July 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRANDON COWSER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 00-06-0969.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2008
Before Judges Stern and C.L. Miniman.
Defendant Brandon Cowser appeals the October 20, 2006, denial of his petition for post-conviction relief (PCR) in connection with his June 28, 2002, conviction for the murder of his grandmother, for which he was sentenced to life in prison with thirty years of parole ineligibility, and first-degree robbery of his grandmother, for which he was sentenced to a concurrent term of twenty years.*fn1 His conviction was affirmed by us and his petition for certification was denied. State v. Cowser, No. A-281-02 (App. Div. Dec. 1, 2004), certif. denied, 182 N.J. 630 (2005).
The operative facts were summarized in our affirmance of his convictions as follows:
Defendant and co-defendant, Nathanial Burkard, testified that the other was responsible for the homicide. Defendant, his grandmother and Burkard were riding in the grandmother's car when the attack upon defendant's grandmother began. According to defendant, Burkard choked his grandmother to "finish what [defendant] started" and to prevent them from getting "in trouble," after defendant "reached over and grabbed her neck" during an argument.
Burkard, who had entered a negotiated guilty plea to aggravated manslaughter, appeared as a rebuttal witness for the State. He testified that defendant had talked for some time about killing his grandmother because "she was worth money" and "he could get thousands of dollars initially and over time." According to Burkard, defendant was driving his grandmother's car when defendant "parked the car," "leaned over" and "strangled his grandmother." Defendant thereafter dragged her out of the car and "kneel[ed] on her throat" before the two men "dragg[ed] her to a creek where defendant held her under water for about five minutes. Defendant then went home, obtained a shovel, and with the help of Burkard, buried the victim in a wooded area. The morning after the murder, defendant cashed a $3,300 forged check on his grandmother's account.
Michael Higgins, a friend of defendant, testified that defendant came to his house with "his grandmother's car and checkbook" and "said he was going to the bank and cash a check that his grandmother had given him." He subsequently returned with $3,300 that Higgins watched defendant count. Defendant then drove his grandmother's car to the Monmouth Mall where he gave Higgins $150 "to buy things."
Several days later, Higgins asked defendant "if he killed his grandmother." Defendant answered "yes," and "said he didn't want to tell [H]iggins anything because the more [he] knew the more trouble [he] would get into." However, defendant did say "I choked somebody until they stopped shaking."
Defendant gave a detailed written, and later videotaped, statement in which he admitted that he "squeeze[ed]" and choked his grandmother, "kneeled on her neck" and held her head under water before he and Burkard "dragged" her to a secluded area in the woods and buried her. Defendant also admitted he obtained the shovel to bury the victim, took the victim's checkbook, wrote himself a $3,300 check and cashed it the next morning.
[Id. at 2-3 (footnote omitted).]
Defendant raised the following issues on direct appeal:
POINT I -- THE DEFENDANT'S STATEMENTS MADE TO DETECTIVE SEITZ SHOULD HAVE BEEN SUPPRESSED BECAUSE THE LENGTH OF THE INTERROGATION CONSTITUTED AN "UNFAIR MEANS."
POINT II -- NATHANIEL BURKARD'S TESTIMONY THAT THE DEFENDANT "HYPOTHETICALLY" DISCUSSED PLANS TO KILL HIS GRANDMOTHER PRIOR TO NOVEMBER 23, 1999 CONSTITUTED INADMISSIBLE OTHER CRIMES EVIDENCE. (NOT RAISED BELOW)
(A) THE DEFENDANT'S "HYPOTHETICAL" STATEMENTS FAILED TO SATISFY THE "CLEAR AND CONVINCING" STANDARD UNDER STATE V. COFIELD.
(B) THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY AS TO THE PERMISSIBLE USE OF MR. BURKARD'S TESTIMONY IN THE CONTEXT OF THE FACTS OF HIS CASE.
(C) THE PROBATIVE VALUE OF THE EVIDENCE WAS OUTWEIGHED BY ITS PREJUDICE.
POINT III -- THE TRIAL COURT COMMITTED PLAIN ERROR AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL IN ITS INSTRUCTIONS GIVEN TO THE JURY. (NOT RAISED BELOW)
(A) THE TRIAL COURT ERRED IN GIVING THE JURY AN UNNECESSARY AND CONFUSING UNANIMITY CHARGE.
(B) THE TRIAL COURT ERRED IN INSTRUC[T]ING THE JURY HOW TO ASSESS THE DEFENDANT'S STATEMENTS.
