January 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
AJAMU SHOMARI, F/K/A CRAIG PRISTELL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 83-06-2297.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 29, 2007
Before Judges Stern, C.S. Fisher and C.L. Miniman.
The State appeals by leave granted from an order on application for post-conviction relief (PCR) that vacated the judgment of conviction and ordered a new trial. This was the fourth PCR petition filed over the last twenty-three years by defendant Ajamu Shomari, who was formerly known as Craig Pristell and used the name Al Craig as a street name. Because we conclude that a new trial should not have been ordered, we reverse the order vacating the judgment of conviction.
Defendant was charged in a three-count indictment with murder, third-degree unlawful possession of a handgun and second-degree possession of a handgun for an unlawful purpose. His first trial ended with a hung jury and a second trial was conducted. Defendant was convicted on all three counts and was sentenced to life in prison on the murder conviction with no possibility of parole for thirty years. The third-degree gun charge was merged with the second-degree gun charge and he was sentenced to a term of ten years concurrent to his life sentence with no possibility of parole for five years. The sentence on the second-degree gun charge has been fully served. The issues presented on this fourth PCR are best understood in the context of the evidence proffered at trial.
On March 23, 1983, the victim, Eugene Richardson, was shot in the back and killed on North Ninth Street in Newark. At trial Eddie King, Jr., who gave a statement to the police on the day of the murder, testified that there was an incident that day between Richardson and Eddie King's brother, Ricky King. Ricky told Eddie that he was having problems with Richardson, who was accusing Ricky of stealing pills worth about $400. Ricky and Eddie were in front of their house with Eddie's friend when they entered a car and drove around the corner to meet co-defendant John Singleton, whom Eddie identified in court. Defendant, whom Eddie also identified in court, was driving a black Thunderbird with a burgundy top and burgundy interior and he pulled up to the curb down the street from where Ricky, Eddie and his friend were parked. Singleton was sitting on the passenger's side and the victim was in the back.
Defendant, Singleton and the victim got out of the car and walked over to Eddie, Ricky and their friend. Singleton spoke with Ricky and Eddie. Defendant was leaning against a wall with his hands in his coat pockets and was present during their discussion. The victim was standing five to eight feet away in an alley on the side of a bar, Hawk's Patio, on North Ninth Street. Two witnesses, Percilla Smith and Denise White, were standing nearby. Singleton, to whom the allegedly stolen pills belonged, told Eddie and Ricky that he knew Ricky did not steal the pills and that he knew that Gene had "beat him." Defendant then said "let's shoot the nigger." Singleton continued to talk to Eddie and Ricky and then Eddie went home. Smith, White and Ricky remained at the location of this discussion. Sometime later Ricky returned home and told Eddie that someone had been shot.
Smith testified that earlier in the day on March 23, 1983, she and Ricky, her boyfriend at the time, met her friend Denise White near Hawk's Patio. Ricky left and went to his mother's house, rejoining them later. While he was gone, defendant, Singleton and Richardson argued at the bar about a stash that had been stolen from Singleton. Smith heard Singleton say he "wanted his stuff" and that "you can't stick up a stickup man."*fn1
Richardson told Smith that "if Ricky has that boy's stuff, you better tell me because these boys is not playing." Richardson blamed Ricky for stealing Singleton's stash.
Smith went outside two or three minutes after the men left the bar and observed the continuation of the argument. When Ricky returned, she told him that Richardson was saying that Ricky had Singleton's stash and Richardson then began arguing with Ricky. Because Ricky was scared, he ran back to his mother's house with defendant, Singleton and Richardson in pursuit part of the way. Shortly after leaving Ricky returned to the scene of the argument with Eddie and his friend.
At some point while defendant and Singleton were outside, Smith overheard Singleton say he was "going to squeeze one off in [Richardson] if he don't get his stuff." The last time Smith saw Singleton and defendant they were walking down the block with Richardson. Smith walked around the corner and heard three shots fired but did not see what happened. No more than a minute had elapsed. She saw Ricky standing in the street and she walked down to see what happened and found Richardson laying on the sidewalk across the street from the bar.
