January 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAURUS LORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-06-1112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Parrillo and Alvarez.
Defendant, Taurus Lord, appeals from a November 10, 2005 order denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of armed robbery, N.J.S.A. 2C:15-1; possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and 2C:5-2; and receiving stolen property, N.J.S.A. 2C:20-7. Defendant was sentenced to thirteen years imprisonment subject to the 85% parole disqualifier on the armed robbery count, as well as a concurrent six-year sentence subject to three years parole ineligibility for the firearms possession count, into which the handgun count was merged. The conspiracy and stolen property offenses were merged into the armed robbery conviction. Defendant's convictions were affirmed on direct appeal. State v. Lord, No. A-2477-01 (App. Div. July 3, 2003). His petition for certification was denied. State v. Lord, 178 N.J. 33 (2003).
At trial, Travis Pittman testified that on December 21, 1999, he was leaving a shopping mall when a "bluish-grayish" van covered in compound paint approached him from the opposite direction. A man wearing a bandanna over his face jumped out of the van and pointed a handgun at Pittman. He was told to lie down and directed by his assailant to hand over his coat and money. The assailant then walked away. When Pittman stood up and looked behind him, both the van and the man were gone.
Minutes later, while discussing the incident with friends, Pittman saw the van driving down the street. He flagged down a passing police car, reported the robbery, and described the vehicle and the perpetrator. Several officers responded and the van was quickly located. When the vehicle was stopped, the driver attempted to get out and was ordered to remain seated. Meanwhile, defendant, who was the passenger, jumped out and fled on foot. While several officers gave chase, others searched the vehicle. They found Pittman's wallet, his coat, and several hats. During the chase, defendant was seen discarding a handgun which was promptly recovered. Pittman identified defendant at the station based on a blue bandanna which was around his neck at the time of the arrest, as well as "something" about his shoes.
On PCR, defendant contended, among other things, that his trial attorney's failure to effectively pursue a motion to suppress evidence which had been filed on his behalf constituted ineffective assistance of counsel, that the jury instruction as to accomplice liability was fatally flawed, and that his sentence was excessive due to the disparity with the co-defendant's sentence. The PCR judge found that the issues either could have been addressed on direct appeal, were addressed on direct appeal, or, even when the facts were considered in the light most favorable to defendant, no prima facie claim warranting an evidentiary hearing was established. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Defendant raises the following points on appeal from the PCR denial:
MR. LORD WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
(A) TRIAL COUNSEL FAILED TO PROSECUTE MR. LORD'S MOTION TO SUPPRESS EVIDENCE.
(B) TRIAL COUNSEL FAILED TO MEET WITH MR. LORD IN A MEANINGFUL CONFIDENTIAL SETTING.
(C) TRIAL COUNSEL FAILED TO OBJECT TO THE ACCOMPLICE LIABILITY JURY INSTRUCTION. POINT II
MR. LORD WAS DEPRIVED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
1. THE TRIAL COURT ERRED IN DENYING MR. LORD'S MOTION TO SUPPRESS.
2. MR. LORD WAS DEPRIVED HIS RIGHT TO DUE PROCESS BY THE TRIAL COURT FAILING TO ABIDE BY THE RULES OF COURT CONCERNING HIS MOTION TO SUPPRESS. (NOT RAISED BELOW)
3. THE TRIAL COURT DENIED MR. LORD HIS RIGHT TO TRIAL BY AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BECAUSE OF THE IMPROPER ACCOMPLICE LIABILITY JURY INSTRUCTION. (NOT RAISED BELOW)
4. THE SENTENCE IMPOSED UPON MR. LORD WAS EXCESSIVE DUE TO THE GROSS DISPARITY OF THE SENTENCE WITH THE CO-DEFENDANT. (NOT RAISED BELOW)
DEFENSE COUNSEL'S CUMULATIVE ERRORS ESTABLISH MR. LORD'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE PCR COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.
THE PCR COURT ERRED BY RULING THAT THE SUPPRESSION AND JURY INSTRUCTION ISSUES ARE PROCEDURALLY BARRED PURSUANT TO R. 3:22-4.
In his pro se petition for post conviction relief, defendant contended he is entitled to relief because:
I. Ineffective Assistance of Counsel
a. Failure to prepare for trial
II. Disparity in Sentencing Between Defendant and Co-defendant Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692. The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, ¶ 10. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, defendant must show that counsel's performance truly was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The "benchmark" for assessing ineffective assistance of counsel claims is whether counsel's professional errors "'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).
Prior to trial, instead of obtaining a return date for the suppression motion, counsel merely asked about it in the midst of addressing other matters and the judge replied, "no suppression issue exists." The following exchange took place:
[Counsel]: Right. We filed a motion to suppress - to suppress the evidence that was - which was taken as a result of the armed robbery, Judge.
The Court: The Gun?
[Counsel]: No, the clothing and something which was taken in the van, Judge.
The Court: Well that was not the - - [Counsel]: That's why I'd like your Honor to rule.
The Court: I would not suppress that. I mean obviously, the gun was abandoned property, so that would not be something that I would suppress. And once the van had been identified as being involved in a robbery, and the occupants are going to be placed under arrest, the police had the right - had probable cause to search that van and seize anything that would be relative to the crime. Okay. Anything further?
[Counsel]: I believe not, Judge.
The manner in which counsel acquiesced to the motion being given such cursory consideration was professional error which satisfied the first prong of the Strickland test.
