July 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REGINALD BATTLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 98-12-1654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2008
Before Judges Wefing, Parker, and Koblitz.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury found defendant guilty in 1999 of conspiracy to commit robbery, N.J.S.A. 2C:5-2; 15-1; unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and robbery while armed, N.J.S.A. 2C:15-1. Defendant was sentenced in January 2000; at sentencing, the trial court granted the motion to sentence defendant to an extended term, N.J.S.A. 2C:44-3(a) and imposed an aggregate sentence of sixty years, subject to the terms of the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed his convictions but remanded for reconsideration of his sentence. State v. Battle, No. A-3512-99T4 (App. Div. Feb. 15, 2002). The Supreme Court denied certification. State v. Battle, 172 N.J. 356 (2002). When defendant appeared before the trial court for reconsideration of his sentence, the trial court again sentenced him to sixty years in prison but reduced the period of parole ineligibility to twenty-five years. Defendant again appealed, and following a hearing on an Excessive Sentence Oral Argument calendar, we again affirmed.
The Supreme Court again denied certification. Defendant thereafter filed a petition for post-conviction relief. The trial court conducted a plenary hearing at which defendant and his trial counsel both testified. Defendant now appeals from the trial court order denying his petition.
In our earlier opinion affirming defendant's convictions, we gave the following factual recitation of the facts underlying defendant's convictions.
The charges arose out of an armed robbery at the Lube Express in Edison where Raymond Harper was the assistant manager. At about 5:30 p.m. on October 4, 1998, Harper was doing paperwork and working late to complete his invoice sheets. Patrick Allen, a Lube technician, was working with Harper. Harper received a telephone call asking if he would keep the store open for the caller to buy oil. Harper said, "No, we're closing out. If you get here by the time we close out, fine." Harper did not know the identity of the caller.
Shortly thereafter, a man with a purple bandana around his face walked in holding a gun. The man ordered Harper and Allen into the back room and demanded their money. Harper gave the intruder the shop key and told him, "The money's in the draw[er] in the safe." The intruder stepped outside and called to someone by the name of "Saleem." Harper knew "Saleem" was the street name for defendant who was a former employee at Lube Express. The man referred to as "Saleem" was also masked when he joined the first man in opening the cash drawer and the safe.
"Saleem" came into the back room, pulled down a set of concealed stairs to the attic and ordered Harper and Allen up the stairs. Harper testified that the concealed stairs were known only to employees. At that point, Harper turned and attempted to grab the gun from the first man. As Harper was wrestling with him, Harper pulled off his mask. "Saleem" joined the fray and kept punching Harper until Harper let go of the first man and started wrestling with "Saleem." As Harper started to fight with "Saleem," Harper pulled "Saleem's" windbreaker over his head and "Saleem's" mask came off, enabling Harper to see his face. The other man was hitting Harper in the back of the head with the gun, causing the gun to break. Both intruders then fled.
In this appeal, defendant raises the following issues:
I. UNDER STATE V. BRANCH, 182 N.J. 338 (2005), DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE TESTIMONY OF DETECTIVE SPIELMAN REGARDING THE NCIC COMPUTER WAS INADMISSIBLE HEARSAY THAT VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION; FURTHER, TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO THIS HIGHLY PREJUDICIAL TESTIMONY.
II. REVERSAL IS REQUIRED BECAUSE TRIAL DEFENSE COUNSEL WAS INEFFECTIVE WHEN, AT A PRETRIAL CONFERENCE, HE FAILED TO ADVISE DEFENDANT THAT HE WAS FACING A MANDATORY EXTENDED TERM IF HE WAS CONVICTED. THE JUDGE ALSO ERRED IN FAILING TO ADVISE THE DEFENDANT THAT HE FACED A MANDATORY EXTENDED TERM IF CONVICTED.
