On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-02-0114-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Collester, C.S. Fisher and C.L. Miniman.
Tried to a jury, defendant Todd Clanton was found guilty of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He received an aggregate sixteen-year sentence with eighty-five percent parole disqualifier pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2(d)(1). We affirmed the conviction and sentence on direct appeal on November 29, 2004, and the Supreme Court denied certification on April 5, 2005. State v. Johnson, 183 N.J. 257 (2005). Defendant filed a petition for post-conviction relief (PCR) on April 11, 2006, and the trial judge denied the application following oral argument on April 21, 2006. This appeal followed.
Defendant was tried jointly with Randy Johnson and Jermaine Jackson. According to the State's proofs, the victim, Maurice Giles, sold crack cocaine on the streets of Paterson for defendant. Giles testified that Johnson supplied the drugs in exchange for seventy-five percent of the sale proceeds, and Johnson arranged for defendant to supply drugs to Giles. Giles was least acquainted with Jackson, whom he said picked up money for drug sales from other street dealers.
According to Giles, in December 1999 Jackson accused him of withholding money from drug sales. A month later the defendant waved Giles over to his car and told him, "I want my fucking money, I'm not fucking playing with you." Shortly thereafter, in February 2000, Giles was arrested for marijuana possession and remained in jail until May 19. On the day of his release, he met Johnson, who demanded money and said, "I'm not playing with you."
Three days later Giles was drinking and smoking marijuana with Derek Myles and Kareem Boyd. At about 10:30 p.m. a blue station wagon pulled up and several men jumped out of the car causing Giles, Myles and Boyd to flee. Boyd later said that while he was running, he turned around and recognized Johnson and defendant as two of the men. He heard someone call, "We got him," and then heard Giles yell out, "I don't got it." Boyd turned and saw one of the men grab Giles by the neck and throw him to the ground.
Myles told the police that three to five men including defendant and Johnson jumped out of the car carrying sticks and pipes. He said Johnson had a metal pipe, and defendant had a wooden bat. Giles testified he recognized the voices of Johnson and Jackson yelling, "Get him, get him, fuck him up. Let's fuck him up, yea." He was caught, forced to the ground, and punched and kicked. Throughout the beating he heard the men saying, "Yea, get him, fuck him up." He specifically recalled defendant saying, "Shoot him, shoot him, let's get this over with, fuck that, get him, fuck it, fuck him, shoot him, shoot him."
While he recognized the voices of the men who were beating him, Giles did not see their faces because he was shielding himself from the blows. He said when they stopped hitting him, he looked and saw "something real shiny coming at my head." The next thing he remembered was waking up in the hospital.
When police detectives interviewed Boyd and Myles that night, both men claimed they did not see the assault on Giles because they were running away. But the next day they changed their story, telling the detectives that they knew the assailants but were afraid to tell police. Minutes later, statements were taken from both Boyd and Myles. Boyd identified the defendant, Jackson and Johnson as three men who were "beating on [Giles] with long objects like pipes or sticks." However, at the trial Boyd said that defendant and Johnson were among the men chasing them, but he could not identify Jackson. He also said that he did not see anyone with "pipes and sticks" assault Giles. The State later called the detective to whom Boyd gave his statement at the detective bureau, which contrasted with his trial testimony.
On appeal from the denial of his PCR application, defendant sets forth the following arguments:
POINT I - THE FAILURE OF DEFENSE COUNSEL DURING DELIBERATIONS TO IDENTIFY THE PORTIONS OF HIS OWN CROSS-EXAMINATION AS TO THE JURY WAS MATERIALLY INEFFECTIVE AND LED TO THE CONVICTION.
POINT II - THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS IS CONSTUTIONALLY REQUIRED.
POINT III - COUNSEL'S FAILURE TO HAVE THE JURY POLLED IN LIGHT OF THE QUESTIONS RAISED BY THE JURY WAS ALSO INEFFECTIVE.
POINT IV - THE CUMULATIVE ERRORS BY DEFENSE COUNSEL CREATE A REASONABLE PROBABILITY THAT THE OUTCOME WAS AFFECTED.
POINT V - THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. Defendant's arguments relate to a readback of testimony after a request by the jury during their deliberations. The note from the jury to the judge read as follows:
Can we see/hear the testimony of . . . Kareem Boyd and Derek Myles . . . regarding their comments on their statements in detective bureau regarding Todd Clanton possessing pipes, bat, etc., Jermaine Jackson possessing pipes, bat, etc., and when exiting the car or any other time.
The judge, prosecutor, and defense counsel discussed the request, and the certified shorthand reporter located the pertinent testimony. After agreement by counsel, the shorthand reporter read back the testimony to the jury, and the jury retired to resume their deliberations. At this point the attorney for co-defendant Johnson stated that other relevant portions of Boyd's cross-examination were not read. The judge agreed to consider other parts of Boyd's direct and cross-examination, but before he could do that, a note was received that the jury had reached a verdict. The judge told counsel that he would bring the jury into the courtroom, not take their verdict, and tell them they were to consider further readback of testimony.
And I think they have a verdict, but we would like them to go back after they hear the readback and if they want to return the verdict, knock on the door. If they want to deliberate, do that until we again hear a knock and then bring them out again.
Neither counsel objected to this procedure. The jury was brought back and so instructed. Further portions of Boyd's testimony were read to the jury, and they returned to the jury room. However, counsel for Johnson insisted that other testimony of Boyd relevant to the jury's question was not read. The judge denied further readback. Six minutes after they retired, the jury returned with a guilty verdict.
Defendant argues that because his trial attorney did not identify portions of his own cross-examination of Boyd to be read back to the jury, his representation was materially ineffective and led to the defendant's conviction. He also contends that he received ineffective assistance by appellate counsel since the point was not raised on direct appeal.
The defendant identifies four sections of Boyd's cross-examination which he claims should have been read to the jury. The first is the following:
Q: Did you hear any of the people yell anything at that point?
Q: People that had gotten out of the car.
A: No, because when I was running-no.
Q: Were you running faster than ...