June 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FUQUAN CRAFT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-03-1494.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Payne and Sapp-Peterson.
Defendant, Fuquan Craft, charged with murder and weapons offenses following the death by bludgeoning, stabbing and strangulation of his pregnant girlfriend, Benita Agostini, was convicted by a jury of the lesser offense of aggravated manslaughter, N.J.S.A. 2C:11-4a and c, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was sentenced, following merger of the weapons convictions into the manslaughter conviction, to thirty years in custody with an eight-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, we affirmed defendant's conviction in an unreported opinion, State v. Craft, No. A-6915-99T4 (App. Div.), and certification was denied. State v. Craft, 177 N.J. 572 (2003).
Defendant then petitioned for post-conviction relief (PCR), and with the consent of counsel, his petition was heard on the record previously made in the matter as supplemented by the certifications of defendant, the attorney representing him on his suppression motion and the attorney representing him on appeal. Upon denial of his petition, defendant appealed to us, raising the following arguments:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
TRIAL COUNSEL'S ADMISSION THAT HE WAS "UNAWARE" THAT HE COULD HAVE CHALLENGED THE LEGALITY OF THE DEFENDANT'S ARREST SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS NOT PURGED BY "INTERVENING CIRCUMSTANCES."
Following our review of the record in light of the legal arguments made by counsel, we affirm.
The record demonstrates that in December 1997, during the eighth month of her pregnancy, Agostini moved in with defendant and his family, which included his sister Connie and his mother, Jacqueline. However, tensions arose when defendant became rightly suspicious that he was not the father of Agostini's soon-to-be-born child. On December 22, 1997, Agostini asked defendant for money to purchase food, stating that she and the child were hungry. Defendant refused, stating "let the mother fucker starve." That evening, defendant and his brother went to the movies while Agostini remained in the Craft residence, watching a video with defendant's mother and sister. After defendant and his brother returned home, the three left the Crafts' residence and were seen by a neighbor at approximately 1:00 a.m. on December 23 in front of an abandoned house. Approximately one hour later, two additional neighbors heard a woman scream in a startled fashion and then state: "Stop. Why are you doing this to me?" and "Leave me alone. Please don't do this to me." One of the neighbors stated additionally that she then heard two thumping sounds. The police were not called.
Agostini's body was found behind the abandoned house at approximately 11:00 a.m. on the morning of December 23. Upon receiving notice of the death, the police commenced a homicide investigation. During the initial stages of the investigation, Sergeant Victor Diaz of the Newark Police Department's Homicide Squad, the lead detective in that investigation, spoke with defendant, who was present at the murder scene with other members of his family. Defendant identified Agostini, provided her age and address, and stated that she was his girlfriend. At that point, defendant and other potential witnesses were transported to the homicide squad's headquarters for background questioning. Because defendant's initial oral statements to Diaz at headquarters were inconsistent with those provided by other witnesses, he became a potential suspect. At approximately 4:00 p.m., he was informed of his status and advised of his Miranda*fn1 rights. After signing a waiver form, defendant gave a non-incriminating statement that ended at 6:30 p.m.
At the conclusion of the statement, the police requested that personnel in the record room run a routine record check on defendant and were informed as a result that he was the subject of an arrest warrant issued in 1993 "out of East Orange." After confirming with East Orange's police record bureau that the warrant remained active, defendant was arrested and held overnight pending his transfer to that jurisdiction. While defendant was in custody in Newark on the evening of December 23, waiting to be taken to a holding cell, Diaz noticed what appeared to him to be blood or mud on defendant's boots and the two hats defendant had with him. Upon Diaz's request for the items, defendant consented, signing a consent to search form at 8:50 p.m. and surrendering two black boots, four white sweat socks, one black skully cap and one brown skully cap. Later State Police Laboratory DNA analysis demonstrated that blood on one of the boots matched Agostini's DNA.
During the morning of December 24, defendant was transported to East Orange, but was returned at approximately 11:00 a.m. when it was determined that the warrant had been issued in Newark and had merely been sent to East Orange for service as the result of defendant's residence in that city at the time. Upon his return to the homicide squad,*fn2 defendant was again advised of his Miranda rights, and questioning by Diaz, another police officer, Detective Rashid Sabur, and two members of the Essex County prosecutor's office commenced. Following a further administration of Miranda rights by Detective Sabur, to whose questioning defendant appeared most responsive, defendant orally confessed to the crime. After then agreeing to give a sworn statement, once again being informed of his Miranda rights, and initialing and signing a Miranda waiver form, at 3:15 p.m., defendant commenced his statement. However, when asked how he hurt the victim, defendant requested an attorney, and the statement was stopped. Evidence of defendant's oral confession was utilized by the State at trial in securing defendant's conviction.