III. THE ERRONEOUS ADMISSION OF TESTIMONY TO THE EFFECT THAT A WARRANT HAD BEEN ISSUED FOR THE ARREST OF DEFENDANT REQUIRES REVERSAL SINCE IT SUGGESTED TO THE JURORS THAT A JUDGE HAD AT SOME POINT HEARD THE EVIDENCE AGAINST DEFENDANT AND HAD DETERMINED THAT SUFFICIENT CAUSE EXISTED TO PLACE HIM UNDER ARREST; ADDITIONALLY, IT WAS IMPROPER TO ADMIT EXTENSIVE TESTIMONY DESCRIBING THE CIRCUMSTANCES OF DEFENDANT'S ARREST. THE FAILURE OF TRIAL DEFENSE COUNSEL AND APPELLATE DEFENSE COUNSEL TO NOTE AND CONTEST THE ADMISSION OF THIS TESTIMONY AMOUNTED TO INEFFECTIVENESS OF COUNSEL
IV. REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR IMPROPERLY ADDUCED EVIDENCE THAT DEFENDANT HAD BEEN IN JAIL SINCE HIS ARREST ON OCTOBER 6, 1998, AND AT LEAST SOME OF THE JURORS SAW DEFENDANT IN HANDCUFFS AND UNDER THE ESCORT OF SHERIFF'S OFFICERS DURING THE TRIAL. ADDITIONALLY, TRIAL AND APPELLATE DEFENSE COUNSEL WERE INEFFECTIVE.
V. TRIAL DEFENSE COUNSEL WAS INEFFECTIVE SINCE, DURING HIS OPENING STATEMENT, HE SAID THAT HIS CLIENT "NEVER HAD HIS CHANCE TO SAY HIS SIDE OF THE STORY, HE FINALLY HAD A CHANCE TODAY," THUS SUGGESTING THAT HIS CLIENT WOULD TESTIFY, EVEN THOUGH HE DID NOT TESTIFY. APPELLATE DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE DID NOT RAISE THIS ISSUE ON DIRECT APPEAL.
VI. IT WAS IMPROPER TO ALLOW THE PROSECUTOR TO ADDUCE EVIDENCE TO THE EFFECT THAT DEFENDANT HAD BEEN "FIRED" FROM HIS JOB AT THE LUBE EXPRESS, AND IT WAS IMPROPER FOR THE PROSECUTOR, IN HER SUMMATION, TO COMPARE DEFENDANT'S SITUATION (FIRED FROM HIS JOB) TO THAT OF THE WITNESS HARPER (EMPLOYED AND SUPPORTING A FAMILY). TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO THESE IMPROPRIETIES, AND APPELLATE DEFENSE COUNSEL WAS INEFFECTIVE IN NOT RAISING THESE ISSUES ON APPEAL.
VII. REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR IMPROPERLY SUGGESTED TO THE JURY THAT DRUGS HAD BEEN FOUND IN THE APARTMENT IN WHICH DEFENDANT HAD BEEN ARRESTED. APPELLATE DEFENSE COUNSEL WAS INEFFECTIVE IN NOT RAISING THIS ISSUE ON APPEAL.
VIII. REVERSAL IS REQUIRED BECAUSE THE TRIAL JUDGE, IN GRANTING THE PROSECUTOR'S REQUEST TO SEQUESTER DEFENDANT'S GIRLFRIEND SHORTLY AFTER DECIDING NOT TO SEQUESTER DR. GILLESPIE AND SERGEANT LEATHEROW, SUGGESTED TO THE JURY THAT THE COURT HAD LESS FAITH IN THE HONESTY OF THIS WITNESS THAN IT DID IN THE STATE WITNESSES. TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO THIS UNUSUAL RULING, AND APPELLATE DEFENSE COUNSEL WAS INEFFECTIVE IN NOT RAISING THIS ISSUE ON APPEAL.
IX. REVERSAL IS REQUIRED BECAUSE TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT CONDUCTING A SUFFICIENT PRETRIAL INVESTIGATION AND IN NOT ADVISING DEFENDANT THAT HE FACED AN EXTENDED TERM IF CONVICTED. APPELLATE DEFENSE COUNSEL WAS INEFFECTIVE IN NOT REVIEWING HIS APPELLATE DIVISION BRIEF WITH DEFENDANT BEFORE FILING IT, OR EVEN PROVIDING DEFENDANT WITH A COPY PRIOR TO FILING.
X. REVERSAL IS REQUIRED BECAUSE THE TRIAL PROSECUTOR, IN HER SUMMATION, URGED THE JURY TO HOLD THE DEFENSE'S FAILURE TO CALL CERTAIN WITNESSES AGAINST IT, AND APPELLATE DEFENSE COUNSEL WAS INEFFECTIVE IN NOT RAISING THIS ISSUE ON DIRECT APPEAL.
