On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 94-12-4083.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before A.A. Rodríguez, C.S. Fisher and C.L. Miniman.*fn1
In this appeal, we reverse the denial of defendant's petition for post-conviction relief (PCR), finding defendant was denied the effective assistance counsel because: trial counsel failed to fully elicit testimony regarding defendant's alleged alibi; appellate counsel failed to pursue on direct appeal the trial judge's refusal to give the jury an alibi instruction; trial counsel failed to object and appellate counsel failed to argue on appeal that the prosecutor's argument in his opening statement -- that the jurors were safe in the courtroom only because of the presence of sheriff's officers -- was prejudicial to defendant's right to a fair trial; and the confluence of these attorney errors and omissions, in the context of other circumstances, such as the testimony of witnesses in handcuffs and prison garb, which reinforced the prosecutor's prejudicial suggestions about the threat presented by defendant and others, generated a reasonable doubt about the fairness and reliability of the outcome.
On September 3, 1994, Franklin Powell was shot and killed in his apartment in Newark. Defendant Terrance Echols (defendant) and co-defendant Joseph Brown were indicted and charged with numerous offenses in connection with that occurrence.
The thrust of the State's case was that Franklin Powell was shot as part of a turf war among competing drug dealers. In affirming, we synopsized the evidence adduced at trial in the following way:
On September 3, 1994, the victim was living with his sister, Lisa Lucas, at 279C Broadway in Newark. About 10:25 p.m. that evening, the victim, who sold "clips" (ten vials) of cocaine for $35, was in the first floor apartment. His sister was upstairs, doing laundry. Defendants, who were members of a drug-dealing group called the Hit Squad, approached the apartment with white sheets over their faces. [Defendant] went to the back door with a gun while Brown went to the victim's front door with an automatic weapon. Earlier in the evening, [defendant] had instructed his girlfriend to summon and hold a cab, because defendants were planning to go to her house to spend the night.
Brown kicked in the front door, and [defendant] entered the apartment through the rear door, causing the victim, also known as "Quill," to try and run to the second floor. A few minutes later, gunfire was heard. Although the victim was fatally struck in the back and right leg, he managed to reach the second floor and shield his sister with a broken door before collapsing. Lisa Lucas . . . ran for help, but her brother died from the bullet wounds that penetrated his lung, liver, diaphragm, and stomach.
Defendants, meanwhile, ran from the apartment, through the building's backyard, and onto Broad Street, where [defendant] was seen holding something at his side. [Defendant] returned to the scene wearing different clothes and left in the waiting cab.
The police investigated the murder. At the crime scene, they discovered empty nine-millimeter Luger shell casings and a nine-millimeter slug, which could have been fired from an Uzi; a boot print on the apartment's front door; and blood on the apartment's first and second floors. They also interviewed numerous witnesses to the killing who gave them statements concerning what they had seen, identified defendants as the shooters, and explained that the Hit Squad had killed the victim because he was cutting into their drug operation.
On September 7, 1994, arrest warrants were issued for defendants, and the police arrested both on the following day. After receiving his Miranda[*fn2 ] warnings, [defendant] waived them and gave a sworn statement on September 9, 1994, claiming that "I didn't shoot nobody." According to [defendant], Keith Eutsey . . . had gone to the victim's apartment, and other individuals were present. On the strength of these statements, [defendant] was released on bail and Keith Eutsey was arrested on September 15, 1994.
Upon his release, [defendant] and others began a campaign of intimidating witnesses, many of whom changed their original statements implicating [defendant] and Brown. Echols told Ada Dansby . . . that he would kill their son Shaquill like he killed Powell because the boy's name included the victim's nickname, "Quill," causing Dansby to file a terroristic threats complaint against him. [Defendant] also threatened Tracie Irvin . . ., the mother of the victim's child, telling her to "shut the fuck up, you stupid bitch, or I'll fuck you up[,]" and to stop talking about the murder or he would kill her. On October 26, 1994, [defendant] gave a statement to a private detective, employed by Eutsey's attorney, admitting that he had falsely accused Eutsey of Powell's killing.
