January 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALWYN MARTIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-09-3108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2007
Before Judges Axelrad and Messano.
Defendant Alwyn Martin, and his brother, co-defendant Selwin Martin, were jointly tried before a jury on Camden County Indictment 31-08-09-98. Defendant was convicted of murder in the first degree, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder in the first degree, N.J.S.A. 2C:11-3(a)(3); kidnapping in the first degree, N.J.S.A. 2C:13-1(b)(1) and (2); criminal restraint in the third degree, N.J.S.A. 2C:13-5(a)(1); possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-5(b); attempted murder in the first degree, N.J.S.A. 2C:5-1; conspiracy in the first degree, N.J.S.A. 2C:5-2; and certain persons not to have a weapon in the second degree, N.J.S.A. 2C:39-7. At sentencing, the judge granted the State's motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a), and, after the appropriate merger of offenses, sentenced defendant to an aggregate sentence of life plus ten years imprisonment, and a period of forty years parole ineligibility.
We affirmed defendant's conviction on appeal, although we remanded the matter for re-sentencing on defendant's attempted murder conviction. State v. Alwyn Martin, A-2612-00 (App. Div. March 7, 2003). Defendant's petition for certification was denied. 177 N.J. 572 (2003).
Defendant filed a pro se verified petition for post-conviction relief (PCR) on January 22, 2004, citing the following reasons for relief: "ineffective assistance of counsel"; the "court's denial of [a] motion to introduce exculpatory evidence"; and a claim that the "prosecutor's use of collateral estoppel infringed [up]on due process of defendant and led to [a] direct verdict." Although the application was not supported by any affidavits, see State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that to support a prima facie claim for relief, the petitioner must "do more than make bald assertions that he was denied the effective assistance of counsel"), Judge Samuel D. Natal, before whom the case had been tried, nevertheless conducted an evidentiary hearing on defendant's claims.
Defendant and his trial counsel testified before Judge Natal. In a comprehensive written opinion filed on January 30, 2006, Judge Natal denied defendant's application. This appeal ensued.
Defendant raises the following points for our consideration:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL FAILED TO PROPERLY INTERVIEW GRACE MARTIN PRIOR TO TRIAL, TO INSPECT THE PAGER, AND TO PROPERLY REVIEW GRACE MARTIN'S TRANSCRIBED STATEMENT.
B. TRIAL COUNSEL FAILED TO ADVISE DEFENDANT OR GRACE MARTIN OF THE SPOUSAL PRIVILEGE.
C. TRIAL COUNSEL FAILED TO PRESENT EXCULPATORY EVIDENCE.
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE OF THE TRIAL COURT'S NOT ALLOWING THE DEFENSE TO REOPEN ITS CASE TO PRESENT EXCULPATORY EVIDENCE.
THIS MATTER MUST BE REMANDED AS TO DEFENDANT'S PRO SE PCR CLAIMS BECAUSE PCR COUNSEL DID NOT ADVANCE THOSE CLAIMS.
(Not Raised Below)
We have considered these issues in light of the applicable legal standards. We affirm the denial of defendant's PCR petition substantially for the reasons set forth by Judge Natal in his written decision.
To place the arguments now raised in the appropriate context, we summarize the trial evidence by quoting a portion of our opinion on defendant's direct appeal, as did Judge Natal.
This criminal episode apparently arose out of a drug deal that went awry followed by an attempted armed robbery of the dealer, the victim Glen Walker. The record permitted the jury to find that on the night of December 3, 1993, the victim, as he was approaching his home, was accosted and seized by three armed men who, after slamming him against their car, forced him into his house. The victim's girlfriend, Cathy Williams, who was on the second floor with the couple's four sleeping children, heard a disturbance and then saw the victim being held by two armed men. She was able to retrieve a handgun of her own and fired several shots down the stairs. Gunfire was returned. She had, in fact, hit one of three assailants, Trevor Walter[s], who died of his gunshot wounds. Williams and the children then escaped from the house through an upstairs window and onto the porch roof. In the meantime, the police had been summoned by neighbors across the street who had witnessed all of the events that had taken place outside the house. The police, arriving after the two remaining assailants had made their escape, found the victim lying dead at the bottom of the stairs. He had been shot five times, the bullets having come from two different guns, neither the one used by Williams.
