June 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE ROSE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 98-10-4206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2008
Before Judges Stern, A.A. Rodríguez and C.L. Miniman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) on two grounds: First, defendant asserts that his trial counsel was ineffective in failing to pursue a passion/provocation manslaughter defense to a murder charge. Second, defendant argues that he was prejudiced at trial by the prosecutor's failure to disclose that state witness Aaron J. Johnson negotiated with the prosecutor for a reduced sentence for an unrelated offense in exchange for testifying at trial. We conclude that neither ground for relief has merit and affirm.
At 8:00 p.m. on June 8, 1998, two Newark police officers were dispatched to investigate a report of a man with a gun near the Felix Fuld Housing Project. When the officers arrived, they saw people running from the Project and then heard several gunshots. As they drove into the Project, a woman yelled, "They shooting in the playground." The officers drew their guns and ran toward two males standing over a motionless body lying on the ground.
One, defendant, holding a handgun, fired a shot into the victim, Jamil Billups. The other man, co-defendant Kareem Wilson, was standing next to defendant, also holding a gun. As the officers approached, someone yelled "5-0" and the defendants fled, eluding both police officers, although one officer was able to make a visual identification of defendant. After the officers returned to the victim, emergency medical services personnel discovered Billups had a toy gun in his clothing when they cut his clothing away and he had eight gunshot wounds to his brain, abdomen, arm, hands and thighs. He did not survive his wounds. Investigation revealed that two guns were used in the shooting.
Through eyewitness interviews and other investigation, the police were able to identify the perpetrators by name. Defendants were located two months later in Florida and were returned to New Jersey. On October 19, 1998, the Essex County Grand Jury returned an indictment charging both defendants with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); third-degree possession of two handguns without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of handguns for an unlawful purpose, N.J.S.A. 2C:39-4(a).
Defendants were tried jointly before Judge Betty J. Lester and defendant was found guilty on all counts whereas his co-defendant was found guilty of conspiracy to commit murder and the lesser-included offense of aggravated manslaughter and acquitted of the weapons offenses. As to defendant's convictions, the judge merged the conspiracy and possession-foran-unlawful-purpose convictions with the first-degree murder conviction and sentenced defendant to imprisonment for life with an eighty-five-percent parole-ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She also imposed a concurrent five-year term with a two-and-one-half-year parole-ineligibility period for possession of a weapon without a permit. The sentences were to run consecutively to a ten-year term then being served.
On direct appeal, defendant through counsel presented the following arguments:
POINT I -- IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO CHARGE THE JURY ON PASSION-PROVOCATION MANSLAUGHTER IN VIEW OF EVIDENCE THAT THE VICTIM HAD STOLEN A LARGE AMOUNT OF MONEY FROM THE DEFENDANT; THAT THE TWO MEN HAD ARGUED JUST BEFORE THE SHOOTING; AND THAT THE VICTIM WAS ARMED WITH AN IMITATION HANDGUN. (Not Raised Below)
POINT II -- THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN THE JURY WAS FALSELY TOLD THAT THERE WAS NO PLEA AGREEMENT BETWEEN AARON J. JOHNSON AND THE STATE. (Not Raised Below)
POINT III -- THE DEFENDANT'S SENTENCE OF "LIFE WITHOUT PAROLE" UNDER THE NO EARLY RELEASE ACT IS ILLEGAL. (Not Raised Below) [State v. Rose, No. A-3440-99 (App. Div. Jul. 12, 2002) (slip op. at 3), certif. denied, 175 N.J. 76 (2002).]