(C) THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT IT WAS PERMISSIBLE TO FORM AN "INITIAL OPINION AS TO THE DEFENDANT'S GUILT OR INNOCENCE" PRIOR TO BEGINNING ITS DELIBERATIVE FUNCTION.
POINT IV -- THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS FOR MURDER ON COUNT TWO AND ROBBERY ON COUNT FOUR WERE EXCESSIVE AND AN ABUSE OF THE SENTENCING COURT'S DISCRETION.
(A) THE COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE IN EXCESS OF THE FIFTEEN (15) YEAR PRESUMPTIVE SENTENCE FOR THE DEFENDANT'S ROBBERY CONVICTION ON COUNT FOUR.
(B) THE COURT ABUSED ITS DISCRETION IN IMPOSING A LIFE SENTENCE FOR THE DEFENDANT'S MURDER CONVICTION ON COUNT TWO.
[Id. at 4-5.]
We affirmed defendant's convictions without discussion except for brief comments regarding the claims of "unfair means," "other crimes" evidence and the sentence. We concluded that the other issues raised by defendant were "clearly without merit." Id. at 6 (citing R. 2:11-3(e)(2)). We found no basis for disturbing the trial judge's ruling on the admissibility of the videotape or the sentences imposed; the evidence of defendant's plan to kill his grandmother was admissible as res gestae evidence and the charge was not plainly erroneous. Id. at 6-7.
In his amended PCR petition defendant asserted that he had been deprived of the effective assistance of counsel at the pretrial, plea bargaining, trial, sentencing and appeal stages. He also alleged that cumulative errors by counsel amounted to ineffective assistance and that scientific and physical evidence was not properly investigated as it related to defendant's innocence and the cause of death. Judge Anthony J. Mellaci, however, rejected these claims without a plenary hearing and placed a thorough and comprehensive decision on the record. Initially, the judge addressed the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), respecting a prima facie showing of entitlement to relief. That is, defendant must demonstrate that trial counsel committed serious professional errors and the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
With respect to the claim that counsel was ineffective in failing to investigate properly the scientific and physical evidence relating to the cause of death, the judge concluded that the evidence had been thoroughly examined at trial. The medical examiner testified that the evidence was insufficient to permit him to determine whether the victim died just of strangulation, just of drowning or a combination of both and that the evidence respecting drowning was based on defendant's statements. The judge pointed out that the medical examiner admitted that absent defendant's statement about drowning his grandmother, he probably would not have considered that a cause of death based on the physical evidence alone. He also noted that defendant had not submitted a certification from a forensic pathologist that contradicted the medical examiner's testimony and that the report of co-defendant's expert was consistent with the testimony of the medical examiner. He concluded that defendant had not met his burdens of proof under Strickland's first and second prongs.
Defendant also claimed his trial counsel was ineffective in that he failed to obtain expert testimony that the co-defendant was involved in gang activity, which was deemed admissible evidence by our Supreme Court in State v. Torres, 183 N.J. 554 (2005). He argued that such evidence would support his claim that his statement to the police was a lie because the co-defendant was a gang member who threatened defendant if he implicated him in the murder. The judge concluded that defendant had not established that it was an unprofessional error not to present this evidence because the state of the law was not settled at the time of the 2003 trial and the evidence might have been rejected by the trial judge. Furthermore, defendant had not demonstrated in his petition that co-defendant's tattoo was indicative of gang membership. The judge found that "trial counsel's decisions with respect to witnesses were fully consistent with the prevailing legal norms." Finally, he concluded that evidence of gang activity would not have affected the outcome of the trial because the physical evidence taken from the victim was consistent with defendant's confession and the jury had before it the testimony of Higgins that defendant admitted killing his grandmother.
Additionally, he observed that the statement given by defendant actually implicated his co-defendant, which was inconsistent with his current claim that he "wanted to keep Nate out of it." Judge Mellaci also rejected defendant's claim that his trial counsel was ineffective because he failed to request, and the trial judge failed to give, a "false in one, false in all" charge. In this respect the court determined that defendant had not demonstrated that any witness testified falsely, relying instead on the argument that his co-defendant had a motive to lie. However, the co-defendant had pled guilty and been sentenced prior to trial, which the judge found inconsistent with a motive to lie. He also noted that the issue could have been raised on direct appeal.
