December 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE WALKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 95-06-2295-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Skillman and Winkelstein.
On June 27, 1995, an Essex County grand jury indicted defendant Jermaine Walker, charging him with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two through five); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count six); first-degree murder, N.J.S.A. 2C:11-3 (count seven); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count eight); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count nine); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (counts ten and twelve); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts eleven and thirteen); third-degree possession of an assault firearm, N.J.S.A. 2C:39-5f (count fourteen); third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a (count fifteen); and possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5b(2) (count sixteen).
Counts one through twelve were tried in March 1996. During trial, the court dismissed count four, the charge of robbery of Darlene Pollenitz. She was shot and killed during the robbery, which was the criminal act upon which the felony murder charge in count six was based. The State therefore made a motion to base the felony murder charge on the robbery of Alberdeen Allen, count five. The court granted the motion.
The jury acquitted defendant on counts seven and eight, the murder of Pollenitz and the attempted murder of Paula Alford, and found him guilty on all other counts. Pursuant to a plea agreement, defendant pleaded guilty to counts twelve, fourteen and fifteen, and the court dismissed counts thirteen and sixteen.
For sentencing, the judge merged count one with count two and imposed fifteen-year prison terms on counts two and three, concurrent. He merged counts five, seven, and eleven with count six, and on the latter count, imposed a thirty-year prison term with thirty years of parole ineligibility, consecutive to the sentence on count two. On count nine, the judge imposed a seven-year term, concurrent with count six; and on counts twelve, fourteen and fifteen, the judge imposed five years on each, also concurrent to the sentence imposed on count six.
On direct appeal, defense counsel raised the following issues:
THE JURY CHARGE ON THE CRITICAL ISSUE OF IDENTIFICATION, WHICH WAS NOT TAILORED TO REFLECT THE COMPLICATED AND CONFILCTING EVIDENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL, AND AMOUNTED TO PLAIN ERROR. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
SINCE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT DEFENDANT WAS INVOLVED IN THE ATTEMPTED ROBBERY (COUNT 2) AND AGGRAVATED ASSAULT (COUNT 9) OF PAULA ALFORD, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THOSE COUNTS.
THE TRIAL COURT IMPROPERLY RAN THE 15-YEAR SENTENCE ON THE ROBBERY CONVICTIONS CONSECUTIVE TO THE 30-YEAR SENTENCE ON THE FELONY MURDER CONVICTION.
Defendant also submitted a pro se supplemental brief, raising the following points:
DEFENDANT'S FELONY MURDER CONVICTION IS BARRED BY THE COLLATERAL ESTOPPEL PRINCIPLES OF THE DOUBLE JEOPARDY DOCTRINE, BECAUSE THE TRIAL COURT DISMISSED, FOR LACK OF EVIDENCE, THE SOLE PREDICATE FELONY CHARGED IN THE FELONY MURDER COUNT OF THE INDICTMENT.
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT DEFENDANT'S CONVICTION AS AN ACCOMPLICE TO MA[N]SLAUGHTER.
DEFENDANT'S CONVICTION FOR CONSPIRACY TO COMMIT ROBBERY VIOLATES DUE PROCESS AND MUST BE VACATED BECAUSE THE JURY FAILED TO CONVICT THE CO-DEFENDANT WHO WAS THE ONLY CHARGED CO-CONSPIRATOR.
We reversed defendant's convictions for the robbery and aggravated assault of Paula Alford, counts two and nine respectively, but otherwise affirmed defendant's judgment of conviction. State v. Walker, 322 N.J. Super. 535, 543-44 (App. Div.), certif. denied, 162 N.J. 487 (1999).
On June 3, 2000, defendant filed a pro se petition for post-conviction relief (PCR); PCR counsel filed an appendix on his behalf. Following argument on January 6, 2006,*fn1 in a written decision dated March 8, 2006, and memorialized in an order on that date, the PCR judge, who was also the trial judge, denied defendant's PCR petition without providing him with an evidentiary hearing.
On appeal, defense counsel raises the following points:
THE PCR COURT ERRED IN DENYING THE PETITION BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT.
