January 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL AMMEAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-09-01197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Winkelstein and Yannotti.
Defendant Michael Ammean appeals from an order entered by the Law Division on March 20, 2006, which denied defendant's petition for post conviction relief (PCR). We affirm.
In September 1996, defendant and co-defendant Debbie Kohlhepp (Kohlhepp) were charged under a Middlesex County indictment with robbery, N.J.S.A. 2C:15-1 (count one); aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four).
Defendant entered a guilty plea on February 5, 1998 but failed to appear for sentencing in April 1998. Defendant was arrested on a warrant in Texas in April 2000, and returned to New Jersey upon his extradition. The court refused to accept the plea agreement. Defendant entered another guilty plea on September 5, 2001, and thereafter filed a motion to vacate the plea. The court entered an order on January 31, 2002, allowing defendant to withdraw his plea.
Defendant was subsequently tried before Judge Jane B. Cantor and a jury. The evidence presented at trial established that in the early morning hours of June 29, 1996, Edmundo Gonzalez (Gonzalez) and Lildio Luiz (Luiz) were in a tavern in Sayreville. They were seated at the bar, near defendant and Kohlepp. Kohlepp testified that she and defendant decided that she would pretend to be a prostitute so that defendant could rob Gonzalez and Luiz in order to obtain money to purchase drugs.
Defendant approached Gonzalez and told him that Kohlepp would have sexual relations with him for money. Gonzalez refused the offer, but Luiz indicated that he was interested.
Defendant, Kohlepp, Gonzalez and Luiz left the tavern and drove to a motel on Route 18. There were no rooms available at that motel, so they decided to go to another motel on Route 1. Gonzalez apparently changed his mind and decided that he wanted to go home. He made a U-turn on Route 18 and headed towards New Brunswick. Defendant began to strike Gonzalez, and demanded that Gonzalez and Luiz give him their money. Defendant told Gonzalez to stop the car but Gonzalez could not find a place to stop so he continued driving. Defendant found a putty knife on the floor of the car and slashed Gonzalez's face and neck.
Defendant again told Gonzalez stop the car and repeated his demand that Gonzalez and Luiz give him their money. Gonzalez pulled off the road at the Rutgers crew boat house on Route 18 in New Brunswick. Luiz jumped out of the car. Gonzalez tried to get out of the car but defendant stopped him, again slashed his face with the putty knife, and grabbed his wallet. Defendant and Kohlepp fled across Route 18 towards George Street. They stopped by a stream, where defendant took off his shirt, wiped the shirt in the water, and used it to remove the blood from his body. Defendant and Kohlepp began to walk south on George Street, away from downtown New Brunswick.
Gonzalez and Luiz ran to a filling station and called the police. The police responded to the call. Gonzalez was taken to the hospital, where he received more than one hundred stitches to close the wounds. The police radioed an alert for the two suspects. A police officer was driving north on George Street and saw defendant and Kohlepp walking south. He heard the police broadcast and made a U-turn.
Defendant and Kohlepp saw the officer turn his car around and they fled into a wooded area near Douglass College. The officer pursued them and found defendant's wet shirt on a retaining wall. Other officers responded to the scene and went into the wooded area where they apprehended defendant and Kohlepp. They did not have any money in their possession.
Defendant and Kohlepp were brought to the hospital, where Gonzalez identified them as the perpetrators of the assault and robbery. Later, the police returned to the parking lot near the Rutgers boat house and found Gonzalez's wallet in a patch of bloody grass. Gonzalez identified the wallet as his and stated that it had contained about $60.
The jury found defendant guilty on all five counts. At sentencing, the judge merged the weapons convictions with the conviction for armed robbery, and imposed an eighteen-year term of incarceration, with a nine-year period of parole ineligibility. The judge also imposed a consecutive eight-year term of imprisonment for the aggravated assault conviction. Defendant was ordered to make restitution in the amount of $14,404.39, and appropriate statutory assessments, fees and penalties were imposed.
Defendant filed a direct appeal and his counsel raised the following arguments:
THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF DEFENDANT'S PRIOR CRIMINAL CONVICTION.
THE TRIAL COURT IMPROPERLY RESTRICTED DEFENSE COUNSEL'S CROSS EXAMINATION OF DEBBIE KOHLHEPP'S TEN MONTH SILENCE.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. U.S. CONST. AMEND. VI.
SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL.
DEFENDANT'S SENTENCE WAS MANISFESTLY EXCESSIVE.
Defendant filed a supplemental pro se brief in support of his appeal, in which he raised the following contentions:
DEFENDANT'S CONVICTIONS SHOULD BE SET ASIDE AND THE INDICTMENT MUST BE DISMISSED, AS THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A FAIR TRIAL BY THE "CONSPIRACY" TESTIMONY OF KOHLEPP AND BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A LIMITING INSTRUCTION, OR GIVE AN INSTRUCTION ON KOHLHEPP'S BIAS/INTEREST.
