October 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM LAWTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 86-03-0524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Wefing and R. B. Coleman.
Defendant William Lawton appeals from an October 19, 2005 order by the Superior Court of New Jersey, Law Division, Bergen County, denying his petition for post-conviction relief (PCR). We have considered defendant's contentions in light of applicable standards, and we affirm.
The salient facts are not in dispute and were succinctly recited in an earlier opinion of this court.
Defendant was beaten in a bar in 1986.
He went home, got a handgun, went back to the bar, and shot and killed a person he thought was one of his assailants. Only ten minutes elapsed between the end of the beating and the shooting. The critical issue in the case was whether defendant acted in the heat of passion with reasonable provocation. If he did so act, the offense would be manslaughter, not murder. [State v. Lawton, 298 N.J. Super. 27, 31 (App. Div.), certif. denied, 151 N.J. 72 (1997).]
On April 21, 1986, the State charged defendant, William Lawton, in Bergen County Indictment No. 86-03-0524, with knowing and/or purposeful murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2) (count one), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two). Defendant was found guilty on both counts and sentenced to life imprisonment with thirty years of parole ineligibility for the murder and a concurrent term of seven years for the gun possession charge. On direct appeal, the judgment of conviction was affirmed and the Supreme Court denied defendant's petition for certification. State v. Lawton, 122 N.J. 152 (1990). Thereafter, as a result of defendant's appeal from the denial of his petition for PCR, this court remanded the case for a hearing, following which defendant's motion for PCR was again denied. Defendant's appeal from that decision was addressed in a published opinion issued on February 25, 1997, in which we reversed defendant's murder conviction due to an inadequate jury charge on passion/provocation manslaughter in Lawton, supra, 298 N.J. Super. at 41.
Defendant was retried before Judge Elijah L. Miller and a jury on March 24 to April 1, 1998. That jury also found defendant guilty of murder, and on May 15, 1998, Judge Miller again sentenced defendant to life in prison with a thirty-year parole ineligibility. In an unpublished opinion issued on February 15, 2000, we affirmed defendant's conviction, but remanded for a modification of the sentence from life to the minimum required, thirty-year base term with a period of parole ineligibility of thirty years. State v. Lawton, No. A-6556-97T4, (App. Div. February 15, 2000) (slip. op. at 4), certif. denied, 165 N.J. 530 (2000). Defendant's petition for certification was denied on September 8, 2000.
Subsequently, defendant filed another petition for PCR in which he claimed that he had received ineffective assistance of trial and appellate counsel. Judge Patrick J. Roma heard oral arguments on that petition on October 11, 2005 and issued an order denying relief on October 19, 2005. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I: TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE CAUSING AN UNJUST RESULT, DUE TO THE FAILURE TO CHALLENGE THE JURY INSTRUCTIONS, WHICH IN TURN FAILED TO REQUIRE THE STATE TO AFFIRMATIVELY PROVE THE ABSENCE OF THE ELEMENTS OF REASONABLE PROVOCATION IN LIGHT OF THE FACT THAT THERE WAS NO EVIDENCE DISPROVING REASONABLE PROVOCATION.
POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THROUGH ERRORS INCLUDING TRIAL COUNSEL'S OPENING AND CLOSING STATEMENTS DIRECTLY CONTRAVENING DEFENDANT'S ASSERTION THAT THE DECEDENT WAS ONE OF THE INDIVIDUALS THAT ASSAULTED HIM, REQUIRING REVERSAL.
POINT III: DEFENDANT WAS DENIED ANY MEANINGFUL PARTICIPATION IN THE JURY VOIR DIRE DEPRIVING HIM OF DUE PROCESS OF LAW. "Ineffective-assistance-of-counsel claims are particularly suitable for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). To make the requisite prima facie showing of ineffective assistance, defendant must show a "reasonable likelihood of succeeding" under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and adopted by this court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong, a defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. This showing must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (internal quotation marks omitted). To be deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687. A "heavy measure of deference" is applied to counsel's judgments. Id. at 691. Additionally, counsel's performance should be judged not in hindsight but from counsel's perspective at the time. Id. at 689.
