June 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROY GARCIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-01-0048.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges Stern and C.S. Fisher.
Defendant and his brother were charged with first-degree attempted murder, and other offenses, in connection with the shooting of Joseph Singleton in Mount Holly on April 16, 1999. At the conclusion of a trial, defendant was found guilty of first-degree attempted murder, N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b).*fn1 Defendant was sentenced to a fifteen-year prison term, with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the attempted murder conviction. He was also sentenced to a seven-year term, subject to a NERA parole disqualifier, on the aggravated assault conviction; a seven-year term, with a three-year period of parole ineligibility, on the possession for an unlawful purpose conviction; and a four-year term, with a three-year period of parole ineligibility, on the unlawful possession of a weapon conviction. These terms were ordered to run concurrently with the term imposed on the attempted murder conviction.
Defendant appealed and argued, among other things, that the trial judge erred in excluding a statement given to police by Michael Kelly, an alleged eyewitness to the shooting, which apparently indicated that defendant was not the person who shot Singleton.*fn2 At trial, defendant had asserted that the statement constituted an excited utterance and was, therefore, admissible pursuant to N.J.R.E. 803(c)(2). In rejecting this argument, we indicated that the record revealed that Kelly "responded to questions rather than giving information spontaneously," and that he "was cooperative, lucid, not in shock, and able to give a flowing statement without hesitation" to the police. State v. Garcia, No. A-4053-01T4 (App. Div. June 3, 2003) (slip opinion at 3). In light of these circumstances, we concluded that the trial judge's "refusal to deem Kelly's statement an excited utterance . . . was a discretionary determination appropriately within the trial judge's purview." Id. at 4.
Other than remanding for the correction of the judgment on a merger issue, we affirmed. The Supreme Court denied defendant's petition for certification on October 2, 2003. 178 N.J. 29.
Defendant filed a petition for post-conviction relief (PCR) on February 2, 2006, contending that he was deprived of the effective assistance of counsel because his trial attorney failed: (1) to properly advise him regarding a plea offer and his exposure if he went to trial; (2) to make various objections to questions posed during trial; and (3) to take all reasonable and appropriate steps to secure Kelly's appearance at trial. The trial judge refused defendant's request for an evidentiary hearing and denied the PCR petition.
Defendant has appealed, raising the following arguments for our consideration:
I. THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE BY IMPOSITION OF THE NO EARLY RELEASE ACT. (NOT RAISED BELOW.)
II. THE PCR COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING.
We find insufficient merit in Point I to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we agree that the trial judge should have conducted an evidentiary hearing regarding counsel's failure to produce Kelly as a witness at trial.
"Post-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). Strickland v. Washington, 466 U.S. 668, 683, 104 S.Ct. 2052, 2062, 80 L.Ed. 2d 674, 690 (1984), which has been followed in our courts, State v. Fritz, 105 N.J. 42, 51 (1987), described the test to be applied in examining claims of actual ineffectiveness in the following way:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
In considering the application of this test to the present circumstances, we note that the trial judge found that Kelly's unavailability at the time of the PCR hearing precluded the judge's ability to resolve the matter on its merits. That is, the trial judge was not dismissive of defendant's PCR claims about Kelly -- to the contrary, the judge recognized that Kelly was "an important witness" for the defense. But the judge concluded he was unable to determine whether trial counsel's failure to call Kelly as a witness was meaningful because he could not then determine what it was that Kelly may have testified to at the time of trial. As a result, the judge "left the door open" and indicated that if PCR counsel proved "successful in locating . . . Mr. Kelly, and depending upon what happens with that, we may have an issue that would be subject to an evidentiary hearing." We discern from the judge's decision that the denial of the PCR petition on this point was without prejudice. We conclude that the issues regarding Kelly should have been examined at an evidentiary hearing.
The first prong of the Strickland test requires consideration of whether trial counsel's performance was deficient. Here, we know that Kelly was not called to testify at trial despite his statement to the police that defendant was not the shooter. Without a clear indication at the present time, or other persuasive evidence, regarding the content of what Kelly's testimony would have been had he testified at trial, the assumption should be that his testimony would have been consistent with the statement he gave police. We do not agree with the trial judge that the lack of a certification from Kelly as to what he would say if called to testify ought to be a bar to the conducting of an evidentiary hearing on this PCR petition.
The hearing should also probe the reasons why defendant's trial attorney did not call Kelly as a witness. According to defendant, his trial attorney indicated that he did not call Kelly because he believed -- incorrectly -- that Kelly's out-of-court statement would be admitted as an excited utterance. We believe defendant's showing in this regard warrants an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999). Whether there was some other reason trial counsel did not secure Kelly's appearance is not clear and is something that should also be explored at the hearing.*fn3 Examination of these matters does not necessarily require Kelly's appearance; the question turns on the circumstances as they existed prior to and at the time of trial in 2001.
We conclude that defendant was entitled to an evidentiary hearing. Should it turn out that Kelly's whereabouts remain unknown or he is otherwise unavailable, the trial judge should then determine whether post-conviction relief is warranted based upon the record created at an evidentiary hearing.*fn4
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.