January 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STACEY FAULCON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-0153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Winkelstein and Yannotti.
Defendant Stacey Faulcon appeals from an order entered on February 23, 2006, which denied his petition for post conviction relief (PCR). For the reasons that follow, we affirm in part and reverse in part.
Defendant was charged with conspiracy to commit murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6 (count one); murder, N.J.S.A. 2C:11-3a(1) or (2) (count two); attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6 (counts four and six); aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (counts five and seven); unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (counts eight and ten); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (counts nine and eleven).
At the trial, the State presented evidence that on December 29, 1998, at about 10:40 p.m., Phillip Satterfield (Satterfield), Devon Boyd (Boyd), and Willie Graves (Graves) were standing near a pay phone on Pero Street in Orange, New Jersey. Two men, later identified as defendant and Maurice Franklin (Franklin), approached. According to Boyd, both men opened fire. Graves sustained four gunshot wounds and he died as a result of the shot in the back of his head. A bullet entered Boyd's side but passed completely through his body. Satterfield was shot in the lower left leg.
At the time of the shootings, Audrey Dunwoody (Dunwoody) was in her car, stopped at a traffic light, near the intersection where the shootings occurred. Dunwoody testified that she observed a "young man" in a white jacket with his arm extended. She heard a "popping sound" and saw the man run to a white car and get in. Dunwoody saw another young man get into a brown car. She wrote down the number of the license plate of the brown car. The police later determined that the brown car was registered to Franklin.
Mary Ann Lasenberry (Lasenberry), defendant's ex-girlfriend, and the mother of his daughter, testified that on December 31, 1996, two days after the shooting, defendant told her that Tyrone Ingram (Ingram) had been "jumped" at Gregory's nightclub. Defendant said that, as a result of that incident, he drove Ingram and Franklin in Franklin's brown car to a place near a phone booth, where Ingram and Franklin got out and began shooting. Lasenberry testified that when defendant told her this, he was wearing black jeans, a black shirt, and a black "skully." Lasenberry stated that defendant left his jacket at her apartment, which she later turned over to the police.
Defendant was arrested on January 28, 1997. Defendant was advised of his Miranda rights*fn1 and he agreed to give a statement to Arnold Valentin (Valentin), an investigator in the office of the Essex County Prosecutor, in the presence of Detective Aric Webster of the Orange Police Department. In his statement, defendant admitted he was involved in the shootings, along with Franklin and Ingram.
Defendant said that, the day before the shootings, he called Ingram and learned that Ingram and Hakin Johnson (Johnson) had been "jumped" at Gregory's nightclub several days before. On the day of the shootings, Franklin called him and said that he wanted to check on Ingram. Franklin picked up defendant in Franklin's brown automobile. They drove to the house where Ingram's girlfriend resided. They watched television for about an hour and, at around 8:00 p.m., defendant, Franklin, and Ingram left in Ingram's car.
The three men drove to meet Johnson, who was at his girlfriend's house in Newark. The four men discussed the incident at Gregory's. Ingram told the others that they were going to go "up there" and "get" the persons involved. He asked the other men whether they were going to "handle this business or what[?]" Defendant and Franklin responded, "Yes." Ingram lifted his shirt and showed the others two guns. Ingram gave Franklin the .357 and he gave defendant the .38. Defendant said that Johnson had his own gun. Defendant observed the handle of the weapon tucked into the waistband of Johnson's pants. Defendant asked Ingram who was going to get shot and Ingram replied, "whoever is out there."
Defendant, Ingram and Franklin left in Franklin's brown car. Defendant was driving. Franklin was in the front passenger seat and Ingram was in the back. Johnson followed in his white car. They drove on Route 280 to Orange and pulled up in front of a high-rise housing complex. Ingram told defendant to pull over to the curb because he saw three "kids" sitting on a wall next to a phone booth. Ingram told defendant and Franklin to "get them three right there." Defendant and Franklin got out of the car and started shooting. Defendant said he and Franklin both fired four shots.
Defendant stated that the "kids" started to run. He and Franklin got back into the car. Defendant had the gun in his right-hand coat pocket. Defendant said that, after the shootings, everyone in the car was quiet. Defendant told Valentin that on the night of the shootings, he had been wearing "a black skully, beige goose [coat], dark pants, and white sneakers." Defendant said that his "baby's mother" had the beige goose coat. He gave Valentin permission to obtain the coat. Defendant stated that he drove onto Route 280 and exited at First Street, where he stopped the car. Defendant and Franklin gave Ingram the weapons, and Ingram gave the weapons to Johnson. Johnson drove off. The three men went to a bar, where they drank and played pool. They left the bar at 2:00 a.m.