The two eye-witness neighbors were separately shown photographic arrays and both identified [defendants] as the assailants. They both made in-court identifications as well.*fn1
Defendant and his brother both relied upon the defense of alibi at trial, and defendant presented the testimony of his mother-in-law, Millicent Haffenden, and his wife, Grace Martin, to support his claim. Essentially, both testified that on the date in question, and at the time of the homicide, defendant was at his home in Brooklyn with his wife and mother-in-law, and not in Camden where the homicide occurred. It is Grace's testimony that provides the background for defendant's claim of ineffective assistance by his trial counsel.*fn2
On December 10, 1998, pursuant to Rule 3:11-1, defendant provided the State with the names and addresses of both his alibi witnesses. On August 26, 1999, Investigator Arthur Folks of the Camden County Prosecutor's Office took a formal statement from Grace at the Brooklyn Homicide Task Force in Brooklyn.
At the trial, Grace testified that on the night of the homicide, she was at her home in Brooklyn when she received a call from a female friend who advised that Kyan, Grace's son, had been assaulted by a man with a gun, was injured, and was at the friend's home. Grace paged defendant and entered the numeric code 9-1-1, signifying it was an emergency. Defendant did not call her back, but as she dressed to leave and check on her son's condition, she noticed defendant's Jeep coming up the block. Grace testified that she ran outside and together with defendant drove to her friend's home, picked up Kyan, and together they returned home. Grace claimed that defendant did not feel well, had some ginger tea, and went to sleep at about midnight.
On cross-examination, the prosecutor elicited the fact that in her statement to Folks, Grace had claimed that the incident with her son occurred on December 22, not December 3. Grace explained this inconsistency by claiming that after she spoke to her mother, she recalled the date was actually December 3. The prosecutor also asked Grace to recall the phone number for the pager she used to contact defendant on that night; Grace testified it was 907-953-5015.*fn3
The prosecutor elicited that in her statement, Grace indicated that on the morning after the events involving her son, she received a phone call from a friend who told her that Trevor Walters had been shot and killed in Camden. In her statement, she claimed that she woke defendant, who was still asleep, to tell him, and defendant responded, "How could that be? I was with him last night." But, in her testimony before the jury, Grace claimed the conversation actually took place on December 5, and that defendant claimed he had been with Walters on the prior Thursday, December 2. Grace testified these inconsistencies were the result of her mistake. Grace also acknowledged that defendant, his brother, and Trevor Walters were very close friends and "were like brothers."
During his summation, the prosecutor sought to point out a number of facts that circumstantially linked defendant to the homicide and were not likely to have been coincidences. He referenced a pager that was in evidence, and that, according to earlier testimony by the State's crime scene investigator, was found at the scene of the homicide. Calling it "the most unbelievable and inexplicable coincidence," and referencing Grace's testimony as to the number of the pager she called, the prosecutor noted that the pager "found on the kitchen floor of [the victim's] house" happened to be defendant's pager.
On the following morning, after summations, defense counsel advised Judge Natal he had a motion. We quote at length the colloquy that followed.
Judge: What is your motion, Counsel?
Defense Counsel: There was a . . . piece of discovery in the discovery that had some numbers photocopied on a piece of paper in the top left corner. It's really unclear, even on speaking with the Prosecutor, where these came from. But in the top left corner there's a notation that says, "Trevor[,]" which is underlined and then there's a number, 1-917-953-5015, it says beeper number.
Judge: And you received that in your discovery, is that correct?
Defense Counsel: Yes, I did.
Judge: Okay. And what is your motion?
Defense Counsel: My motion is to now be able to admit this as evidence.
Judge: The . . . trial is over[.] I'm ready to charge the jury. You've had closings.
Defense Counsel: I understand, Judge. We just had the closings yesterday. You didn't start the . . . .
