May 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS CLARKE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-01-0079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2008
Before Judges Fuentes and Grall.
Defendant, Louis Clarke, pled guilty to four counts of first degree armed robbery, N.J.S.A. 2C:15-1. Pursuant to a negotiated plea agreement, the court sentenced defendant to four concurrent terms of fifteen years, 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.*fn1 The court also imposed the mandatory fines and penalties. Approximately four months later, the court amended the judgment of conviction to reflect that defendant must serve a five-year period of parole supervision following his release.
Approximately three years thereafter, defendant filed a petition for post conviction relief (PCR), claiming ineffective assistance of counsel. The trial court denied the petition without holding an evidentiary hearing. Defendant now appeals raising the following arguments.
DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED WHEN HIS ATTORNEY THREATENED THAT SHE WOULD NOT REPRESENT HIM AT TRIAL IF HE REJECTED THE STATE'S PLEA OFFER.
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HIS TRIAL COUNSEL'S FAILURE TO FILE A MERITORIOUS MOTION TO SUPPRESS AN ALLEGED CONFESSION TAKEN IN VIOLATION OF DEFENDANT'S MIRANDA RIGHTS.
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF THE CUMULATIVE ERRORS AND OMISSIONS OF HIS TRIAL COUNSEL IN FAILING TO PREPARE DEFENDANT'S CASE FOR TRIAL, LEAVING DEFENDANT WITH NO OTHER OPTION THAN TO ACCEPT THE STATE'S PLEA OFFER.
A. Defense Counsel Was Ineffective in Failing to File a Meritorious Motion to Suppress Evidence Seized When the Police Search Exceeded the Bounds of a Search Incident to a Lawful Arrest.
B. Defense Counsel Was Ineffective In Failing to File a Meritorious Motion to Challenge the Impermissibly Suggestive Photo Array Used to Identify Defendant as a Suspect in the First Robbery.
C. Defense Counsel Was Ineffective in Failing to File An Appeal as Requested by Defendant.
D. Defense Counsel Was Ineffective in Failing to Challenge the Validity of the Arrest Warrants.
E. Defense Counsel Failed to Obtain a Tape or Transcript of Defendant's Alleged Confession.
THE PCR COURT'S DECISION DENYING DEFENDANT'S PETITION IS FOUNDED ON A MISINTERPRETATION OF THE GROUNDS FOR POST CONVICTION RELIEF.
THE PCR COURT ERRED BY RESOLVING DISPUTED ISSUES OF FACT AGAINST DEFENDANT AND DENYING DEFENDANT'S REQUEST FOR A HEARING ON HIS PCR PETITION.
DEFENDANT'S FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE STATE'S DESTRUCTION OF CRITICAL EVIDENCE. (NOT RAISED BELOW)
DEFENDANT'S PCR PETITION SHOULD BE GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION.
We reject these arguments and affirm. We summarize the following facts from the documentary evidence presented to the trial court.
The First Robbery
On November 15, 2001, at around 12:10 p.m., a man dressed in black and wearing a black mask entered the Chestnut Mini Market in Vineland, New Jersey, with a gun in hand. He demanded in Spanish that store employee Javier Rodriguez give him "the money," and placed a handgun to the back of Rodriguez's head. When Rodriguez did not deliver the money fast enough, the assailant hit him in the back of the head with the gun.
After getting an estimated two hundred dollars, the masked man led Rodriguez to the back of the store, while pointing the gun to his head. Remarkably, Rodriguez managed to free himself from his assailant's grasp, grab a butcher knife, and stab him on the right side of the torso, near his waist. The would-be robber turned, and headed out of the store.
Rodriguez initially gave chase; as the individual ran out of the store, his mask fell; at this point, Rodriguez recognized him as a previous customer of the store. Based on this realization, Rodriguez stopped chasing the assailant, returned to the store, and telephoned the police. He described the assailant to the police as a "Hispanic male, light complexion, with a short haircut worn forward," approximately five feet, six inches to five feet, eight inches in height and about 140 to 150 pounds.
The Second Robbery
On November 17, 2001, a man robbed the Riggins Gas Station located at 301 West Landis Avenue, in Vineland. According to gas station attendant, Gurman Singh, as he was cleaning the restroom, an unknown individual entered, grabbed the back of his shirt, and forced him to sit on the restroom toilet. The man then struck him in the head with a small black pistol several times, and removed $116 from his front pocket. The assailant left the restroom, and rode away on a small bicycle.
