June 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIUS J. BOEGLIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 90-07-3285.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges Wefing, R. B. Coleman, and Lyons.
Defendant appeals from a trial court order denying his petition for post-conviction relief.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was indicted and tried for conspiracy to commit murder, a crime of the second degree, N.J.S.A. 2C:5-2, 11-3; knowing or purposeful murder, a crime of the first degree, N.J.S.A. 2C:11-3(a)(1); retaliation against an informant, N.J.S.A. 2C:28-5(b), a crime of the fourth degree; possession of a weapon without a permit, N.J.S.A. 2C:39-5(b), a crime of the third degree; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree; and tampering with a witness, N.J.S.A. 2C:28-5(a), a crime of the third degree.
The matter was tried as a capital case. The jury eventually convicted defendant of conspiracy to commit murder, murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose. The jury found defendant not guilty of capital murder and thus not subject to the death penalty. It acquitted defendant of retaliation against a witness and witness tampering. At sentencing, the trial court merged certain convictions, after which it considered that the convictions for murder and possession of a weapon for an unlawful purpose survived for purposes of sentencing. The trial court sentenced defendant to life in prison for murder, and directed that defendant had to serve a minimum of thirty years before he could be considered eligible for parole. In addition, it imposed a consecutive ten-year sentence for the conviction for possession of a weapon for an unlawful purpose. Defendant appealed to this court, and we affirmed defendant's convictions. We noted, however, that the conviction for possession of a weapon for an unlawful purpose should have merged into the conviction for murder. State v. Diaz, 144 N.J. 628, 637 (1996). We, therefore, remanded the matter for entry of a corrected judgment of conviction. Boeglin I, supra. The Supreme Court denied certification. 167 N.J. 86 (2001).
This matter has a protracted procedural history. Defendant's crimes occurred in 1990, and he was convicted in 1992. The petition for post-conviction relief that is before us on this appeal was filed in 2001, some nine years after defendant was convicted and sentenced. We do not find it necessary to set forth in detail all of the procedural steps, and missteps, that occurred between defendant's 1992 conviction and his 2001 filing of this petition. It is sufficient at this juncture simply to note that in Boeglin II, we affirmed defendant's convictions and remanded for entry of a corrected judgment of conviction.
Nor do we find it necessary to set forth in detail the positions advanced by the State and by defendant at trial. Those are recounted in our opinion deciding the merits of defendant's initial appeal, and we incorporate them into this opinion by reference.
Defendant raises the following arguments on appeal:
POINT I EXCUSABLE NEGLECT EXISTS FOR FILING THE INSTANT PETITION FOR POST-CONVICTION RELIEF BEYOND THE FIVE YEAR LIMIT POINT II DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Failure to Object to Prosecutorial Misconduct During Opening and Closing Statements and to the Erroneous Admission of Highly Prejudicial Evidence
i. Misconduct in the Prosecutor's Opening and Closing Remarks
ii. Failure to Object to Inadmissible Hearsay
iii. Failure to Object to Testimony and Remarks Regarding Illegal Tape-Recorded Telephone
B. Failure to Challenge the Admission of Inadmissible Other-Crimes Evidence, to Demand the Sanitization of Extraneous Inflammatory Details of Such Evidence, and to Demand Proper Cautionary Instructions Regarding Such Evidence
C. Failure to Subject Case to Meaningful Adversarial Testing by Failing to Call Witnesses, to Effectively Cross-examine State's Witnesses, to Perform An Adequate Investigation and to Marshal an Adequate Defense
i. Failure to Call Witnesses Who Overheard Taped Admissions from Co-defendant Irizarry which Exculpated Defendant
ii. Failure to Adequately Litigate the Issue of the Shells Discovered at the Scene and in a Roxbury Sewer
iii. Ineffective Cross-examination of Irizarry Regarding his Immunized Status and Officer Buglione regarding the Identity of His Informant
iv. Failure to Arrange for Use Immunity for Renee Taylor During Miranda hearing
v. Failure to Present Ballistics and Sensorineural Expert Witnesses Regarding Defendant's Distance to the Crime Scene and Fact Witnesses Who Could Have Rebutted the State's Attack on Defendant's Character
D. Failure to Object to Errors in Jury Instruction
E. Failure to Press for the Suppression of Evidence Obtained During the Illegal Search Of Lift Masters
POINT III DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL POINT IV REMAND COUNSEL'S DEFICIENCIES DEPRIVED DEFENDANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
POINT V THE REPRESENTATION BY PCR COUNSEL CONSTITUTED A "COMPLETE DENIAL OF COUNSEL"
POINT VI THE PCR COURT BELOW ERRONEOUSLY FAILED TO GRANT AN ADJOURNMENT, TO GRANT DISCOVERY AND TO RECUSE ITSELF
POINT VII DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS POINT VIII THE MOTION FOR RECONSIDERATION OF THE DENIAL OF PCR SHOULD HAVE BEEN GRANTED
We elect to exercise our discretion and deal with the substantive merits of defendant's various claims, rather than to deal with the question whether defendant has asserted these claims in a timely manner. Because of this, we do not find it necessary to address defendant's first point on appeal, that his petition is not untimely. R. 3:22-12(a).
