September 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-03-0263.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Parker and Yannotti.
Defendant Jermaine Williams appeals from an order entered on October 18, 2006, denying his petition for post-conviction relief (PCR). We affirm.
Williams was charged under Passaic County Indictment No. 00-03-0263 with felony murder, N.J.S.A. 2C:11-3a(3) (count one); robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count two); conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); aggravated manslaughter, N.J.S.A. 2C:11-4a (count four); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (count five); and unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (count six).
At the trial, the State presented evidence that, on the afternoon of September 26, 1999, defendant and two of his friends, Stuart Jones and Jahkeam Francis, gathered in Newark. They decided to travel by taxi to the home of Jahkeam's cousin, Althea Cummings, in Paterson. Defendant was in possession of a silver hand gun. Defendant said that he needed money and would rob someone if he had the opportunity to do so.
Late in the afternoon, defendant, Jones and Francis took a taxi to East Orange, and there they got into a livery cab that was driven by another man. Defendant was seated in the rear with Jones. Francis sat up front, alongside of the driver. The cab stopped at Cummings' mother's home and then proceeded to the intersection of North Fourth Street and Haledon Avenue in Paterson.
There, at approximately 5:30 p.m., defendant observed Miguel "Danny" Mercado on the sidewalk in front of his father's grocery store. Mercado, who was sixteen-years old, was talking to a friend, Gregory Brown. Mercado was wearing a thick, gold chain around his neck. The car stopped and defendant got out. He grabbed Mercado from behind, placed the gun to the right side of Mercado's neck and demanded that Mercado give him the chain.
Mercado resisted and attempted to extricate himself from defendant's grip. Mercado and defendant struggled. Defendant shot Mercado in the abdomen, took the necklace, and got back into the cab, which then drove off. Mercado died the following day as a result of the internal hemorrhaging caused by the gun shot wound in his abdomen.
After the robbery, the driver drove defendant, Jones and Francis to Cummings' home. The driver dropped them off and left. Cummings was at home with her boyfriend, Rasheem White, and her daughter. Later that evening, defendant, Jones and Francis went with Cummings and White to a club. They left at around 2:30 a.m. Cummings dropped defendant and Jones off at a location in Orange. Defendant told Jones that he wanted to get rid of the gold chain. They sold the chain in New York City, two days later.
Officers from the Paterson Police Department investigated the matter, and that investigation led them to Cummings and White, who gave statements to the police. Detective Richard Reyes testified that Cummings and Francis had identified defendant, Jones, and Francis from photo lineups. In October of 1999, Jones was arrested. He initially denied involvement in the incident, but later said that defendant robbed and shot Mercado and he had been in the car at the time. Francis was arrested in March of 2000. On June 16, 2000, defendant was arrested in York, Pennsylvania.
The jury found defendant guilty of all charges. Defendant was sentenced to an aggregate term of life plus five years of imprisonment, and required to serve thirty two and one-half years before becoming eligible for parole.
Defendant appealed his conviction and sentence and raised the following issues:
THE PROSECUTOR COMMITTED MISCONDUCT, AND THUS DEPRIVED DEFENDANT OF A FAIR TRIAL, WHEN HE TOLD THE JURORS DURING SUMMATION THAT THEIR ROLE IN THE CASE WAS "ABOUT COURAGE" AND "ABOUT ALLOCATING RESPONSIBILITY."
THE COURT'S FAILURE TO INSTRUCT THE JURY TO APPLY SPECIAL SCRUTINY TO THE TESTIMONY OF ACCOMPLICES REQUIRES REVERSAL.
THE AGGREGATE SENTENCE OF LIFE PLUS FIVE YEARS, WITH A 32-1/2 YEAR PAROLE BAR, WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED INTO THE FELONY-MURDER CONVICTION.
Defendant also filed a pro se brief and addendum in which he raised the following issues:
PROSECUTOR IN SUMMATION CALLING DEFENSE WITNESS A "BUM" PRODUCED PREJUDICIAL ERROR REQUIRING REVERSAL.
COUNSEL WAS INEFFECTIVE FOR STATING DEFENDANT WAS IN GETAWAY CAR OF ROBBERY DURING [HIS] OPENING ARGUMENT.