We affirmed defendant's conviction but concluded that the judge erred by imposing consecutive sentences for the armed robbery and aggravated assault convictions. State v. Ammean, No. A-6277-01 (App. Div. Feb. 9, 2004). In our opinion, we commented on defendant's claim that he had been denied the effective assistance of trial counsel:
The record before us discloses no adequate basis for defendant's assertions of ineffective assistance of trial counsel. Without prejudice to defendant's right to pursue his post-conviction relief remedy, see State v. Preciose, 129 N.J. 451, 460 (1992), we cannot discern, on the basis of the record presented thus far, any reason for reversing the convictions on inadequate assistance grounds. [Id., slip. op. at 3.]
We remanded the matter to the trial court for entry of an amended judgment of conviction stating that the sentences imposed for armed robbery and aggravated assault should be served concurrently. Id., slip. op. at 5. The Supreme Court subsequently denied defendant's petition for certification. State v. Ammean, 180 N.J. 452 (2003).
On November 10, 2004, defendant filed a pro se petition for PCR. In his supporting certification dated October 21, 2004, defendant asserted that his trial counsel failed to properly investigate the criminal backgrounds of Luiz and Gonzalez and erred by failing to "bring this information out" in support of his contention that Luiz and Gonzalez "were setting [him] up." Defendant stated that his counsel erred by eliciting testimony concerning his extradition, which put him "in [a] bad light in the eyes of the jury." In addition, defendant asserted that his trial counsel erred by not seeking a hearing to address what defendant claimed were "excessive penalties and [his] inability to pay."
The matter was referred to the Public Defender, who filed a supplemental brief in support of defendant's petition. In that brief, PCR counsel asserted that defendant had been denied the effective assistance of trial counsel because counsel: 1) did not object to evidence of flight from the jurisdiction; 2) failed to offer defendant's explanation at the N.J.R.E. 104 hearing regarding his flight from the jurisdiction; 3) did not object to the assistant prosecutor's statement that defendant was at large for six years after fleeing the jurisdiction; 4) failed to undertake any pre-trial investigation, which would have allowed counsel to challenge Gonzalez's credibility; 5) did not request discovery as to whether Gonzalez had a criminal record or was in this country legally; 6) failed to inquire as to the nature of Kohlhepp's juvenile detainer that was dropped as part of her plea agreement; 7) did not establish that in the six years from the event until the trial, Kohlhepp never said that she saw defendant take anything from the victims; 8) failed to obtain a copy of the taped transcript of Gonzalez's statement; 9) did not move to suppress defendant's statement to the police; 10) failed to make any argument at the Wade*fn1 hearing; 11) did not object to numerous parts of Gonzalez's testimony and failed to move for a mistrial; 12) failed to ask for a limiting instruction when Kohlhepp alluded in her testimony to defendant's drug use, thereby opening the door to further evidence regarding defendant's drug use; 13) failed to argue against the prosecutor's hearsay objections; and 14) did not object to the State's Clawans*fn2 violation and the shifting of the burden of proof. PCR counsel further argued that defendant was entitled to re-sentencing on the issue of restitution because there had never been a finding that defendant had the ability to pay or would be able to do so in the future. In addition, PCR counsel asserted that the cumulative errors of trial counsel warranted PCR.
Judge Cantor considered defendant's petition at a hearing on January 30, 2006. The judge ordered the State to file a brief responding to defendant's contention that his trial counsel erred by failing to object to the introduction of evidence on his flight from New Jersey and the court's instruction to the jury on flight. The judge found that defendant's other contentions were without merit and did not warrant PCR.
The hearing continued on March 9, 2006. The judge found that, although she would not have charged flight if she "had to do it again," counsel's failure to raise the issue would not have led to a different result because the evidence of defendant's guilt was overwhelming. The judge stated:
I . . . went back and looked at the evidence against the defendant with regard to the robbery. We've got the victim who identifies his wallet as the bloody wallet which was found by the officers in the blood stained grass. We have the co-defendant who is clearly the main witness against the defendant and she pled to conspiracy of theft from a person. So, her plea, in and of itself, places the theft in issue before the [c]court, but she goes beyond there and says that they had planned to take the money before this incident began, that was their intention when they got in the car, that she saw [defendant] grab the wallet from the driver and grab the passenger and demand money and the wallet from the passenger. You have a[n] armed robbery going on of both the driver and passenger . . . clearly put in by the co-defendant who places herself at risk when she takes the plea to the same charge. I think it's compelling evidence. I think that when we have the shirt of the defendant, the bloody shirt in the woods, it's not a hard jump to say that the money disappeared during that same trek when the shirt, the bloody shirt disappears.