Defendant also argued that he was entitled to PCR relief because the arrest warrant was defective in that the arresting officer did not appear before a neutral judicial officer and no oath was administered. However, the judge rejected this basis for relief because defendant had presented no evidence substantiating his claim. Furthermore, the judge again concluded that defendant had failed to satisfy Strickland. He observed that the arrest warrant was issued only after defendant had made a full confession in accord with his constitutional rights and the State put on overwhelming evidence of guilt. He concluded, "It is beyond reason and logic for this [c]court to imagine how a defective arrest warrant issued after a formal confession was made by a defendant would have had any impact in this case whatsoever." The judge found that the issue was without merit and denied all PCR relief. This appeal followed.
Defendant raises the following issues on this PCR appeal:
POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
(A) TRIAL COUNSEL FAILED TO RETAIN AN EXPERT ON THE CAUSE OF DEATH.
(B) TRIAL COUNSEL FAILED TO REQUEST APPROPRIATE CHARGES TO THE JURY.
(C) TRIAL COUNSEL FAILED TO ASCERTAIN WHETHER THE CO-DEFENDANT WAS A MEMBER OF A GANG.
(D) TRIAL COUNSEL FAILED TO CHALLENGE THE ARREST WARRANT.
POINT II - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV - THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
POINT V - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE EVIDENCE OF TWO DIFFERENT CAUSES OF DEATH MAY HAVE CONFUSED THE JURY AND UNFAIRLY PREJUDICED THE DEFENDANT.
POINT VI - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT SHOULD HAVE CHARGED THE JURY SUA SPONTE THAT THE PHYSICAL EVIDENCE WAS CONTRADICTORY AND DID NOT SUPPORT DR. PEACOCK'S DETERMINATION AS TO THE CAUSE OF DEATH.
POINT VII - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT VIII - THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
A judge has a duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a). Where a judge has complied with Rule 1:7-4(a), as Judge Mellaci did here, our review is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).
If the trial court acts under a misconception of the applicable law, however, the appellate court need not give such deference. See State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 598-600 (1977) (judge must have pervading sense of "wrongness" in overturning jury verdict; "feel of the case" factor does not control appellate review when trial court's "subjective conclusions" are not supported by the record). . . . We have also observed that the trial judge's decision is not "entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency, or other tangible considerations apparent from the face of the record with respect to which [s]he is no more peculiarly situated to decide than the appellate court." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Moreover, even intangible considerations must be supported by some factual basis or other objective elements. Baxter, supra, 74 N.J. at 601.
[State v. Brown, 118 N.J. 595, 604 (1990).]
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Mellaci in his oral opinion delivered on October 20, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We add only the following comments.
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).
There was no evidence presented in support of defendant's petition that any expert could have opined on the cause of death in any manner that would have solely implicated the co-defendant.
Also, any testimony from Dr. Adams, who was retained by the co-defendant, did not impeach the testimony of the medical examiner because the medical examiner conceded that, but for the information in defendant's confession, he would not have even considered drowning as part of the cause of death. Thus, defendant did not meet his burden under Cummings.
As to the jury charge, defendant argues on appeal that he was entitled to a charge by the court on the alleged contradictory and confusing nature of the medical testimony on the cause of death. He also asserts that counsel was ineffective in failing to request a "false in one, false in all" charge. These bare assertions are without support in the record. The medical examiner admitted that he only considered drowning as a possible cause of death because of defendant's statement to the police. The testimony respecting the cause of death was not confusing and no specific additional charge was required. Defendant also has not shown any error in Judge Mellaci's finding that a "false in one, false in all" charge was not mandated by the record because defendant did not establish that co-defendant intentionally lied to the jury on a material fact with the intent to deceive it.
There is no merit to the argument that trial counsel should have secured an expert to opine on whether co-defendant was a gang member based on the tattoo he had. It was incumbent upon defendant at the very least to come forth with evidence at the PCR application that the tattoo was a gang-related tattoo. Ibid. Thus, there is no merit to this claim.
Defendant's argument that the arrest warrant was not properly issued is purely hypothetical with no evidence to support it. He merely argues without any evidential support that it is likely that the court administrator did not sign the warrant until later in the morning of the arrest. Court administrators frequently have to come to the police headquarters in the middle of the night to administer oaths to officers and sign arrest warrants. Hypothetical arguments of fact are not sufficient to support PCR relief. Ibid.
There was no error in Judge Mellaci's conclusion that no evidentiary hearing was required because none of defendant's claims made out a prima facie case of ineffective assistance of counsel.