September 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ASHTON BARKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-01386-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Carchman and Sabatino.
Following a Miranda*fn1 hearing and thereafter a jury trial, defendant, Ashton Barker, was convicted of simple assault (N.J.S.A. 2C:12-1a(1)), as a lesser included offense of second degree aggravated assault, (N.J.S.A. 2C:12-1(b)(1)); third-degree aggravated assault, (N.J.S.A. 2C:12-1(b)(2)); second-degree possession of a weapon for an unlawful purposes, (N.J.S.A. 2C:39-4(a)); and third-degree possession of a weapon without a permit, (N.J.S.A. 2C:39-5(b)). After appropriate mergers, defendant was sentenced to three-year custodial term with a three-year period of parole ineligibility. The sentence was to be served at a youth correctional institution. Defendant appeals, and we affirm.
The facts adduced at trial are simply stated. At approximately 3:30 a.m. on July 10, 2004, Alexis Crespo, a friend of defendant, was sitting on the stoop outside the apartment building at 15 Madison Avenue in Plainfield, when he observed defendant in a Chrysler M300 in the parking lot of a nearby McDonald's restaurant. After crossing the street to talk to defendant, Crespo informed him that "people were saying that defendant was a snitch." Crespo declined defendant's offer to take a ride with him, and as defendant drove off, Crespo returned to the apartment building.
Approximately ten minutes later, Crespo was standing outside the apartment building with an individual known as "Brooklyn" when defendant returned with his cousin, Dwayne Austin. Defendant and Austin exited the car and approached Crespo. According to Crespo, defendant appeared angry. Crespo observed that defendant was wearing a glove and holding a black gun. Defendant paced back and forth, and Crespo noted that defendant was acting "like he came for like revenge or something." He "was acting completely different from the way he had acted earlier that morning." Crespo was "skeptical" of the situation and thought that defendant wanted to shoot him so he ran inside the apartment building.
Once inside the building, Crespo heard a "thud on the door," which he thought was a gunshot. He waited in the building for between an hour and an hour and a half for defendant to leave, eventually walked home and then went to the police station to report the incident.
Leah Golphin, the owner of the Chrysler M300 driven by defendant, explained that she had known defendant for approximately two months prior to June 2004. She had purchased another car and wanted to move the car alarm from her Chrysler to the new vehicle. Defendant agreed to do the work so Golphin left her car at his house in June 2004; Golphin did not give defendant permission to drive her car.
Golphin also explained that sometime in July 2004, defendant called her and said "I just did a drive-by, ha ha."
He told Golphin that "he got mad at somebody and he [defendant] started shooting," although he did not identify that person. Golphin believed defendant was joking.
Two days later, on July 12, 2004, Detective Francis Wilson of the Plainfield Police Department went to 15 Madison Avenue to investigate the alleged shooting. He discovered a bullet hole just below the doorknob of the inner door to the apartment building, another bullet hole in the wall of the hallway behind the door and a bullet located between two walls in one of the apartments.
Additional relevant facts were adduced at the earlier Miranda hearing. Following Wilson's investigation, he arrested defendant. On July 29*fn2, 2004, the date of the arrest, prior to beginning his interview of defendant, Wilson read defendant his Miranda rights from a Miranda form that contained five separate questions. Wilson read each question to defendant and had him initial the form after each as an indication that he understood it. Defendant was cooperative with the investigation and did not appear to be under the influence of any drugs or alcohol. Defendant read aloud the waiver of rights at the bottom of the Miranda form and then signed and dated the form, which was witnessed and verified by Wilson and another officer.
After defendant waived his Miranda rights, Wilson began questioning defendant about the shooting. Shortly after the interview began, defendant told Wilson: "I need to speak to Detective Speck from North Plainfield." Wilson stopped the interview, left the room, and contacted Speck. Wilson informed Speck that defendant had been a suspect in an aggravated assault investigation, and defendant wanted to speak with him. After speaking with Speck, Wilson brought defendant the phone and left the interview room.
Speck knew defendant through his work as a North Plainfield police officer because defendant had done some undercover work for the North Plainfield Police Department and the Somerset County Prosecutor's Office. Defendant told Speck that he was unsure whether he should speak with Wilson, and Speck responded by advising defendant that he knew Wilson, had worked with him in the past, and "that he was a good guy and if [defendant] was up front with him, he would be honest with [defendant] also." Speck made no agreements, promises, or threats to defendant, although he did tell defendant that he would inform Wilson that defendant had worked with the North Plainfield Police Department in the past. The entire conversation took only a few minutes.
After speaking with Speck, defendant stated "that [Wilson] could be trusted" and told Wilson that he was willing to speak with him. Wilson and defendant spoke about the shooting, and defendant explained "the whole incident, [and] how it occurred." Wilson was called out on another matter, so Detective Ferna*fn3 took a written statement from defendant.
