On appeal from Superior Court of New Jersey, Law Division, Passaic County, 95-01-0128-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Baxter.
Defendant Lionell Miller appeals from the denial of his petition for post-conviction relief (PCR), R. 3:22-1 to -12, alleging ineffective assistance of counsel at his 1996 trial. We affirm.
A proper analysis of defendant's claim requires an extended statement of the facts upon which his convictions were predicated.
On October 29, 1994, sometime between the hours of 2:00 a.m. and 4:30 a.m., Jeffrey and Gregory Jackson were robbed on the corner of Ellison Street and Graham Avenue in Paterson. A yellowish four-door car pulled up to the corner and a man jumped out of the back seat, putting a shotgun to Jeffrey's neck. A second man came from the car wielding a handgun that he held to Gregory's side. Jeffrey described the man with the shotgun as dark skinned, with braided hair, wearing Army fatigues and a ski mask covering his face. The man with the handgun was light skinned, wearing dark clothes and a bandanna across his face. The man with the shotgun took a goose-down coat and approximately $300 from Jeffrey. After completing the robbery, the two men left in the same car.
Meanwhile, in a nearby part of town, Heriberto Huertas and Roberto Esquilin experienced car trouble, causing them to pull over on Park Avenue. As the two men waited, a beige Infinity driven by Enrique Garcia pulled behind Esquilin's car. Huertas and Esquilin proceeded to speak with Garcia and his passenger, Eduardo Valladares, the owner of the car and Huertas's friend.
At that time, a black male "with dreadlocks," wearing a goose down coat, approached the group and asked if anyone had drugs. The group ignored the man and he walked away.
Approximately twenty minutes elapsed when another car containing four people pulled up. A man with dreadlocks, trying to pull a ski mask over his face, exited the rear passenger's side door and commanded the group to "put their hands up." Almost immediately, the man with dreadlocks fired his handgun. Huertas ran. When Huertas looked back he saw another man trailing him and Esquilin "falling to his face." A second man wearing a bandanna over his face exited the car from the passenger seat with a shotgun. Despite being shot in his left leg and right heel, Huertas continued to run as he heard the handgun and shotgun firing repeatedly. After the shooting subsided, Huertas returned to the scene to find Esquilin lying on the ground. Esquilin had been shot three times. A bullet entered his left leg, shotgun pellets entered his lower back and buttocks and another bullet entered his shoulder and struck his heart, proving to be fatal. According to Garcia, the man with the shotgun exited the Dodge from the backseat and the man with the handgun exited from the front passenger seat.
At the scene of the crime, police recovered .9mm casings and a magazine clip. Police found the assailants' beige Dodge abandoned at the Christopher Columbus Housing Project in Paterson. In the front passenger area of the Dodge police found three .9mm rounds.
The Dodge belonged to Louise Goss of Hillside, who lent the car to Yolanda Mikell, the aunt of co-defendant Lamont Towns. Mikell stated that on the night of the incident, she and Towns picked up defendant before stopping to talk to Jerry Clyburn. After Towns spoke with Clyburn, Towns told Mikell that she should take Clyburn's truck and they would take her car. Mikell agreed, and drove the truck to her sister's home. Mikell testified that Towns then drove the Dodge with Clyburn in the front and defendant in the back. Additionally, Mikell saw defendant with a .9mm handgun prior to the incident.
Jerry Clyburn testified that on the night of the incident he entered the Dodge and sat behind the driver, Towns, while defendant sat in the passenger seat. Clyburn maintained that they drove down Park Avenue to 19th Street and exchanged words with a group of males, at which point defendant started firing a handgun at the men. After the shooting, defendant and Towns got in the Dodge and, with Towns driving, pulled away. Clyburn testified that he remained in the Dodge during the shootings. He further testified that defendant wore a bandanna and had a short haircut, and that Towns wore a black goose-down coat.
Towns, called as a defense witness, admitted to wearing dreadlocks that night but asserted that he fired a handgun and Clyburn, not defendant, fired a shotgun. He claimed that Mikell was present and drove the Dodge after the shooting. Contrary to Mikell, Towns denied that Mikell took Clyburn's truck. Towns denied that defendant was present at the time of the shooting, claiming he had not seen defendant at all that day. Towns' trial testimony, however, differed from prior statements made at his own earlier, separate trial, where he said that he drove the group to the scene, where defendant fired the .9mm handgun and Clyburn fired the shotgun. At defendant's trial, Towns stated that he previously falsely implicated defendant because his mother told him that the police said they would let him go home if he implicated defendant.
