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State v. Davis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEON DAVIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 99-02-0065.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2007

Before Judges Wefing, Parker and Lyons.

Defendant Deon Davis appeals from an order entered on June 16, 2006 denying his petition for post-conviction relief (PCR). We affirm.

On February 23, 2000, a jury found defendant guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count 1); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count 2); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count 3); third degree terroristic threats, N.J.S.A. 2C:12-3b (Counts 4 and 5); and first degree attempted murder, N.J.S.A. 2C:11-3 (Count 6). On April 25, 2000, after the appropriate mergers, he was sentenced to an aggregate term of twenty-five years subject to 85% parole ineligibility.

The facts giving rise to the charges against defendant are as follows. On September 25, 1998, defendant went to the Rite-Aid where his former girlfriend worked and began stabbing her with a screwdriver. He repeatedly told her that he would kill her. A security guard intervened and wrestled with defendant to get the screwdriver and protect the victim. When the police arrived on the scene, they ordered defendant to drop the weapon and placed him under arrest. As defendant was taken to the police station, he repeatedly said that he "tried to kill the bitch," "Did I kill the bitch?" and "I hope she's dead."

On December 17, 2001, we affirmed the convictions and sentence on direct appeal and on April 25, 2002, the Supreme Court denied certification. 172 N.J. 179 (2002).

Defendant filed a PCR petition and on January 23, 2003, the petition was granted in part, amending the sentence on attempted murder to twenty-five years with seventeen years parole ineligibility. The remaining points in defendant's petition were denied.

Defendant appealed and we affirmed in part and reversed in part, remanding the matter "because the trial court applied erroneous standards in denying the requested relief."

The remand hearing was conducted on May 26, 2006. After hearing argument, the trial court rendered a written opinion, in addition to remarks on the record, on May 26, 2006.

On the record, the court indicated that the evidence against defendant was overwhelming and found that some of the issues raised by defendant were time barred, some were addressed by the Appellate Division and "in light of the overwhelming existence of proofs of his guilt, there's nothing that would trigger an ineffective assistance claim." In its written opinion, the court addressed the issues raised by defendant pro se and concluded that neither the issues raised by defendant or by defense counsel satisfied the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), because they did not show that the outcome of the trial would have differed if trial counsel had acted in accordance with defendant's claims.

In this appeal, defendant argues in counsel's brief filed on January 18, 2007:

POINT ONE

THE COURT BELOW FAILED TO CONSIDER AND ANALYZE ALL OF THE ISSUES RAISED BY DEFENDANT IN HIS PETITION FOR POST-CONVICTION RELIEF AS DIRECTED BY THE APPELLATE DIVISION IN ITS REMAND

POINT TWO

AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD IN ORDER TO DETERMINE WHETHER DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO THE UNITED STATES AND THE NEW JERSEY CONSTITUTION

POINT THREE

AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER DEFENDANT'S ATTORNEY, AN ASSISTANT DEPUTY PUBLIC DEFENDER, HAD A CONFLICT OF INTEREST WHEN HE REPLACED ANOTHER ASSISTANT DEPUTY PUBLIC DEFENDER AS DEFENDANT'S ATTORNEY WHO HAD A CONFLICT OF INTEREST INVOLVING ONE OF THE STATE'S WITNESSES

POINT FOUR

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL BECAUSE COUNSEL FAILED TO INCLUDE AS PART OF HIS BRIEF OR ORAL ARGUMENT ALL OF THE ISSUES RAISED BY THE DEFENDANT PRO SE. (NOT RAISED BELOW)

Defendant also filed a pro se brief on March 14, 2007, in which he argues:

POINT ONE

THE DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. THEREFORE, POST-CONVICTION RELIEF COURT SHOULD HAVE GRANTED HIS PETITION BASED ON SUCH CLAIMS

A. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISED [SIC] ARGUMENTS THAT THE TRIAL ATTORNEY WAS INEFFECTIVE BY HIS FAILURE TO RAISE AN OBJECTION TO THE COURT'S ERRONEOUS AND MISLEADING INSTRUCTIONS ON THE ATTEMPTED MURDER CHARGE

B. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISED [SIC] ARGUMENTS THAT THE TRIAL COURT ERRED IN NOT PERMITTING DEFENSE COUNSEL TO CROSS-EXAMINE SECURITY OFFICER DAVID BARR AS TO HIS CRIMINAL RECORD PURSUANT TO COURT RULE 404(b)

C. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE ARGUMENTS THAT JURY CONVICTED DEFENDANT OF SECOND-DEGREE AGGRAVATED ASSAULT AGAINST N.J.S.A. 2C:11-1(b), DEFINITION OF SERIOUS BODILY INJURY