Judge: I know, Counsel, but after you admit new evidence, I assume you will want to close again.
[W]hat authority do you have to permit you to do this? Is there a Court Rule or anything that permits you to do this? Defense Counsel: No, I just don't feel that there would be any real prejudice to the State.
Judge: You're indicating this isn't newly discovered evidence, it's evidence that's been in your discovery that you and your client have reviewed. And you can't just introduce a piece of paper, there has to be a foundation for it.
After considering the prosecutor's objection, the judge concluded that the evidence was not "newly discovered," and lacked probative value. The judge further observed that the reopening of the case would cause additional delays, and, noting "[t]here [was] no authority for this," denied defendant's motion.
At the PCR hearing, defendant and his trial counsel, Scott Cohen, testified. Defendant claimed that he had never seen Grace's statement given to Folks until immediately before she testified and while he was in the holding pen at trial. He claimed that Cohen did not explain to him the significance of the pager number vis-à-vis Grace's statement. Defendant testified that Cohen never warned him of the potential risks of Grace's testimony.
Defendant acknowledged that he had spoken to Grace approximately six times after she gave the statement and before she testified, and when he asked her about the pager number, Grace claimed the police supplied her with the number and included it in the statement. He claimed that although he wanted her to testify on his behalf, he would have deferred to Cohen's advice on the issue. Defendant claimed Cohen never explained the spousal privilege to him.
Defendant testified that he was aware of the pager's existence because he had read the discovery before trial. However, he claimed that he did not know until closing arguments that the phone number of the pager matched the number Grace had given in her statement and her testimony.
Cohen testified that although he was not the original defense counsel involved in the case, he was aware of the prior attorney's filing of the alibi notice listing Grace as a witness. He testified that he was also aware that she had given a statement to an investigator from the public defender's office and he spoke to Grace over the phone two or three times before she testified. However, Cohen never discussed the pager with Grace prior to her giving her statement to Folks.*fn4 He did not meet Grace until the day she testified.
Cohen first physically saw the pager at the beginning of the trial and he matched the phone number taped to the pager to the number Grace had given in her statement. Despite this knowledge, Cohen testified that defendant "wanted her to testify no matter what." Cohen described defendant as "very involved" in the defense of the case, and he was certain he had given defendant a copy of Grace's statement to Folks for his review.
Cohen believed he pointed out to defendant that Grace would testify that the number she called to page him was the same number on the pager found at the crime scene, but he could "not [be] a hundred percent sure." However, Cohen claimed that he did not think he "could have pointed out anything to [defendant] that would have . . . changed his mind about [Grace]" testifying. Cohen testified that in discussing the spousal privilege with defendant, he "explained that it was [Grace's] choice."
Cohen also testified that he advised defendant that "putting your wife on the stand to do an alibi is not really going to help you at all." Nevertheless, Cohen claimed the decision to call Grace as a witness was "client driven," and that defendant told him the first time they met in the jail, and before Cohen even had received discovery, that Grace was going to be his alibi witness. Cohen testified that if the choice had been solely his, he would not have called Grace as a witness.
Cohen had little memory of the scrap of paper that was the subject of his motion to reopen the case after summations. He could not recall where it came from or how it was produced. At the conclusion of the PCR hearing, however, the prosecutor and PCR counsel acknowledged that the paper was not part of the State's discovery, and may have been given to Cohen by a family member of defendant.
As he did before Judge Natal, defendant now argues that trial counsel failed to interview Grace beforehand, failed to inspect the pager before trial, and failed to properly review her statement to Folks with defendant. He contends further that trial counsel failed to advise defendant or Grace of the spousal privilege and failed to present exculpatory evidence, the scrap of paper that listed the pager number as Trevor's. As a result, defendant was denied the effective assistance of counsel.
Judge Natal appropriately considered these claims in light of the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to succeed on such a claim, a defendant must "show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. In order to establish prejudice, defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Judge Natal noted that trial counsel had a duty to reasonably investigate the case or otherwise reasonably determine that such investigation was not necessary. State v. Savage, 120 N.J. 594, 618 (1990) (citing Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).
