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State v. Behlin


February 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-06-0700.

Per curiam.


Submitted January 9, 2008

Before Judges Wefing and Lyons.

Defendant Herbert Behlin appeals from an order entered June 16, 2006, denying defendant's petition for post-conviction relief (PCR). We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Based on the testimony presented by the State's witnesses at trial, at approximately 10:45 p.m. on February 15, 2001, three individuals were working at a gas station in Elizabeth. One was a cashier, while the other two were pumping gas. At that time, all three were robbed by defendant and his co-defendant. The individual, who was working as a cashier in the convenience store part of the gas station, was approached by defendant and his co-defendant. As the cashier was ringing up various items for purchase by the two individuals, defendant pulled out a gun and ordered the cashier to open up the register. When he did so, the perpetrators took out the money. Soon thereafter, one of the gas station attendants entered the store and was ordered to stand with the cashier. The other gas attendant also entered the store to process a credit card purchase by a customer. At that time, he observed the two perpetrators robbing his co-employees. That attendant saw that defendant had a gun and was taking money out of the register. Co-defendant then asked him for his money and he gave it to him. The two perpetrators were unable to open the safe in the convenience store. They punched one of the attendants and hit him with a telephone, and they also punched another one of the employees.

While all this was happening, a priest who had stopped for gas, observed numerous people inside the convenience store. He wondered why no one was coming out to help him. The priest then saw someone holding one of the attendants by the shoulder and pointing to different places. He eventually realized that several of the individuals inside were attendants and that one of the two perpetrators had a gun. Consequently, the priest drove away from the gas station, called 9-1-1, and reported that he believed there was a robbery in progress.

Within minutes, four police officers arrived at the scene. They entered the store and apprehended defendant, who had a gun in his hand, and his co-defendant. Defendant and co-defendant in this matter were later identified by the priest who made the telephone call. Lastly, a surveillance videotape taken from inside the store was secured by the police and, on review, it depicted what had occurred.

In June 2001, defendant and his co-defendant, Steven Williamson (Williamson), were indicted and charged with fourth-degree aggravated assault by pointing a firearm, contrary to N.J.S.A. 2C:12-1(b)(4) (count one); third-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count four); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count six). Co-defendant Williamson was also charged with third-degree resisting arrest in count five of the indictment.

Defendant's trial began before a jury. The State, during its case, presented the proofs outlined above. Defendant advanced an intoxication defense, claiming that he was in an intoxicated state on the day in question, arising out of his long-standing drug abuse involving heroin. One of defendant's witnesses, Shakee Akbar (Akbar), testified on defendant's behalf. He testified that he and defendant consumed heroin on the day in question, and that his impression was that defendant was high. Prior to the witness's testimony, both the defense, as well as the prosecutor and one of his investigators, interviewed Akbar. During the cross-examination of Akbar by the State, the prosecutor asked:

Prosecutor: All right. After you spoke with [defense counsel and his investigator], you also spoke with myself and an investigator from my office. Correct?

Akbar: Yes.

Prosecutor: And at that time, didn't you, initially, say that [defendant] went there to rob the gas station, but then later recant that and said, "no, no, I never said that?"

Akbar: No.

The defense did not raise an objection to the questions and the trial continued. Following summations and the charge conference, it appears that the trial judge was informed that two sheriff's officers who were present when the prosecutor and his investigator interviewed Akbar stated that Akbar did not make the statement attributed to him by the prosecutor and his investigator. The officers informed their superiors, who contacted the prosecutor's office, which then conducted an investigation.

The prosecutor's office interviewed the two sheriff's officers who had been guarding the witness, Akbar, who was an inmate in State prison at the time of his testimony. Additionally, the prosecutor's investigator and the assistant prosecutor trying the case were interviewed, as well as Akbar. The prosecutor's office concluded that there was no impropriety. The prosecutor's office also concluded that the testimony of the sheriff's officers concerning what was said was inconclusive.

The judge heard the prosecutor's office's report on the record and expressed a concern that "we will have a factual dispute as to what happened and [the prosecutor] will be a witness, which is going to end up with someone making an application for a mistrial . . . ." The State responded that the case should go forward, and that if the assistant prosecutor needed to testify, someone else in the prosecutor's office would try the case to conclusion.