Even if the motion had been fully addressed, however, the outcome would have been the same. First, at the time of the stop, there was reasonable and articulable suspicion that the occupants of the vehicle were involved in unlawful activity. The stop was therefore lawful. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979).
An exception to the warrant requirement arises when probable cause and exigent circumstances exist. State v. Nishina, 175 N.J. 502, 515 (2003) (citing State v. DeLuca, 168 N.J. 626, 632-33 (2001)). Probable cause is defined as "'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Pittman's description of the unusual appearance of the vehicle in which the robber was a passenger matched the vehicle stopped by police. Moments after Pittman told the officer the direction in which the van was traveling, it was detained. Defendant, who was wearing a blue bandanna around his neck at the time of the stop, fit the description of the man who wore a bandanna during the robbery. Certainly, the officers had probable cause to search the vehicle based on their lawful observations once it was lawfully stopped.
"[T]here is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause." State v. Cooke, 163 N.J. 657, 670 (2000) (citing State v. Demeter, 124 N.J. 374, 381 (1991); State v. Patino, 83 N.J. 1, 7 (1980)). But an exception to the warrant requirement is made where "unanticipated circumstances that give rise to probable cause occur swiftly," in other words, where exigent circumstances are also present. Id. at 672 (citing State v. Alston, 88 N.J. 211, 234 (1981)). Here, exigent circumstances abounded. The vehicle was stopped on a public street minutes after the commission of an armed robbery. Although the driver, who was also under suspicion, was detained, defendant fled the scene. The "degree of exigency" was heightened because police were investigating events occurring close in time to the stop. Id. at 673. Therefore, this search, conducted by officers who had probable cause and exigent circumstances, falls within a valid exception to the warrant requirement. Id. at 671.
The seizure of the handgun defendant threw on the ground as police gave chase was also valid. When a person fleeing police discards property while in flight, it is lawful for the authorities to seize it. State v. Morrison, 322 N.J. Super. 147, 155-56 (App. Div. 1992).
In summary, although it was attorney error that the suppression motion was not formally addressed, the items taken from the van and the gun would not have been suppressed anyway. Because the argument fails to meet the second requirement of Strickland, neither trial nor appellate counsel were ineffective.
Defendant also contends that he was ineffectively represented because his attorney did not meet with him in private but only in a holding cell in the presence of another inmate. Defendant claims this constituted error because defendant could not "speak privately with trial counsel about the decision to testify." The trial judge, however, specifically gave defendant the opportunity to speak privately with his attorney before he testified and the record suggests that defendant did so. His attorney's billing records also reflect that the attorney spent three hours interviewing defendant. More significantly, however, defendant fails to explain how this claimed failure on the part of counsel affected any aspect of the trial or its outcome.
In a similar vein, defendant argues trial counsel was ineffective because he failed to prepare for trial. No connection is made, however, between this alleged failure and something in the record which established prejudice to defendant. This claim is also without merit.
Defendant maintains that the accomplice liability instruction was erroneous, and that trial and appellate counsel were ineffective because they failed to raise the issue. In State v. Weeks, 107 N.J. 396, 405 (1987), the Court stated that jury instructions must explain that accomplices must "share the purpose to commit an armed robbery with a weapon." The jury instruction, not objected to at trial, did not indicate that co-defendants must have a shared purpose in order to be convicted for armed robbery. In fact, we earlier reversed the conviction of the co-defendant, finding that the jury charge did not "specifically instruct the jury that the principal and the accomplice could be convicted of different grades of robbery or that in order for an alleged accomplice to be convicted of armed robbery, his shared purpose had to include use of the weapon as well as the purpose to commit the robbery." State v. King, No. A-2166-01 (App. Div. July 3, 2003) (slip op. at 5).
But this defendant was identified by the victim as the principal. After fleeing the van, defendant discarded a handgun similar in appearance to the one described by Pittman. As stated in King, supra, slip op. at 4, "the State's proofs were strong that Lord had committed an armed robbery." Although the instruction may have been flawed, it did not affect the outcome and therefore fails to meet the second prong of the Strickland test.
In his PCR motion, defendant objected that his sentence to thirteen years with an eighty-five percent parole disqualifier was grossly disproportionate to that of his co-defendant, whose sentence was eleven years, subject to an eighty-five percent disqualifier. A permissible sentence will not be considered "'erroneous merely because a co-defendant's sentence is lighter.'" State v. Roach, 146 N.J. 208, 232 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)), cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Defendant and co-defendant were not equally culpable. As the sentencing court told defendant: "[i]n terms of your role in the offense you were the leader . . . . [Y]ou were the one who was willing to step out of the van, hold the gun, threaten the kid, take his stuff." Dissimilar culpability warranted the dissimilar sentences imposed.
The judge addressed sentencing arguments, including the disparity between defendant and co-defendant on the merits, which had been comprehensively considered in defendant's direct appeal. As we said there, "the trial judge appropriately weighed the aggravating and mitigating factors as supported by the evidence. The sentence imposed was within Code Guidelines, and we have no warrant to interfere with the court's exercise of its sentencing discretion." Lord, supra, slip op. at 6-7. The sentence cannot be revisited as R. 3:22-5 bars reconsideration of grounds previously considered on direct appeal.
Defendant also contends that the cumulative errors of trial and appellate counsel warrant reversal. No prejudicial errors occurred - cumulative or otherwise - which would warrant post-conviction relief.
Upon post-conviction review, "[a] petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). We concur with the motion judge that defendant did not establish a prima facie case.
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