White testified that she was present at the scene on the day of the murder and heard defendants arguing inside the bar. When they were outside, Singleton was telling defendant to "just forget about it" but defendant said "I am going to cap that nigger." The police arrived at the scene but soon left. White was talking to Singleton, telling him not to act stupid or be foolish. Defendant told Richardson, "I am going to mess you up . . . if you don't get my stuff." Then White saw defendant, whom she identified in court, take Richardson up the street. She saw that defendant had a gun. When White heard the first shot, she and Singleton ran.
Another witness to the shooting, Frank Marian, who was 61 at the time of the murder, also testified at trial. On March 23, 1983, he was repairing North Ninth Street in Newark after Public Service Electric & Gas Co. had repaired a gas line in the street. Marian heard shots and saw Richardson running toward him yelling that he had been shot. Richardson fell on the sidewalk at the foot of the machine where Marian was working. Marian looked in the direction of Richardson's path of travel and saw the smoke of the gun and two men, one in the street by the driver's side of a black Thunderbird and the other on the sidewalk by the passenger side of the car. The two men got into the car and took off in the direction of Orange Street. The driver had a gun. Marian was not able to identify defendant or Singleton in court. He could only testify that the two men he saw were black.
In addition to the assistant medical examiner, two police officers testified. The first was Detective Gary Miller from the Newark Police Department. He testified that he arrested defendant on April 27, 1983, at which time he seized defendant's black Ford Thunderbird. Singleton had been arrested the day before but had been a suspect since Eddie and Ricky gave statements to the police prior to the issuance of the April 5, 1983, warrant for Singleton's arrest. When Miller was recalled to the stand, the prosecutor showed him an address book that the police recovered from Singleton's person after his arrest. Miller testified that he got the telephone number of Al Craig from Singleton's address book, which led to the arrest of defendant. When defendant was arrested, he admitted that he used the alias of Al Craig. During cross-examination by Singleton's attorney, the following exchange, which is a predicate for the issues before us, occurred:
Q: And at the time you looked into the book prior to speaking to Mr. Singleton or did you speak to Mr. Singleton first?
A: We spoke to Mr. Singleton first.
Q: And after you spoke to Mr. Singleton, you noticed that there was the name of Al Craig in the address book, is that correct?
A: After he told us who the person involved - - - Defendant's attorney objected, citing Bruton*fn2 and Young.*fn3 The trial judge sustained the objection, but he did not instruct the jury to disregard the question and answer at that time. Immediately thereafter, defendant's attorney cross-examined Miller, and the following testimony was elicited:
Q: Isn't it true that before you effectuated the arrest of Craig Pristell you had already heard the name Al Craig, isn't that true?
Q: Isn't it a fact that the arrest sheet under the box, aliases in the answer to the aliases, Al Craig came not from Craig Pristell but from what you already knew about the investigation?
A: No, we always ask a person their street names or attributes and nicknames.
Q: Are you saying he said Al Craig?
After the police officer who secured the address book from Singleton's person testified, the prosecution rested.
Defendant took the stand in his own defense. He admitted to being on North Ninth Street on the day of the murder, owning a black and red Thunderbird, knowing Singleton and seeing him that day. Singleton asked him for a ride. Defendant claimed that Ricky was arguing with Richardson and that he and Singleton got in his car and left the scene before any shooting. He claimed that the last time he saw Richardson he was still arguing with Ricky. He denied using the alias Al Craig or telling the police that he did so. He did admit to giving his phone number to Singleton that day and that Singleton wrote it in his book. He did not know why Singleton wrote the name Al Craig next to his telephone number. He denied shooting and killing Richardson and denied even knowing him. He denied making any of the statements attributed to him. And he denied seeing Singleton shoot Richardson.
The prosecution called Ricky King for rebuttal. He testified on direct that he saw defendant fire the gun that shot and killed Richardson and identified defendant in court. On cross-examination he acknowledged that he had previously denied under oath that he had observed the shooting and never admitted to seeing the shooting until September 19, 1983. His testimony was generally consistent with that of his brother and the other eyewitnesses.