XI. REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN POINTS I THROUGH X, SUPRA, AS WELL AS THE ERRORS SET FORTH IN DEFENDANT'S BRIEF ON DIRECT APPEAL.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish two elements. First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Second, he must show that this deficient performance materially affected the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 2064-68, 80 L.Ed. 2d 674, 693-98 (1986); State v. Fritz, 105 N.J. 42, 52-53 (1987).
Detective John Spielman of the Edison Police Department was assigned to investigate this incident. He testified that when he was en route to respond to the scene with his partner, he received a radio transmission that the robbery had been committed by a former Lube Express employee. When he interviewed Harper, Harper identified defendant. During Spielman's direct testimony, the following colloquy occurred.
Q: Now, after this interview with the two victims that night and the observations made at the scene what did you do to further the investigation?
A: We attempted to once back at headquarters and we had a suspect through the NCIC computer we obtained a name and address for Mr. Battle. And once we obtained a name and address I telephoned a municipal court judge for a warrant for his arrest and several days later we affected the arrest in Rahway.
Q: So after you uncovered this information leading to Mr. Battle how did you locate him?
A: We located I believe the computer information that we had from the crime computer listed an address in Iselin, New Jersey which we later found out was his mother's address.
On defendant's direct appeal, he argued that this testimony was improper, both under State v. Bankston, 63 N.J. 263, 268-69 (1973), and as a violation of his Fifth Amendment right not to testify. We rejected both arguments.
Defendant now argues that this testimony was improper under the later-decided case of State v. Branch, 182 N.J. 338, 352 (2005). Defendant's conviction, however, significantly predated the Court's decision in Branch, as did our affirmance of defendant's convictions on his direct appeal.
Branch, moreover, is distinguishable from the present matter. In Branch, the Court reversed defendant's conviction because there was testimony that a detective had included defendant's picture in a photo array because he had received information (otherwise unspecified) that led him to conclude that defendant was a suspect. 182 N.J. at 372. Here, the jury knew that Harper, who testified and was cross-examined, had already identified defendant as one of the perpetrators before Detective Spielman went to the NCIC system.
Because there was no error to warrant a new trial, defendant's attorney cannot be considered ineffective for not objecting to Detective Spielman's testimony.
Defendant next complains that his trial attorney was ineffective for not advising him during plea negotiations that he faced an extended-term sentence. Defendant's trial attorney testified that defendant was adamant about not entering a plea.
Defendant himself testified at the PCR hearing that he did not think he would have taken a plea even if his trial attorney had informed him of the extended-term consequences of a conviction. Consequently, defendant cannot satisfy the second prong of the Strickland/Fritz test.
Defendant's next argument revolves around a section of Detective Spielman's testimony which we noted earlier; specifically, his reference to having obtained an arrest warrant for defendant from a municipal court judge. Defendant complains that this informed the jury that a determination of probable cause linking defendant to robbery had already been made. Apart from the fact that this issue could have been raised on direct appeal, Rule 3:22-4, we are satisfied, as was the PCR judge, that there is no reasonable probability that this testimony was unfairly prejudicial to defendant. It served only to demonstrate that the police did not act arbitrarily when they arrested defendant.
Defendant also complains of the testimony presented about the manner in which the warrant for his arrest was executed. Again, this issue could have been raised on direct appeal. R. 3:22-4. We find nothing objectionable in the testimony, which merely recited that the police posted uniformed officers at the front and rear of the apartment in which defendant was staying.
The arresting officers knocked on the door and identified themselves; after a few minutes, the door was opened and defendant was placed under arrest.
Defendant also complains that the prosecutor's cross-examination of his girlfriend was improperly designed to place before the jury the fact that he was incarcerated at the time of the trial; he also complains that at one point during the trial, the jury was permitted to see him in handcuffs. Defendant complains he was unfairly prejudiced as a result.
As to the first issue, defendant's trial attorney objected to this line of questioning but was overruled by the trial court. Defense counsel having interposed the objection and raised the issue before the trial court, he cannot now be deemed ineffective because he was unable to persuade the trial court of his position.