A. TRIAL COUNSEL FAILED TO OBJECT TO THE STATE'S CHALLENGE OF DEFENDANT'S ALIBI WITNESSES ON THE BASIS OF PRETRIAL SILENCE TO INFER FABRICATION AND FAILED TO REQUEST A JURY CHARGE THAT DEFENDANT'S ALIBI WITNESSES HAD NO DUTY TO PROVIDE THE STATE WITH THE EXCULPATORY EVIDENCE.
B. TRIAL COUNSEL FAILED TO THOROUGHLY INVESTIGATE DEFENDANT'S ALIBI AND PROVIDE A NOTICE OF ALIBI IN A TIMELY MANNER, FAILED TO CALL TWO OTHER FAVORABLE WITNESSES, AND FAILED TO EFFECTIVELY COMMUNICATE WITH DEFENDANT.
C. TRIAL COUNSEL FAILED TO CHALLENGE PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS.
D. CUMULATIVE ERRORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.
THE PCR COURT ERRED IN DENYING THE PETITION BECAUSE APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT.
THE PCR COURT ERRED IN DENYING THE PETITION WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
THE PCR PROCESS SHOULD BEGIN ANEW BECAUSE PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT; ALTERNATIVELY, THE MATTER SHOULD BE REMANDED TO THE PCR COURT TO DETERMINE WHETHER PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
In a pro se supplemental brief, defendant raises the following legal argument:
THE PCR JUDGE ERRED BY REJECTING THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE BECAUSE OF COUNSEL'S DELAYED INVESTIGATION OF DEFENDANT'S ALIBI, WHICH CREATED AN ALMOST YEAR-LONG PERIOD OF PRETRIAL SILENCE THAT THE STATE USED TO DISCREDIT THE ALIBI WITNESSES.
We have carefully considered these arguments in light of the record and the applicable law, and find the arguments to be without sufficient merit to warrant reversal of defendant's conviction. Accordingly, we affirm.
We glean the following facts from the trial record. On the evening of May 7, 1994, Alford left a pizzeria on Clinton Avenue in Newark. A small four-door car stopped beside her; she saw four men inside the car. After a man jumped out of the passenger's side and demanded money, Alford ran across the street. As she did, she heard one of the men say, "shoot that bitch." Alford was then shot in the buttocks.
Approximately a year later, Alford identified defendant from a photo array as one of her assailants. She was not, however, able to identify him in court. She was also unable to identify either the car used in the shooting or who shot her.
At 12:35 a.m. on May 8, 1994, Willie McClendon was walking on Clinton Avenue when a small red car with a temporary tag in the back window stopped in front of him. Two men got out of the car and approached him, demanding his money and wallet. One of the assailants had his hand in his coat pocket, and McClendon heard a "click." He gave his wallet to the other assailant, who then returned to the car. The assailant with his hand in his pocket then brandished a gun and aimed it at McClendon, telling him "don't you try nothing. Because if you do I'll kill you." The man returned to the car, which drove off.
The next morning McClendon reported the crime to police. Approximately a month and a half later, police recovered his wallet and asked him to try to identify the suspects. McClendon was shown a photo array and identified defendant as one of his assailants; he also identified the car in which he saw defendant. McClendon identified defendant in court.
At one a.m. on May 8, 1994, Yamina Brown's car was hit by a red four-door car while she was driving on 18th Avenue in Newark. She filed a police report.
Approximately one-half hour after Brown's car was hit, several blocks away, Alberdeen Allen, April Middleton and Darlene Pollenitz were robbed. A red four-door car pulled up and two men got out demanding their money. One of the men shot and killed Pollenitz.
Several days later, after learning of Pollenitz's murder, Brown provided the police with a partial number of the temporary tag in the back window of the car that had hit her car. The police learned from a car dealership that a red Chevrolet hatchback had been recently sold to Troy Williams. Williams's friend, Al Tarik Horn, told police that defendant had purchased the car from Williams. In a statement to police, defendant admitted owning a "red 1986 Chevrolet" but stated that he had not purchased it until May 12, 1994, after the crimes had been committed.