Defendant did not testify at trial. Defendant called Trinette Williams (Williams) as a witness. She testified that she was with Lasenberry a month before the trial and Lasenberry said "she was going to burn [defendant]." On cross examination, Williams said that she referred to Ingram as her brother, even though they were not related. Williams also said that she was "seeing" Franklin at the time of his separate trial on charges arising from the shootings.
Defendant was acquitted on counts eight and nine but convicted on the other counts. The judge sentenced defendant to an aggregate term of life imprisonment, with a fifty-year period of parole ineligibility. Defendant filed an appeal in which he raised the following issues:
THE ACCOMPLICE-LIABILITY INSTRUCTION WAS ERRONEOUS, FAILING TO INFORM THE JURY CORRECTLY HOW VERDICTS FOR LESSER-INCLUDED OFFENSES MIGHT BE RETURNED UNDER STATE v. BIELKIEWICZ, 267 N.J. Super. 520 (APP. DIV. 1993). (Not Raised Below).
THE JURY INSTRUCTION ON CONSPIRACY TO MURDER WAS ERRONEOUS IN THAT IT FAILED TO CONFINE CONSPIRACY TO MURDER TO INSTANCES WHERE THE DEFENDANT'S INTENT WAS TO KILL, NOT MERELY INJURE, THE VICTIM. (Not Raised Below).
THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We affirmed defendant's convictions and the sentences imposed. State v. Faulcon, No. A-6455-97 (App. Div. Sept. 29, 1999). The Supreme Court thereafter denied defendant's petition for certification. State v. Faulcon, 163 N.J. 79 (2000).
On April 13, 2000, defendant filed a pro se petition for PCR, in which he alleged that he had been denied the effective assistance of trial and appellate counsel. On August 9, 2002, defendant filed a motion to amend his petition. Defendant asserted that:
1) THE JURY'S GENERAL VERDICT OF MURDER MUST BE VACATED BECAUSE ONE OF THE PREDICATES FOR CONVICTION (KNOWINGLY CAUSING SERIOUS BOLDILY INJURY, WHICH RESULTED IN DEATH) IS INDISTINGUISHABLE FROM AGGRAVATED AND RECKLESS MANSLAUGHTER;
2) DEFENDANT'S CONVICTION OF MURDER MUST BE VACATED BECAUSE THE JURY DID NOT SPECIFY WHICH THEORY OF LIABILITY IT BASED ITS VERDICT ON AND ONE OF THE TWO THEORIES OF LIABILITY (PRINCIPAL LIABILITY) SUBMITTED TO THE JURY WAS NOT SUPPORTED BY THE EVIDENCE;
3) THE TIRAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL WHEN IT FAILED TO INSTRUCT THE JURY ON AGGRAVATED ASSAULT AS A LESSER OFFENSE IN THE COUNTS CHARGING ATTEMPTED MURDER;
4) TRIAL COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING THAT THE TRIAL COURT CHARGE AGGRAVATED ASSAULT AS A LESSER OFFENSE IN THE COUNTS CHARGING ATTEMPTED MURDER;
5) TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO DISMISS THE AGGRAVATED ASSAULT COUNTS IN THE INDICTMENT ON THE GROUNDS THAT THEY WERE MULTIPLICITOUS; AS A RESULT, COUNSEL DEPRIVED DEFENDANT THE OPPORTUNITY OF HAVING THE JURY CONSIDER AGGRAVATED ASSAULT AS A LESSER OFFENSE IN THE COUNTS CHARGING ATTEMPTED MURDER;
6) TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INFORMING DEFENDANT OF A FAVORABLE PLEA BARGAIN OFFER;
7) DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE ELICITED FROM A STATE'S WITNESS PREJUDICIAL HEARSAY EVIDENCE THAT THE POLICE, PRIOR TO DEFENDANT'S ARREST, HAD INFORMATION THAT DEFENADNT WAS INVOLVED IN THE CHARGED CRIMES, AND THE COMMENTS OF TRIAL COUNSEL DURING HIS SUMMATION ABOUT HIS DUTIES AND ROLE AS DEFENSE ATTORNEY ALSO DEPRIVED DEFENDANT OF A FAIR TRIAL;
8) THE INTROUCTION OF HEARSAY THAT DEFENDANT WAS INVOLVED IN THE CHARGED CRIMES VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION; 9) THE PROSECUTOR'S USE OF PERJURED TESTIMONY AND CERTAIN DOCUMENTS OF THE PROSECUTOR IN SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL;
10) THE CUMULATION OF CERTAIN ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL; AND
11) DEFENDANT'S APPELLATE ATTORNEY WAS INEFFECTIVE.