In a separate pro se brief, defendant made the following additional arguments:
POINT IV*fn1 - THE COURT'S CHARGE TO THE JURY WAS DEFECTIVE. (Not Raised Below)
POINT V -- DEFENDANT'S MURDER CONVICTION MUST BE REVERSED BECAUSE THE JURY WAS NOT INSTRUCTED THAT IT COULD HAVE ACQUITTED DEFENDANT IF IT FOUND THAT HE HAD UNREASONABLY BELIEVED IN THE NEED TO DEFEND HIMSELF. (Not Raised Below)
POINT VI -- THE TRIAL COURT'S CHARGE CONCERNING AGGRAVATED AND RECKLESS MANSLAUGHTER WAS INADEQUATE AND FAILED TO DISTINGUISH BETWEEN THE TWO OFFENSES. (Not Raised Below)
POINT VII -- THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO HOW TO EVALUATE THE TESTIMONY OF THE POLICE OFFICE[R] WITNESSES. (Not Raised Below)
POINT VIII -- TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PRESENT EVIDENCE THAT THE DECEDENT HAD A REPUTATION FOR CARRYING A FIREARM, BECAUSE ROSE'S KNOWLEDGE OF THAT REPUTATION SUPPORTED THE THEORY THAT DEFENDANT COMMITTED ON [sic] PASSION/ PROVOCATION MANSLAUGHTER. (Not Raised Below)
POINT IX -- THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR[S] VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. (Not Raised Below)
[Id. at 4.]
We affirmed defendant's conviction but reversed the NERA sentence, holding that NERA did not apply. Id. at 4, 28-29. The Supreme Court denied certification of the first two points raised on appeal before us. State v. Rose, 175 N.J. 76 (2002). Defendant was resentenced on November 1, 2002, to an extended term as a repeat violent offender under N.J.S.A. 2C:43-7.2(b) of life in prison with thirty-five years to be served without parole. No change was made to the five-year term for unlawful possession of a handgun and both sentences continued to run concurrently to each other and consecutively to the earlier-imposed ten-year sentence.
On February 5, 2003, defendant filed this PCR petition alleging that he was denied effective assistance of counsel in presenting evidence that the crime was actually passion-provocation manslaughter. He also alleged that his Fourth Amendment due process rights were violated because the State misled the jury regarding the existence of a plea bargain with Johnson and did not reveal that he had engaged in extended plea negotiations in an attempt to obtain a further reduction of his sentence.
Judge Lester first heard argument on the petition on December 3, 2004, and concluded that we had decided the issue relating to plea bargaining with Johnson on direct appeal, barring it from further consideration by her. The judge scheduled the claim of ineffective assistance of counsel for a hearing on March 24, 2005, after which she denied the claim on the merits. An order to that effect was entered on April l, 2005, and this appeal was timely filed.
Defendant raises the following issues on this appeal:
POINT I - DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S FAILURE TO PRESENT TESTIMONY IN SUPPORT OF, AND REQUEST A JURY CHARGE ON, THE LESSER-INCLUDED OFFENSE OF PASSION-PROVOCATION MANSLAUGHTER, FOR WHICH THERE WAS CLEARLY A RATIONAL BASIS ON THE RECORD, WHILE RELYING UPON AGGRAVATED MANSLAUGHTER AS A LESSER-INCLUDED WHEN THERE WAS ABSOLUTELY NO BASIS FOR A JURY VERDICT ON THAT OFFENSE.
POINT II - THE DEFENDANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW BY THE PROSECUTION'S REFUSAL TO ACKNOWLEDGE THAT AARON J. JOHNSON AKA "LARRY WILLIAMS" HAD BEEN GIVEN A PLEA BARGAIN, AND THAT AFTER PLEADING GUILTY, HE HAD ENGAGED IN EXTENDED PLEA NEGOTIATIONS IN AN ATTEMPT TO SECURE EVEN MORE FAVORABLE TERMS IN EXCHANGE FOR HIS TESTIMONY AGAINST DEFENDANT.
On the direct appeal we examined the issue with respect to Johnson in detail, setting forth all of the relevant facts, which we incorporate here. State v. Rose, supra, slip op. at 14-28. We concluded that defendant was not "entitled to a new trial because his right to due process of law was violated when 'the jury was falsely told that there was no plea agreement between Aaron J. Johnson and the State.'" Id. at 14. This was so because we found it clear from the record before us that "no actual deal resulted." Id. at 26. We also found that "even if the prosecutor knew of the plea discussions and should have disclosed the information to the court," we were satisfied that the jury "would [not] have discredited Johnson's statement inculpating defendant in the murder" because the statement was given in August 1998 before Johnson was sentenced.*fn2 Id. at 26-27. Furthermore, we observed that there were three other eyewitnesses who identified defendant as the murderer, making Johnson's identification less important. Id. at 27. We concluded that even if defendant established that "Johnson had lied about discussions with the prosecutor or that the prosecutor had failed to correct Johnson's misstatements, . . . it is unlikely those circumstances would change the result of the verdict in this case." Ibid.