THE COURT'S JURY CHARGE OF FLIGHT WAS INAPPROPRIATE. TRIAL JUDGE INSTRUCTED JURY THAT IT "COULD INFER THAT DEFENDANT HAD FLED SHORTLY AFTER ALLEGED COMMISSION OF CRIME"; SUCH INSTRUCTION TO JURY MAY HAVE SUGGESTED THAT JUDGE BELIEVED DEFENDANT TO BE THE PERPETRATOR OF CRIME. THEREFORE REQUIRING REVERSAL.
THE COURT'S CHARGE TO THE JURY ON IDENTIFICATION WAS INADEQUATE AND INCOMPLETE DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL UNDER BOTH THE NEW JERSEY AND FEDERAL CONSTITUTION[S].
TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT OVERRULED DEFENDANT'S OBJECTION TO AN ALLEGED OUT-OF-COURT IDENTIFICATION MADE BY SOMEONE OTHER THAN THE POLICE OFFICER TESTIFYING IN THE PROCEEDING. THUS, DEFENDANT WAS DENIED THE RIGHT TO CONFRONTATION, AND IN EFFECT [DEPRIVED] OF A FAIR TRIAL.
THE HEARSAY RULE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WERE VIOLATED DURING THE COURSE OF THE TRIAL WHEN JENNIFER FURTADO TESTIFIED ABOUT HER BOYFRIEND'S KNOWLEDGE OF THE ASSAILANTS AND THE CRIME. CONSEQUENTLY, THE TRIAL COURT SHOULD HAVE TRIED TO CORRECT OR INSTITUTE CURATIVE MEASURES FOR THE HEARSAY TESTIMONY OF JENNIFER FURTADO IN REGARDS TO WHAT SHE SAID HER BOYFRIEND ALLEGEDLY SAID.
We affirmed defendant's conviction. State v. Williams, No. A-3568-01 (App. Div. Feb. 26, 2004) (slip. op. at 10). We also rejected defendant's contention that his sentences were excessive, but vacated the separate concurrent sentence that had been imposed for possession of a weapon for an unlawful purpose. Ibid. We remanded the matter for entry of a amended judgment of conviction merging the count charging that offense with count one, charging felony murder. Ibid. We declined, however, to entertain defendant's argument that he had been denied the effective assistance of counsel, noting that the claim could be raised in a petition for PCR. Id. at 4.
Thereafter, defendant filed a petition for certification with the Supreme Court of New Jersey, seeking review of our judgment. The Court denied defendant's petition. State v. Williams, 181 N.J. 544 (2004).
On October 8, 2004, defendant filed a pro se petition for PCR in the trial court. He alleged that he had been denied the effective assistance of trial and appellate counsel. The trial court assigned counsel to represent defendant. PCR counsel filed a brief in which the following issues were raised:
STATEMENTS MADE BY THE PROSECUTOR DURING HIS OPENING WERE GROSSLY IMPROPER AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
ADMISSION OF TESTIMONY THAT DEFENDANT'S PHOTOGRAPH WAS OBTAINED FROM THE ORANGE POLICE DEPARTMENT WAS GROSSLY PREJUDICIAL AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
COUNSEL WAS INEFFECTIVE FOR ADMITTING DURING THE VIEWING OF THE CASE THAT DEFENDANT PARTICIPATED AND WAS IN THE GETAWAY CAR THUS DEPRIVING HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND ASSURING HIS CONVICTION FOR FELONY MURDER.
DEFENDANT'S CONVICTION WAS OBTAINED DUE TO TRIAL COUNSEL'S INEFFECTIVE FAILURE TO [OBJECT] TO THE PROSECUTOR'S KNOWING USE OF PERJURED TESTIMONY AND FALSE EVIDENCE WHICH VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT [RIGHT TO] DUE PROCESS OF LAW.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE INADEQUACIES AND DEFICIENCIES OF THE JURY SELECTION PROCESS.