Defense counsel noted that he wished to do some research to determine if there was a double jeopardy issue in which case he would make a motion to dismiss with prejudice. Later during the colloquy, defense counsel advised that his position would be that the court should declare a mistrial immediately. The trial judge did not rule on that application.

The trial judge was concerned with whether the prosecutor may have acted improperly and with how to proceed. The judge, therefore, declared a recess in the trial and sent the jury home for the day so that she could review the interview transcripts and discuss the issues with counsel.

Later that same day, defendant entered a plea of guilty before the trial judge to first-degree armed robbery, contrary to N.J.S.A. 2C:15-1. The plea was accompanied by a recommendation from the prosecutor that defendant receive a fourteen-year State prison sentence with an eighty-five percent period of parole ineligibility and that the State would drop all of the other charges. Defendant testified at the time of the entry of the plea that he was making a knowing and voluntary plea.

At the time of sentencing, the judge sentenced defendant to thirteen years in State prison with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The other counts in the indictment were dismissed.

In January 2002, defendant filed a notice of appeal. Defendant's appeal was placed on the sentencing appeal calendar, and on May 24, 2002, defendant's sentence was affirmed. Defendant then filed a number of petitions for PCR. The judge hearing those applications granted defendant an evidentiary hearing on the issue of ineffective assistance of trial counsel, but denied defendant's petition as to all other issues raised. Following the hearing on June 16, 2006, regarding the alleged ineffective assistance of trial counsel, the judge denied defendant's PCR petition and this appeal followed.

On appeal, defendant presents the following argument for our consideration:





In essence, defendant argues that he should be accorded the following relief: his conviction should be set aside; his plea should be withdrawn; and, a new trial should be afforded to him, because he received ineffective assistance of counsel at the time of his plea. To the extent defendant seeks relief on any other grounds, he is barred pursuant to Rule 3:22-4 and Rule 3:22-5.

In Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984), the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." See also State v. Savage, 120 N.J. 594, 613 (1990). To assist in this determination, the Court outlined a two-part standard, based upon grounds of performance and prejudice, that a defendant must show to satisfy a claim of ineffective assistance of counsel.

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 [court's holding] resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]

In analyzing the "deficient performance" prong, "the test is whether counsel's conduct fell below an objective standard of reasonableness." Savage, supra, 120 N.J. at 614. A defendant, therefore, must demonstrate that the attorney's actions "were beyond the 'wide range of professionally competent assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). Reviewing courts should note that "'counsel is strongly presumed to have rendered adequate assistance' and to have made 'all significant decisions in the exercise of reasonable professional judgment.'" Ibid.

Moreover, reviewing courts must be mindful that their inquiry is whether counsel's performance was "reasonable considering all the circumstances." Strickland v. Washington, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 694. If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is "virtually unchallengeable." Id. at 690-91, 104 S.Ct. at 2065-66, 80 L.Ed. 2d at 695. But strategy decisions made after less than complete investigation are subject to closer scrutiny. Indeed, counsel has a duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. A failure to do so will render the lawyer's performance deficient. [Savage, supra, 120 N.J. at 617-18.]

With regard to the satisfaction of the second prong, that is, that defendant was prejudiced by the actions of his or her counsel, the Strickland Court held that there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 52 (1987). The reviewing court's principal focus "must be on the fundamental fairness of the proceeding whose result is being challenged." Strickland, supra, 466 U.S. at 696, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699. The Court, however, also added that when the errors of counsel are so substantial that "'no amount of showing of want of prejudice could cure it'" it is unnecessary for a defendant to demonstrate prejudice. U.S. v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2046, 80 L.Ed. 2d 657, 668 (1984) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed. 2d 347, 355 (1974)). As a matter of State law, our Supreme Court has said, "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Savage, supra, 120 N.J. at 615.

Defendant argues that defense counsel should have advised him to reject the plea offer from the prosecutor and to have moved for a mistrial. Defendant implies that the mistrial, if granted, would have resulted in a dismissal because double jeopardy would have attached. See N.J.S.A. 2C:1-9.

At the time defendant was approached with a plea offer by the State, the judge had not yet ruled on defendant's application for a mistrial. Accordingly, there were a number of possible scenarios which may have unfolded. First of all, the trial court could have denied the mistrial motion and merely have given a supplemental curative charge to the jury to ignore the prosecutor's question, pointing out that questions are not evidence and they should not consider the prosecutor as having testified in his asking the questions. Second, the judge could have denied the mistrial motion and permitted further testimony, at which time the assistant prosecutor, his investigator, and the sheriff's officers could have testified concerning the witness's supposed statement. The jury could then evaluate the testimony and the case would have proceeded with supplemental summations, a jury charge, and a verdict. A substitute prosecutor would have completed the trial of the case on behalf of the State.*fn1

Third, the court, at the request of defendant, could have granted a mistrial. Lastly, defendant could have accepted the plea offered.