In his PCR petition defendant argued that he was entitled to an evidentiary hearing to examine Johnson's attorney, Edward Peranio, and the trial prosecutor, Thomas McTigue, to determine precisely what occurred during Johnson's plea negotiations with the State. He argues, as he did on direct appeal, that Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963), required the prosecutor to reveal evidence favorable to an accused and that a failure to do so was a violation of the due process clause, even if the evidence was only used to impeach the credibility of a prosecution witness, citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed. 2d 481, 490 (1985). He argues that he is entitled to PCR because the record of Johnson's post-plea negotiations for a reduction of sentence were not part of the record on appeal and that he should have had an opportunity to explore those negotiations in an evidentiary hearing based on a certification prepared by Peranio.
Defendant misses the focal point of our decision on direct appeal. Having considered Brady, we concluded, based on all the evidence at trial, that an irrefutable demonstration that Johnson was not a credible witness and that he was in fact lying would not have affected the outcome of the trial because three other eyewitnesses identified defendant as the shooter, including the police officer who saw defendant's face as he escaped from the scene of the murder in his vehicle. Johnson's motive in giving the initial statement to the police inculpating defendant, and his subsequent recantation of that statement, is irrelevant to the issue before us. The PCR judge was entirely correct when she concluded that we had decided all issues respecting the credibility of Johnson, his inculpatory statement and his recantation at trial and that any further consideration of the issue is barred by Rule 3:22-5 precluding relitigation of issues previously decided.
With respect to defendant's assertion that his trial counsel was ineffective in failing to develop sufficient evidence to support a charge on passion-provocation murder, we also addressed that issue on the direct appeal as one of the issues raised by defendant pro se. We concluded that the issue did not have "sufficient merit to warrant discussion in a written opinion." State v. Rose, supra, slip op. at 29 (citing R. 2:11-3(e)(2)). Here, the PCR judge granted an evidentiary hearing and a record was developed with respect to defendant's ineffective assistance of counsel claim.
At that hearing, defendant's trial counsel, Roy Breslow, testified, as did defendant. He stated that he met with defendant more than five times prior to trial while defendant was incarcerated. They discussed witnesses, trial strategy and defendant's relationship with the victim. Breslow did not recall any conversation with defendant in which defendant advised Breslow that he had an altercation or argument with the victim two weeks prior to the murder, nor did Breslow recall defendant claiming that the victim had robbed him of money two weeks before the murder. Breslow also testified that prior to the charge conference, he discussed the lesser-included offenses with defendant, who wanted "an all or nothing kind of thing," i.e., murder or acquittal. He did discuss passion-provocation murder with defendant at some point and his recollection was that the judge said it was not in the facts of the case. Breslow further testified that he and defendant decided after the charge conference that passion-provocation manslaughter really was not in the case, that defendant wanted an all-or-nothing charge and did not want to press for a passion-provocation manslaughter charge--it was defendant's decision to make.
On cross-examination Breslow testified about defendant's prior criminal history and his discussions with his client about it. Breslow was aware of defendant's prior convictions, including a conviction for first-degree robbery, third-degree conspiracy and possession of a controlled, dangerous substance within a thousand feet of a school with intent to distribute. He stated that he would not normally advise such a client to take the witness stand in his own defense and be subject to cross-examination because a jury would weigh defendant's credibility and may not believe what he says. He also testified that had he known of the prior altercation between defendant and the victim, it would have been significant to discuss that with him but he had no recollection of any such discussion.
On redirect examination Breslow clarified that it was not his practice to advise clients not to take the stand but rather to advise them that if they chose to do so, their criminal record would be brought out by the prosecutor and that it might hurt their credibility. However, with a record as extensive as that of defendant, he would advise such a client not to testify, although he had no recollection of giving this specific advice to defendant.
