February 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUCERITA STONE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 98-06-0962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 4, 2008
Before Judges A.A. Rodríguez and C.L. Miniman.
Defendant Lucerita Stone appeals from the March 30, 2006, denial of her timely application for post-conviction relief (PCR) from a judgment of conviction entered on January 13, 2000. We affirm.
Following a jury trial defendant was found guilty of three counts of second-degree reckless manslaughter, three counts of first-degree felony murder and one count of arson and was acquitted on a charge of aggravated arson. The sentencing judge merged the reckless-manslaughter and arson convictions into the felony-murder convictions. After finding aggravating factors one and nine and mitigating factor seven, the judge sentenced defendant to three consecutive life terms in prison with a ninety-year period of parole ineligibility.
The convictions grew out of a fire that occurred in the early morning hours of May 30, 1997, at a multi-family dwelling. Defendant, whose relationship with the resident landlord was contentious, lived in an illegal basement apartment. Three children who lived in the building died in the fire. A full recitation of the facts may be found in our opinions on the interlocutory and direct appeals. State v. Lucerita Stone, No. A-016-99T2 (App. Div. Nov. 8, 1999) (Stone I); State v. Lucerita Stone, No. A-3307-99T4 (App. Div. Aug. 4, 2003) (Stone II). We affirmed the convictions and modified the sentence to three concurrent terms of life imprisonment with a thirty-year parole disqualifier. Defendant's petition for certification of the direct appeal was denied. State v. Stone, 178 N.J. 36 (2003).
In her PCR application defendant raised fourteen issues that she contended mandated a new trial. The application was argued on March 30, 2006, and decided without an evidentiary hearing before Judge Peter J. Vazquez. Judge Vazquez placed a short decision on the record and the same day issued a lengthy and comprehensive written decision. The judge explained on the record that defendant was not entitled to an evidentiary hearing because defendant had not presented a prima facie case of ineffective assistance of counsel. This determination was based on the fact that she had presented nothing more than "bald assertions."
The judge observed that many of the issues raised by defendant either were or could have been raised on direct appeal and were procedurally barred. He also found that even if those issues were to be considered in the context of a claim of ineffective assistance of counsel, they did not support such a claim. The judge concluded that defendant had failed to satisfy the two-pronged test of ineffective assistance of counsel set forth in Strickland*fn1 and Fritz.*fn2 Finally, he concluded that defendant had not "demonstrate[d] that the decisions at the trial level were so fundamentally unfair as to survive the procedural hurdles [to a] petition for [PCR]." This appeal followed.
Defendant raises fifteen issues for our consideration:
POINT I - THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT II - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE INDICTMENT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.
POINT V - THE LOWER COURT ORDER MUST BE REVERSED SINCE ALL OF THE STATEMENTS ALLEGEDLY MADE BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED.
A. ALL OF THE STATEMENTS MADE BY DEFENDANT PRIOR TO THE GIVING OF MIRANDA WARNINGS SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE THE PRODUCT OF A CUSTODIAL INTERROGATION.
B. BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR DEFENDANT'S ASSERTION OF HER RIGHT TO REMAIN SILENT, THE STATEMENTS MADE AFTER HER FORMAL ARREST ARE INADMISSIBLE.
C. BECAUSE THE STATE COULD NOT PROVE THAT THE STATEMENTS ALLEGEDLY MADE BY DEFENDANT WERE VOLUNTARY, THEY SHOULD HAVE BEEN SUPPRESSED.
POINT VI - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN GRANTING THE STATE'S APPLICATION TO INTRODUCE EVIDENCE PURSUANT TO EVIDENCE RULE 404(B).
A. THE PRIOR BAD ACTS ALLEGEDLY COMMITTED BY THE DEFENDANT DID NOT MEET THE REQUIREMENTS OF EVIDENCE RULE 404(B) AND WERE THEREFORE INADMISSIBLE.
B. THE EVIDENCE OFFERED BY THE STATE WITH RESPECT TO THE DEFENDANT'S CONDUCT WAS NOT PART OF THE TOTAL CRIMINAL EVENT OF THE SAME OCCASION AND WAS NOT PART OF THE RES GESTAE OF THE CRIMES CHARGED.