Prior to trial, defendant's attorney challenged the admissibility of defendant's confession by arguing that his arrest pursuant to a computer warrant was invalid, and that the confession should be suppressed as the fruit of that illegal arrest. However, following an extended Miranda hearing, the confession was found admissible. Further unsuccessful challenges to the admissibility of evidence found as the result of the police's forensic examination of defendant's boots and the admissibility of his confession were raised on direct appeal, at which time defendant argued through counsel:
THE DEFENDANT'S STATEMENT AND CLOTHING SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE DID NOT HAVE THE AUTHORITY TO ARREST HIM PURSUANT TO AN UNSIGNED AUTOMATED TRAFFIC SYSTEM WARRANT.
DEFENDANT'S STATEMENTS MUST BE SUPPRESSED BECAUSE THEY WERE OBTAINED WHILE HE WAS IN CUSTODIAL INTERROGATION AND THEY WERE NOT ELECTRONICALLY RECORDED.
In a pro se brief, defendant also advanced the argument that probable cause for issuance of the warrant was lacking, and as a result, his post-arrest confession should have been suppressed.
Neither defendant nor defense counsel raised as a basis for the inadmissibility either of the DNA evidence or of defendant's confession the claim that both should have been suppressed because the police had failed to give defendant a reasonable opportunity to post bail on the unrelated motor vehicle charge for which he was arrested on December 23, and that the evidence that was obtained following the arrest and while defendant remained in custody constituted the fruit of the police's illegal conduct. As a result, defendant claims in his PCR petition and on appeal from that denial that defense counsel was ineffective, thereby entitling defendant to post-conviction relief.
In a certification in support of defendant's petition, defense counsel has acknowledged that, at the time of trial, he was unaware of the legal ground for suppression that defendant presently asserts, which was recognized in New Jersey in State v. Hurtado, 219 N.J. Super. 12, 22 (App. Div. 1987), rev'd on other grounds, 113 N.J. 1 (1988). There, we observed: "[A] person arrested for a minor offense must first be informed of his right to post collateral, and given an opportunity to do so prior to conducting an inventory search." Ibid. (citing U.S. v. Mills, 472 F.2d 1231 (D.C. Cir. 1972) and 2 Wayne R. LaFave, Search & Seizure, § 5.3(d) at 331 (1978)).
In the present case, defendant's arrest was for failure to appear in Newark Municipal Court in response to a summons issued for a traffic offense. Although the arrest warrant noted that bail had been set at $500, which could have been satisfied by a ten-percent cash payment of $50, Rule 3:26-4(g), the record of the Miranda hearing suggests that the police officers who held defendant in custody were unaware that the amount of bail had been established. The following colloquy between defense counsel and Sergeant Diaz on what occurred upon defendant's return from East Orange is relevant to this point:
Q: Is it fair to say that at this point in time, Mr. Craft was being returned so that he could appear in Newark Municipal Court and take care of this traffic matter. Is that correct?
Q: Well, why was he being returned then?
A: So, we could hold him here at the cellblock.
Q: For what purpose?
A: So then he could be returned to the Municipal Court or get bailed out or what have you.
Q: Okay. that's what I'm saying -
A: But not the same day. The next court day. The next working court date.
Q: Well, the 24th was a working court date. Correct?
A: The court[s] were closed that date.
The subject of bail was not further addressed, and it is unclear from the record whether defendant could have made bail if he had been informed of the amount. In his certification, defendant claims that he could have done so.
A defendant's right to a new trial as the result of ineffective assistance of counsel is governed by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), as adopted in New Jersey by State v. Fritz, 105 N.J. 42, 58 (1987). To succeed on such a claim, defendant must show that counsel's performance was deficient -- that such performance fell outside the "wide range of reasonable professional assistance," id. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694)-- and that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
For purposes of this opinion, we assume that defense counsel's otherwise admirable representation of defendant was deficient as the result of his failure to exploit the fact that defendant had not been informed of his right to bail prior to the consent seizure of his clothing and his later confession. We nonetheless conclude that defendant has not demonstrated an entitlement to post-conviction relief, because he cannot demonstrate prejudice as a result of counsel's alleged error. See State v. Worlock, 117 N.J. 596, 625 (1990) (failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel).
