May 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JALON LASSITER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-06-0880.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges Parrillo and S.L. Reisner.
Following a trial by jury, defendant Jalon Lassiter was found guilty of two counts of fourth-degree false swearing, N.J.S.A. 2C:28-2(c). The two convictions were merged and defendant was sentenced to a twelve-month term, consecutive to a twenty-year term he was currently serving. Appropriate fees and penalties were imposed. Defendant appeals, and we affirm.
The matter has its genesis in an armed robbery of a Circle Exxon Service Station in New Brunswick on October 5, 2003, for which defendant, Willie Jarvis, John White, and an unidentified participant were charged. On July 7, 2004, defendant entered into a negotiated agreement in which he pled guilty to the robbery. According to defendant's statement, he and three other individuals robbed the Exxon station with a "rifle-type Ruger." Defendant was not sure whether the gun was operable or not because he had never fired it. Defendant provided the following factual basis under oath:
[DEFENDANT'S ATTORNEY]: Mr. Lassiter, back on October 5th of 2003 were you at the Circle Exxon Service Station on Route 1 North at Route 18 in the City of New Brunswick?
THE DEFENDANT: Yes.
[DEFENDANT'S ATTORNEY]: And what was the purpose of being there?
THE DEFENDANT: To get money. Robbery.
Under the plea agreement, defendant agreed to identify the fourth perpetrator. Consequently, on July 13, 2004, defendant was interviewed by representatives of the Middlesex County Prosecutor's Office. The interview was taped, and defendant was placed under oath, with counsel present. In his sworn statement, defendant admitted committing the robbery with his friend Tyrell Hicks, Hicks' girlfriend Dana Sklar, and Hicks' cousin "Philly." According to defendant, the four of them drove together to the Exxon station in Dana's car, entered the gas station with masks on, and held-up two Pakistani attendants. Dana held onto the Ruger, which belonged to "Philly." The quartet stole money from the cash register as well as cigarettes and cigars from the counter. All four then fled the scene. In his sworn statement, defendant denied that either Willie Jarvis or John White were with him at the Exxon robbery and, in fact, disclaimed knowing either of them personally, merely by sight.*fn1
Despite the prosecutor's disbelief as to the non-involvement of Jarvis and White, the State did not seek to withdraw from the plea bargain.
In light of defendant's testimony, the prosecutor represented Willie Jarvis' and John White's cases to the grand jury. The grand jury chose to indict Willie Jarvis, but nobilled John White. At Jarvis' April 2005 trial, defendant testified that Jarvis did not participate in the Exxon gas station robbery, nor did he. On his direct examination by Jarvis' attorney, defendant testified:
Q [JARVIS' ATTORNEY]: Now, in exchange for you pleading guilty to these charges [five robberies, one burglary, one theft, and one kidnapping] did you negotiate a sentence with the Middlesex County Prosecutor's Office?
A [DEFENDANT]: Yeah, first, actually I wanted to go to trial.
Q [JARVIS' ATTORNEY]: But eventually you pled?
A [DEFENDANT]: They forced me to plead.
Q [JARVIS' ATTORNEY]: Who forced you?
A [DEFENDANT]: The Prosecutor. They told me, they basically came up the County and told me either I say his name or whatever and the other guy that they had that they let go name [sic] or I'm basically going to get more time, and I basically told them like I ain't going to put this guy['s] life in, in jeopardy like that. I know what it's like being young in jail. I been in jail since I was fourteen. I came home when I was twenty-one.
Q [JARVIS' ATTORNEY]: But did you ultimately plead guilty to certain crimes?
A [DEFENDANT]: Yeah.
Q [JARVIS' ATTORNEY]: And were you sentenced for those crimes?
A [DEFENDANT]: Yeah.
Q [JARVIS' ATTORNEY]: And what sentence did you receive?
A [DEFENDANT]: Twenty years with eighty-five percent, No Early Release Act.
Q [JARVIS' ATTORNEY]: So, you are looking until at least when you are forty-two by the time you get out?
A [DEFENDANT]: No, actually I just put my appeal in, so I'm looking to at least twenty-six or at least at the end of the summer, yeah.
Q [JARVIS' ATTORNEY]: Did you sign that plea agreement?
A [DEFENDANT]: Yeah, I did. I signed it in the beginning because like I said anybody that got their life, you know what I'm saying, in jeopardy, they going to do as what they feel is right for they self [sic] and their family. I just had a son May 12. It didn't really matter if I thought I was gettin' done wrong. I felt for my son's life I wanted to come home at least while I'm alive to see my son.