The issues before us are also predicated on the prosecutor's summation during which he made the following remarks:
When Mr. Singleton was arrested on the 26th, the police received certain information from him, a few hours after he was arrested. And they took him first to the robbery squad, then to the homicide squad a few hours after that, what did the police do. They are able to go out and make an arrest of Al Craig and Mr. Pristell, whatever name you want to use. And the personal address book, defense wanted some hard evidence which you can take into the Juryroom.
Well you have it here in the personal address book taken off of Mr. Singleton when he was arrested. There is a name and a phone number. And the phone number and the name Al Craig and it is Craig Pristell's phone number in that book. Now Mr. Pristell has to try and explain that because he has got up and testified, I only knew him for two months and I was giving him a ride. That is his story, OK. He has got to explain the phone number in the book. And the only way he can try and explain it is by him getting up and testifying and saying, well, just by chance on that day as I gave John Singleton a ride down the street on that day he asked me for my phone number and I gave it to him. That is what he told you. Do you believe that.
Well, when you look at the address book, which by the way the name in the address book being Al Craig with his phone number next to it, the name and address book is the first name in the address book, it is the first name. It is not towards the back of the book or with the last name. But it is the first name in the address book. In fact, you will see Mr. Singleton's mother name is after the name and phone number. His mother's name is after it with her phone number. [W]hat does all this mean.
These men know each other quite well and not only that they are quite important to each other in this drug dealer's world.
And that is what it is, Members of the Jury.
It is a drug dealer's world. And that is what I said, execution, it was an execution.
And these are the executioners. And if you let them go, you are letting two executors go. I am not trying to fool you as I told you before. It is not my job. (Emphasis added.)
No objection was made to this portion of the prosecutor's summation. At the charge conference, defendant's attorney did not request any special instruction with respect to the interrupted answer from Miller and the final charge made no reference to that answer, directly or inferentially.
We reviewed the trial record on direct appeal on July 30, 1986, and affirmed defendant's conviction on all three counts. The Supreme Court denied his petition for certification on May 21, 1987. Defendant, represented by counsel, filed his first PCR petition on January 24, 1987. It was denied by the trial judge on November 13, 1987, and we affirmed the denial on April 21, 1989. Defendant filed his second PCR petition pro se on December 15, 1997, and amended it pro se on August 1, 1997. Counsel was appointed and the trial judge denied the petition on November 13, 1997. On November 22, 1999, we affirmed the denial and the Supreme Court denied defendant's petition for certification on February 29, 2000. Counsel for defendant filed the third PCR petition on February 28, 2001, alleging an illegal sentence with respect to the term of parole ineligibility and asserting that defendant's sentence was more severe than the sentence Singleton received. The new PCR judge generally denied the petition although she did correct credit for time served prior to sentencing and we affirmed on December 5, 2003.
Counsel for defendant filed this fourth PCR petition on July 1, 2004, and another PCR judge granted relief on May 11, 2007. Defendant asserted that he had not received effective assistance of counsel at trial in multiple respects. He also asserted that his appellate counsel on direct appeal was ineffective in that this attorney failed to raise a number of pertinent issues. The petition was supported by defendant's ten-page certification dated April 28, 2006, with attached exhibits. It was supplemented by defendant's nineteen-page and twenty-two-page certifications, both dated April 28, 2006.
In his written opinion granting post-conviction relief, the fourth PCR judge reviewed the lengthy procedural history of this case, including the issues raised by defendant at each step of the proceedings and set forth the evidence adduced at trial. He carefully reviewed the procedural bars to relief found in R. 3:22-4, -5 and -12. He concluded that all but a few of the issues raised by defendant were procedurally barred, rested "on factual allegations outside the trial record, . . . require[d] evidentiary hearings regarding conduct occurring up to twenty-four years ago, involve[d] conduct that can be easily explained by trial strategy . . ., or [we]re bare allegations without any accompanying factual support."*fn4 However, he determined that the following constitutional claims were not procedurally barred in any respect:
(1) ineffective assistance of Trial Counsel for failing to request mistrials when the jury twice heard prejudicial hearsay testimony, first during witness testimony and second during the closing arguments, (2) plain error when the Prosecution used the prejudicial hearsay testimony during closing arguments, and (3) Appellate Counsel for failing to raise the grounds of plain error.