D. BECAUSE OF APPELLATE COUNSEL'S FAILURE TO RAISED [SIC] ARGUMENTS THAT THE DEFENDANT SENTENCE ON ATTEMPTED MURDER AND TERRORISTIC THREATS WAS IMPERMISSIBLE SINCE IT PUNISHED HIM TWICE FOR THE SAME OFFENSE

POINT TWO

THE LOWER COURT SHOULD HAVE GRANTED THE REQUEST IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BASED ON A STATEMENT BY THE VICTIM'S FAMILY THAT SHOULD HAVE BEEN TREATED AS "PROHIBITED TESTIMONIAL HEARSAY" AT TRIAL, SINCE IT WAS GIVEN FORMALLY TO POLICE AND THE DEFENDANT DID NOT HAD [SIC] A PRIOR OPPORTUNITY TO CROSS-EXAMINED [SIC] ITS DECLARANT, IN THAT IT VIOLATES THE UNITED STATES SUPREME COURT RULING UNDER CRAWFORD V. WASHINGTON

POINT THREE

THE LOWER COURT SHOULD HAVE GRANTED THE REQUEST IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BASED ON THE COURT OBLIGATION TO CHARGE LESSER INCLUDED OFFENSES WHERE WARRANTED AND ITS FAILURE IN DOING SO FORCES THE JURY TO CONVICT FOR A MORE SERIOUS OFFENSE

POINT FOUR

THE DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE THE TRIAL COURT FAILED TO MERGED [SIC] HIS CONVICTION FOR TERRORISTIC THREATS INTO HIS SECOND DEGREE AGGRAVATED ASSAULT CONVICTION

POINT FIVE

THE LOWER COURT SHOULD HAVE GRANTED THE REQUEST IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BECAUSE THE STATE'S ONLY INJURY EVIDENCE WAS FROM NON-MEDICAL WITNESSES AND OF PHOTOGRAPHS OF THE VICTIM'S WOUNDS THAT DOESN'T DEMONSTRATE ELEMENTS OF N.J.S.A. 2C:11-1(b), FOR A CONVICTION ON N.J.S.A. 2C:12-1(b)(1), THUS, DEFENDANT'S RIGHT TO DUE PROCESS OF LAW IS VIOLATED BY THE STATE'S FAILURE TO PRESERVED [SIC] PHOTOS AS STATED UNDER RULE 1:2-3

Counsel's and defendant's pro se briefs raise numerous issues which may be grouped under three headings: (1) Did the trial court address all of the claims raised in PCR petition? (2) Were trial and appellate counsel ineffective in numerous ways? (3) Was there a conflict of interest when the Public Defender's Office assigned new counsel?

I.

In reviewing the trial court's written and oral decisions, we find that the court incorrectly determined that issues presented in defendant's pro se PCR brief had been adjudicated on appeal and were, therefore, barred from re-litigation pursuant to R. 3:22-5. We disagree.

In his "Pro Se Addendum Brief" dated March 31, 2005, defendant raised the following issues:

I. [APPELLATE] COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO RAISE ARGUMENT ON DIRECT APPEAL THAT PETITIONER [SIC] SENTENCE TO ATTEMPTED MURDER AND TERRORISTIC THREAT IMPERMISSIBL[Y] PUNISHED HIM TWICE FOR THE SAME OFFENSE[, AND THEREFORE] VIOLATED HIS RIGHTS UNDER U.S. AND THE N.J. CONSTITUTION

II. THE ATTEMPTED MURDER CHARGE WAS PREDICATED ON A STATEMENT BY THE VICTIM'S FAMILY, THAT SHOULD HAVE BEEN TREATED AS PROHIBITED "TESTIMONIAL HEARSAY" AT TRIAL, SINCE IT WAS GIVEN FORMALLY TO POLICE AND THE PETITIONER DID NOT HA[VE] A PRIOR OPPORTUNITY TO CROSS-EXAMINE ITS DECLARANT, WHICH VIOLATED THE UNITED STATES SUPREME COURT RULING UNDER CRAWFORD V. WASHINGTON.

In his initial PCR brief, defendant argued ineffective assistance of appellate counsel because appellate counsel failed to raise the argument on direct appeal that petitioner's sentences for attempted murder and threat to kill resulted in double punishment for the same offense because the elements of the two offenses are the same. Defendant is simply incorrect.

N.J.S.A. 2C:12-3b sets forth the elements of threat to kill:

A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

The elements of attempted murder are set forth in two sections of the Criminal Code. N.J.S.A. 2C:5-1 provides a definition of criminal attempt:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. Conduct which may be held substantial step under subsection a. (3).

Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

And N.J.S.A. 2C:11-2a defines criminal homicide:

A person is guilty of criminal homicide if he purposely, knowingly, recklessly . . . causes the death of another human being. In reading the statutes, it becomes clear that the offenses of attempted murder and threat to kill are substantially different offenses, having different elements.