On June 6, 1994, Allen identified defendant from a photo array and at trial she identified him as one of the men who had gotten out of the red car and demanded money from her.
Defendant denied that he was involved in any of the incidents. He testified that on May 7, 1994, at approximately 8:30 p.m., he went skating with several friends: Maalika Hudson; Linda Horn, who was his girlfriend; Sandy Lynn, and two other women. After the skating rink closed, he went directly to Linda Horn's house and stayed there all night. He testified that he purchased a red Chevette from Al Tarik Horn on May 12, 1994.
Hudson testified as an alibi witness for defendant, corroborating his account of the night of May 7, 1994. On cross-examination, she admitted that she did not report defendant's alibi to authorities until eleven months later when asked for a statement by defense counsel's investigator. The prosecutor also cross-examined Hudson on inconsistencies between her statements at a previous hearing and her trial testimony, specifically questioning her memory of the night in question.
Lynn also corroborated defendant's alibi, testifying that at approximately 8:30 p.m. on May 7, 1994, the group went skating and then returned to her home, where defendant and Linda Horn spent the night. The State cross-examined Lynn on inconsistencies between her statement to investigators and her trial testimony, and the length of time between the crime and her coming forward with an alibi.
Linda Horn also corroborated defendant's alibi. She testified that at approximately 8:30 p.m. on May 7, 1994, she went skating with defendant, Lynn, and one of the other women, until approximately midnight, when they returned to her home where they stayed the night. The prosecutor cross-examined her on her pre-trial silence; and on inconsistencies between her prior testimony and her written statement to investigators.
Defendant claims ineffective assistance of trial counsel, appellate counsel, and PCR counsel. We begin with the standard against which defendant's arguments are measured.
A successful claim of ineffective assistance of counsel must meet the two-part test delineated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), as adopted by State v. Fritz, 105 N.J. 42, 52 (1987). The test requires: (1) "'that counsel's performance was deficient,'" and (2) "'the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Counsel's performance is to be given "extreme deference" with a presumption of reasonable assistance. Ibid.
Once a defendant has shown that counsel's performance was deficient, he must then show that the deficient performance prejudiced the defense. Ibid. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Whether a PCR petition warrants an evidentiary hearing is within the sound discretion of the PCR court. State v. Marshall, 148 N.J. 89, 157 (1997).
Given the lack of facts to substantiate defendant's allegations here, we agree with the PCR judge that an evidentiary hearing was not required. Defendant's allegations were for the most part unsupported and speculative, so as not to constitute a prima facie claim of ineffective assistance of counsel to require an evidentiary hearing.
We begin with defendant's claim that trial counsel was ineffective for failing to object to the State's cross-examination of his alibi witnesses. The State attacked the witnesses' credibility based on their pre-trial silence - their failure to come forward and provide alibis for defendant sooner than they did. An alibi witness's pre-trial silence may be cross-examined by the prosecution as a prior inconsistent statement after the prosecution lays a proper foundation. State v. Silva, 131 N.J. 438, 447 (1993). A proper foundation is laid where the witness testifies that he was "aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities[.]" Id. at 447-48 (internal quotations omitted). It may generally be inferred that the witness would know how to report the information to law enforcement authorities. See State v. Holden, 364 N.J. Super. 504, 513 (App. Div. 2003) ("seventeen-year-old high school senior would probably know how to report police misconduct"). Here, though the State could have laid a more concrete foundation for cross-examination of defendant's alibi witnesses, the foundation was adequate and defense counsel was not ineffective for failing to object.
The first alibi witness was Maalika Hudson, a friend of defendant's who had known him for two and one-half years. She testified she knew about the charges against defendant approximately eleven months before telling his lawyer, even though she knew she had information that could exonerate him of the charges. As defendant's friend, she had a motive to exonerate him; she was aware of the charges against him and she knew of potentially exculpatory information. She could have provided the authorities with that information had she so desired, before being contacted by defense counsel.