Singh described the individual as "wearing a blue mask, a blue jacket, black pants, white sneakers, and dark colored gloves." Even through the mask, Singh saw that the man had "white skin complexion, with blue eyes, and a thin mustache." He estimated that the man was about five feet, five inches to five feet, seven inches tall, and weighed approximately 140 to 150 pounds.
The Third Robbery
On November 18, 2001, a third robbery took place in Vineland at a Mobil station, located at 901 East Chestnut Avenue. Haider Ali Khan was in the store portion of the station when a man walked in, pointed a "large, shiny black handgun" at him, and ordered him to give him the money. When Ali-Khan opened the cash register drawer, the man took the drawer, spilled out its contents, took approximately three hundred dollars in cash, and fled on bicycle. Ali-Khan described the robber as a Hispanic male, wearing a blue or black puffy jacket, dark work-style pants, gloves, a tight cap, and a bandanna or scarf over his face, revealing only his eyes.
Ali Khan believed that the same man had come into the store earlier; they argued over the purchase of a gas can and cigarettes, because the man was ten cents short. The police took custody of a video surveillance tape from the gas station.
The Fourth Robbery
On November 20, 2001, the same Mobil station that had been robbed two days earlier, was robbed again. The assailant pointed a handgun at two service station employees, and demanded money; he fled on a bicycle with approximately $250. One employee described the robber as "a white male possibly Hispanic wearing a dark colored coat, light khaki pants, a mask and a hat." He was about five feet, six inches tall and thin. The police took custody of the station's video surveillance tapes.
Vineland Detective Scott Collins interviewed Rodriguez, the victim of the first robbery. Rodriguez had originally described the robber as Hispanic. When interviewed by Collins, he added that the perpetrator was a "Hispanic male who looks more Korean with slanted eyes." Rodriguez, who had recognized the subject as a previous customer of the store, also stated that the man had told him that he was Puerto Rican and Korean. Following the interview, Rodriguez was shown photographs of white males between the ages of eighteen to thirty-four; he was unable to identify the defendant from these photographs.
When Collins described the suspect to Detective Sergeant Carini, he indicated that he had seen a man matching that description "hanging around the area of SW Boulevard and Montrose Street," an area known for illicit narcotic activities, specifically heroin. Although Carini did not know the individual's name, he knew he worked at Neptune Restaurant.
Armed with this information, Collins was able to identify defendant, Louis Clarke, as the person who had committed the robbery. Collins prepared a photo array using defendant's photograph. He told Rodriguez the array may or may not contain a picture of the man he had described. Vineland Detective Ramos showed photographs to Rodriguez, one by one. He immediately identified defendant as the person who had robbed him; Rodriguez said he was "one hundred percent" certain.
An arrest warrant was issued naming defendant as the person who had committed the November 15 robbery. That same day, near 11:10 p.m., Detective Ramos saw a male on a bicycle ride past his vehicle, coming from the direction of the 901 East Chestnut Avenue Mobil station and proceeding south on East Avenue. Ramos then received a radio transmission indicating that the 901 E. Chestnut Avenue Mobil station had just been robbed. Detective Ramos and Austino reported to the Mobil Station and learned that the robber had fled on bicycle. Ramos immediately pursued the individual he had seen earlier to the Regency Village Apartments; once there, he lost sight of him.
Based on an anonymous tip, Detectives Ramos and Austino learned that defendant was staying in the apartment complex, in apartment number G-6. On November 21, 2001, at approximately 1:00 a.m., police officers Austino, Ramos, Casiano and Riordan arrived at defendant's apartment. When Austino knocked on the apartment door, it swung open, stopping only by a security chain. According to the police reports, the door was sufficiently ajar (three inches) to permit Austino to shine his flashlight inside and see defendant lying on the couch in the living room. Austino kicked the door, breaking the chain. The arresting officers then handcuffed defendant without incident.