Citing State v. Bankston, 63 N.J. 263 (1973), and more recent cases, the judge concluded that plain error occurred during the trial (1) when the jury heard Detective Miller imply that Singleton had inculpated defendant and (2) when the prosecutor referred to that testimony during his closing argument. The judge found,
The remarks created a reasonable doubt as to the effect on the jury's deliberations and the subsequent finding of guilt. The reliability of the verdict is further called into question based on the jury's additional exposure to the inadmissible statements through Detective Miller's testimony, the lack of overwhelming evidence, and the first trial ending in a hung jury.
Pursuant to Bruton, supra, 391 U.S. at 123, 88 S.Ct. at 1620, 20 L.Ed. 2d at 476, the judge also concluded that defendant's Sixth Amendment right to confront the witnesses against him "was violated due to the admission of the co-defendant's inculpating statement."
The PCR judge determined that defendant had established the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), because trial counsel twice failed to request a mistrial with respect to Miller's testimony and the prosecutor's reference to that testimony in his summation. He also found that defendant had established Strickland's second prong because there was a reasonable probability that, but for counsel's failures, the result of the proceeding would have been different and pointed out that the first trial, without these errors, resulted in a hung jury. He concluded that a mistrial would have been granted and, had counsel on the direct appeal raised the issue, that we would have reversed the conviction and ordered a new trial.
The State filed an appeal as of right and sought a stay pending appeal. We granted a stay on June 8, 2007, and treated the notice of appeal as a motion for leave to appeal, which we granted on June 21, 2007, and required an accelerated briefing schedule. The State raises the following issues for our consideration:
POINT I - THIS COURT SHOULD REVIEW THE LEGAL CONCLUSIONS OF THE PCR COURT DE NOVO.
POINT II - PETITIONER IS PROCEDURALLY BARRED FROM SEEKING PCR.
a. DEFENDANT HAS NOT SHOWN ANY COMPELLING, EXTRAORDINARY REASON WHY HE SHOULD BE ENTITLED TO ENDRUN R. 3:22-12'S FIVE-YEAR TIME BAR.
b. DEFENDANT IS BARRED BY R. 3:22-4 FROM RAISING THE ISSUES HE NOW ASSERTS BECAUSE THEY COULD HAVE BEEN ASSERTED ON DIRECT APPEAL.
POINT III - THERE WAS NO PLAIN ERROR IN THE TRIAL CAPABLE OF PRODUCING AN UNJUST RESULT.
POINT IV - PETITIONER HAD EFFECTIVE ASSISTANCE OF COUNSEL.
The scope of our review of an order determining a PCR petition has been succinctly stated by our Supreme Court:
Under established rules of appellate review, we are not bound by and give no deference to the legal conclusions of the PCR court. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002) (noting that questions of law are subject to de novo review). Typically, "[w]e give deference to the trial court's factual findings . . . 'when supported by adequate, substantial and credible evidence.'" Id. at 549 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). And for mixed questions of law and fact, we give deference, under Rova Farms, to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings. State v. Marshall, 148 N.J. 89, 185 (1997). [State v. Harris, 181 N.J. 391, 415-16 (2004).]
We need not address the procedural issues raised because we are satisfied that defendant was not deprived of the effective assistance of counsel. In order to secure relief after conviction based on ineffective assistance of trial counsel, a defendant must comply with the two-part test of Strickland. First, the defendant must show that counsel's performance was so deficient that the attorney "was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, the defendant must demonstrate that professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. More specifically, the Supreme Court stated:
First, the 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 the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
This two-prong test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58-60 (1987), which emphasized that there must be a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61.