Judge Natal found Cohen's testimony at the PCR hearing to be credible and defendant's incredible. He concluded that Cohen had spoken to Grace and reviewed her testimony several times over the phone before trial. Based upon defendant's and Cohen's testimony, Judge Natal found that counsel had reviewed Grace's statement with his client before her testimony. Thus, he found no deficiency in Cohen's performance regarding this part of defendant's claim.
Judge Natal noted, "[I]f there was any deficiency in counsel's representation, it would have to be in his failure to inspect the pager prior to trial." He found Cohen's performance in this regard to be "constitutionally deficient." However, Judge Natal concluded that Grace's testimony was necessary, warts and all, to establish defendant's alibi claim. Given the overwhelming evidence of defendant's guilt, and defendant's insistence that his wife testify, Judge Natal found that Cohen "was in a no-win situation." Even if Cohen had inspected the pager before trial, the judge concluded it was unlikely that Grace would not have testified. As a result, Judge Natal concluded defendant had failed to show that "he was prejudiced by counsel's failure to inspect the pager."
We defer to the factual findings and credibility determinations made by Judge Natal, particularly in light of his ability to "observ[e]  the character and demeanor of [the] witnesses" at the PCR hearing. State v. Locurto, 157 N.J. 463, 474 (1999). Unlike the conduct of defense counsel criticized by the Supreme Court in State v. Arthur, 184 N.J. 307, 332 (2005)(noting attorney's failure to interview potential witnesses before the day of trial), a case relied upon by defendant, Judge Natal concluded that Cohen had spoken to Grace before trial, had reviewed her statement with her, had provided the statement to defendant, and had reviewed it with him. We therefore reach the same conclusion as Judge Natal that defendant has failed to demonstrate that Cohen's performance in this regard was deficient.
As to the claim that Cohen provided ineffective assistance because he failed to physically inspect the pager before trial, we would agree with Judge Natal that the failure to do so was probably deficient. Counsel's obligation to conduct reasonable investigation in a murder case, extends to the inspection before trial of the physical evidence in the State's custody.
However, Cohen testified that he physically inspected the pager at the beginning of the trial and matched its number to the number supplied by Grace in her statement. He further testified that he questioned Grace about her ability to recall the pager number years after the events and to supply it to Folks in her statement. However, she was unresponsive to his questions in this regard. Therefore, whether he had inspected the pager months earlier when he was retained to represent defendant or not, before the trial had progressed in any significant way, Cohen possessed the same knowledge of the essential facts--the phone number in Grace's statement matched the number on the pager in evidence, and there was no reasonable explanation why Grace remembered it nearly five years later. Since he never alluded to the alibi defense in his opening to the jury, Cohen had not painted himself into a corner requiring Grace's production as a witness.
Seen in this light, we view the failure to inspect the pager as immaterial to the ultimate strategic decision faced by Cohen, the no-win situation described by Judge Natal. Given his client's insistence that Grace be called to testify, Cohen could have either called her as a witness to support the alibi claim, or not have called her and rested the claim solely upon Haffenden's equivocal testimony. "[L]ike other aspects of trial representation, defense attorney's decision concerning which witnesses to call to the stand is 'an art,' and a court's review of such a decision should be 'highly deferential.'" Id. at 321 (citations omitted). Therefore, while Cohen's failure to examine the physical evidence pre-trial was professionally deficient, it mattered little because, in the end, his decision to call Grace as a witness was a strategic one made with full knowledge of all the facts. "Merely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989)), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
In this regard, it does not matter that Cohen's PCR testimony included his assertion that he would not have called Grace as a witness if the decision was solely his to make. "[S]econd-guessing defense counsel's tactical decisions 'under the distorting effects of hindsight,'" ought to be avoided upon review. State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 687-89, 104 S.Ct. at 2064-65, 80 L.Ed. 2d at 693-94), certif. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed 2d 88 (1997). Under all the circumstances presented, we cannot conclude that Cohen's decision to call Grace as a witness "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Defendant's claim of ineffective assistance of counsel on these grounds must fail.
