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State v. Shepperson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 18, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RODNEY SHEPPERSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-05-1038.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 26, 2008

Before Judges Yannotti and LeWinn.

Defendant Rodney Shepperson appeals from an order entered on March 23, 2007, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged in Monmouth County Indictment No. 04-05-1038 with third-degree possession of a controlled dangerous substance, specifically cocaine, contrary to N.J.S.A. 2C:35-10a(1). Defendant was tried to a jury before Judge Ira E. Kriezman.

At the trial, the State presented evidence which established that on January 4, 2004, at approximately 2:00 a.m., Officer Michael Cavallo of the Neptune City Police Department stopped defendant for speeding. Officer Cavallo approached the vehicle and asked defendant for his driving credentials. Defendant did not give the officer a driver's license but said that his name was "Rodney Batiste." He also provided the officer with a date of birth and social security number. Cavallo transmitted the information to the dispatcher, but the dispatcher was unable to confirm that defendant had a driver's license.

Cavallo returned to the vehicle and again asked defendant for his name and date of birth. Defendant gave the officer the same name but provided a different date of birth. Cavallo transmitted this information to the dispatcher. Again, the dispatcher could not confirm that defendant had a driver's license. Sergeant Louis Trocchio arrived on the scene to provide backup. Cavallo told defendant that he believed he was lying. At Cavallo's request, defendant agreed to go to the police station to be fingerprinted so that the police could confirm his identity.

Cavallo patted down defendant and he found no weapons. However, according to Cavallo, defendant showed him a "yellow circular type keychain" which defendant pulled out of the pocket in his pants. Defendant attempted to hand the key chain to Cavallo but Cavallo said that he did not need it and defendant put the key chain back in his pocket. Defendant was placed in the police vehicle and transported to the police station.

When they arrived at the station, defendant was escorted inside. Cavallo then checked the rear passenger seat of the vehicle where defendant had been sitting. Cavallo said that he was accustomed to checking the rear of his police vehicle "to make sure [that] nothing [was] left behind." Using his flashlight, Cavallo noticed the yellow key chain that defendant tried to hand him. Next to the key chain, the officer found what appeared to be crack cocaine located on the floor of the vehicle where defendant had been sitting. Defendant was arrested and transported to the Monmouth County jail.

Cavallo testified that, before defendant had been placed in the patrol car, he searched the rear of the vehicle for weapons and contraband. He also testified that no one other than defendant had been in the rear of his patrol car on January 4, 2004.

Defendant was found guilty of possession of cocaine, as charged in the indictment. Defendant's motion for a new trial was denied. Judge Kreizman sentenced defendant to four years of incarceration. Defendant appealed and raised the following argument:

THE ADMISSION OF TESTIMONY FROM PATROLMAN CAVALLO THAT THERE WAS "NO" DOUBT AS TO WHO POSSESSED THE CDS AND THE KEYCHAIN, OVER DEFENSE COUNSEL'S OBJECTION, CONSTITUTES REVERSIBLE ERROR IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL (U.S. CONST. AMENDS, V. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10).

We affirmed defendant's conviction. State v. Shepperson, A-6735-04 (App. Div. May 26, 2006). Defendant filed a petition for certification with the Supreme Court, which was denied. State v. Shepperson, 188 N.J. 576 (2006).

On December 6, 2006, defendant filed an amended verified petition for PCR. He alleged that he had been denied the effective assistance of trial counsel because his attorney failed to call two witnesses who would have testified that the yellow key chain was not among his possessions when he was at the county jail. Defendant also asserted that trial counsel made a motion for a new trial but had neglected to order a transcript of the trial. Defendant claimed that, as a result, his attorney "was not in a position to effectively argue" the motion. Defendant further claimed that he was denied the effective assistance of appellate counsel because counsel "failed to raise the issue of the key chain" in his appeal.

Judge Kriezman considered the petition on March 23, 2007, and placed his decision on the record on that date. The judge found that the claim regarding counsel's failure to produce additional witnesses to testify about the key chain was barred by Rule 3:22-5 because that claim had been previously adjudicated in defendant's direct appeal. Nevertheless, the judge considered the claim, and found that it was without merit because further evidence about the key chain would have been immaterial.

The judge also found that there was no merit in defendant's contention that trial counsel was deficient because counsel argued the motion for a new trial without a transcript. The judge stated that:

[t]his Court was totally aware of all [of] the testimony in the trial. This is not a case where some other Judge heard it and the matter was presented to a different Judge on the motion for a new trial. I knew the case. I heard the case for two days, I take copious notes, [and] my notes while not as good as a court reporter, . . . are probably as good as an audio tape. And I read my notes and I know exactly what was said in the case.

The judge additionally rejected defendant's contention that appellate counsel erred by failing to raise additional arguments on appeal. The judge said that "those arguments hold no merit." The judge concluded that defendant had not been denied the effective assistance of counsel and denied the petition. The judge entered an order on March 23, 2007, memorializing his decision, and this appeal followed.