After Breslow completed his testimony, counsel for defendant acknowledged that no witness would be proffered respecting the alleged altercation between defendant and the victim other than defendant himself. When the judge learned that defendant would take the position that he had no meaningful discussion with Breslow about testifying on his own behalf, the judge recalled Breslow to answer specific questions in that regard. He then testified that he had a specific discussion with defendant about testifying on his own behalf. During that discussion, Breslow did not recall defendant telling him that he would testify to a prior altercation with the victim. He did, however, recall that they only discussed the advantages and disadvantages of defendant taking the stand and that it was his custom to have the defendant decide whether or not to do so; Breslow denied that he would make such a decision for a client. He did recall that defendant chose an all-or-nothing defense in the case. Defendant's attorney then admitted that there was nothing in the trial file from the Public Defender's office that would have impeached the testimony of Breslow.
Defendant then took the stand and testified that he had met with Breslow only twice prior to trial, once on a bail application and once to discuss the trial. Breslow asked defendant what happened and defendant explained that Billups robbed him at gunpoint of money and heroin prior to the murder, that Billups tried to rob him on a second occasion, that Billups was armed both times and that he hit someone in the head with his gun on one of the occasions. When defendant saw Billups on June 8, 1998, Billups was armed and they had a verbal altercation which ultimately led to the murder. Defendant claimed that he told this to Breslow and that Breslow spoke with him on another occasion before trial, saying that he had considered passion-provocation murder but that Billups was just slaughtered--shot eight times--and therefore he did not ask for a passion-provocation manslaughter charge.
Defendant also testified that Breslow had no discussion with him about defendant taking the stand, yet he then testified that Breslow said that with defendant's record it would not make a difference if he testified. He claimed that Breslow told him that he would get life if he was convicted of murder and that he would get an extended term of thirty years to life if he was convicted of aggravated manslaughter. As a result, defendant did not testify at his trial although he wanted to explain what happened. Defendant admitted that he did not give Breslow the names of the witnesses to the robbery, yet also claimed that his attorney did no investigation on his case at all. Defendant claimed that every time he saw Billups he felt provoked because he had a reputation for robbing people, he had robbed defendant, he was known to the Newark police because of his frequent robberies and he had a reputation for carrying a gun. Defendant testified that he would have told the jury about Billups and his reputation.
On cross-examination defendant admitted that Breslow discussed with him what his chances were of being believed by a jury if his record came out. He agreed that his testimony would have basically been that Billups robbed him of drugs and that he himself was a drug dealer. He denied that he chose not to testify because a jury would not believe him, rather he claimed that he did not testify because his lawyer told him it would not make a difference in terms of punishment. After that, all he knew was that they were going to trial and that he was guilty. He claimed that he told Breslow that he wanted to testify but he admitted that he did not tell this to the court because he took his attorney's advice. He also admitted that Breslow never told him that he could not take the stand and never ordered him not to do so. Finally, he admitted that he knew he had the right to take the stand against his attorney's advice.
After hearing argument from both attorneys, Judge Lester placed her factual findings and legal conclusions on the record. She pointed out that had defendant taken the stand he would have had to admit that he shot Billups in order to establish passion or provocation as he had no extrinsic evidence of his state of mind. She observed, without any contradiction from counsel, that the statement of one witness was redacted at defendant's behest to preclude admission of any testimony that Billups dealt drugs for defendant and that sometimes Billups would "go south" on defendant with the drugs and money.
The judge also found that defendant "did not testify knowing that he could have and he did not provide his attorney with any witnesses who could have confirmed the robbery two weeks before." She also found that it was the defense that successfully kept the information about the prior dealings with Billups out of the trial. She pointed out that there were three witnesses who testified that there was an argument between Billups and defendant, defendant left and came back with help and they ambushed Billups and killed him. "This was not a quick event. It took enough time, as a matter of fact, that the police actually witnessed part of it." She found that all of the evidence was "flying in the face of" the claim that the killing was one of passion or provocation. She also noted that none of the witnesses testified that Billups had a gun and none was on the ground when the police arrived. Defendants simply shot Billups when he was running from him and then repeatedly shot him as he was lying on the ground. The judge concluded:
It would be unethical for an attorney to preclude a witness, particularly their client, from testifying or even to say anything that would suggest that. When a seasoned trial attorney tells me that he discussed with his client the down side of testifying, what he might be confronted with, that is what he is obliged to do. When he further testifies that he lets them know that it is their decision one way or the other, that certainly is consistent with what Mr. Rose said. He knew he could have testified if he wanted to. So there was no pressure brought to bear here.
