May 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARTHUR MONTANA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, MCA-04-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges Lintner and Graves.
This matter comes before us for the second time, in the context of an appeal of a denial of defendant's motion for post conviction relief (PCR). Defendant's PCR application asserted that he received ineffective assistance of counsel resulting in his December 2004 conviction in Vineland Municipal Court as a third time offender of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusing to submit to a chemical test, N.J.S.A. 39:4-50.2.*fn1 Defendant makes the following arguments on appeal.
DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN PERMITTING A VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS AND IN FAILING TO ENFORCE APPLICABLE RULES OF COURT.
DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO CONDUCT APPROPRIATE PRE-TRIAL INVESTIGATION BY WAY OF OBTAINING STATEMENTS FROM WITNESSES.
DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO CALL WITNESSES WHO WERE PRESENT IN COURT WHICH WAS CONTRARY TO DEFENDANT'S WISHES.
DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO MOVE INTO EVIDENCE RECORDS AND REPORTS CONTAINING EXCULPATORY INFORMATION DESPITE THE PROSECUTOR'S LACK OF OBJECTION TO THEIR ADMISSION.
DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO ADVISE DEFENDANT WHETHER OR NOT HE SHOULD TESTIFY.
We reject defendant's contentions and affirm substantially for the reasons expressed by Judge Geiger following defendant's de novo appeal of the Municipal Court's denial of PCR.
Defendant's conviction was based upon the testimony of two witnesses, Robert Strain and Officer Richard Burke of the Vineland Police Department. Strain was in the parking lot of the Ramada Inn when he observed defendant stagger to his vehicle. As Strain left the parking lot, he found himself behind defendant's vehicle proceeding on Landis Avenue. After seeing defendant drift into the four-way stop sign intersection of Mill Road and Almond Road without stopping, he called the Vineland Police Department on his cell phone. While on his cell phone, Strain continued to follow defendant, observing him proceed into the intersection of Mill Road and Oak Road, again past the point where he was supposed to stop. Strain continued to follow defendant until Sergeant Pagnini effectuated a motor vehicle stop of defendant.
Burke was dispatched to the scene to aid Pagnini. At the scene, Burke detected an odor of alcohol emanating from defendant's vehicle. While talking to defendant, Burke detected a stronger odor of alcohol coming from defendant's breath. Responding to inquiry by Burke, defendant told Burke that he had a prior back injury but was not sick or in need of medical attention. According to Burke, defendant's "eyes were watery, bloodshot, consistent with . . . somebody [who was] intoxicated." Defendant was unable to recite the alphabet without singing and was unable to support himself without grabbing onto the door when asked to exit the vehicle.
Defendant was unable to successfully perform the field sobriety tests, was placed under arrest, and taken to headquarters where he was administered Miranda*fn2 warnings. At headquarters, Burke read defendant the standard statement concerning the breathalyzer test, which defendant refused. Defendant was then read the standard statement warning of the consequences of his refusal, which was repeated a second time by Burke.
At the close of the State's case, defendant moved to dismiss the charges based upon the lack of proof that a police officer observed defendant operate his motor vehicle. The judge denied the motion. Defendant then rested. On de novo appeal of the conviction, Judge Geiger found that Strain's observations and report to the police via his cell phone provided the police with sufficient articulable and reasonable suspicion that defendant had committed a motor vehicle offense to validate the stop. He also found, based upon the Municipal Court record, that defendant was guilty beyond a reasonable doubt of DWI and refusal to submit to a breathalyzer. In an unpublished opinion issued on December 14, 2005, we affirmed, noting, as did Judge Geiger, that in accordance with State v. Golotta, 178 N.J. 205, 221 (2003), the police had a constitutional basis to stop defendant upon the information provided by Strain.*fn3 The Supreme Court denied certification. State v. Montana, 186 N.J. 258 (2006).
Defendant filed his application for PCR in February 2006. A plenary hearing, spanning two days, was held in municipal court.*fn4 At the hearing, defendant's trial counsel's testimony addressed the issues defendant claimed represented ineffective assistance of counsel. Counsel indicated that it was a strategic decision not to call defendant, Frank Brooks, the bartender at the Ramada Inn, or Brian Horne, a regular customer who was at the bar when defendant was there. Also strategic was the decision not to use the alcohol expert, who would testify as to defendant's blood alcohol percentage based upon defendant's weight and what defendant claimed to have consumed, or defendant's medical records indicating that he suffered orthopedic back problems and a skin condition that made his face red, known as rosacea. Counsel explained that neither the expert nor the medical records would have benefited defendant's case. Although contradicted by defendant, counsel testified that he discussed these decisions with defendant several times.
Defendant wanted to limit his testimony to contradicting the police officer that he did not refuse the breathalyzer, by testifying that he wanted to take a blood test. Counsel testified that he advised defendant that defendant's assertion that he wanted a blood test would be taken as a refusal and by testifying he would be opening himself to other areas of inquiry. According to counsel, defendant agreed with counsel's assessment.