DEFENDANT WAS DENIED HIS RIGHT TO TESTIFY ON HIS OWN BEHALF AT TRIAL BY HIS COUNSEL'S DECISION THAT HE NOT DO SO BY DENYING HIM HIS FUNDAMENTAL RIGHTS UNDER THE UNITED STATES CONSTITUTION -- AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
THE AGGREGATE OF ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
[DEFENDANT] SHOULD BE GRANTED AN EVIDENTIARY HEARING TO PRESENT HIS PCR CLAIMS.
Judge Randolph M. Subryan considered the PCR petition on October 13, 2006 and, on October 18, 2006, the judge filed a written opinion in which he concluded that the petition should be denied. The judge entered an order dated October 18, 2006, memorializing his decision. This appeal followed.
In this appeal, defendant raises the following arguments for our consideration:
THE [PCR] COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A: TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE FOR TRIAL BY FAILING TO INTERVIEW AND CALL AN ALIBI WITNESS.
B: TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE THE DEFENDANT ON HIS RIGHT TO TESTIFY.
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED DUE TO PROSECUTORIAL MISCONDUCT IN KNOWINGLY PRESENTING PERJURED TESTIMONY.
APPELLATE COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO RAISE THE ISSUE, ON DIRECT APPEAL REGARDING PROSECTORIAL MISCONDUCT IN THE OPENING STATEMENTS.
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BASED UPON A FLAWED JURY SELECTION PROCESS; THE DEFENDANT WAS NOT PERMITTED BY HIS ATTORNEY TO PARTICIPATE IN JURY SELECTION.
Defendant has also filed a pro se brief in which he raises the following points:
POST-CONVICTION RELIEF COUNSEL FAILED TO ADVANCE ALL CLAIMS BY PETITIONER IN HIS PROSE PETITION. FAILURE OF COUNSEL TO [BRIEF], AND ARGUE INEFFECTIVE ASSISTANCE CLAIMS VIOLATES RULE 3:22-6(d)[.] COUNSEL ALSO FAILED TO ADVANCE GROUNDS INSISTED UPON BY DEFENDANT.
THE COURT ERRED IN REFUSING TO SET ASIDE DEFENDANT'S CONVICTIONS ON THE BASIS OF THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
THAT CLEARLY VIOLATED THE 6TH AMENDMENT.
We have carefully considered the record in light of defendant's arguments and the applicable law. We are convinced that defendant's arguments are without merit. Therefore, we affirm the order denying defendant's petition for PCR substantially for the reasons stated by Judge Subryan in his written opinion. R. 2:11-3(e)(2). We add the following comments.
Defendant argues that he was denied the effective assistance of trial counsel because counsel failed to adequately investigate and prepare for trial. Defendant contends that trial counsel was deficient because he did not interview and call Michael Williams as an alibi witness. Defendant also contends that trial counsel failed to advise him adequately concerning his right to testify at trial and effectively prevented him from testifying.
To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test, a defendant first must show that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, the defendant must show there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
In his opinion, Judge Subryan addressed defendant's contention that trial counsel erred by failing to interview and call Michael Williams as an alibi witness. The judge noted that Williams had filed an affidavit dated August 8, 2006, in which he claimed that defendant had not been in New Jersey on September 26, 1999, when the offenses were committed. Williams also claimed that before defendant's trial, he visited defendant in jail and told defendant he was willing to testify on his behalf. Williams asserted that he attended defendant's trial, but never spoke with trial counsel.
The judge noted that in the pro se PCR petition filed on October 8, 2004, defendant did not mention the information that Williams had included in his August 8, 2006 affidavit. The judge also noted that PCR counsel had not raised the issue in his brief. The judge stated that Williams' affidavit was "highly suspect." He observed:
Williams alleges that he did not have any contact with trial counsel even though he admits that he was present during the course of trial. [Defendant] was convicted on October 4, 2001, and was sentenced on January 4, 2002. An appeal was filed on March 20, 2002, and the Appellate Division affirmed [defendant's] conviction on February 26, 2004. The information set forth in Williams' August 8, 2006, affidavit was not raised on appeal. On September 10, 2004, the Supreme Court denied [defendant's] petition for certification. Once again, the information related to an alibi witness was not raised.