Do I believe given the record of this trial that there w[ere] some prior incidents of hostility between Mr. [Billups] and Mr. Rose? Yes, I do. Did the jury hear anything that might have suggested that? They did not. Because it was redacted on the motion of defense. And I might say as a matter of strategy, for a very good reason.
The quote that is in the Appellate Division decision was as follows, this is what was redacted from the Johnson statement. That defendant and co-defendant Wilson had been looking for [Billups] for a period of two weeks because [Billups] allegedly stole a large sum of money and seventeen bricks of heroin worth eight thousand five hundred dollars. This is what the jury did not hear because there was a motion to redact it. Now, obviously, the risk that was run if it was heard was that there was a motive that Mr. Wilson and Mr. Rose may have had for shooting down Mr. [Billups]. That was the other possibility. And particularly when all the witnesses were saying that it appeared to be an ambush, that it was not in response to a robbery in progress at that moment.
There was no passion provocation to be found in this record and no ineffective assistance of counsel that this court heard based upon Mr. Breslow's testimony and an evaluation and taking at his word what Mr. Rose actually said, that he provided no witnesses and he knew he had a right to testify if he chose to do so.
The court at this point will not second guess the defense's strategy. There has been no prima facie showing of ineffective assistance of counsel which warrants any different conclusion.
The issue of the effectiveness of counsel with respect to his failure to develop facts to support a passion/provocation charge was raised pro se on direct appeal and rejected by us as lacking in merit. Id. at 29. A defendant may not present an identical or substantially equivalent claim under Rule 3:22 where the issue has been previously adjudicated by us. R. 3:22-5; State v. Marshall, 173 N.J. 343, 350-51, 353 (2002). Although defendant's argument may be veiled differently, it is the same issue and we resolved it six years ago. Defendant has no right to have us consider it again. State v. Moore, 273 N.J. Super. 118, 125 (App. Div.), certif. denied, 137 N.J. 311 (1994). Even if he did, it has no more merit now than before.
In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
In order to make out a prima facie claim for post-conviction relief "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We find no merit in defendant's argument that his attorney was ineffective for failing to investigate his case for the very reasons expressed by Judge Lester.
Defendant contends that the jury would have learned from him that Billups made his living robbing people, had a reputation for carrying a gun, used a gun to rob defendant of a substantial amount of drugs and money two weeks before the killing, approached defendant on the day of the killing, demanded money from defendant and threatened to shoot defendant when he refused. We are satisfied that defendant has not demonstrated a reasonable likelihood that, had he testified, he would have succeeded on the merits of his passion/provocation murder claim in the face of all of the facts relevant to the relationship between defendant and Billups, particularly including those that were redacted from witness testimony. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Would the jury have come to a different result had it known that defendant was a drug dealer with a long criminal record who executed one of his drug sellers in a neighborhood playground because Billups took drugs from defendant and did not pay him? Would a jury have found passion/ provocation murder when it learned that defendants had been looking for Billups for a long period of time? The jurors were already aware that defendants ambushed and murdered Billups and none of the eyewitness observed Billups with a gun. Only a toy gun was found tucked in Billups's clothing and he could not have brandished it at defendants. The police observed defendant shoot Billups again while he was lying on the ground and defendant's proffer of additional evidence would have done no more than to establish the motive for the cold-blooded killing.
Counsel was simply not ineffective in failing to interview witnesses not disclosed to him by defendant in order to develop this fruitless line of defense. Although defendant criticizes Breslow's trial strategy in light of a virtually certain conviction, the certainty of the conviction was a product of evidence from eye witnesses. It was not a product of any misguided trial strategy, which in any event would not rise to ineffective assistance of counsel, who are given wide latitude in deciding how best to represent their clients. Yarbough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 4, 157 L.Ed. 2d 1, 8 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 1852, 152 L.Ed. 2d 914, 929 (2002); State v. Harris, 181 N.J. 391, 431 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). Trial counsel made no error, no prejudice exists, and defendant's claim of ineffective assistance of counsel is as lacking in merit after a plenary hearing as it was on direct appeal.