POINT VII - THE LOWER COURT ORDER MUST BE REVERSED SINCE ADMISSION OF THE IDENTIFICATIONS OF DEFENDANT BY GREGORIA BARRA AND MOHAMMAD ZAFAR VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS.
A. THE IDENTIFICATION PROCEDURES UTILIZED FOR GREGORIO BARRA WERE WHOLLY INAPPROPRIATE AND HIGHLY SUGGESTIVE.
B. THE IDENTIFICATION PROCEDURES UTILIZED FOR MOHAMMED ZAFAR WERE WHOLLY INAPPROPRIATE AND HIGHLY SUGGESTIVE.
POINT VIII - THE LOWER COURT ORDER MUST BE REVERSED SINCE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE VICTIMS PREJUDICED THE JURY AND DENIED DEFENDANT HER RIGHT TO A FAIR TRIAL.
POINT IX - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL BY JURY AND HER DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY AND IN AN IMPROPER VERDICT SHEET.
A. THE TRIAL COURT DENIED THE DEFENDANT HER RIGHT TO A FAIR TRIAL BY JURY AND HER DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY.
B. THE TRIAL COURT DENIED THE DEFENDANT HER RIGHT TO A FAIR TRIAL BY JURY AND HER DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF AN IMPROPER VERDICT SHEET.
POINT X - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S FUNDAMENTAL RIGHT TO PRESENT WITNESSES AND PROOFS ON HER OWN BEHALF WAS VIOLATED.
POINT XI - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT EXTENSIVELY LIMITED RELEVANT AND PROPER CROSS-EXAMINATION.
POINT XII - THE ORDER DENYING POST-CONVICTION RELIEF MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.
POINT XIII - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT XIV - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT XV - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
Because no evidentiary hearing was conducted, and thus no findings of fact were made, our review of the PCR judge's legal conclusions is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."); see also State v. Brown, 118 N.J. 595, 604 (1990); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
We begin with the two issues raised in Points XIII and XIV as they inform many of the earlier-stated issues. R. 3:22-5 provides:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . . or in any appeal taken from such proceedings.
In Point X of this appeal, defendant contends that she was denied her fundamental right to present the testimony of her mother in rebuttal to the State's case. However, in the appeal from the judgment of conviction, defendant raised exactly that issue.*fn3 As the PCR judge found, defendant may not raise this issue again in this PCR petition. R. 3:22-5. Furthermore, because this issue was decided adversely to defendant on the direct appeal, a claim of ineffective assistance of trial or appellate counsel cannot be predicated upon it, despite her suggestion to the contrary.
Many other issues could have been raised on direct appeal or, in one case, on the interlocutory appeal. Where such is the case, R. 3:22-4 provides:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Point V, the trial court's refusal to suppress five statements made by defendant to the police, was an issue that could have been raised on a cross-appeal to the leave we granted to the State for an interlocutory appeal after a Miranda*fn4 hearing. The judge conducted an evidentiary hearing to determine the admissibility of nine statements defendant gave to the police. The judge excluded four of the nine statements and the State sought leave to appeal, which we granted. We specifically noted that defendant did not cross-appeal with respect to the five statements the judge determined were admissible. The State was concerned about only the two suppressed statements by defendant respecting why the police K-9 units might detect gasoline in her car. We affirmed the exclusion of this evidence. The issue of the other five statements could also have been raised on the direct appeal.
As the PCR judge correctly found, the other issues that could have been raised on direct appeal were: (1) Point IV, the indictment should have been dismissed; (2) Point VI, the State's 404(B) evidence should not have been admitted into evidence; (3) Point VII, the identifications made by Barra and Zafar should not have been admitted into evidence; (4) Point VIII, the gruesome photographs of the victims should not have been admitted into evidence; (5) Point IX, the trial court erred in giving a jury charge on flight and using a verdict sheet instructing the jurors to consider reckless murder before felony murder; (6) Point XI, the trial court extensively limited relevant and proper cross-examination; and (7) Point XII, miscellaneous errors, including (a) it was improper for the prosecutor to state that a videotape existed of defendant buying gasoline (no record citation and presumably a statement made to defendant during police interrogation), (b) a sentence should have been imposed on the reckless manslaughter convictions not the felony murder convictions and (c) the trial court erred in permitting a superceding indictment.*fn5
The PCR judge correctly concluded that all of these issues either were or could have been reasonably asserted in the prior proceedings. Defendant has wholly failed to demonstrate that enforcing the bars of R. 3:22-4 and R. 3:22-5 would result in any fundamental injustice. She has also completely failed to establish that denial of relief on any of these grounds would be contrary to the Constitutions of the United States or New Jersey.