Sandy Lynn was also a friend of defendant; she had known him for six years. Within weeks of his arrest, she knew he had been arrested, and was aware that she had potentially exculpatory information, yet she failed to come forward.
Similarly, defendant's girlfriend, Linda Horn, testified that she had been dating him for three and one-half years, she was aware that she possessed potentially exculpatory information, and in fact she had contacted authorities about defendant's alibi; specifically, she told the arresting police officer on the day defendant was arrested, as well as on a subsequent occasion when the officer came to her house.
Given this testimony, the foundation for cross-examination of defendant's alibi witnesses was adequate. And significantly, the State could have cured any deficiencies in its foundation testimony had defendant made timely objection; thus, the outcome of the trial would not have changed. Accordingly, neither trial counsel's failure to object to the cross-examination nor appellate counsel's failure to raise that issue support defendant's ineffective assistance of counsel claims.
It is also notable that the alibi witnesses were cross-examined not just on their pre-trial silence, but also as to their inconsistent testimony. For example, in his statement to the police, defendant stated that Al Tarik Horn was with the group when they went skating, though none of the alibi witnesses testified that he was present. Hudson testified that a total of six people were in the group that went skating; Lynn and Linda Horn testified that there were five. They were all cross-examined on their bias as friends of defendant. Ultimately, the jury likely found them not credible in light of the testimony of the State's witnesses who identified defendant.
Defendant also argues that the failure of trial counsel to contact the alibi witnesses sooner, and file the notice of alibi earlier, constituted ineffective assistance of counsel. That argument is speculation. Defendant was arrested on June 8, 1994. His attorney's investigator interviewed three witnesses on April 4 and 5, 1995, and defendant provided his notice of alibi to the State on May 4, 1995. Though defendant's May 23, 1994, statement to the police mentions the first names of several alibi eyewitnesses, it does not include their last names or addresses. Indeed, nothing in the record indicates when defendant first notified trial counsel of the names and addresses of these witnesses. Thus, the record does not contain facts to support a conclusion that trial counsel delayed in contacting the alibi witnesses.
Defendant claims that trial counsel failed to call "two other favorable witnesses," Al Tarik Horn and Temel Sinclair. He asserts that their testimony would have exculpated him and inculpated Andre Williams, his co-defendant, for the crimes because it would have linked Williams to the car.*fn2 The PCR court, directing its discussion to Horn, found that defendant's claims were unfounded because he provided no facts to support his claims, just "bare allegations, unsupported by credible evidence." The court also found that the failure of counsel to call Al Tarik Horn was not deficient because the witness's proposed testimony would only have concerned ownership of the car; it would not have changed the outcome of the trial because the question the jury was required to determine was whether defendant was in the car on the night in question, not whether he owned it.
The same can be said as to the proposed testimony of Temel Sinclair. Based on his May 24, 1994 statement to police, his testimony may have linked Al Tarik Horn and Troy Williams to the car, but it would not have impacted whether defendant was in the car during the commission of the crimes.
Defendant claims counsel was ineffective because he failed to sufficiently communicate with him. Frequency of communication with defense counsel does not determine whether a defendant has been denied effective assistance of counsel; rather, what is relevant is "whether . . . counsel was able properly to investigate the case and develop a reasonable defense." State v. Savage, 120 N.J. 594, 617 (1990).
Trial counsel met with defendant on several occasions, and had an investigator take statements and interview three alibi witnesses whose names were provided to him by defendant. Defendant does not argue that the alibi defense strategy itself was deficient, but that it was improperly implemented by counsel not investigating all possible witnesses. We reject that argument. Defendant has not demonstrated that counsel failed to either properly investigate or provide defendant with a reasonable defense.
Defendant's remaining arguments are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(2). We add only the following. The prosecutor did not commit misconduct by failing to provide exculpatory testimony. The grand jury is not an adjudicative body, but is an accusatory body. State v. Hoagland, 144 N.J. 216, 235 (1996). The State is not required to provide exculpatory evidence to the grand jury unless that evidence is "so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Id. at 236. No such exculpatory evidence was extant here.