The Public Defender filed an amended petition dated April 27, 2005, which stated that defendant also sought relief on the ground "that his sentence was enhanced beyond the presumptive sentence based on factors not found by the [j]ury."
The judge heard argument on defendant's petition on January 20, 2006. At the argument, the assistant prosecutor who tried the case addressed defendant's allegation that his trial counsel failed to inform him of a favorable plea bargain offer. The assistant prosecutor told the judge that there was no plea offer in this case. He stated that the Essex County Prosecutor will not make a plea offer in a homicide case unless the victim's family is consulted.
The assistant prosecutor added that a plea will not be considered unless a defendant approaches the prosecutor and indicates that he wants to plead guilty. Only then will the prosecutor approach the victim's family "because it's a very gut-wrenching thing to talk to people's families about." The assistant prosecutor stated:
So, our policy is until a defendant tells us [he] wants to plead guilty to a homicide, we don't have any discussions with them concerning it. There was none here. But if a defendant did want to plead guilty, before we could even talk to the prosecutor about a plea of guilty, we have to fill out a form which has a huge section which says how does the victim's next of kin feel about this? We never did that in this case. We never discussed it.
So, the defendant's assertion that he was offered a reasonable plea and he didn't know about it, I don't know where that came from and I don't think it's important to try and guess where it came from. I can tell you as a matter of being an officer of the court, there was no plea offer. There was never discussions with the victim's family about a plea. There [were] never discussions with the Essex County Prosecutor about the plea. So, I see that really as a non-issue.
The judge placed his decision on the record on February 14, 2006. The judge found that defendant had not presented a prima facie case of ineffective assistance of counsel and therefore a hearing on those claims was not required. Concerning defendant's contention that trial counsel failed to inform him of a plea offer, the judge found that no such offer was made. The judge stated:
The experience of this [c]court . . . over ten years of serving . . . [in] the criminal division and handling [a] number of cases too numerous to mention[,] the policy and practice of the Essex County Prosecutor's Office are completely manifest and evident.
And when the assistant prosecutor indicates that no offer was made that's consistent with the prosecutor's policy not to make an offer.
Any proposals would come from the defense and the offer would be in writing and the defendant and his attorney would have a copy of that offer or - not an offer, but an approval of a proposal.
And there is no such document presented to the Court and the assistant prosecutor's representation is sufficient here to demonstrate the absence of any prima facie showing.
. . . [T]herefore there will be no evidentiary hearing on that matter and the Court is completely satisfied there was not ineffectiveness [of counsel] -- because there is no action that could have been taken in the absence of any proposal by the prosecutor.
The judge additionally found that trial counsel was not ineffective for failing to question Valentin about his testimony that he did not know of Lasenberry or defendant's relationship with Lasenberry until he took defendant's statement on January 28, 1997. Defendant asserts that Valentin learned of Lasenberry when he took Franklin's statement on January 5, 1997. Defendant claimed that this was "a crucial bit of information" because it supported his assertion that the investigators fabricated his confession. The judge found, however, that counsel's decision not to cross examine Valentin on this issue was sound trial strategy because, had counsel explored the issue, it could have led to the disclosure of other damaging evidence.
The judge also rejected defendant's assertion that trial counsel should have sought the dismissal of the count charging aggravated assault; defendant's "multiplicity" claim; the contention that the jury instructions were erroneous; and the claim that trial counsel erroneously elicited hearsay testimony. In addition, the judge found no merit in defendant's challenge to his sentence on the ground that his right to trial by jury had been violated by the imposition of a sentence longer than the presumptive term based on factors not found by the jury. The judge said, however, that to the extent that re-sentencing was required by State v. Natale, 184 N.J. 458 (2005), he would impose the same sentence. The judge entered an order on February 23, 2006, memorializing his decision. This appeal followed.
Defendant's attorney filed a brief raising the following contentions:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION BECAUSE TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT. IN THE ALTERNATIVE, BECAUSE DEFENDANT PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, THE PCR COURT ERRED BY FAILING TO HOLD A FULL EVIDENTIARY HEARING.
A. Trial Counsel Was Ineffective By Failing To Inform Defendant Of An Advantageous Mid-Trial Offer.
B. Trial Counsel Was Ineffective By Failing To Challenge The Erroneous Testimony of Investigator Valentin.
C. Trial Counsel Was Ineffective By Failing to Request That The Trial Court Charge A Lesser-Included Offense To Attempted Murder And By Failing To Move For Dismissal Of The Aggravated Assault Charges.