Right now my life in jeopardy [sic] because I'm puttin' an appeal in right now to get all these charges [against me] dropped. I'm putting myself in jeopardy right now by basically telling them or telling you all like, that boy [Jarvis] wasn't with that [robbery and selling drugs] and I never pushed him to be with that because we never talked like that.
On cross-examination, the following exchange occurred between defendant and the prosecutor:
Q [PROSECUTOR]: Are you appealing your convictions? . . . You pled guilty to four cases?
A [DEFENDANT]: Yeah, you guys, you all charge me with three hundred cases, you only made me plead guilty to four cases.
Q [PROSECUTOR]: Pretty good deal?
A [DEFENDANT]: Wasn't no good deal?
Q [PROSECUTOR]: And did you plead guilty to an armed robbery in connection with this case?
A [DEFENDANT]: In connection, yeah, yeah.
Q [PROSECUTOR]: If you pled guilty to the armed robbery that means you were at the gas station and committed the armed robbery, correct?
A [DEFENDANT]: No, I pled guilty on the strength of people like you, I pled guilty, you came to the County and said if I don't sign those papers right there I going to do the rest of my life in jail. I just had a son May 12.
Q [PROSECUTOR]: Were you at the gas station?
A [DEFENDANT]: No, I wasn't at the gas station. No, I wasn't. Come on, man.
On re-direct, defendant again denied participation in the Exxon robbery:
Q [JARVIS' ATTORNEY]: Did you rob the gas station with him [Jarvis] on October 5th?
A [DEFENDANT]: No.
Jarvis was ultimately acquitted of the Exxon robbery.
Following Jarvis' acquittal, defendant was charged with two counts of false swearing by making inconsistent statements under oath. The first count charged defendant in connection with making inconsistent statements at the time of plea on July 7, 2004, and at the Jarvis trial on April 18, 2005. The second count was based on the inconsistency between defendant's July 13, 2004 taped sworn statement to representatives of the Prosecutor's Office and his testimony at the April 18, 2005 Jarvis trial.
At defendant's trial on March 7 and 8, 2006, a redacted transcript of his July 7, 2004 plea hearing, a redacted audiotape and accompanying typed transcript of defendant's July 13, 2004 statement to the Prosecutor's Office, and a redacted transcript of defendant's testimony at the Jarvis trial were all introduced into evidence. Defendant's attorney voiced no objection to the redactions made to the July 7 and 13, 2004 transcripts, but did object to the redaction of the Jarvis trial testimony, arguing that the "doctrine of completeness" required that defendant's Jarvis trial testimony be admitted in its entirety as relevant to defendant's defense to the false swearing charge. The court overruled the objection, reasoning: in reading the transcript I don't -- the limited terms of what this indictment charges there is no reason to put in the rest of what went on which was basically self-serving statements by the defendant and does not bear on the merits or lack of merits of this statement. This statement is offered by the State as evidence of an alleged inconsistency. It is the statement made in the Jarvis matter that has to do with his being or not being at the Exxon station either. Is or is not an inconsistent [statement], that is for the jury to determine. But, the rest of the transcript, it may have some relevance to the defense of coercion, et cetera, but it does not bear on the prosecutor, the prosecutor is offering it in support of the allegations contained in the indictment. If the defense wants to use the transcript then it knows how it can use it on defense, but I can't let them put it in. I can't have, it is not relevant to the prosecutor's case. It is not relevant to the indictment and, therefore, I rule that it will be limited to that [portion of the Jarvis trial cross-examination that begins with "And did you plead guilty . . ." and ends at "come on man." See, supra,.]
Defense counsel chose not to introduce the rest of defendant's statement at trial, and defendant was convicted on both counts of false swearing.
On appeal, defendant argues that his counsel was ineffective for not pursuing a retraction defense at trial. He contends that his appeal of his robbery conviction was "an effort to undo the guilty plea that he felt he had been forced to enter, and to set the record straight." Defendant's argument continues that since the appeal was filed before his testimony at the Jarvis trial, he had a viable defense of retraction that should have been presented to the jury. Yet, instead of doing so, defense counsel merely elicited from the prosecutor who tried Jarvis that the prosecutor was aware that defendant was appealing his case when defendant was put on the stand in April 2005. This, he contends, constitutes ineffective assistance of counsel. We disagree.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Ordinarily, claims of ineffective assistance of counsel are not appropriately raised on direct appeal and are better addressed through an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). See also State v. Morton, 155 N.J. 383, 432-33 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Dixon, 125 N.J. 223, 261 (1991); State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996). Here, however, we are satisfied that defendant's claim may be considered solely on the basis of the record in this case, State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000), because not dependent on facts dehors this record. So considered, we are persuaded that the alleged deficiency clearly fails to meet either prong of the Strickland test.