Brooks testified that he arrived at work at approximately the same time as defendant arrived at the bar and that he served defendant two drinks. He stated first that defendant arrived at "20 of 4" and later testified that defendant arrived at "20 of 6." Horne indicated that defendant arrived at 5:30 p.m., at which time he had been at the bar for two hours. Horne testified that defendant remained at the bar for one-half hour and only consumed one and one-half drinks. Defendant claimed that he arrived at the bar at approximately 6:00 p.m. By comparison, Strain testified that defendant was at the bar from 5:00 p.m. to 7:30 p.m. Defendant was Mirandized at 8:53 p.m.
Most importantly, none of defendant's witnesses could testify as to what defendant had done prior to them seeing him at the bar.
The municipal court judge found that trial counsel's performance was not deficient. He concluded that the testimony of the witnesses defendant claimed counsel should have used would have done "more harm than good." He found counsel's performance not deficient and concluded that nothing presented at the hearing would have changed the result previously reached.
In the de novo appeal, Judge Geiger credited counsel's testimony that the decisions not to call the witnesses or use the medical information or expert's opinion were strategic in nature, noting:
After evaluating the case, the police reports, talking to [defendant] repeatedly, and evaluating the availability of certain witnesses, he made strategic choices as to who he would not call as witnesses. Those were deliberate choices based on his evaluation of the believability, credibility and weight that those witnesses' testimony would have provided.
He concluded that it would have made the matter worse, not better, for [defendant] if those witnesses had testified. And, in particular, that it would have been, in his words, "suicidal, the very nail in the coffin" if the defendant himself would have testified.
This is not the type of case where defense counsel didn't do his job. Didn't find out if there were any witnesses. Didn't find out what those witnesses would have testified about. Didn't know what they could have testified to. He knew those things. And he discussed them with [defendant]. And a decision was made upon his strong recommendation not to use the witnesses.
I don't find the decisions that Mr. McCann made to have been below the level of a reasonable attorney. Mr. McCann was able to assess what he thought would be the strengths and weaknesses, the credibility, the believability, and the impact of the testimony of the three witnesses, as well as the defendant himself. And he came to the conclusion, based on his experience and expertise, that it would be more harmful than helpful to use either the defendant or any of those three witnesses to testify. So after discussing it with [defendant], he made a strategic decision not to use those witnesses. Was it ultimately successful?
No. [Were] his Sixth Amendment rights violated? No. Is he able to show that but for those alleged errors the outcome would have been different? No.
The well-settled principles respecting claims of ineffective assistance of counsel were discussed by us at length in State v. Howard, 383 N.J. Super. 538 (App. Div.), certif. denied, 187 N.J. 80 (2006):
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)[;] State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland and its tests have been adopted by New Jersey). Under Strickland, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Additionally, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 60-61, defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95.
Adequate assistance of counsel is measured by a standard of "'reasonable competence.'" State v. Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, supra, 105 N.J. at 53). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). [Id. at 545-46 (second alteration in original).]
We focus first on defendant's Point I argument that he received ineffective assistance because counsel did not object to the municipal court judge's decision not to permit the motion to suppress to be heard prior to the evidence. Rule 7:5-2(b) provides in pertinent part that "[a]ll motions to suppress shall be heard before the start of trial." The decision by the municipal court judge was based upon what the prosecutor referred to as southern New Jersey practice, that arguing a motion to suppress need not require a separate date or time and could be dealt with after hearing the witnesses. Whether heard as a motion prior to the start of trial or, as here, as a motion to dismiss after the State presented its case, the result would have been the same. Indeed, defendant concedes that trial counsel filed a motion to suppress based on the validity of the stop. As we pointed out in the direct appeal, substantively the stop was constitutionally valid. Under the circumstances, counsel's performance was not deficient nor did it prejudice the defense.
Equally unavailing are defendant's Points II, III, IV, and V arguments. Defendant asserts that counsel's failure to investigate and use defendant's prospective witnesses represented ineffective assistance of counsel. Similarly, he claims that counsel's failure to call defendant or advise him concerning his right to testify and his failure to use defendant's medical records and expert represented ineffective assistance of counsel. Judge Geiger found, contrary to defendant's testimony, that trial counsel discussed with defendant the use of the various witnesses, defendant's testimony, and medical records several times, and made strategic decisions with defendant's approval. His credibility findings are entitled to our deference. State v. Locurto, 157 N.J. 463, 474-75 (1999). It would, therefore, be improper for us to engage in any independent assessment of defendant's and counsel's credibility. Ibid. Beyond that, Judge Geiger's findings could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964). We affirm substantially for the reasons outlined by Judge Geiger in his comprehensive bench opinion of June 22, 2007. We perceive no sound basis to disturb the result reached.