreen, 653 F.2d 1332, 1340 (9th Cir. 1981). The tactic of switching clothes and substituting a different person for the defendant in open court to test identification is also prohibited by the Rules of Professional Conduct (RPC). RPC 3.3(a)(2) provides, "A lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a . . . fraudulent act by the client." Here, RPC 3.3(a)(2) clearly prohibited trial counsel from participating in, and failing to disclose, a fraudulent scheme such as this.
Accordingly, counsel's tactic of attempting to substitute a different person for defendant ran afoul of RPC 3.3(a)(2) and violated accepted standards of professional competence. Such conduct satisfies the first prong of the Strickland/Fritz test.
We next address the second prong and determine whether this deficient performance affected the outcome of the trial. Fritz, supra, 104 N.J. at 58. We conclude that its impact was devastating. Although there were some inconsistencies in the police testimony identifying defendant as the person who sold narcotics on June 5 and 12, 1998 to undercover police officers, numerous officers identified defendant in court as the person they saw selling CDS on the days in question. Defendant's only real opportunity for an acquittal depended upon the jury's acceptance of the suggestion in his testimony that the person selling drugs on those occasions was his brother Ray.
Unquestionably, the jury would not have accepted that testimony from defendant unless it found defendant himself to be credible. Under those circumstances, when defendant was asked whether he intended to "deceive" the officers and the jury, and when he answered that he did intend to deceive the officers, the State was able to make defendant less trustworthy in the jury's eyes. Consequently, his credibility suffered an enormous blow. Although the prosecutor did not refer to the aborted impostor plan in his closing, he sharply attacked defendant's credibility by arguing defendant "has motive to lie and reason to lie . . . . he's trying to sell you something. He's trying to sell you himself."
The damage to defendant's credibility caused by the impostor plan was compounded by trial counsel's failure to have called Davis or Scott. They would have bolstered defendant's own testimony by providing evidence that Ray had indeed used defendant's name on the night in question. Significantly, defendant was unable to definitively testify that his brother had used his name that night because he had no way to know it. His testimony was instead far less persuasive, and consisted merely of the vague statement that in the past his brother had used his name. Without Davis or Scott as witnesses, the task of establishing third-party guilt fell to defendant alone. With his credibility gravely wounded by the impostor plan, any chance that he might otherwise have had to convince the jury of third-party guilt was shattered.
We therefore reject the judge's conclusion that this ill-conceived and unethical conduct on counsel's part played no role in defendant's conviction. Where the outcome depended in large part on the jury accepting his credibility, this ploy so unfairly damaged defendant's credibility as to deny him a fair trial. It bears repeating that the last question the jury heard before the defense rested pertained to this deceptive plan. Under these circumstances, we can have no confidence that counsel was performing as the counsel "guaranteed by the Sixth Amendment." Fritz, supra, 105 N.J. at 58. The second prong is satisfied.
In light of our disposition of this claim, we need not determine whether the judge's rejection of defendant's other claims of ineffective assistance was error. We have determined that, standing alone, counsel's conduct in devising the defendant-substitution plan warranted post-conviction relief.
Reversed and remanded for a new trial.