We turn instead to defendant's claims that he was denied the effective assistance of counsel at various points in the proceedings. Before dealing with the particulars of defendant's claims, we note the controlling legal principles that must guide our analysis.
A defendant who alleges that he received ineffective assistance from his counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). Our Supreme Court adopted this standard in State v. Fritz, 105 N.J. 42, 58 (1987).
[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698).]
To establish a prima facie claim of ineffective assistance of counsel, defendant must meet the two prongs of the Strickland/Fritz test. First, he must show that the actions of his attorney were deficient in performance and not objectively reasonable. Second, defendant must show that this deficient performance materially affected the outcome of his trial. Further, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations.
Additionally, claims of ineffective assistance of counsel raised in connection with a petition for post-conviction relief are not a substitute for a direct appeal. Issues that have already been determined by way of direct appeal cannot be relitigated on a petition for post-conviction relief. State v. McQuaid, 147 N.J. 464, 483 (1997) ("[A] defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits."); R. 3:22-5. In addition, claims that could have been raised on direct appeal and yet were not may not be raised for the first time in the context of a petition for post-conviction relief. R. 3:22-4.
We are satisfied that these latter two principles dispose of defendant's challenge to the prosecutor's opening and closing statements. One of defendant's subpoints to this court on his initial appeal was a challenge to the prosecutor's conduct which, defendant contended, "had the clear capacity to produce an unjust verdict." We rejected that assertion, noting that although the prosecutor had acted improperly in several instances, the "improprieties [did not] produce an unjust result in this case." Boeglin II (slip op. at 13). Defendant may not seek another review on this question.
The same result obtains with respect to defendant's assertion that his attorney was ineffective for not objecting to certain hearsay testimony. Defendant on direct appeal argued that hearsay evidence was improperly received. We declined to find reversible error, noting that "the objectionable but largely cumulative hearsay is unlikely to have contributed to an unjust result." Boeglin II (slip op. at 17).
Defendant's argument with respect to the receipt of this hearsay evidence is not bolstered by his reliance upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), a case decided twelve years after his conviction and three years after defendant filed this petition. Because Crawford announced an entirely new principle, it is not subject to retroactive application. Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 167 L.Ed. 2d 1 (2007).
Defendant's next assertion is that his trial attorney was ineffective for not objecting to testimony at trial with respect to a telephone conversation between himself and Michael Swan. The trial court, in a pretrial hearing, had ruled that a tape of that conversation was inadmissible, a ruling we affirmed because the taping was done illegally. (Boeglin I), supra.
Defendant's argument on this appeal misses the mark. The prosecution did not attempt to admit into evidence a tape of that conversation. Rather, Swan, one of the participants to the conversation, testified about it. Nothing within our opinion precluded such testimony, and defendant's attorney was, therefore, not ineffective for not interposing this objection.
Similarly, we reject defendant's assertion that his trial attorney was ineffective for not objecting to certain evidence he characterizes as "other crimes" evidence under N.J.R.E. 404(b). On direct appeal, we rejected defendant's argument that this evidence was improperly admitted. Although we characterized certain of the evidence as "excessive," we also deemed it "highly relevant." Boeglin II (slip op. at 14).
Defendant cites five specific instances in which he contends his trial attorney was ineffective in terms of presentation of evidence at trial. We have noted a pre-trial ruling which deemed inadmissible a certain tape recording of a telephone conversation. That ruling was based upon the illegal manner in which the conversation was recorded. Certain other recordings were held inadmissible, not on the ground of illegality but on the ground that the tapes themselves were unintelligible.
Defendant now argues that his trial attorney was ineffective for not calling a witness who overheard one such conversation in which the co-defendant Irizarry allegedly exculpated defendant. In his brief, defendant asserts that his trial counsel should have called either the sound engineer who attempted to mask out the background noise on the tape or one of the law enforcement personnel who participated in creating a transcript of that phone conversation.
Defendant's argument overlooks the fact that both the trial court and this court listened to this tape and deemed it unintelligible. In our opinion affirming the inadmissibility of this tape we noted the testimony of one of the officers, who when asked if the transcript was accurate, responded, "To the best of my knowledge -- to the best of my -- I mean, the tapes are bad and sometimes it's very hard to understand them." Boeglin I (slip op. at 4). Attempting to call a witness to testify as to the contents of the tape would have been fruitless in that context.