Under the second prong, defendant must then "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 698. (internal quotation marks omitted). To be prejudicial, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Generally, prejudice is not presumed. Fritz, supra, 105 N.J. at 63.
Our appellate review of trial counsel's conduct must, however, be fact and case specific. See State v. Chew, 179 N.J. 186, 203 (2004). This instant appeal raises claims almost identical to those raised on direct appeal concerning the jury charge and jury verdict form. Ordinarily, a PCR claim may not be based on a ground for relief that could reasonably have been raised "in any prior proceeding," unless the bar would create a "fundamental injustice" or an unconstitutional result. R. 3:22-4. In addition, if the merits of a claim were adjudicated in a prior proceeding, the adjudication bars reassertion of the same ground in subsequent petitions. R. 3:22-5; State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005); State v. McQuaid, 147 N.J. at 464, 484 (1997); State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993). A defendant may not use a PCR petition as an opportunity to relitigate a claim already decided on the merits. McQuaid, supra, 147 N.J. at 483. This bar applies only to reassertion of the same grounds; claims that differ from those previously asserted are cognizable. State v. Afanador, 151 N.J. 41, 5l (1997); McQuaid, supra, 147 N.J. at 484.
After Lawton's first trial, the reviewing panel reversed his conviction because of an improper jury charge. Specifically, the panel observed:
[t]he jury was never advised that the State had the burden of disproving passion/provocation in order to sustain a conviction for murder. The absence of this charge, and the erroneous sequential nature of the initial charge could readily have led the jury to conclude that the defendant had to prove the existence of passion/provocation, thereby impermissibly shifting the burden of proof from the State to the defendant. [Lawton, supra, 298 N.J. Super. at 39 (citing State v. Erazo, 126 N.J. 112, 121-22 (1991)); State v. Grunow, 102 N.J. 133, 144-45, n.5 (1986).]
On direct appeal from defendant's second conviction, the reviewing panel emphasized, that the court gave the jury a proper "non-sequential" charge and made clear to it that in order to find defendant guilty of purposeful murder, it had to find that the State proved beyond a reasonable doubt that at least one of the four elements of passion/provocation manslaughter had not obtained. [Lawton, supra, No. A-6556-97T4 at 4.]
The panel also found that the verdict sheet informed the jury of the appropriate options by which to decide the matter. Ibid.
Here, we are convinced that the grounds for ineffective assistance of counsel asserted by defendant in this appeal have already been litigated. Accordingly, they are procedurally barred. The defendant is attempting to relitigate the claims made on direct appeal under the veil of this PCR application. Whereas he was previously granted a new trial due to the fundamental injustice of the first trial's jury charge, no such grounds exist on this appeal. His claims in regard to the jury charge and verdict sheet have already been decided on the merits.
Defendant also contends that he received ineffective-assistance-of-counsel in connection with his direct appeal because appellate counsel failed to raise several important issues on direct appeal which are only now before the court. We disagree.
"The role of the advocate 'requires that he support his client's appeal to the best of his ability.'" (citing Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed. 2d 987, 995 (1983)) (quoting Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed. 2d 493, 498 (1967)). We, however, cannot "impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client" because such a standard "would disserve the very goal of vigorous and effective advocacy . . . ." Anders, supra, 386 U.S. at 754. Counsel need not assert claims that are "legally unworthy of pursuit." See State v. Webster, 187 N.J. 254, 256 (2006) (indicating that unlike trial and appellate counsel, PCR counsel must bring "all the legitimate arguments that the record will support.").
The effectiveness of appellate counsel is evaluated under the same two-prong test of Strickland/Fritz applicable to trial counsel. Defendant has not presented sufficient evidence to warrant further discussion in a written opinion whether appellate counsel's representation in this case was so deficient as to cause a different result. R. 2:11-3e(2).