On November 10, 1994, [defendant] went to the apartment of Shalika Thomason . . ., a former girlfriend, with two guns and a knife. He stuck Thomason with the knife as he attempted to force her to accompany him from the apartment. [Defendant] complained that he would be jailed the next day and "do about 25 years" because of statements Thomason had made to the police. When Thomason's friend attempted to intervene, [defendant] told her "Bitch, mind your own business or I kill all of you," and he threatened to put a "hit" out on her.
Thomason told her friend to call the police, which her friend did.
In 1996, at the conclusion of an eighteen-day jury trial, defendant was acquitted of conspiracy to commit murder and acquitted of purposeful or knowing murder, but he was convicted of felony murder, N.J.S.A. 2C:11-3(a), burglary, N.J.S.A. 2C:18-2, aggravated manslaughter, N.J.S.A. 2C:11-3(a), possession of a dangerous weapon, N.J.S.A. 2C:39-5, possession of a dangerous weapon for an unlawful purpose, N.J.S.A. 2C:39-4, making a false report to a police officer, N.J.S.A. 2C:18-3(b), false swearing, N.J.S.A. 2C:18-2, and hindering apprehension, N.J.S.A. 2C:29-3. After all appropriate mergers, defendant was sentenced to: a term of life imprisonment, with a thirty-year period of parole ineligibility, on the first-degree felony murder conviction; concurrent five-year terms on the merged weapons convictions and the hindering apprehension conviction; a concurrent eighteen-month term on the false report conviction; and an eighteen-month term, with a nine-month period of parole ineligibility, for false swearing, which was ordered to run consecutively to the life term.
Defendant argued in his direct appeal that he was entitled to reversal because: (1) the felony murder jury charge was erroneous with respect to the predicate crime of burglary; (2) the jury was not instructed that its members must be unanimous as to the underlying crime that formed the basis for the felony murder conviction; (3) he was prejudiced by the admission of Ada Dansby's testimony that someone pointed a gun at her face the morning she testified; (4) he was prejudiced by the admission of Ada Dansby's testimony that "everyone is scared of the defendant"; (5) the prosecutor argued to the jury that the defendants "did everything they could to prevent witnesses from testifying"; (6) members of the jury observed defendant in handcuffs; (7) defendant's other crimes and bad acts were erroneously admitted into evidence; (8) the trial judge's charge regarding the use of defendant's other crimes and bad acts was erroneous; and (9) the accumulation of errors deprived him of a fair trial.
In 2000, we rejected these arguments and affirmed the judgment of conviction, with one minor exception regarding the sentence, by way of a 105-page unpublished opinion.*fn3
Defendant filed a PCR petition in 2001. According to the trial judge, this petition was apparently "lost, misfiled, misplaced, or otherwise procedurally mishandled by either the office of the Essex Vicinage Criminal Division manager or the Office of the Public Defender . . ., or both," and, as a result, co-defendant Brown's PCR petition was "ready to be heard before the Public Defender even assigned PCR counsel" to defendant. As a result, Brown's PCR petition was heard before defendant's petition was perfected. Brown's petition was denied, and then was affirmed by way of our unpublished opinion of November 14, 2005. Docket No. A-5806-03T4.
An evidentiary hearing was conducted regarding defendant's PCR petition in August and September 2005. On November 17, 2005, the trial judge denied the PCR petition for the reasons thoroughly elucidated in a 50-page written opinion.
Defendant has now appealed the denial of his PCR petition, presenting the following arguments for our consideration:
I. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A TIMELY NOTICE OF ALIBI AND IN FAILING TO ELICIT A COMPLETE ALIBI, AND APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE THAT THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURORS REGARDING AN ALIBI DEFENSE.
II. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE CRIME SCENE, AS SUCH AN INVESTIGATION WOULD HAVE REVEALED THAT TWO STATE'S WITNESSES WERE LYING WHEN THEY CLAIMED TO OBSERVE [DEFENDANT] IMMEDIATELY AFTER THE SHOOTING. COUNSEL WAS ALSO INEFFECTIVE IN FAILING TO INFORM THE JURORS, BY MEANS OF CROSS-EXAMINATION AND ARGUMENT IN SUMMATION, OF CRITICAL INCONSISTENCIES IN THE STORIES OF THE STATE'S FOUR KEY WITNESSES.
