July 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY SWINT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3475.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges A. A. Rodríguez, Collester and C. S. Fisher.
Defendant Troy Swint appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
Defendant was convicted following a jury trial of first-degree kidnapping, N.J.S.A. 2C:13-1b(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The victim of the kidnapping and aggravated assault was Rashon Grundy. Defendant was tried jointly with co-defendant Corey Smith. The judge imposed concurrent terms aggregating life imprisonment with a twenty-year parole disqualifier and mandatory monetary penalties.
Defendant appealed alleging multiple errors concerning evidentiary decisions made by the trial court and ineffective assistance of trial counsel. In an opinion concerning the appeals of both defendant and Smith, we affirmed, but remanded for resentencing to impose a mandatory period of parole ineligibility of twenty-five years on defendant. State v. Swint, 328 N.J. Super. 236, 262-63 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Defendant then filed his first petition for PCR alleging, among other things, ineffective assistance of trial counsel and appellate counsel. Designated PCR counsel filed a brief and defendant filed a supplemental brief. Judge Paul J. Vichness found that an evidentiary hearing was not warranted and denied the petition.
The State's proofs are fully set forth in our opinion. Id. at 245-48. Briefly, we highlight the salient facts. On June 18, 1996, Chea Smith, co-defendant Corey Smith's brother, was shot to death in Newark. Shortly after the shooting, Smith learned that the two men who carried out the shooting were friends of Grundy. Smith borrowed a U-Haul truck and, along with the defendant and three others, kidnapped Grundy from his living room. A plastic garbage bag was placed over Grundy's head and one of the assailants struck him in the head with a gun. The assailants put Grundy into the U-Haul and took him to an abandoned apartment building. In an effort to obtain from Grundy the whereabouts of the killers, the assailants tortured and brutalized Grundy, cutting off his ears and cutting his back, neck, hand and arm. The assailants then shot Grundy above the knee and in the ankle. At some point, Grundy took off his mask and saw defendant standing by a window. Eventually, Grundy realized that the room was quiet. He escaped and managed to get around the corner to his brother's house.
Janyne Morris, who lived with Grundy's brother, answered the door and saw the victim crying, screaming, and covered with blood. Grundy told her what had been done to him. Her testimony as to what Grundy told her was offered as an excited utterance pursuant to N.J.R.E. 803(c)(2). She then testified, without objection, that the victim said "Rajhon and them" caused his injuries. At trial, it was developed that Rajhon was Corey Smith's street name.
Grundy's brother testified similarly that he saw his brother bleeding and crying. Without objection, he testified that Grundy said that "Rajhon and them kicked in mommy door." Grundy's brother got dressed and attempted to take his brother to the hospital. However, Grundy said "[h]e wanted to go to check on my mother and my sisters." At that point, defense counsel objected to any further testimony regarding statements made by Grundy because too much time had elapsed and there was an insufficient foundation to justify the admission of the testimony pursuant to N.J.R.E. 803(c)(2). The judge directed the prosecutor to lay the appropriate foundation for the admission of the testimony. After the prosecutor did so, the judge overruled defendant's objection, concluding that Grundy was still under the stress of the excitement caused by the incident without opportunity to deliberate or fabricate. Thus, Grundy's brother was allowed to testify that his brother told him that defendant and Rajhon had participated in the incident.
Grundy said that he knew ". . . it was [defendant] 'cause [defendant] took off his mask."
Newark Detective Calvin Parkman testified that he was dispatched to the hospital and met Grundy, who described to Parkman what had happened to him. Without objection, Parkman testified that Grundy told him Rajhon Muhammad, who was also known as Corey Smith, and a person named Troy committed the assault. Grundy did not know Troy's last name. He also testified that Grundy knew it was Smith because he knew him for approximately one year and recognized his voice and mannerisms. Parkman also testified that Grundy told him that Troy pulled his mask off and he was able to look "right in his face."
According to Parkman, the U-Haul was recovered at approximately 4:00 a.m. In the cab of the truck, he observed two brown cloth gloves that had "smears of blood on it," a black ski mask, and a box cutter.
On appeal, defendant contends:
I. THE COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING
II. THE TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
A. Trial Counsel Failed To File A Pre- Trial Motion To Suppress The Box- Cutter.
B. Trial Counsel Failed to File A Motion For A Judgment Notwithstanding The Verdict, Or In The Alternative File A Motion For A New Trial.
C. Trial Counsel Failed To File A Motion For Severance.
Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which was later adopted by the New Jersey Supreme Court when interpreting our State Constitutional rights. State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test, an ineffective assistance of counsel claim is made out when trial counsel's representation is deficient and such deficiency results in prejudice to the defendant. State v. Martini, 160 N.J. 248, 264 (1999) (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).