According to Austino's report, he advised defendant of his Miranda*fn2 rights and defendant acknowledged he understood the rights that were read to him. The police recovered $203 from defendant's rear pants pocket. According to Austino, when advised that he was under arrest for the Chestnut Mini Mart robbery, defendant admitted he committed the robbery, and that the gun he used was in the same room. The gun was found where defendant indicated it was located and defendant also showed the officers the stab wound inflicted by Rodriguez, as the latter resisted defendant's assault. Defendant also admitted that he had committed the Chestnut Mobil robbery; he claimed that the moneys the police found on his person were the fruits of that crime.
A second police report states that suspected CDS, a BB gun and two skull caps, one black and one blue, were found on the kitchen table and a mountain bicycle was found in the living room. Officer Spendiff located a small brown box containing numerous marijuana seeds "in a small crawlspace in the bedroom closet."
Defendant's version of his arrest is markedly different. He claims that after he was advised of his Miranda rights, the police ignored his repeated requests for an attorney. According to defendant, the officers conducted an "extensive search" of the entire apartment, including the kitchen cabinets, the medicine cabinets, dresser drawers, and the toilet tank. He maintains that the BB gun was found on the kitchen table, but it was not in plain sight, since it was concealed by a radio.
The police transported defendant to the police station, where he signed a form acknowledging that he understood his rights under Miranda. Thereafter, defendant agreed to waive those rights, and admitted that he performed all four of the robberies. During the interview, at 2:50 a.m. the officers gave defendant food. Defendant's taped statement was either lost or destroyed. Defendant disputed many of the details alleged by the State.
The Plea Agreement
On February 28, 2002, defendant's trial counsel wrote to the prosecutor assigned to defendant's case and requested "the surveillance tape, taped statement of the defendant, and any other taped statements and the rap sheets of all the victims." On April 26, 2002, defense counsel followed up on her initial request as follows:
Please be advised that my investigator advises me that one of the victims, Mr. Singh speaks only Indian and speaks no English whatsoever. Before I go to the expense of hiring an Indian interpreter, perhaps this will factor in to getting some kind of lower plea bargain for this first offender.*fn3 I am painfully aware that he has four armed robberies pending, however, this is first [sic] and only brush with the law. I know he will take a ten or even twelve, with some time to talk to him with the No Early Release Act applying. Again, this is a first offender and after meeting with him a number of times in the County Jail, believe [sic] he really is harmless, and just made a few stupid mistakes while under the influence of drugs. He is quite young as well.
I would like to talk to you before his next PTC if I may, in an effort to resolve this before the next listing.
On May 13, 2002, the prosecutor responded stating that the only tape the police had in this matter was the video surveillance tape from the gas station.
In support of his PCR petition, defendant claims that he informed his attorney of the circumstance of his arrest, specifically how his entire apartment had been searched; that he was repeatedly questioned by police despite his request for counsel. According to defendant, counsel advised him that, in her opinion, a motion to suppress his confession or the evidence seized would be fruitless.
During another meeting with his attorney, defendant claims that he informed her that the copies of the arrest warrants issued on November 20, 2001 were not signed by anyone authorized to administer oaths. Counsel allegedly responded that the warrants submitted in discovery were signed, so any challenge to the warrants would be fruitless; no motion was filed to challenge the warrants.
Defendant and his counsel watched the surveillance footage from the Chestnut Mobil robberies. He claims the video did not show that a robbery had taken place. He further states that he reviewed discovery, while incarcerated, and wrote to his attorney about challenging the identification the police obtained from Rodriguez, because he was the only male of Asian decent in the photo array. No motion was filed challenging the photo array either.
The State's initial plea offer was a thirty year term with eighty-five percent parole ineligibility. After some negotiations, the final plea offer was a sentence of fifteen years, with eighty-five percent parole ineligibility. Defendant claims that he initially rejected the plea offer and counsel "in a dissatisfied manner" informed him "that if he did not take the plea, she would not represent the defendant i[f] he elected to proceed to trial." Thereafter, defendant agreed to accept the plea.
Defendant argues that his PCR petition should have been granted since his right to effective assistance of counsel was violated by his attorney's cumulative errors and omissions and that the court erred in failing to hold an evidentiary hearing on his petition. He claims that these errors show his counsel's performance fell below "professional norms" and this failure to prepare for trial left him with no option other than to accept the State's plea offer. The State argues that counsel's actions do not amount to ineffective assistance of counsel.