A. Trial Counsel Was Ineffective in His Failure to Investigate the Crime Scene, as He Could Have Demonstrated that Irvin and Dansby Were Lying When They Claimed that [Defendant] Fled the Crime Scene in a "Getaway" Taxi.
B. Trial Counsel Was Ineffective When he Failed to Utilize the Discovery to Demonstrate the Significant Inconsistencies in the Witnesses' Statements.
III. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO LIMIT THE JURY'S EXPOSURE TO OTHER-CRIMES EVIDENCE AND IN ALLOWING THE STATE TO INTRODUCE EVIDENCE THAT "EVERYONE WAS AFRAID OF [DEFENDANT]."
IV. BECAUSE [DEFENDANT'S] STATEMENT TO THE POLICE COULD NOT BE EFFECTIVELY REDACTED, IT WAS NECESSARY TO SEVER THE TRIALS OF THE CO-DEFENDANTS, AND TRIAL OR APPELLATE COUNSEL OR BOTH WERE INEFFECTIVE IN FAILING TO RAISE THE ISSUE.
V. THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE CHARACTERIZED [DEFENDANT] AS ENGAGING IN THE "VIOLENT CRIMINAL BUSINESS" OF DRUG SALES AND WHEN HE STATED THAT [DEFENDANT] AND HIS FELLOW GANG MEMBERS POSED A DANGER TO THE COMMUNITY AND TO THE JURORS. APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE.
VI. BECAUSE THE STATE'S POLYGRAPH EXAMINER TOLD [DEFENDANT] THAT HE WOULD BE AN EXPERT WITNESS EITHER FOR OR AGAINST HIM, DEPENDING ON THE OUTCOME OF THE TEST, THERE WAS AN ORAL STIPULATION THAT THE EXAMINATION, WHICH [DEFENDANT] PASSED, WOULD BE ADMISSIBLE AT TRIAL. APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE.
VII. THE COURT ERRED IN FAILING TO INSTRUCT JURORS THAT THE FACT THAT POLICE POSSESSED [DEFENDANT'S] PHOTOGRAPH WAS NOT TO BE USED TO SUPPORT THE CONCLUSION THAT HE HAD PRIOR CONVICTIONS, AND TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE IN NOT ADDRESSING THIS ISSUE.
VIII. THE COURT ERRED IN PERMITTING A STATE'S WITNESS TO TESTIFY IN HANDCUFFS AND IN PERMITTING TWO STATE'S WITNESSES AND DEFENDANT'S ALIBI WITNESS TO TESTIFY IN PRISON GARB. TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE IN FAILING TO RAISE THE ISSUE.
IX. [DEFENDANT'S] CONVICTION FOR FELONY MURDER MUST BE VACATED BECAUSE THE PREDICATE FELONY, BURGLARY, WAS COMPLETE BEFORE THE SHOOTING OCCURRED. IN THE ALTERNATIVE, [DEFENDANT] WAS ENTITLED TO HAVE JURORS DETERMINE, PURSUANT TO APPROPRIATE INSTRUCTIONS, WHETHER THE BURGLARY HAD BEEN COMPLETED PRIOR TO THE SHOOTING.
X. THIS COURT SHOULD GRANT [DEFENDANT] RELIEF ON THE BASIS OF CUMULATIVE ERROR.
After carefully examining the record, we find insufficient merit in Points II, III, IV, VII and IX to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also find no merit in VI for the reasons briefly discussed toward the end of this opinion. And we conclude that the argument contained in Point VIII cannot be a cause for a reversal of the order under review, but it does provide additional support for our disposition of other issues, as more fully discussed later in this opinion.
After considering the arguments in Points I, V and X, and after a careful review of the record, we are convinced that defendant should have been granted post-conviction relief. We hold that trial counsel was ineffective in failing to fully elicit testimony from defendant's alibi witness, and appellate counsel was ineffective in failing to raise on direct appeal the trial judge's failure to give an alibi instruction at the close of the trial. We are also satisfied that trial counsel was ineffective in failing to object when the prosecutor, in his opening statement, argued that witnesses had been intimidated and inappropriately asserted or suggested that the jurors would be in danger merely by sitting in the courtroom but for the presence of sheriff's officers, and appellate counsel was ineffective in failing to pursue that issue on appeal. We hold that ...