Towns also testified that after the shootings Mikell drove the four of them to the apartment of Otis Clyburn, Jerry Clyburn's brother. There, the assailants hid the weapons that they used in the shooting. Towns claimed that Otis put the shotgun in the closet while Jerry Clyburn held on to the handgun. Jerry Clyburn testified that Towns and defendant let him out on Carroll Street before arriving at Otis's apartment. Otis testified that Towns and defendant, not Towns and Jerry Clyburn, came to his apartment. Otis further testified that while in his apartment, Towns asked defendant "why he shoot the guy?" On October 31, 1994, police searched Otis Clyburn's vehicle and found a handgun and shotgun matching the bullets and casings found at the crime scene.
Sabrina Simmons, who lived with Jerry Clyburn's other brother, Eugene Clyburn, testified that defendant confessed to her, and that Jerry was not responsible for the shootings.
Defendant denied spending time with Jerry and Otis Clyburn and denied that he had been to Otis's apartment. He also denied knowing Yolanda Mikell and testified that he had never been in her car. It was defendant's contention that on October 29, 1994, he arrived drunk at his home at approximately 2:30 a.m., became sick and went to bed. Defendant's family members corroborated his alibi.
On January 27, 1995, an indictment was filed against defendant, Lamont Towns and Jerry Clyburn, charging them with the following: purposeful or knowing murder of Roberto Esquilin, N.J.S.A. 2C:11-3a(1) and (2) (Count One); felony murder of Esquilin, N.J.S.A. 2C:11-3a(3) (Count Two); first-degree robbery of Esquilin, N.J.S.A. 2C:15-1(a)(1) and (2) (Count Three); second-degree unlawful possession of a weapon, a .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Esquilin, N.J.S.A. 2C:39-4a (Counts Four and Five, respectively); first-degree robbery of Jeffrey Jackson, N.J.S.A. 2C:15-1a(1) and (2) (Count Six); second-degree unlawful possession of a weapon, .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Jeffrey Jackson, 2C:39-4a (Counts Seven and Eight, respectively); first-degree robbery of Gregory Jackson, N.J.S.A. 2C:15-1a(1) and (2); second-degree possession of a weapon, .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Gregory Jackson, N.J.S.A. 2C:39-4 (Counts Ten and Eleven, respectively); second and third-degree aggravated assault of Heriberto Huertas, N.J.S.A. 2C:12-1b(1) and (2) (Counts Twelve and Thirteen, respectively); third-degree possession of a weapon, .12 gauge shotgun and .9mm handgun, with intent to use such weapons unlawfully against Huertas, N.J.S.A. 2C:39-4a (Counts Fourteen and Fifteen, respectively); possession of a handgun without a permit, N.J.S.A. 2C:39-5b (Count Sixteen); possession of a firearm without a purchaser identification card, N.J.S.A. 2C:39-5c(1) (Count Seventeen); possession of a handgun with the serial number defaced, N.J.S.A. 2C:39-3d (Count Eighteen). In addition, Miller alone was charged with second-degree witness tampering, contrary to N.J.S.A. 2C:28-5a(2) (Count Nineteen).
Clyburn and Towns had separate trials. At his trial, Towns was found guilty of murder and other offenses. The State dismissed the charges against Jerry Clyburn and he testified on behalf of the State in defendant's trial. Defendant's jury trial began on September 11, 1996. On October 3, 1996, the jury returned a guilty verdict on the following charges: Count Two, causing the death of Roberto Esquilin during the commission of a robbery; Count Three, aggravated assault of Huertas; Count Four, possession of a shotgun with a purpose to use it unlawfully against Esquilin; Count Twelve, aggravated assault of Huertas; Count Fifteen, possession of a shotgun with a purpose to use it unlawfully against Huertas; and Count Seventeen, unlawful possession of a shotgun without a permit.
At sentencing on January 24, 2007, the court denied defendant's motion for a new trial, and sentenced defendant to a life term with thirty years of parole ineligibility on the felony murder charge. Additionally, he was sentenced to a concurrent ten year term with five years of ineligibility for aggravated assault (Count Twelve) and a concurrent five year term for possession of a shotgun without a firearms identification card (Count Seventeen). The court merged the remaining counts.
We affirmed defendant's conviction in an unpublished decision dated April 7, 1999. On July 6, 1999, the Supreme Court denied his petition for certification. State v. Miller, 161 N.J. 331 (1999). On June 25, 2001, the trial judge denied defendant's PCR petition. On February 20, 2003, we reversed and remanded, holding that defendant's PCR counsel was inadequate because "the attorney did not consult with defendant except immediately prior to the PCR hearing, did not investigate defendant's claims, and did not file an amended petition." On remand, we directed that the matter be heard by a different judge. On remand, defendant's new counsel filed an amended petition. After a hearing at which testimony was taken,*fn1 the PCR judge rendered a lengthy oral ruling, followed by a written opinion, denying relief.