We find the other two points raised by defendant in support of the ineffective assistance of counsel claim to also be unavailing. Defendant argues, as he did before Judge Natal, that counsel's failure to advise Grace of the spousal privilege, N.J.R.E. 501, and his failure to present exculpatory evidence, the scrap of paper containing the pager number and Trevor's name, demonstrate his ineffective assistance.
As to the spousal privilege, defendant has failed to cite any authority, nor have we found any, that supports the proposition that Cohen had some obligation to advise Grace, who was not his client, of the privilege at all. Cohen testified that he advised defendant that it was Grace's decision whether to testify or not. State v. Baluch, 341 N.J. Super. 141, 171-172 (App. Div.), (holding the testifying spouse is the one who holds the privilege), certif. denied, 170 N.J. 89 (2001). Since it was defendant's insistence in the first place that Grace be called as a witness, and since Cohen's failure to advise Grace of the privilege certainly did not thwart that result, we find the claim of ineffective assistance of counsel in this regard to be without any merit.
Nor are we persuaded by defendant's claim that Cohen failed to introduce exculpatory evidence--the scrap of paper listing the pager number and the words "Trevor" and "Beeper#"-- and thus provided ineffective assistance. Defendant, in large part, relies upon our decision in State v. Sexton, 311 N.J. Super. 70 (App. Div. 1998), aff'd 160 N.J. 93 (1999), in this regard. There, since the defendant claimed that the victim brought the gun to the scene and that the shooting was accidental, and since adequate investigation would have determined the gun was owned by the victim's grandmother, we concluded that defense counsel's failure to pursue the information and introduce evidence regarding ownership of the gun demonstrated his ineffective assistance. Id. at 81. Defendant claims that effective investigation by Cohen would have revealed who provided the information on the scrap of paper, potentially identifying a witness who could have testified the pager at the scene was Trevor Walters's and not defendant's, thus exculpating defendant.
First, we note that defendant failed to establish in any way who supplied the information contained on the scrap of paper to Cohen. Without that rudimentary foundation, it is difficult to see how the evidence would have assumed admissible form. But, more importantly, assuming arguendo that adequate investigation and preparation would have resulted in some witness testifying that the pager number on the scrap of paper was Trevor Walters's pager number, the same number taped to the pager found at the homicide scene and now in evidence, we fail to see how that would have altered the result in this case.
Grace testified that defendant and Walters were "like brothers." She testified that the pager number was given to her by defendant and that it was that number she used in an attempt to contact him on the night of the murder. In her statement to Folks, although she attempted to explain this away during her testimony before the jury, Grace claimed that when she told defendant about Walters's death the following morning, defendant questioned how that could be and acknowledged being with Walters "last night." As a result, unlike the situation in Sexton, the actual ownership of the pager was less critical because even if owned by Walters, all these other circumstances would have permitted a very persuasive inference to be drawn that defendant was with Walters on the night of the homicide. Taken in conjunction with all of the other evidence of defendant's guilt, we agree with Judge Natal that defendant "failed to satisfy the prejudice prong of Strickland," and was not entitled to relief.
Defendant next argues that appellate counsel provided ineffective assistance because he failed to include Judge Natal's denial of defendant's motion to reopen as an issue on direct appeal. A claim of ineffective assistance of appellate counsel is reviewed using the Strickland standards. 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). Judge Natal considered this claim and concluded that defendant "offered no affidavits or certifications to support this claim," and, thus, failed to make a prima facie case in this regard.
We agree and also add that for the reasons set forth above, even if the claim was made, it would not have altered the result of defendant's appeal.
Lastly, defendant argues that the matter should be remanded because PCR counsel failed to advance any arguments in support of defendant's pro se claims. This argument lacks sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2). We only add that Judge Natal considered all of the arguments raised by defendant in his pro se application and found no merit in any of them. We fail to see any reason to remand the matter for further proceedings.