Petitioner raised the issue of an alibi witness for the first time on October 3, 2006 -- four (4) years and six (6) months after his sentence was imposed. If true, this information was known to both [defendant] and Williams at the time of trial and subsequent thereto. Said information is not newly discovered evidence and accordingly cannot now be argued by [defendant].
In our view, the record fully supports the judge's findings.
In his opinion, the judge also addressed defendant's claim that trial counsel failed to adequately consult with him regarding trial strategy. The judge stated that in order to obtain relief on such a claim, defendant had to: do more than simply state that his attorney did not discuss trial strategy with him. [Defendant] must explain how further consultations would have changed the outcome of his trial. During the trial, the main strategy for the defense was to discredit the State's witnesses, and convince the jury that [defendant] was not the individual who shot the victim. Since [defendant] has not explained how additional consultations would have changed this trial strategy, and ultimately the outcome of the trial, [defendant] has failed to establish a prima faci[e] case of ineffective assistance of counsel.
Again, the record provides ample support for the judge's findings.
The judge also addressed defendant's contention that counsel failed to adequately advise him concerning his decision not to testify at trial. Defendant claimed that counsel had prevented him from testifying. However, as the judge found, the record shows that defendant "knowingly, intelligently, and voluntarily waived his right to testify."
The judge noted that at the trial, he had explained to defendant that he had a right to testify if he chose to do so. The judge told defendant that he could not be forced to testify and the decision was his and his alone. The judge also told defendant that he could consult with his attorney "but it's entirely up to you whether you want to testify or not."
Although defendant first indicated that he wanted to testify, the court gave defendant an opportunity to discuss the matter with his attorney. Thereafter, defendant informed the court that there had been a misunderstanding and he would not be testifying. Defendant stated that it was his decision and no one forced him to make that decision.
Defendant also assured the court that he decided not to testify of his "own free will" and no one had made any threats or promises to cause him to make that decision. In response to the court's questions, defendant stated the following:
Q: You understand that that decision is your decision and your decision only, is that correct?
Q: Your attorney had spoke[n] to you, but that decision only can come from you, is that correct?
Q: And you made that decision?
Therefore, the record provides no support whatsoever for defendant's contention that his trial counsel failed to adequately advise him concerning his right to testify and prevented him from testifying.
Defendant additionally contends that the judge erred by failing to conduct an evidentiary hearing on his claim of ineffective assistance of counsel. We disagree. "[T]rial courts ordinarily 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." State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under" the Strickland/Fritz test. Id. at 463. As we have explained, defendant's ineffective-assistance-of-counsel claim is without merit. Therefore, an evidentiary hearing was not required.
Next, defendant argues that the judge erred by denying PCR because the State knowingly presented what defendant claims was perjured testimony at trial. Defendant says that Detective Reyes falsely testified that White and Cummings had identified him in photo lineups. Defendant says that White and Cummings had only identified co-defendants Jones and Francis.
The State argues that defendant is barred by Rule 3:22-4 from raising this claim. We agree. The rule bars a defendant from raising an issue as a ground for PCR unless:
(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey. [Ibid.]
Here, none of the exceptions to the procedural bar in Rule 3:22-4 apply. The issue regarding the alleged perjured testimony could have been raised by defendant in his direct appeal. Defendant has not shown that his failure to raise the issue was due to any exceptional circumstance. In addition, the admission of Reyes' testimony did not result in any fundamental injustice. At the trial, the State presented overwhelming evidence of defendant's guilt and Reyes' testimony concerning the identifications was not a key element of the State's case. Furthermore, the denial of relief does not implicate any concerns of a constitutional dimension.
Moreover, even if the procedural bar in Rule 3:22-4 is inapplicable, defendant's claim would still fail because he did not present sufficient evidence to show that Reyes falsely testified or that the prosecutor knowingly presented perjured testimony. Defendant asserts that, in their statements, Cummings and White mentioned that they had identified Jones and Francis, but they did not say that they had identified defendant. However, Cummings and White may, in fact, have identified defendant, even if they failed to mention the identifications in their statements. The statements by Cummings and White may raise issues of credibility, but they do not establish that Reyes' testimony was untruthful.
We have considered the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
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