May 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM CONYERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-08-2075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges S.L. Reisner and Baxter.
Defendant William Conyers appeals from a trial court order dated November 21, 2006, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted on July 10, 2002, of attempted theft by deception, tampering with a witness named William Thompson, and related offenses, in connection with a scheme in which he and two co-defendants fraudulently obtained life insurance policies covering unsuspecting third parties whom defendant believed had AIDS. Defendant named himself and his co-defendants as beneficiaries, although they had no insurable interest in the insured individuals. In his direct appeal defendant argued, among other things, that "the trial court erred by admitting into evidence the tape recorded meeting between William Thompson and the defendant as a hearing should have been ordered by the court, sua sponte, to determine its admissibility under State v. Driver*fn1 ." Defendant contended that because the tape had a number of inaudible portions, it might have been ruled inadmissible had it been challenged. We rejected this argument as being without sufficient merit to warrant discussion, under Rule 2:11-3(e)(2). State v. Conyers, Docket No. A-3075-02 (App. Div. Oct. 26, 2004)(slip op. at 8), certif. denied, 182 N.J. 630 (2005).
On November 7, 2005, defendant filed a PCR petition asserting three arguments: his first trial attorney, Anthony Rathe, had a conflict of interest; his second trial attorney, Ian Hirsch, provided ineffective assistance of counsel in failing to request a Driver hearing with respect to the taped conversation between defendant and William Thompson; and Hirsch was ineffective in failing to cross-examine Thompson on the taped conversation. Defendant later added a claim that his appellate counsel was ineffective. In denying the PCR, Judge Donald Venezia rejected all of these contentions, concluding that defendant was not denied effective assistance of either trial or appellate counsel, and the trial court did not abuse its discretion in admitting the Thompson tape into evidence without a Driver hearing.
The only legally competent evidence supporting the PCR was defendant's certification. In that certification, defendant attested that when he first learned he would be criminally charged in connection with the insurance policies, he retained Rathe, his long-time family and business attorney to represent him as well as other family members who might be charged in the matter. Prior to trial, Rathe informed defendant that each family member needed separate counsel. Accordingly, Rathe assisted defendant and each family member, including defendant's wife, to retain a separate attorney. Defendant retained Hirsch as his attorney, while Rathe continued to represent defendant's daughter Cynthia. The indictment against Cynthia was dismissed. Rathe, however, continued to be involved in defendant's case by sitting in on meetings between defendant and Hirsch and interviews with potential witnesses. Defendant contended that Rathe's "inherent conflict of interest" and his continuing involvement in the case denied him effective assistance of counsel. However, defendant provided no specific details as to how Rathe's involvement interfered with or compromised his defense.
In his certification, defendant also asserted that he had two conversations with Thompson which were recorded. He contended that the morning after Thompson had surreptitiously recorded the second conversation with him, Thompson called defendant and alerted him that he had been "wired" during that conversation. According to defendant, Thompson then told him that the battery on the recording device was weak during the conversation, and that the recorded conversation was ten minutes long. Defendant asserted that his attorney should have challenged the authenticity of the tape, because it was admittedly enhanced by the State Police due to "lack of clarity" and it was longer than ten minutes. He also complained that Hirsch failed to cross-examine Thompson about the recorded conversation.
The State responded that at defendant's trial the defense strategy was to admit the accuracy of the tape, and to provide a benign explanation of its content. Consequently, since Thompson was a helpful witness, there was no need to challenge the authenticity of the tape or to cross-examine him about its authenticity.
The State also argued that once the indictment against Cynthia was dismissed, and because defendant was not inculpating her, there was no adversity of interest between them and no impropriety in Rathe lending assistance to Hirsch. Further, none of the daughters testified at the trial, and defendant did not specify how Rathe's participation interfered with defendant's ability to freely communicate with Hirsch or otherwise affected Hirsch's representation.
In an oral opinion placed on the record on October 31, 2006, Judge Venezia rejected all of defendant's PCR contentions. He concluded that there is nothing to indicate in this case that there was any contrary adverse interest between Mr. [Rathe], Mr. Hirsch, any of the other attorneys, anybody that Mr. [Rathe] had represented, anybody that Mr. Hirsch had represented including the defendant. There's nothing in this case to indicate that there was any adverse interest that would have prevented Mr. [Rathe] from being involved in this case . . . or Mr. Hirsch for that matter.