The foregoing conclusions do not preclude consideration of whether either or both counsel were ineffective. In this respect, defendant contends in Point XV that the PCR judge erred in denying her an evidentiary hearing. Evidentiary hearings on PCR applications are not mandatory. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 119 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Jack, 144 N.J. 240, 254 (1996); State v. Preciose, 129 N.J. 451, 462 (1992). Indeed, R. 3:22-10 commits the decision respecting an evidentiary hearing to the sound discretion of the PCR judge. The judge may decide to hear the application on the papers. State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Our Supreme Court has observed that: there is a pragmatic dimension to the PCR court's determination. If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted. [Marshall, supra, 148 N.J. at 158 (citations omitted).]
Here, the judge determined that defendant had presented nothing more than "bald assertions" and had not presented a prima facie case of ineffective assistance of counsel. In Strickland the Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. Strickland, supra, 466 U.S. 668, 104 S.Ct. 2052; 80 L.Ed. 2d 674. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. Fritz, supra, 105 N.J. at 57-58.
"'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). 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 "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard "does not require the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
Judge Vazquez first addressed the four issues on which defendant relied to demonstrate that trial counsel was ineffective. With respect to Point IV, he found that "trial counsel's failure to move to dismiss the indictment does not constitute 'serious error' as required by the first prong of the Strickland test." As to Point X, the judge refused to second-guess defense counsel's tactical decision not to make a proffer of the evidence and view that decision under the "distorting effects of hindsight," citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. With regard to the two issues contained in Point XI, the judge concluded that defendant did not meet her burden of proving that counsel was ineffective for failing to object to limited cross-examination because the trial judge had excluded certain testimony from the State's witnesses. He also concluded that defendant had not met her burden of proving that trial counsel was ineffective in failing to make a proffer when the trial judge barred defendant from calling ten witnesses because defendant provided very few details as to who the witnesses were and did not provide the testimony they would have given in her PCR petition.
The PCR judge then addressed the first two of six claims relating to ineffective assistance of appellate counsel. As to the failure to seek dismissal of the indictment (Point IV), the judge again concluded that any error was harmless. Regarding the five statements made by defendant that were admitted into evidence (Point V), the judge concluded that appellate counsel's decision not to appeal the admission of this evidence did not rise to constitutional ineffective assistance of counsel in light of the overwhelming evidence of defendant's guilt, which made proof of the second Strickland prong impossible.
The PCR judge then considered the third and fourth claims. With respect to the N.J.R.E. 404(b) evidence (Point VI), the judge concluded that the decision not to raise this issue on appeal in the face of the trial judge's limiting instruction was not a serious error because the prior bad acts demonstrated the animosity between defendant and the landlord and thus established motive. As to the admission of the identifications by Barra and Zafar (Point VII), the judge observed that the witnesses identified defendant from a six-photo array, the trial judge conducted a Wade*fn6 hearing and admitted the evidence and no serious error could be found in appellate counsel's failure to raise this issue because our Supreme Court has held that a trial court's ruling should not be disturbed if it could reasonably have been reached on the evidence, citing State v. Ford, 79 N.J. 136 (1979).
Finally, the PCR judge addressed the last two claims of ineffective assistance of appellate counsel. Respecting the five allegedly gruesome, black-and-white photographs of the three children at the scene (Point VIII), the judge determined that defendant had not met her burden of proving that appellate counsel's decision not to raise this issue on appeal was so serious that the attorney was constitutionally ineffective and that exclusion of the photographs would have resulted in a different outcome at trial.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Vazquez in his oral and written opinions delivered on March 30, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We add only that an appellate attorney is not required to advance every argument that the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3088, 77 L.Ed. 2d 987 (1983). "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 103 S.Ct. 3313, 77 L.Ed. 2d at 994. That is precisely what appellate counsel did here and, having done so, secured a very significant reduction in the minimum time to be served. Appellate counsel's decision to exclude the six issues advanced here by defendant was not a serious error and consideration of these issues would not have resulted in a remand for a new trial.