Defendant likewise asserts that comments made by trial counsel during opening and closing statements served to prejudice him and thus amounted to ineffective-assistance-of-counsel. In particular, trial counsel stated at the outset of her opening statement:
You know this is usually the part of the trial when a defense lawyer stands up . . . and talks about things like burden of proof and reasonable doubt and how the State has an obligation to prove every element of the offense. I'm not going to do that today, not because those aren't important concepts, they are, but I prefer to talk to you about William Lawton and about guilt.
I should tell you first of all, that William Lawton is guilty. He did in fact do probably the worst thing one person can do to another, he took someone's life . . . .
I am not here to ask you to excuse what he did. There's no excuse. What I am here to ask you is to be fair to William Lawton and to convict him of what he did do and that is not an intentional purposeful killing as charged in this indictment.
This same theme was voiced during counsel's closing statement:
I told you at the start of this case that what we really are talking about here is guilt. It's a simple case in one sense. Nobody is bringing - in other words, no one's saying somebody else did the shooting. It's really a one-issue case and it's not an easy issue. And you are the people that have had the opportunity to look at both sides . . . and evaluate the testimony.
And I told you when I started speaking to you two days ago that . . . Mr. Lawton was guilty of taking a life and I told you that he was guilty of passion provocation manslaughter.
Viewed in context and in the light of the controlling standards, these remarks amount to a sound trial strategy, not ineffective-assistance-of-counsel. As stated in State v. Loftin, "the defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." 191 N.J. 172, 198 (2007) (quoting Strickland, supra, 466 U.S. at 690).
Logical concessions made during a statement often do not amount to unprofessional representation. In State v. Sheika, a jury found a defendant guilty of felony murder, second degree robbery, and second degree conspiracy. 337 N.J. Super. 228, 234 (App. Div. 2001). The State presented vast amounts of evidence proving the defendant's involvement in the robbery. Id. at 242. Therefore, to negate the felony murder charge, trial counsel argued that even if defendant participated in the robbery, that robbery was not the cause of victim's death. Ibid. On appeal, the reviewing panel ruled that such statements "constituted a reasonable strategy in the light of the evidence." Ibid.
The facts of the Sheika case are in stark contrast to those of State v. Harrington, 310 N.J. Super. 272 (App. Div. 1998). There, a defendant was found guilty of purposeful murder, felony murder, and first degree robbery after trial counsel represented that defendant was a willing participant in a robbery, and that defendant's cohort committed the fatal stabbing. Harrington, supra, 310 N.J. Super. at 281. Those statements essentially conceded client's guilt on two of the most serious charges of the indictment: robbery and felony-murder. The court characterized these statements as an "unthinking blunder." Ibid.
There was no similar blunder in the instant case, because the only issue to be decided by the jury was whether defendant committed purposeful murder or passion/provocation manslaughter. Defense counsel effectively tailored her defense to fit the situation. Counsel did not make admissions like that in Harrington where counsel vouched for his client's guilt. Here, there was no doubt that Lawton went into Club One West and killed Steven Stack. Only Lawton's state of mind remained at issue. Counsel's opening and summation statements, therefore, stressed the defendant's anger and explained the provocation that impelled defendant's actions after he was attacked by several men. Counsel emphasized the brief time span in which the entire episode elapsed. This approach, though unsuccessful, certainly conformed understandably to the facts at hand.
Finally, the New Jersey Supreme Court has recognized that "[i]f a defendant seeks to be present at sidebar during voir dire, he should be accommodated as far as security will allow." State v. W.A., 184 N.J. 45, 60 (2005). Because Lawton did not actively participate in the voir dire process, he now argues that he was denied due process of law. Defendant's physical presence at sidebar was not necessary.
The record does not indicate that defendant ever asked to be present during voir dire. Thus, if he did not make such a request, it is considered waived. See id. at 63. Even if defendant did not waive this right, the trial court allowed counsel to employ the lawyer-shuttle system. See id. at 61 (approving of the use of the lawyer-shuttle system to preserve defendant's right to be present at voir dire). Indeed, the court made efforts to accommodate even without the defendant's required request to participate. We are satisfied that defendant received the process he was due.
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