He also found no evidence placed before him that Hirsch had "functioned ineffectively." The judge concluded that the argument that Hirsch should have cross-examined Thompson about the tape was "Monday morning quarter backing." He reasoned that that was the strategy that was used because . . . apparently Thompson in the opinion of the attorneys wasn't somebody that was going to hurt the defendant . . . nor did the tape, because it seems to me from reading everything . . . that there's nothing in that tape that would pose an adversity to Mr. Conyers.
Judge Venezia also concluded that Hirsch did an excellent job of representing defendant at trial, even if his strategy was unsuccessful. He concluded that defendant had not presented a prima facie case of ineffective assistance so as to justify an evidentiary hearing on the PCR.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed To Disclose A Conflict Of Interest And Failed To Obtain A Waiver Of That Conflict Of Interest.
B. Trial Counsel Failed To Cross-Examine The Witness Thompson Properly.
C. Trial Counsel Failed To File Crucial Motions.
D. Trial Counsel Failed To Adequately Investigate And Prepare The Case.
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 DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV: THE TAPE RECORDED MEETING BETWEEN WILLIAM THOMPSON AND THE DEFENDANT SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT V: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VI: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT VII: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
Having reviewed the record, we conclude that Point IV is barred from consideration in this PCR because it was already raised and rejected in defendant's direct appeal. See R. 3:22-5. Accordingly, we also find no merit in defendant's Point VII.
Addressing Points III and VI, while we agree that defendant's claim of ineffective assistance of appellate counsel is not barred by Rule 3:22-4, the underlying claim is without merit because it is based on the failure of appellate counsel to raise an ineffective assistance claim on the direct appeal. We reject this contention, because defendant's ineffective assistance claim should have been, and has been, raised in this PCR rather than on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992). Appellate counsel cannot be ineffective for failing to inappropriately raise on direct appeal a claim that properly belongs in a PCR. Defendant's remaining appellate arguments are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following comments.
We agree with Judge Venezia that defendant did not present a prima facie case of ineffective assistance of counsel so as to warrant a testimonial hearing. See Precise, supra, 129 N.J. at 463. Stripped to their essence, defendant's assertions are patently insubstantial. Even if Rathe initially had a presumed conflict in attempting to represent defendant's entire family, see Rule 3:8-2, Rathe rectified the situation by assisting defendant to find new counsel. Moreover, well in advance of the trial, all charges were dropped against the daughter whom Rathe had continued to represent, and there is no evidence of any adversity between defendant's interests and those of the daughter. Defendant's reliance on State v. Bellucci, 81 N.J. 531 (1980) is misplaced. In that case, there was an adversity of interest between defense counsel's former clients, who accepted a plea bargain before trial, and his current client Bellucci. Moreover, one of the remaining co-defendants was represented at trial by defense counsel's law partner. None of those factors are present here. Hirsch did not have a conflict of interest in representing Conyers, and defendant did not provide us or Judge Venezia with any concrete examples as to how Rathe compromised his defense by sitting in on some of defendant's meetings with Hirsch.
Defendant's contentions about Hirsch are equally unsubstantiated. In his appendix, defendant included a transcript of the pertinent recorded conversation with Thompson. The transcript contains a number of notations as to inaudible portions, but is generally clear. The conversation is ambiguous but could be construed as a discussion of the version of events that defendant wanted Thompson to give investigators. However, it is not clear from the tape that defendant believed that that version was untruthful. The tape does document defendant giving fifty dollars to Thompson, who was apparently in straitened financial circumstances.
According to Thompson's trial testimony, in the taped conversation the two men did not discuss an insurance policy, and the money defendant gave him was to buy beer. According to Thompson, defendant was his long-time friend and always gave him beer money. Thompson also testified that he was "doped up" or drunk when the prosecutors gave him a transcript of the taped conversation and asked him to sign it. Thompson did not give any incriminating testimony about the tape or the transcript, and there was no reason for defense counsel to cross-examine Thompson about it.
Moreover, our review of the trial transcript reveals that it was clearly the defense strategy to accept the tape and explain it away, rather than to challenge its admissibility.*fn2 On defendant's direct examination, defense counsel went over the transcript of the tape with him line by line and had defendant explain what was going on in the conversation. According to defendant, Thompson was a long-time alcoholic with a poor memory, and his purpose in talking to Thompson was to go over with him what had actually happened with respect to his insurance policy application, to refresh his recollection "so that when they called him into court he could tell the truth." He agreed with Thompson's testimony that the $50 he gave Thompson was to buy beer, something he had frequently done in the past. We find no basis to conclude that Hirsch rendered ineffective assistance of counsel with respect to the Thompson tape. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).