The failure of the police to advise defendant of his right to post bail, presuming that the police did not yet independently have the probable cause necessary to detain him for interrogation on the murder, certainly resulted in an unjustified period of detention and the disclosure of incriminating evidence. In concluding that post-conviction relief was not warranted, the PCR judge recognized the absence of any precedent directly relevant to the issue of whether suppression of that evidence was required. Indeed, the principle set forth in Hurtado appears not to have been utilized in any context other than that of a challenge to the admissibility of evidence obtained in an inventory search conducted before the defendant, arrested for a minor crime, was advised of his right to post bail in order to obtain his release. No opinion extends Hurtado to a situation such as this in which a defendant, suspected of a serious crime, is legitimately arrested for a minor matter and, without being advised of his right to bail, surrenders incriminating evidence leading to his conviction for the serious crime.
In the absence of precedent on the issue presented, the PCR judge properly analogized defendant's detention to that experienced following an illegal arrest, and he relied on decisions determining the admissibility of a confession or other incriminating evidence that was obtained following such an arrest. In large measure, the judge was guided by the Supreme Court's decision in State v. Chippero, 164 N.J. 342 (2000), in which the Court held that a custodial confession "should be excluded unless the chain of causation between the illegal arrest and the confession is sufficiently attenuated so that the confession was 'sufficiently an act of free will to purge the primary taint.'" Id. at 353 (quoting Worlock, supra, 117 N.J. at 621, quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed. 2d 441, 454 (1963)). See also State v. Barry, 86 N.J. 80, 87 (1981). In Chippero, the Court recognized:
The inquiry for determining whether a defendant's statements are tainted by antecedent illegality is . . . a question of judgment. Considering the purposes of the exclusionary rule in these matters (deterrence of illegal arrests and preservation of the integrity of the judiciary) and the competing purpose of discovering the truth in a criminal trial, the court is required to make a value judgment by considering three factors as they relate to those purposes: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.
[Chippero, supra, 164 N.J. at 353 (quoting Barry, supra, 86 N.J. at 87).]
In the present matter, there is no suggestion in the record that defendant's determination to consent to the police's seizure of his clothing, albeit occurring very shortly after his arrest, was in any sense related to that arrest. The offense for which defendant was arrested -- failure to appear in court in answer to a summons for a motor vehicle infraction -- was hardly of a type that would instill fear in a person such as defendant, who was already well acquainted as a juvenile with the criminal justice system. Nor does the fact of arrest or the prospect of trial on the motor vehicle charge appear to have impelled defendant's confession to an unrelated crime. Although the period of detention certainly afforded the police an additional opportunity for questioning, to which defendant acceded, nothing suggests that the fact of the arrest, itself, had any role in causing defendant to confess. Certainly, nothing in the record suggests that it in any sense was utilized as a threat by the police during their further interrogation.
Additionally, it is noteworthy that a considerable period of time elapsed between defendant's arrest at 6:30 or 7:00 p.m. on December 23, and his confession during the afternoon of the following day. During that period of time, defendant was not subjected to continuous interrogation. Indeed, defendant appears not to have been questioned at all after giving his initial statement to the police late in the afternoon of December 23 and his return to Newark from East Orange at 11:00 to 11:30 a.m. on December 24. To this extent "intervening circumstances" prevented further questioning on the part of Newark's police.
As a final matter, we are satisfied that the failure of the police to inform defendant that he could be released upon providing cash bail of $50 was inadvertent and not the product of police misconduct. If the police had sought to secure defendant's presence in Newark illegally so as to continue their interrogation, they would not have transferred him to East Orange, yet they did so. Additionally, in such circumstances, it would have been logical for the Newark police to prolong defendant's questioning through the evening of his arrest. Yet, again, no such steps were taken. The testimony of Sergeant Diaz that, upon defendant's return from East Orange, the police held defendant so that bail could be set -- testimony given when the bail issue had not arisen -- remains essentially unimpeached.
As a consequence of the foregoing analysis of the three factors set forth in Chippero, as applicable to the facts in this case, we find the incriminating evidence collected by the police, consisting of defendant's boots and confession, to have been untainted by their failure to inform defendant of his rights as recognized in Hurtado, and that evidence to have been properly admitted at trial. Because, as a result, defendant has failed to meet the second prong of the Strickland/Fritz standard, we agree that post-conviction relief was properly denied.