With respect to his Crawford argument, defendant contended that "[t]he victim's family statement to police went directly to the extent of the offenses charged." He claims that since there was no medical evidence admitted at trial on the extent of the victim's injuries, the allegations of aggravated assault and attempted murder were based solely upon the family's statement which he was not permitted to cross-examine in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). There is no merit to this argument.

We first note that defendant was sentenced on April 25, 2000. Our decision on direct appeal was rendered on December 17, 2001 and the Supreme Court denied certification on April 25, 2002. Consequently, defendant's appeals were not in the pipeline when Crawford was decided on March 8, 2004 and it cannot be applied retroactively. Whorton v. Bockting, 549 U.S. ___, 127 S.Ct. 1173, 167 L.Ed. 2d 1 (2007).

Even if we were to address the merits of defendant's Crawford claim, we find no merit in it. In Crawford, the Court determined that a testimonial statement, which cannot be cross-examined by the defendant, violates the Sixth Amendment confrontation clause of the United States Constitution. Defendant maintains that the charge of attempted murder was added after the victim's family notified the police that the victim underwent surgery for her wounds. He claims that there was no other basis for the attempted murder charge. The record indicates, however, that there is substantial first-hand evidence of attempted murder. The victim, herself, testified that defendant inflicted nine stab wounds to her head, chest, arms, stomach and back. She testified that she went from Salem Memorial Hospital, where she was first treated, to Christiana Hospital in Delaware, where she had surgery to repair puncture wounds in her small intestines. Photographs of the victim's wounds were admitted into evidence and defendant had the opportunity to fully cross-examine the victim with respect to the seriousness of her wounds.

The officer on the scene testified to the nature and extent of the victim's wounds based upon his first-hand observations.

Defendant had the opportunity to fully cross-examine the officer.

Moreover, the arresting officers testified that while defendant was in the police car, he said, "I tried to kill the bitch," and as defendant was being escorted from the store, he repeatedly said, "I tried to kill the bitch," "I wanted to kill the bitch." When he was placed in the police car, defendant said, "You better move out of the way because I'll take your gun, I'll go back in and kill the bitch" or "I'll go back in and shoot her." Defendant had the opportunity to fully cross-examine the officers.

The record demonstrates that there was sufficient evidence to prove attempted murder beyond a reasonable doubt without reference to the family's statement, and there was no Crawford violation with respect to that charge.

Defense counsel's letter brief dated February 7, 2006 raised the following issues:

POINT ONE

THE DEFENDANT IS ENTITLED TO A HEARING TO ESTABLISH HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT TWO

THE DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT RETAIN AN EXPERT WITNESS

B. DEFENSE WAS INEFFECTIVE BECAUSE HE FAILED TO REQUEST THAT THE COURT CHARGE LESSER INCLUDED OFFENSES.

C. DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT ADEQUATELY REVIEW THE DISCOVERY.

The trial court incorrectly stated that these issues had been adjudicated on direct appeal. Defendant argued that trial counsel was ineffective because he "did not offer any expert medical evidence about the superficial nature of the victim's injuries." Defendant contended that this was a serious error because the State's only evidence concerning the victim's injuries came from "the victim's and the police officer's non-medical testimony and the introduction of various photographs." Defendant argues that an expert should have been retained to dispute the evidence of the victim's wounds and to create reasonable doubt on the State's claims of serious bodily injury. Defendant does not offer any evidence to support his claim that the victim's injuries were superficial, nor does he cite any case law to support his position that a medical expert was necessary. Plaintiff's arguments on this point are wholly speculative and without merit. R. 2:11-3(e)(2).

II.

In addition to the points already discussed, defendant argues that trial and appellate counsel were ineffective in other ways. He claims that trial counsel should have objected to the jury charge on attempted murder. Defendant argues that in charging the jury, the trial court erred in including the word "knowingly" as the appropriate state, along with "purposely" for attempted murder.

In reviewing the record, we find that the trial court did, in fact, use the word "knowingly" on one occasion. During the remainder of the lengthy charge, however, the court used the correct words "purpose" or "purposely." The propriety of a trial judge's instruction to the jury must be examined in the context of the entire charge to determine if the charge was ambiguous or misleading, thereby prejudicing the defendant. State v. Hipplewith, 33 N.J. 300, 317 (1960). Moreover, when no objection to a jury charge is raised at trial, it may be presumed that the instructions were adequate. State v. Macon, 57 N.J. 325, 333 (1971). The absence of an objection to a charge is also indicative that trial counsel perceived no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973). We will reverse on an erroneous jury charge only if we find plain error.