"A person [is guilty of false swearing if he or she] makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he [or she] does not believe the statement to be true . . . ." N.J.S.A. 2C:28-2(a). N.J.S.A. 2C:28-2(c), the portion of the statute defendant was sentenced under, provides, in relevant part, "[w]here the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant."
The retraction provision of the perjury statute provides those accused of false swearing with a defense to the crime.
N.J.S.A. 2C:28-2(b). The perjury statute defines retraction as: an affirmative defense under this section that the actor retracted the falsification in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter without having caused irreparable harm to any party.
[N.J.S.A. 2C:28-1(d) (emphasis added).]
Defendant essentially argues that since his notice of appeal was filed before he testified at the Jarvis trial, he "retracted the falsification in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter without having caused irreparable harm to any party." We disagree.
In the first place, we do not consider the mere filing of a notice of appeal to be a retraction within the meaning of the relevant statute. A retraction is a formal statement made under oath for the purpose of withdrawing a statement previously made. See Black's Law Dictionary 1318 (7th ed. 1999). Defendant's notice of appeal is neither a sworn statement nor was it made for the purpose of recanting a previous statement.
Nor do we consider it made in the "proceeding or matter" in which the false statement was uttered. As to the latter, only one New Jersey case has discussed the actual timing of a defendant's retraction. State ex rel. J.S., 273 N.J. Super. 450 (Ch. Div. 1994). In J.S., a juvenile defendant pled guilty to burglary, and implicated others as participants in the crime, under oath on August 26, 1993. Id. at 452. On September 16 and 30, 1993, before the defendant was sentenced, he appeared formally before the court and, under oath, retracted his earlier statements pertaining to certain alleged accomplices. Id. at 453. Based on these facts, the judge found defendant guilty of unsworn falsification to authorities, N.J.S.A. 2C:28-3, and reserved decision on the perjury charge for after oral argument on the question of the availability of a retraction defense. Ibid. After argument, the court found that "post-plea, predisposition retraction of false testimony uttered at the time of entry of the plea occurs 'in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter' and as such avails the defendant of the affirmative statutory defense of retraction per N.J.S.A. 2C:28-1(d)." Id. at 461-62.
J.S. is of no comfort to defendant here. There, the court specifically limited "'proceeding' to all stages of a criminal prosecution from grand jury presentment through sentencing." Id. at 460. See generally Commonwealth v. Dean, 94 A.2d 59, 60 (Sup. Ct. Pa. 1953) (rejecting idea that "proceeding" included all matters through final disposition by an appellate court, "proceeding" ended when final judgment was entered). In J.S., the defendant had yet to be sentenced when he retracted his previously sworn to statement, so the retraction defense was available to him, as his retraction occurred within the same proceeding, prior to entry of a final judgment of conviction. J.S., supra, 273 N.J. Super. at 461-62.
Here, of course, defendant was sentenced and a judgment of conviction was entered prior to his testimony in the Jarvis trial, and therefore his notice of appeal cannot be considered to be the same "proceeding" within the intendment of N.J.S.A. 2C:28-1(d). And while "matter" may have a broader connotation than "proceeding," J.S., supra, 273 N.J. Super. at 458-59, we do not consider its meaning expansive enough to encompass events, such as the filing of a notice of appeal, occurring beyond the completion of formal judicial proceedings.
Even if construed as defendant suggests, defendant's argument still fails. We note in this regard that defendant actually withdrew his notice of appeal on April 14, 2008, four days before he swore inconsistently at the Jarvis trial, State v. Lassiter, No. A-2372-04T4 (App. Div. April 4, 2008), thereby negating any suggestion that his notice of appeal could have served as a retraction of the falsification "in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter." N.J.S.A. 2C:28-1(d).
Accordingly, we conclude that because defendant was not entitled to a retraction defense, counsel was obviously not ineffective for failing to proffer one.