The PCR hearing demonstrated that, at the time this issue concerning the prosecutor arose, the proofs had already been presented to the jury. Those proofs indicated that defendant was apprehended in the convenience store, with a gun in his hand, by four policemen. He was identified by a priest. The entire incident was recorded on a videotape which was played to the jury. The State's case at that point was extremely strong. Defendant, having a substantial prior record, was eligible for an extended sentence. See N.J.S.A. 2C:44-3 & -7. If convicted, given that defendant was extended term eligible, he faced a sentence of between twenty years and life on the first-degree robbery charge alone. In addition, he also faced an eighty-five percent period of parole ineligibility under NERA. Defense counsel and defendant were also aware that co-defendant had earlier pled guilty and received a sentence in excess of that being offered by the State at this time.

We cannot speculate as to whether the trial judge would have continued the trial with a curative instruction, or would have continued the trial to permit testimony from the prosecutor, his investigator, and the sheriff's officers with new counsel serving in the role as prosecutor. Nor can we speculate as to what the jury's verdict would have been. However, we do note the strong evidence which was before the jury and the fact that defendant, if convicted, potentially faced a sentence of life imprisonment.

We note that if the defense motion for a mistrial was granted, double jeopardy would not have attached. See N.J.S.A. 2C:1-9(d)(1); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed. 2d 267, on remand, 538 F.2d 1214 (5th Cir.), reh'g denied, 542 F.2d 1174 (5th Cir. 1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed. 2d. 556 (1977).

"Our Supreme Court has stated that retrial is not barred when a case is mistried pursuant to a defendant's motion except '"where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial . . . ."'" State v. Torres, 328 N.J. Super. 77, 92 (App. Div. 2000) (quoting State v. Gallegan, 117 N.J. 345, 358 (1989) (quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed. 2d 416, 425 (1982))).

Also, given the factual circumstances, the trial court's determination to grant a mistrial would have been arrived at only after finding that there was a "manifest necessity" for defendant to be afforded a fair trial and the question of the assistant prosecutor would have been prejudicial to defendant. In effect, the court would have been protecting defendant's rights to a fair trial. As such, a dismissal of the charges would not have resulted. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); State v. Farmer, 48 N.J. 145 (1966). As the Court has said: the double jeopardy protection does not mean that once an accused has been put on trial regularly, the proceeding must run its ordinary course to judgment of conviction or acquittal. The rule does not operate so mechanistically. If some unexpected, untoward and undesigned incident or circumstance arises which does not bespeak bad faith, inexcusable neglect or inadvertence or oppressive conduct on the part of the State, but which in the considered judgment of the trial court creates an urgent need to discontinue the trial in order to safeguard the defendant against real or apparent prejudice stemming therefrom, the Federal and State Constitutions do not stand in the way of declaration of a mistrial. [Farmer, supra, 48 N.J. at 174.]

Consequently, at the time that defense counsel was weighing with defendant their course of action, defendant was faced with either a continuation of his trial or a retrial. The potential for a dismissal on double jeopardy grounds appeared highly unlikely at best. There was strong evidence against defendant in the record. There were no apparent impediments to the same proofs being introduced, should the judge have granted a mistrial. And in either case, defendant would be facing a potential life sentence. On the other hand, defendant was offered a fourteen-year sentence, with an eighty-five percent parole ineligibility period.

We can see nothing in this record, given the options presented, that indicates counsel's performance was in any way deficient. Defendant argues that he was not aware of the issue of a mistrial. However, the transcript indicates that it was discussed in his presence a number of times on the record.

Lastly, when turning to the second prong of the Strickland analysis, we fail to see how defendant was prejudiced by counsel's actions. Counsel outlined the various options to defendant and defendant made a choice. That choice was more than reasonable in light of all the circumstances present. While defendant would now like to choose a different course, there is nothing in the record that indicates that counsel's performance was so deficient as to create a reasonable probability that defendant's constitutional rights were violated. Accordingly, we affirm.


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