The necessity of an evidentiary hearing on an application for PCR is closely tied to whether there are disputed facts that require further investigation and cannot be resolved by simply resorting to an examination of the record. State v. Preciose, 129 N.J. 451, 460-61 (1992). In the context of an ineffective assistance of counsel claim, Rule 3:22-1 does not require that evidentiary hearings be held on every application. However, Rule 3:22-10 recognizes judicial discretion to conduct such hearings. Preciose, supra, 129 N.J. at 462. Ordinarily, "trial courts . . . should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. To establish a prima facie claim, a defendant must demonstrate the reasonable likelihood of his or her success under the Strickland/Fritz test for ineffective assistance of counsel. Preciose, supra, 129 N.J. at 463.
First, defendant must set forth specific instances where counsel's performance was deficient and then must demonstrate that, but for these alleged deficiencies, the outcome at trial would have been different. Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. On the contrary, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (internal citations omitted).
Here, disposition of the points raised by defendant at the PCR hearing did not require additional testimony. Two of the issues raised by defendant-the hearsay objection and challenges to his sentence-were easily resolved by reading our published opinion. Furthermore, testimony by trial or appellate counsel was not necessary to satisfactorily address defendant's contention that he received ineffective assistance of counsel. Accordingly, the trial court was correct in denying defendant's request for an evidentiary hearing.
Defendant further argues that his trial counsel was ineffective for failing to make a pre-trial motion objecting to the introduction of a box-cutter recovered by police and offered into evidence. This issue is without merit as we have already addressed and rejected it on direct appeal. Swint, supra, 328 N.J. Super. at 249-53. Therefore, defendant is barred from raising it in his PCR application. R. 3:22-5. Despite the fact that defendant has now changed the nature of his argument by challenging the form and timing of trial counsel's attempt to get the box-cutter suppressed, the argument is essentially the same. Moreover, the box-cutter was properly admitted. Swint, supra, 328 N.J. Super. at 253. Thus, a motion to suppress would have failed.
Next, defendant argues that his trial counsel was ineffective for failing to make a motion for a judgment notwithstanding the verdict or, in the alternative, for failing to make a motion for a new trial. Defendant argues that he presented four alibi witnesses at trial and the State only managed to offer the testimony from "one lone witness" who was able to identify him as a participant in the crime.
Here, the evidence was sufficient to warrant denial of a motion for judgment notwithstanding the verdict or for a new trial. Defendant's main contention is that he had four alibi witnesses as compared to the State's "one lone witness." However, this court's analysis concerning whether or not a jury verdict should be set aside is not one that turns simply on the number of witnesses presented by each side. Rather, the court must evaluate the strength and quality of the evidence presented.
During his testimony, Grundy positively identified defendant. The jury credited his testimony. In addition, the State presented physical evidence found at the scene of the crime and in the U-Haul truck, which corroborated Grundy's testimony.
Defendant also faults trial counsel for failing to move for severance of his trial from that of co-defendant Smith because this resulted in undue prejudice. More specifically, defendant argues that he was found guilty by association and the judge should have used the prejudicial joinder rule, Rule 3:15-2, to sever his trial. We disagree.
As a general rule, two or more defendants who "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" are tried jointly. R. 3:7-7. In fact, there is a "general preference to try co-defendants jointly," State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992), particularly when "much of the same evidence is needed to prosecute each defendant." State v. Brown, 118 N.J. 595, 605 (1990). "That preference is guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability." State v. Brown, 170 N.J. 138, 160 (2001).
Nevertheless, "the interest in judicial economy cannot override a defendant's right to a fair trial." State v. Sanchez, 143 N.J. 273, 282 (1996). Thus, relief from prejudicial joinder is provided by Rule 3:15-2, particularly when a prosecutor "intends to introduce at trial a statement, confession or admission of one defendant involving any other defendant." R. 3:15-2(a).
Here, the State's theory was that the motive behind the commission of the criminal acts was to gain information regarding the identity and location of the individuals responsible for the murder of co-defendant's brother. Defendant argues that, by having joint trials, he was prejudiced because this alleged motive was not directly attributable to him, but he was implicated by it. The main problem with defendant's argument is that in order to avail himself of the rules regarding prejudicial joinder, he must first point to a specific "statement, confession or admission" made by a co-defendant which the State intends to use against him. Smith made no statement implicating defendant. This vague assertion of prejudice simply is not enough. In fact, the State's decision to hold a joint trial served the purpose of promoting judicial economy. Both defendants were on trial for the same crime, involving the same victim. Moreover, absent finger-pointing or the existence of co-defendants whose criminal strategy was to present "defenses [that] are antagonistic and mutually exclusive or irreconcilable," there is no basis for severance. Brown, supra, 170 N.J. at 160.
Defendant also contends:
III. APPELLANT COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
A. Appellate Counsel Failed To Claim Prosecutorial Misconduct.
B. Appellate Counsel Failed To Raise The Issue Of The Hearsay Statements Co-Defendant, Smith, Which Were Repeated During Grundy's Testimony.