The second portion of this issue was one of the subjects explored at the plenary hearing the trial court conducted on defendant's PCR petition. Having heard defendant testify on the question, the trial court rejected his testimony as not credible. We have no basis to look behind that assessment. State v. Locurto, 157 N.J. 463, 474 (1999). As a result, there is no merit to defendant's assertion that his appellate attorney was ineffective for not making that argument in the brief submitted on defendant's direct appeal.
During defense counsel's opening statement, he told the jury that defendant had not had an opportunity prior to the trial "to say his side of the story." Defendant argues that his trial attorney was ineffective for making that statement because it constituted a representation to the jury that defendant was going to testify, an event that was most unlikely in light of his criminal record. We do not think the opening statement can fairly be read to support that argument. Defendant presented "his side of the story" through cross-examination of the State's witnesses, the witnesses he presented on his own behalf, and the arguments of his attorney. We could not conclude that this statement so prejudiced the jury that it led to defendant's conviction. Moreover, defendant, after consulting with his attorney, elected not to have the trial court include in its instructions the charge that it should not consider in its deliberations that he did not testify.
Defendant next complains that his attorney was ineffective for not objecting to testimony that defendant had been fired from his job at Lube Express and not objecting to the contrast drawn by the prosecution between defendant and Harper. In fact, defense counsel did object at sidebar to testimony that defendant had been fired. Further, defendant now complains his trial attorney was ineffective for not making an objection to remarks of the prosecutor in her summation. Those remarks, however, were in response to comments by defendant's attorney in his summation.
Defendant complains that he was deprived of the effective assistance of counsel because of an exchange that occurred during the cross-examination of defendant's girlfriend. As we noted earlier, defendant was arrested at his girlfriend's apartment, and the prosecutor, in questioning her, sought to elicit testimony that the police noticed a straw and a piece of paper. The trial court sustained defendant's immediate objection and directed the prosecutor to move on. In our judgment, there is no substance to defendant's contention that his appellate attorney was ineffective for not contending on appeal that defendant was unfairly prejudiced by the prosecutor's tactics and that the trial court erred in not granting the discretionary remedy of a mistrial.
Defendant's next argument revolves around separate sequestration applications that were made during the trial. During the testimony of a medical expert about the injuries received during this altercation, defense counsel made an application in the presence of the jury to sequester the State's next witness, a firearms expert, who was sitting in the court room. This was denied on the basis that the testimony of these witnesses were directed to entirely different areas. During the defense case, however, the trial court in the presence of the jury granted a request by the prosecutor to sequester defendant's girlfriend, who had already testified, when defendant's other alibi witness was on the stand. Defendant complains that this disparate treatment conveyed to the jury that defense witnesses were less credible than prosecution witnesses.
The argument rests entirely on speculation. It was completely appropriate to ask defendant's girlfriend to step out of the courtroom during the testimony of the other witness in light of the possibility that she could be recalled to the stand after his testimony was concluded.
Defendant's next argument is an amalgam of several discrete points. We have already addressed the matter of whether defendant's counsel was ineffective for the advice he provided during plea negotiations, and we shall not revisit the question. There is no merit to his argument that his appellate counsel was ineffective for not giving him a copy of the brief on appeal before it was filed; defendant is unable to establish what additional arguments, if any, should have been included.
Defendant also contends that his trial attorney did not conduct an adequate investigation and did not pursue defendant's theory that Harper was responsible for the robbery and accused defendant because defendant had engaged in a brief liaison at an earlier point with Harper's wife. Defendant's trial attorney explained at the plenary hearing why he did not wish to cross-examine Harper on the point; Harper's wife could testify that she had seen defendant near the scene shortly before the robbery, and the attorney had reason to believe that she would testify she was afraid of defendant. Such strategic judgments cannot support a claim of ineffective assistance of counsel. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed. 2d at 694-95. Defense counsel, finally, did investigate defendant's alibi claim and presented a witness to support it.
Defendant next argues that he is entitled to a new trial because of a comment in the prosecutor's summation to the jury about the lack of witnesses to corroborate the testimony of defendant's girlfriend. This issue was raised on defendant's direct appeal, and we rejected it. Defendant may not raise it again on PCR. R. 3:22-5.
Defendant's final argument is cumulative error. State v. Orecchio, 16 N.J. 125, 129 (1954). Having found no error, we reject the contention of cumulative error.
The order under review is affirmed.
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