Defendant also argues that his trial attorney was ineffective for not pursuing further at trial the issue of certain bullet shells, which were discovered some time after the shooting, some at the scene of the shooting and others in another municipality. Defendant fails to establish how a different outcome at trial was reasonably probable if defense counsel had pursued this issue in any greater depth. He therefore fails to establish the second prong of the Strickland test.
Defendant next contends that his attorney was ineffective for the manner in which the attorney cross-examined the co- defendant, Irizarry. It was undisputed at trial that Irizarry was the actual shooter, and both Irizarry and defendant were originally charged with capital murder. Irizarry testified at trial that he was the shooter in exchange for the State agreeing not to seek the death penalty against him. How to approach the cross-examination of such a critical witness was clearly a matter of trial strategy. Defendant fails to demonstrate how taking another tack would have led the jury to a different result.
We also reject defendant's criticism of the manner in which his trial attorney presented the testimony of Renee Taylor and failed to present certain expert testimony. As to the latter, it was immaterial to the prosecution how far defendant physically may have been from the scene of the shooting; he was charged with directing Irizarry to commit the homicide. The balance of defendant's contention under this heading fairly fit within the parameters of trial strategy. We will not permit defendant to engage in second-guessing at this point.
Defendant also asserts his trial attorney was ineffective for not objecting to certain portions of the jury charge. In our judgment, this argument does not require extended discussion. The issues with respect to the charge that defendant raises in this petition he already raised on direct appeal, and we rejected them. The issues gain no strength because the challenges were raised as plain error on direct appeal.
We also reject defendant's contention that his trial attorney was ineffective for not pursuing the suppression of evidence obtained through a search of his place of business. This argument overlooks the fact that we, in our opinion affirming his convictions, upheld the admissibility of this evidence. Boeglin II (slip op. at 20-22).
Defendant seeks to circumvent this bar by contending that the issue on direct appeal was premised on his Fourth Amendment rights, while the issue on this appeal is premised on his Sixth Amendment right to the effective assistance of counsel. That distinction, while valid, does not entitle defendant to further relief. Because we earlier affirmed the admissibility of this evidence, defendant cannot establish a reasonable probability that the outcome of the proceedings would have been different if his trial attorney had pursued this issue in a different manner.
We do not find persuasive defendant's contention that he was denied the effective assistance of counsel on his direct appeal. We have noted in this opinion that certain of the issues defendant now complains of on this petition were raised on his direct appeal. Defendant argues that his appellate counsel was ineffective in the manner in which those issues were argued. A defendant is as equally entitled to effective assistance of appellate counsel as he is to effective assistance of trial counsel. Evitts v. Lucey, 469 U.S. 387, 1055 S.Ct. 830, 83 L.Ed. 2d 821 (1985). To prevail on a claim that appellate counsel was ineffective, a defendant must establish two elements: that "counsel unreasonably failed to discover non-frivolous issues," and the existence of "a reasonable probability that, but for his counsel's unreasonable failure . . . he would have prevailed on his appeal." Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764, 145 L.Ed. 2d 756, 780 (2000).
Part of the role of appellate counsel is to winnow through the possible arguments presented by the record and focus upon those which are strongest and to present those arguments in a persuasive, cogent manner. Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.), cert. dismissed, 527 U.S. 1050 (1999) ("One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise."). Counsel on appeal is not obligated to raise every possible argument the client may wish to pursue. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div.), certif. denied, 194 N.J. 444 (2008).
The essence of defendant's complaints with respect to the attorney who represented him on direct appeal is that the brief should have been expanded to include additional examples of the legal principles put forth. There is, however, no equivalence between the length of a brief and its legal merit. We view these complaints as simply dissatisfaction with the strategy selected by appellate counsel, and thus impervious to challenge by collateral attack.
As we noted earlier, this matter has had a complex procedural history, and several events took place in the trial court after defendant filed his original notice of appeal and before we issued our opinion in Boeglin II, as well as after that opinion. Before us, the parties characterize those events differently; the State refers to them as earlier petitions for post-conviction relief and defendant as remand proceedings. Defendant asserts he was denied the effective assistance of counsel in connection with those proceedings. We do not find it necessary to decide which terminology is correct for we are satisfied that there is no substantive merit to defendant's complaints about the performance of his counsel.
Defendant was not prejudiced by whatever delay may have resulted from the fact that an attorney not familiar with New Jersey practice filed a petition for post-conviction relief with the trial court while defendant's direct appeal was pending. Nor was he prejudiced by what he asserts was the lack of preparedness of the attorney who represented defendant at the first hearing on the merits of this petition for post-conviction relief. In the first instance, the procedural confusion was eventually unraveled. In the second, a second hearing was held at which the merits of defendant's respective positions were fully and adequately addressed.
Defendant's final arguments relate to the efforts of the attorney who represented him before the trial court on this petition for post-conviction relief. As with defendant's earlier arguments, based upon our review of this record, we are satisfied that defendant is unable to satisfy the second prong of the Strickland test.