In order to prove that counsel's performance "undermined a defendant's constitutional right to counsel" under either the Federal or New Jersey State Constitution a defendant must satisfy the requirements of the two prong test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, L.Ed. 2d 674 (1984) and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). A defendant must demonstrate "(1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Castagna, supra, 187 N.J. at 314).
"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992) (citing State v. Odom, 113 N.J. Super. 186, (App. Div. 1971)). An ineffective assistance of counsel claim is "more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required." Ibid.
A trial court may grant an evidentiary hearing, if the defendant establishes a prima facie case of ineffective assistance of counsel. State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005) (citing State v. Marshall, 148 N.J. 89, 157 cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997)). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington." State v. Goodwin, 173 N.J. 583, 596 (2002). "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Preciose, supra, 129 N.J. at 462-63.
"If there are disputed issues as to material facts regarding entitlement to post-conviction-relief, a hearing should be conducted." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citing State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999)). When events occur outside the presence of the judge and their resolution requires weighing of facts and assessing credibility these determinations "are best made through an evidentiary proceeding with all its explorative benefits, including the truth-revealing power which the opportunity to cross-examine bestows." Pyatt, supra, 316 N.J. Super. at 51.
To satisfy the first prong of the Strickland test and demonstrate counsel's performance fell below the "objective standard of reasonableness" the court must find that "counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." Allegro, supra, 193 N.J. at 366 (quoting Loftin, supra, 191 N.J. at 197-98). There exists "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and in order to "rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy." Ibid. (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).
Here, trial counsel's decision not to file a motion to suppress evidence gathered by the State in connection with defendant's arrest and in the form of his oral confession do not rise to ineffective assistance. Counsel's decisions were grounded in her professional opinion that these motions were likely to be denied by the court. Given the circumstances surrounding the procurement of this evidence by the State, we cannot conclude her opinion was clearly erroneous.
In responding to these motions, the State would have argued that the officers' testimony describing what occurred when they executed the arrest warrant was reasonable and worthy of belief. Defendant would have been the only witness who could testify to the contrary. Resting only on the credibility of these witnesses, it is entirely reasonable for counsel to have opined that the likelihood of successfully prosecuting these motions was at best remote. In short, the decision not to seek suppression of this evidence was a strategic one, not subject to second guessing in the context of a PCR petition. See State v. Chew, 179 N.J. 186, 205 (2004).
The decision not to challenge the photograph array presented to Rodriguez also falls within the realm of trial strategy. It must be emphasized, that Rodriguez's familiarity with defendant stems from an encounter that predated the robbery. Stated differently, the photo array played a relatively minor role in linking defendant to the gas station robbery. In this context, defense counsel's strategic decision not to challenge the array is supported by the record. Finally, even if we were to conclude that defense counsel erred in this respect, there is an overwhelming amount of independent physical evidence linking defendant to this crime. Thus, defendant is unable to meet the second prong of the Strickland/Fritz test, requiring that there be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
We finally address defendant's allegation that defense counsel threatened to withdraw from the case unless he accepted the plea agreement. Because such a claim involves a breach of counsel's ethical responsibilities, we must anticipate that counsel would deny that she ever made such a threat. In this light, we look to the circumstances existing at the time the alleged threat was made to determine whether the trial court erred in refusing to conduct an evidentiary hearing to resolve this issue.
First, defense counsel here was a staff attorney in the Office of the Public Defender. Unlike the pecuniary concerns that might induce a private attorney to consider withdrawing from a case in which she has not been paid, this is not an issue with a public defender. Furthermore, if counsel believed that defendant was not willing to follow her professional advice or had otherwise lost confidence in her professional judgment, she would have requested that her office assign the case to another attorney. Defendant could have also told the trial judge directly about any misgivings he had with the manner in which his attorney was handling his defense. None of this occurred here.
We are thus satisfied that the trial court correctly denied defendant's PCR petition. The balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We conclude by noting that the plea agreement negotiated by defense counsel here was extremely favorable to defendant.
Defendant was charged with four first-degree robberies, committed at four separate occasions, against separate victims. He was thus facing the real likelihood of consecutive sentences. Given the overwhelming evidence against him, the terms of the plea agreement were fair, just, and saved defendant from the prospect of serving a considerably longer term of incarceration.