On this appeal, defendant presents two issues for our consideration:
POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND ORDER SHOULD ISSUE GRANTING HIS PETITION FOR POST CONVICTION RELIEF.
A. The Anonymous Calls Implicating the Defendant.
B. The Failure to Call Eyewitnesses Valladares and Vega.
C. The Cumulative Impact of Trial Counsel's Failure.
POINT II: AN ORDER SHOULD ISSUE REMANDING THE CASE FOR RECONSIDERATION OF THE ISSUE OF TRIAL COUNSEL'S FAILURE TO PRODUCE EDUARDO VALLADARES AND MIGUEL VEGA AS WITNESSES
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), the United States Supreme Court articulated the now well-known two-prong test for determining ineffective assistance of counsel. Under the first prong, defendant must "show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2054, 80 L.Ed. 2d at 693. Counsel's representation must meet an objective standard of reasonableness considering all the circumstances. Id. at 688, 104 S.Ct. 2064-65, 80 L.Ed. 2d 693-94. "Scrutiny of counsel's performance must be highly deferential" and should not be subjected to the "distorting effects of hindsight." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. A court reviewing an ineffective assistance of counsel claim must consider the facts of the particular case and apply a "heavy measure of deference to counsel's judgments." Id. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
Under the second prong, defendant must demonstrate that "the deficient performance prejudiced the defendant." Ibid. Effectively, "counsel's errors [must be] so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Generally, prejudice is not presumed. Id. at 692-93, 104 S.Ct. at 2066-68, 80 L.Ed. 2d at 696-97. Stated differently, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
In State v. Fritz, 105 N.J. 42 (1987), our Court adopted the Strickland test, which was summarized as follows: "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contribute to defendant's conviction, the constitutional right has been violated." Id. at 58. There is a strong presumption that counsel employed "reasonable professional judgment" and "sound trial strategy." State v. Loftin, 191 N.J. 172, 198 (2007) (citations omitted). Furthermore, the Court has noted that "[i]neffective-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).
We consider defendant's issues in reverse order. Defendant argues that counsel should have called Eduardo Valladares and Miguel Vega as witnesses because their testimony would have contradicted Clyburn's testimony. Defendant claims that in their statements to the police both Valladares and Vega related that the man with the dreadlocks, subsequently identified as Towns, was armed with a handgun. Such testimony would have contradicted Clyburn's testimony as to the identity of the shooter. Defendant contends that the failure to call the witnesses was not mere trial strategy, but reflected inadequate preparation.
The State responds that counsel's failure to call the witnesses was a strategic decision and is entitled to deference. The State further claims that the witnesses' testimony could not exculpate defendant and, if anything, corroborated Clyburn's testimony. Neither witness could identify the second gunman; therefore, their testimony would not exculpate defendant.
According to the State, even if an error occurred, correcting the error would not have resulted in a different outcome.
"Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005). Defense counsel's decision as to which witnesses he or she will call is "an art," id. at 321 (citing Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed. 2d at 697), and review of such a decision should be "highly deferential." Ibid. (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). However, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696.
In Arthur, supra, 184 N.J. at 321-22, the Court held that counsel's decision not to call a witness was proper after counsel interviewed the witness and determined his testimony might hurt the defendant. Conversely, in State v. Chew, 179 N.J. 186, 220 (2004), the Court held that counsel's failure to call an expert constituted ineffective assistance of counsel. In Chew, counsel became aware of certain facts and did not investigate whether the expert witness was also aware of the facts. Id. at 217. Counsel never discussed whether the new facts would have changed the expert's opinion. Id. at 218. Indeed, the new information would have changed the expert's opinion. Ibid. Thus, counsel failed to engage in an appropriate investigation. Ibid. Addressing the "prejudice" prong, the Court found that there was a reasonable probability that the expert's changed testimony would have substantially affected the jury's deliberations. Id. at 219-20. Thus, the Chew defendant satisfied both Strickland requirements and the case was remanded. Id. at 220.
Applying these standards to the present case leads to a conclusion that counsel's performance was sub-standard. First, there is no doubt that counsel was aware of these two witnesses, having received their statements in discovery. Second, the PCR judge found credible defendant's testimony that he told his trial counsel that "he wanted everybody at the scene to testify." Third, the testimony of Vega and Valladares, assuming they testified according to ...