April 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WALTER HOUSTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Ind. No. 99-03-0134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Lisa and Simonelli.
Defendant Walter Houston appeals from the order of August 7, 2006, denying his petition for post-conviction relief (PCR).
A jury convicted defendant of first degree armed robbery, contrary to N.J.S.A. 2C:15-1a(1). Defendant is serving an eighteen-year term of imprisonment 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. Defendant appealed his conviction and sentence. We affirmed. State v. Houston, No. A-2551-01T4 (App. Div. October 30, 2003), certif. denied, 179 N.J. 309 (2004).
Defendant filed a PCR petition, which Judge LeBon denied without an evidentiary hearing. On this appeal, defendant raises the following arguments:
The trial court erred by denying Mr. Houston's petition for post-conviction relief and it should have ordered an evidentiary hearing to evaluate the merits of the ineffective assistance of counsel claim.
Mr. Houston was denied the effective assistance of post-conviction relief counsel as well and his petition should be granted and his conviction reversed, or, the matter should be remanded for a new post-conviction hearing and new counsel should be assigned. [Partially raised below.]
We reject these arguments and affirm.
Defendant was a suspect in an armed robbery, and was identified by two eyewitnesses through a photo array. He also gave a voluntary confession to the police admitting his culpability. He first contends trial counsel was ineffective for failing to object to the out-of-court identification contained in the photo array, and appellate counsel was ineffective for failing to raise this ineffectiveness. This contention lacks merit. On defendant's direct appeal, we affirmed the admissibility of the out-of-court photo array identification of defendant. Thus trial counsel's performance was not deficient and any challenge by appellate counsel would have failed. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
Defendant next contends trial and appellate counsel were ineffective for failing to object to the first degree robbery jury charge because his indictment had been amended to second degree robbery. This contention also lacks merit. The indictment was not amended to a second degree crime as defendant alleges. Rather, the language of the charge was amended to charge defendant with the proper subsection of the first degree crime of robbery. Thus the indictment was amended to correct an error, defendant was not charged with a different offense, and he was not prejudiced because he had notice that he was being charged with first degree robbery. R. 3:7-4.
Defendant next contends that trial and appellate counsel were ineffective for failing to object to a police detective's testimony that he knew defendant from "past contacts," or to request a curative instruction. We disagree. Trial counsel's failure to immediately object to this testimony or request a curative instruction was a strategic decision. He did not want to call the jury's attention to the testimony or highlight it. A valid conviction will not be overturned merely because defendant is dissatisfied with counsel's exercise of judgment during trial. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), (citing State v. Dennis, 43 N.J. 418, 428 (1964), certif. denied, 94 N.J. 531 (1983). Also, in light of the overwhelming evidence of defendant's guilt, at best this was harmless error.
Finally, defendant contends PCR counsel was ineffective for failing to offer any evidence or argue the need for an evidentiary hearing. We disagree. A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 460, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Id. at 462-63. To establish a prima facie case of ineffective assistance of counsel, a defendant "must prove an objectively deficient performance by defense counsel; and (2) that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would be altered." State v. Allegro, 193 N.J. 352, 366 (2008); see also Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; State v. Loftin, 191 N.J. 172, 198 (2007).
To satisfy the first prong, the defendant must show "'that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Under this prong, "'there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [and that, t]o rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy.'" Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694).
The strong presumption that counsel has exercised sound trial strategy is grounded in "the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial[.]" State v. Arthur, 184 N.J. 307, 319 (2005). Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
To satisfy the second prong, a defendant must show that the error committed was "'so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 315)).
Here, defendant failed to establish a prima facie case of ineffective assistance of counsel. He offered no evidence of any deficiency. From our review of the record, we are satisfied PCR counsel's performance was not deficient.
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