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694); see also State v. Arthur, 184 N.J. 307, 318-19 (2005). 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.
Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Also, counsel's effectiveness must be assessed based on the totality of the circumstances taking into consideration the evidence that the State puts forth regarding the guilt of the defendant. State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).
Our Supreme Court emphasized that the second prong of Strickland requires that there be 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 (quotations omitted). A presumption is not appropriate in the second prong of the Strickland/Fritz test unless the performance of counsel had "egregious shortcomings." Id. at 61.
The PCR judge concluded that defendant's trial counsel was ineffective because he failed to move for a mistrial following the plainly erroneous admission into evidence of Miller's interrupted statement and the prosecutor's alleged reference to it in his summation contrary to the mandate of Bankston and Bruton. See also Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) (admission of testimonial hearsay against defendant violates the Confrontation Clause of the Sixth Amendment). We disagree. Miller only stated "After he told us who the person involved - - -." Defense counsel objected to the testimony Miller began to offer, asserting that it was a violation of Bruton and Young. The trial judge sustained the objection and the answer was never completed. Furthermore, defendant's counsel then immediately cross-examined the detective, asking him if he had heard the name Al Craig before he arrested defendant. Miller replied "Yes," and it was then that Miller made the connection between the name "Al Craig" and the defendant. We do not find Miller's testimony, interrupted as it was with a sustained objection, so egregious that an irremediable Bruton or Bankston violation occurred.
The alleged failure to seek a mistrial based on the prosecutor's summation also does not require a new trial because his statements could readily be understood to refer to the information in the address book. The allegedly offensive remark was that "the police received certain information from [Singleton], a few hours after he was arrested." Defendant was known to some of the witnesses by his street name, Al Craig. This name and a telephone number was the first entry in Singleton's address book. Defendant's actual phone number matched the number next to the name Al Craig. The portion of the prosecutor's summation to which defendant objects is embedded in an argument discussing Singleton's address book. Thus, the prosecutor's reference to information obtained from Singleton could readily be understood to refer to the information in the address book, i.e., Al Craig's phone number. It is perfectly reasonable to conclude that defense counsel, who had objected to Miller's testimony, did not object to this portion of the prosecutor's summation because he understood the remarks as relating to the address book. Defense counsel certainly objected to other portions of the prosecutor's summation, so he clearly was attentive to what was being said. In any event, even if we were to construe that portion of the prosecutor's summation as violating Bankston and Branch, the trial judge specifically instructed the jury that remarks by counsel were not evidence and should be disregarded if they did not coincide with the jury's recollection of the evidence.
We also conclude that the second prong of Strickland has not been satisfied. Bankston and Branch might require a new trial only if the evidence was not overwhelming and no physical evidence linked defendant to the crime. However, here, defendant was identified by Eddie as the person who said "let's shoot the nigger." Smith identified defendant as the person with Singleton and testified that after the argument defendant and Singleton were walking down the street with Richardson. White testified that defendant told Richardson "I am going to mess you up" and told Singleton "I am going to cap that nigger." White also saw defendant, while holding a gun, take Richardson up the street. Marian testified that the driver of the black and burgundy Thunderbird was holding a smoking gun right after Richardson started running toward him and that he saw defendant get into his car. Finally, Ricky testified that he saw defendant shoot Richardson. This evidence was overwhelming. Additionally, defendant's black and burgundy Thunderbird provided physical evidence linking him to the crime.
Thus, we are not persuaded that the result would have been any different had these limited remarks not been made, irrespective of the initial hung jury. We have reviewed the record of this trial on four prior occasions and even remarked on the direct appeal that "the evidence of defendant's guilt was significant." Indeed, the vast weight of the evidence establishes the guilt of defendant and thus we cannot conclude that exclusion of Miller's interrupted answer and the prosecutor's remarks would have resulted in an acquittal. We find it significant that the issues which gave rise to PCR were not raised in three prior PCR petitions and, after reviewing the record, we cannot conclude that prior counsel were ineffective for not doing so or that the issues now raised give rise to the right to a new trial following a conviction entered twenty-three years ago.