Defendant raises a single point in his appeal from the order denying his petition for PCR:

DEFENDANT WAS DEPRIVED OF A FAIR HEARING BY THE TRIAL COURT'S SUMMARY DENIAL OF HIS PETITION FOR POST-CONVICTION RELIEF.

Defendant argues that the judge erred in summarily denying his petition. Defendant maintains that the judge should have entertained oral argument on the application. Defendant additionally asserts that the judge erred by finding that his claim regarding his counsel's failure to call two witnesses was barred by Rule 3:22-5; by failing to conduct an evidentiary hearing; and by summarily rejecting defendant's claims of ineffective assistance of counsel.

We reject defendant's contention that the judge erred by refusing to permit oral argument on his petition for PCR. A judge is not required to hear oral argument on a PCR petition. State v. Myron, 344 N.J. Super. 382, 385 (App. Div. 2001). The determination of whether oral argument on a PCR petition "is necessary or appropriate is currently left to the sound discretion" of the PCR court. Id. at 386. The judge's discretion is guided by such considerations as the apparent merits and complexity of the issues raised, whether the petition is an initial application, whether argument of counsel will add to the written positions that have been submitted, and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument. [Id. at 387.]

The issues raised in defendant's PCR petition were not complex and were plainly without merit. Moreover, oral argument was not required to explain the positions of the parties. We are satisfied that in these circumstances the judge did not abuse his discretion by refusing to entertain oral argument on the petition.

We also reject defendant's contention that he was denied the effective assistance of trial counsel. To prevail on such a claim, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, the defendant must show that his attorney's deficient performance prejudiced his defense. Ibid. To do so, the defendant must establish that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).

Here, defendant argues that his trial attorney erred because she failed to present two witnesses who would have testified that the yellow key chain was not among defendant's possessions when he was at the county jail. However, at the trial, the parties agreed that the yellow key chain was not with defendant's property when he was taken into custody at the county jail. In her summation, the assistant prosecutor conceded that the State did not have the key chain, but stated that the key chain was "not evidence of a crime, the crack cocaine is."

In his decision denying defendant's petition for PCR, the judge observed that:

[i]t [was not] as though the State said, yes there is a keychain, and the defense said no. Everybody admitted that there is no keychain. It's not in evidence, it's not in the inventory. [There] is no proof that there ever was a keychain other than what the [o]fficer had to say.

So the jury was able to . . . make a determination if [the officer] is telling the truth or not. The fact that a witness . . . didn't testify is really of no moment.

We agree. Therefore, we conclude that the judge correctly found that defendant was not denied the effective assistance of counsel because counsel did not produce additional witnesses to testify about the key chain.

Defendant also argues that he was denied the effective assistance of counsel because his trial attorney argued the motion for a new trial without a trial transcript. Again, we disagree.

Judge Kriezman considered defendant's motion for a new trial on July 22, 2005, and after hearing argument from counsel, placed his decision on the record. The judge noted that defendant had argued that the verdict was against the weight of the evidence because drugs were not found on his person, and because the State failed to produce the yellow key chain.

In rejecting these arguments, Judge Kreizman carefully reviewed the trial testimony. He noted that the officer had testified that, after defendant exited the rear seat of the police vehicle, he found a key chain with "a little razor type knife on it" and "a quantity of crack cocaine[.]" The judge found no merit in defendant's contention that he had been prejudiced by the officer's mention of the "little" knife. The judge noted that he had instructed the jury not to consider that testimony because defendant had not been charged with a weapons offense.

Judge Kriezman additionally found that defendant had not been prejudiced by the officer's other testimony regarding the key chain. The judge observed that the trial involved an issue of credibility. He stated that the "[jurors] had an opportunity to judge the credibility of the police officer; they found that he was credible; [and] they believed him." The judge concluded that defendant failed to show that the jury's verdict "was a manifest denial of justice under the law" and he denied the motion for a new trial.

In ruling on defendant's petition for PCR, Judge Kriezman noted that he had taken copious notes during the trial. The judge stated, "I knew the case. I heard the case for two day[s]." Defendant argues that the issue is not whether the judge had taken good notes but rather whether his attorney made a convincing argument when she argued the motion for a new trial. Defendant asserts that counsel would have argued more effectively if she had been able to point to specific testimony in the transcript.

However, there is no evidence to suggest that defense counsel would have made a more persuasive argument if she had a trial transcript, nor is there any evidence to suggest that the outcome of the motion would have been different if counsel had a transcript of the trial testimony. Indeed, the judge's sharp recollection of the record, as shown in his decision on the motion for a new trial, makes abundantly clear that the result of that motion would not have been different if counsel had ordered a transcript.

We also reject defendant's contention that the judge erred by failing to conduct an evidentiary hearing on defendant's claims of ineffective assistance of counsel. An evidentiary hearing is only required when a defendant makes a prima facie showing on his ineffective assistance claim. State v. Preciose, 129 N.J. 451, 462 (1992). As we have explained, defendant did not present a prima facie case of ineffective assistance of counsel. In these circumstances, an evidentiary hearing was not required.

We have considered the other arguments raised by defendant and find them to be of insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

20080318

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