C. Appellant Counsel Was Ineffective By Claiming Ineffective Assistance of Trial Counsel.
Defendant faults appellate counsel for failing to raise the issue of prosecutorial misconduct on direct appeal. Defendant argues that the prosecutor made comments during summation that one of the witnesses changed their testimony because they were afraid of co-defendant Smith.
First, any concerns regarding alleged prosecutorial misconduct, although not raised directly by defendant, have already been summarily rejected by us on co-defendant's direct appeal. Swint, supra, 328 N.J. Super. at 261-62. We concluded that the challenged comments were "arguably either based upon the evidence, or constituted a plea to the jury to draw inferences that were reasonable from the evidence introduced at trial." Id. at 261. Furthermore, we held that the prosecutor's comments "were not sufficiently egregious as to deprive defendants of a fair trial." Ibid. (emphasis added). This language is an implicit rejection of defendant's current argument. Moreover, these comments were directed at co-defendant Smith and not defendant himself.
Next, defendant argues that appellate counsel failed to raise a hearsay objection to Grundy's statements made on direct that Smith repeatedly demanded to know the identity and location of his brother's killers during the commission of the crime. Defendant contends that such statement was inadmissible hearsay and it was plain error to admit it. In addition, defendant asserts that Grundy's statements infringed upon co-defendant's Fifth Amendment rights to remain silent because he would have been forced to testify in order to rebut the accuracy of such statements.
First, Grundy's testimony regarding statements made by co-defendant Smith constitute disruption of a verbal act. In short, it was made not to assert the truth of Smith's statement, but to show that he made the statement during Grundy's interrogation and torture.
Moreover, the statement is an admission by a party opponent, N.J.R.E. 803(b)(1). This rule provides that "[a] statement offered against a party which is . . . the party's own statement, made either in an individual or in a representative capacity" is admissible in evidence. Ibid.
More importantly, we already decided that, although unable to discern the basis for the admissibility of Grundy's statements, "there was no plain error in admitting them." Swint, supra, 328 N.J. Super. at 255. Rule 3:22-5 precludes defendant from re-litigating this issue. Furthermore, we noted that Smith's counsel's failure to make an objection appeared to result from a calculated decision recognizing that the introduction of Grundy's testimony was harmless. Id. at 256.
Second, defendant clearly lacks the constitutional standing to bring a claim that co-defendant's Fifth Amendment privilege against self-incrimination was violated. It is fundamental that "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed. 2d 343, 355 (1975). We need only reference Rule 2:11-3(e)(2) to dispose of this point.
Defendant also contends that appellate counsel provided ineffective assistance by raising trial counsel's ineffective assistance on direct appeal.
Generally, ineffective assistance of counsel claims are particularly well-suited for post-conviction review, rather than direct review, because the claims involve allegations and evidence that lie outside the record. Preciose, 129 N.J. at 460. Here, we expressly preserved any contentions by defendant in a future PCR application concerning ineffective assistance rendered by trial counsel. Swint, supra, 328 N.J. Super. at 262.
The issue was raised on PCR. For reasons stated already, we have rejected the claim.
Defendant also contends:
IV. DEFENDANT'S PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that PCR counsel provided ineffective assistance by failing to raise all meritorious issues at the PCR hearing, largely encompassing a broad allegation that PCR counsel failed to raise arguments contained in defendant's pro se supplemental brief. For the first time in his reply-brief, defendant challenges the constitutionality of his extended term sentence pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II), arguing that the aggravating factors as found by the trial court were not submitted to the jury.
With respect to defendant's Natale argument, "[i]t is improper to raise an argument for the first time in a reply brief. Typically, such an argument will not be recognized."
A.D. v. Morris County Bd. of Social Services, 353 N.J. Super. 26, 30 (App. Div. 2002). See also In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 442 (App. Div. 2001) ("It is improper to introduce new issues in a reply-brief."); State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed. 2d 256 (1970) (same). Moreover, as discussed in Pressler, Current N.J. Court Rules, comment on R. 2:6-5 (2008), it is improper to use a reply-brief to add issues not theretofore raised.
Lastly, defendant contends that:
V. COUNSELS' CUMULATIVE ERRORS RESULTED IN A MANIFEST INJUSTICE
We have already addressed and rejected all claims of ineffective assistance by trial, appellate and PCR counsel put forth by defendant. Frankly, as the federal District Court of Maryland put it-"the fact that many claims of counsel error are pressed does not alter fundamental math-a string of zeros still adds up to zero." Hunt v. Smith, 856 F. Supp. 251, 258 (D. Md. 1994), aff'd sub nom. Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995), cert. denied, 516 U.S. 1054, 116 S.Ct. 724, 133 L.Ed. 2d 676 (1996).
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