D. Appellate Counsel Was Ineffective By Failing To Raise All Appropriate Issues.
E. Cumulative Errors By Counsel Amounted To Ineffective Assistance Of Counsel And The Denial of a Fair Trial.
F. Alternatively, The PCR Court Erred In Failing To Conduct a Full Evidentiary Hearing On Defendant's Claims.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION BECAUSE THE TRIAL COURT ERRED IN NOT SUA SPONTE INSTRUCTING THE JURY ON AGGRAVATED ASSAULT AS A LESSER-INCLUDED OFFENSE TO ATTEMPTED MURDER THEREBY DEPRIVING DEFENDANT OF THE RIGHT TO A FAIR TRIAL.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION BECAUSE THE STATE'S ELICITING OF CERTAIN TESTIMONY AND THE USE OF THAT TESTIMONY AND OTHER COMMENTS MADE DURING CLOSING AMOUNT TO PROSECUTORIAL MISCONDUCT AND DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.
DEFENDANT'S PETITION SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
A. Defendant's Petition Should Not Be Barred By Procedural Considerations.
B. Defendant's Petition Is Not Procedurally Barred by R. 3:22-4 Or R. 3:22-5.
Defendant has filed a pro se supplemental brief in which he raises the following arguments:
THE JURY'S GENERAL VERDICT OF MURDER MUST BE VACATED BECAUSE THE JURY DID NOT SPECIFY WHICH THEORY OF LIABILITY IT BASED ITS VERDICT ON AND ONE OF THE TWO THEORIES OF LIABLITY (PRINCIPAL LIABILITY) SUBMITTED TO THE JURY WAS NOT SUPPORTED BY THE EVIDENCE.
THE TRIAL COURT DEPRIVED DEFENDANT OF DUE PROCESS WHEN IT FAILED TO INSTRUCT THE JURY ON AGGRAVATED ASSAULT AS A LESSER OFFENSE IN THE COUNTS CHARGING ATTEMPTED MURDER.
TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE ELICITED PREJUDICIAL HEARSAY EVIDENCE AND BECAUSE HE MADE COMMENTS IN SUMMATION THAT BETLITTLED HIS DUTIES AND ROLE AS A DEFENSE ATTORNEY.
THE PROSECUTOR'S USE OF TESTIMONY AND CERTAIN COMMENTS OF THE PROSECUTOR IN SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE [CUMULATIVE NATURE] OF CERTAIN ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL.
We have carefully considered the record in light of the contentions advanced by defendant and the applicable law. With the exception of the argument in Point I(A), we are satisfied that all of defendant's contentions are either barred by Rule 3:22-5 or are totally without merit. R. 2:11-3(e)(2). We therefore affirm the denial of PCR on all of the grounds advanced by defendant, other than defendant's contention in Point I(A) that his counsel was ineffective because counsel allegedly failed to inform defendant that the State made a favorable plea offer.
Defendant asserts that during a trial recess, trial counsel informed him that he had rejected the assistant prosecutor's plea offer of twenty-five years, with a seven-year period of parole ineligibility. Defendant asserts that his attorney turned down the offer before informing defendant about it. Defendant says that, had he known of the offer, he would have accepted it because he was then on trial for, among other things, one count of murder and two counts of attempted murder, with the State's case based primarily upon his confession.
As stated previously, the judge rejected defendant's factual assertions based upon the representations of the assistant prosecutor and the judge's understanding of the policies and practices of the Essex County Prosecutor. We do not mean to suggest that the assistant prosecutor's assertions are not credible. However, we are convinced that defendant's statements raised a prima facie claim of ineffective assistance of counsel that should not have been denied without affording defendant the opportunity to present testimony and evidence in support of his assertions.
This conclusion is consistent with our decision in State v. Pyatt, 316 N.J. Super. 46 (App. Div.), certif. denied, 158 N.J. 72 (1999). There, the defendant filed a petition for PCR and asserted, among other things, a claim of ineffective assistance of counsel because her attorney failed to inform her that a plea offer had been made. Id. at 48. The prosecutor had confirmed that a plea offer was made. However, the defendant's attorney certified that he spoke with the defendant on numerous occasions about the plea offer and she had rejected it. Id. at 49. The defendant's attorney also asserted that the plea had been discussed with the defendant's parents. Ibid. The defendant's father submitted a certification in which he "categorically" denied counsel's assertions. Ibid. The judge denied the PCR petition, based on his review of the conflicting certifications and his recollection of events that occurred prior to and during the trial. Id. at 50. We reversed and ordered a hearing on the question of whether "a plea offer had been communicated to defendant by her trial attorney and whether defendant was adequately [counseled] with respect thereto." Id. at 52. The same result is required here.
Affirmed in part, reversed in part, and remanded for a hearing on defendant's claim that his trial attorney failed to inform him of a favorable plea offer. We do not retain jurisdiction.