I cannot find that [the flight] charge would have changed the outcome of this trial. I am going to deny your application.
The judge entered an order on March 20, 2006, denying defendant's petition. This appeal followed.
Defendant argues that the judge erred by finding that he was not denied the effective assistance of counsel at trial. He maintains that the judge erred by finding that he was not prejudiced by the evidence regarding his flight from New Jersey and by the judge's instructions to the jury on flight. Defendant also argues that the judge erred by denying his other claims of ineffective assistance of trial counsel.
We have carefully considered the record in light of defendant's arguments and the applicable law. We are convinced that the appeal is without merit. We therefore affirm substantially for the reasons stated by Judge Cantor in the decisions that she placed on the record on January 30, 2006, and March 9, 2006. R. 2:11-3(e)(2). We add the following comments.
A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, defendant must show that his counsel "was deficient" and counsel's "deficient performance prejudiced" his 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).
To establish that his attorney was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. In assessing whether counsel was deficient in his representation of a defendant, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quoting from Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). Moreover, to establish that he was prejudiced by counsel's deficient performance, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
At the trial of this matter, defendant was asked on direct examination why he did not appear at a scheduled court date in this case. He replied:
Because at the time I had just purchased a house. It wasn't totally paid for. We still had a pretty high mortgage. My fiancée just had a baby, and I knew that because I took, because I had taken a plea, that I was going to probably do some jail time. What I wanted to do is put her where my family was, which is in Texas, where they could take care of her. I had purchased some land down there and put a mobile home on it and put her there. In the process of [doing] that, she had become pregnant again. . . . I spent a year down there with her and [taking] myself away from the kid, and her being pregnant was a lot harder than I thought it would be. I couldn't do it. I'm guilty of that.
The judge instructed the jury as follows:
There has been some testimony in this case from which you may infer that the defendant failed to appear for a hearing during the pendency of the prosecution of this matter. The defendant denies that the act constituted flight. The question of whether the defendant fled from this jurisdiction after the commission of a crime is another question of fact for your determination. Mere departure from this court's jurisdiction does not constitute flight. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose for leaving was to evade prosecution of the offenses charged in the indictment.
The defendant suggested that he left the jurisdiction to settle his family in Texas and then just stayed. If you find the defendant's explanation credible, you should not draw any inference of defendant's consciousness of guilt from the departure.
If after a consideration of all the evidence you find the defendant, fearing prosecution of this offense, took refuge in flight for the purpose of evading prosecution, you may consider such flight in connection with all other evidence in the case as an indication or proof of consciousness of guilt. It is for you as judges to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given to such evidence in light of all the other evidence in this matter.
Defendant argues that evidence of his flight from New Jersey should never have been admitted and the judge erred by instructing the jury that it could infer consciousness of guilt based on that evidence. Defendant contends that his departure from New Jersey did not show a consciousness of guilt because when he fled from this jurisdiction, he had already pled guilty to aggravated assault.
The State responds to these contentions by arguing that defendant fled from New Jersey in order to avoid sentencing for the offense and his departure shows a consciousness of guilt. The State thus argues that evidence concerning defendant's departure from New Jersey was properly admitted and the judge did not err by charging the jury on flight.
We are convinced that we need not determine whether defendant or the State has the better argument on this point because we agree with the trial judge that the result here would probably have been the same even if the State had been barred from introducing evidence that defendant fled from New Jersey and the jury had not been instructed on flight. If there was error, it was harmless. As the judge found, the evidence of defendant's guilt was overwhelming. Therefore, defendant was not prejudiced by trial counsel's failure to object to the evidence concerning his flight from New Jersey, and the judge's instruction on flight.
Defendant additionally argues that the judge erred because she simply made a "generic" finding that his other claims of ineffective assistance were not meritorious. We disagree.
Judge Cantor made specific findings concerning defendant's claims at the January 30, 2006 hearing. The judge's findings addressed defendant's claims regarding the evidence of his drug use; counsel's failure to subpoena Luiz; counsel's failure to investigate whether Gonzalez had a criminal record and whether he was in this country illegally; counsel's alleged deficient cross examination of Kohlrepp regarding her prior record and her plea agreement; counsel's determination not to seek suppression of defendant's statement to the police; counsel's allegedly erroneous failure to seek a Wade hearing; and counsel's alleged failure to raise a Clawans issue.
Other than suggesting that the judge's findings were "generic," defendant has not presented any argument specifically addressed to the judge's findings. Therefore, defendant has not established that the judge erred by rejecting these claims and finding that he had not been denied the effective assistance of counsel at trial.