R. 2:10-2. Plain error, in the context of the jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Here, we find that the court's one-time inclusion of the word "knowingly" in the lengthy charge was harmless error. R. 2:10-2. Consequently, we do not find that trial counsel's failure to object to the charge amounted to ineffective assistance of counsel.

Defendant further argues that appellate counsel was ineffective in failing to raise arguments that the trial court erred in not permitting defense counsel to cross-examine the security officer as to his purported criminal record. We find no merit in this argument.

The trial court conducted a hearing pursuant to N.J.R.E. 104 to determine whether evidence of the security guard's purported criminal record was, in fact, his. At the hearing, the security guard was asked whether he had ever been convicted of a crime in New Jersey and he responded, "No." He was then asked if he had any criminal convictions in Delaware, and he answered, "None." When asked if he was aware that there was a rap sheet on him, he responded, "Yes," but indicated that the Delaware convictions were his brother's. He testified: "While I was away in Atlanta, Georgia, my brother was here and had a driver's license made in my name with his picture on it." On cross-examination, the security guard acknowledged that the social security number and date of birth shown on the Delaware rap sheet were his but, again, indicated that his brother used his identification to obtain a driver's license in Delaware. The security guard testified that he was never charged with any offense, had never testified in court before and does not carry a weapon. He acknowledged that there had been traffic charges against him but denied ever having any criminal charges.

After hearing the testimony, the trial judge found the security guard credible and denied defendant's application to cross-examine the security guard on the purported criminal record in the presence of the jury.

N.J.R.E. 609 provides for impeachment of a witness by evidence of conviction of a crime. A decision to exclude evidence of prior convictions is within the discretion of the trial judge. State v. Sands, 76 N.J. 127 (1978); State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). Since we find no error in the trial court's precluding cross-examination of the security guard regarding the purported criminal record, we find no ineffective assistance of appellate counsel in failing to raise the issue.

Defendant also claims that appellate counsel was ineffective by failing to argue that defendant was wrongly convicted of aggravated assault because the State failed to prove that the victim suffered serious bodily injury.

"Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. [N.J.S.A. 2C:11-1b.]

Serious bodily injury has been found, for example, in a knife wound through the arm, State v. Sloan, 111 N.J. 293, 298-99 (1988); head injuries and broken ribs, State v. Baluch, 341 N.J. Super. 141, 193 (App. Div.), certif. denied, 170 N.J. 89 (2001); a cut throat that would have resulted in death absent emergency care, State v. Turner, 246 N.J. Super. 22, 26-28 (App. Div.), certif. denied, 126 N.J. 335 (1991); a gunshot wound to the kneecap, State v. Johnson, 216 N.J. Super. 588, 617 (App. Div. 1987); and loss of an eye, State v. Colella, 298 N.J. Super. 668, 674 (App. Div.), certif. denied, 151 N.J. 73 (1997).

"[Q]uestions about the seriousness of an injury focus on the nature and extent of the injury itself rather than on the quality of medical treatment unless the treatment becomes a substantial intervening cause of harm." Cannel, New Jersey Criminal Code Annotated, comment 2C:11-1[3], (citing Turner, supra, 246 N.J. Super. at 26-28). Questions as to the severity of the injury are for the jury to decide. We are satisfied there was sufficient evidence of the seriousness of the victim's injuries presented through the victim's own testimony -- particularly with respect to the surgery required to repair the puncture wounds in her intestine -- to support a finding of serious bodily injury and a conviction for aggravated assault.

III.

Defendant next claims that since the first public defender assigned to him had a conflict of interest with one of the State's witnesses, the second public defender assigned also had a conflict because both attorneys worked in the same office. Defendant acknowledges that there is no per se conflict of interest, but, nevertheless, maintains that a hearing should have been conducted by the trial court to ascertain whether there was an actual conflict.

Defendant has proffered no basis for the claimed conflict and absent such a proffer, the claim is entirely speculative and does not warrant a hearing. State v. Preciose, 129 N.J. 451 (1992).

IV.

We have reviewed all of the briefs included in counsel's and defendant's appendices, specifically defendant's Petition for Post-Conviction Relief pursuant to R. 3:22; his sixty-five page Pro Se Supplemental Brief and Appendix in Support of Petition for Post-Conviction Relief; his pro se verified "Addendum" Petition for Post-Conviction Relief/R. 3:22 filed April 14, 2005 and the accompanying Pro Se Addendum Brief in Support of Petition for Post-Conviction Relief, dated March 31, 2005. We have considered both counsel's and defendant's arguments set forth in their briefs in light of the applicable law. We are satisfied that the remaining points not specifically addressed in this opinion lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Notwithstanding the errors in the PCR court's oral and written decisions on May 26, 2006, we are convinced that post-conviction relief was properly denied.

Affirmed.

20080404

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