At the close of the hearing, the motion judge denied defendant's motion to suppress the confession. He concluded that defendant was arrested and in police custody, and therefore Miranda warnings were required. Wilson advised defendant of his Miranda rights, defendant was aware of his rights, and he made a knowing, intelligent, and voluntary waiver of those rights. Although he noted that defendant's conversation with Speck probably convinced defendant to make a statement to the police, under State v. Miller, 76 N.J. 392 (1978), and State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000), that did not make defendant's statements involuntary. He concluded that considering the totality of the circumstances, pursuant to State v. Hook, 179 N.J. 533 (2004), defendant's confession was voluntary beyond a reasonable doubt.
On appeal, defendant raises the following issues:
I. DID THE COURT ERR BY ADMITTING DEFENDANT'S CONFESSION TO THE POLICE, FINDING THAT IT WAS VOLUNTARILY GIVEN AFTER AN EFFECTIVE WAIVER OF HIS MIRANDA RIGHTS
II. DID THE COURT ERR BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL
III. WAS DEFENDANT DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
IV. DID THE COURT ERR BY DENYING DEFENDANT'S MOTION FOR ACQUITTAL
Defendant initially challenges the motion judge's denial of defendant's motion to suppress, finding that defendant was advised of his Miranda rights and made a knowing, intelligent, and voluntary waiver of those rights. On appeal, defendant challenges the propriety of the confession, relying on his request to speak to Detective Speck. He urges that the bright-line rule of State v. Hartley, 103 N.J. 252 (1986)(requiring the interrogating police to readminister Miranda warnings before interrogating a defendant who, during the interrogation process, has invoked his right to remain silent), compels a finding that the confession was improperly obtained.
We decline to address the issue. Critical to this determination is that during the trial, the State neither commented on the confession nor offered any testimony or proofs regarding that issue. During trial, defense counsel asserted that the failure of the State to offer the confession somehow altered defendant's trial strategy; however, that argument is not asserted here, and we conclude it has been abandoned. We do note that even though not offered in the State's case-in-chief, the confession continued to loom large at trial. The confession was still available to challenge defendant's credibility if he chose to testify. State v. Burris, 145 N.J. 509 (1996) (concluding that statements given freely and voluntarily even in violation of a defendant's Fifth Amendment rights may be admissible for impeachment purposes). The State did not offer the confession; defendant exercised his constitutional right not to testify. The jury neither heard not considered the confession. We are reluctant to delve into the jurors' minds as to whether a confession offered on direct evidence has more impact than a confession used to impeach. Trial strategy may be altered by the nature of the proffer, but, here, it had no impact on defendant's rights. We do not perceive any need to address this issue and decline to do so.
Defendant next contends that the trial judge erred by denying his motion for a mistrial, arguing that defense counsel improperly acknowledged defendant's guilt on the charge of possession of a weapon without a permit during his opening statement.
During his opening statement, the prosecutor stated: "The only thing that's not in dispute, this defendant didn't have a permit to have a gun. By the end of the case based on all the testimony and the evidence this defendant came back with a gun that he didn't have a permit to have" Defense counsel, in his opening said: "Now there's four charges in this indictment, ladies and gentlemen, and I'm going to tell you right now [the prosecutor] said one thing I do agree with. Mr. Barker is guilty of the fourth count of the indictment that he possessed a handgun without a permit."
At the close of the State's case, defense counsel moved for a mistrial, contending that the prosecutor misrepresented the State's intent to admit defendant's confession, and had he known that the State was not going to introduce that evidence he would not have admitted defendant's guilt on the possession of a weapon without a permit charge. The trial judge denied defendant's motion, finding that there was no factual basis for his contention that the State intentionally withheld his confession from evidence.
The decision to grant a defendant's motion for a mistrial rests within the sound discretion of the trial judge. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The standard is whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps. [Pressler, Current N.J. Court Rules, Comment 5.1 on R. 3:20-1 (2008) (citations omitted).]
The grant of a mistrial is an extraordinary remedy that should be exercised only to prevent manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). We will defer to the decision of the trial judge and not disturb a denial of a motion for a mistrial "unless there [was] a clear showing of mistaken use of discretion by the trial court," Greenberg v. Stanley, 30 N.J. 485, 503 (1959), or unless "manifest injustice would... result." State v. LaBrutto, 114 N.J. 187, 207 (1989).
The judge did not abuse his discretion by denying defendant's motion for a mistrial. First, contrary to defense counsel's contention, the State did not misrepresent its intent to admit defendant's confession; the record does not support this contention.
Second, defense counsel's comment was made during his opening statement, which was not evidence to be considered by the jury. Indeed, the judge instructed the jurors that "what is said by the lawyers in addressing you in opening statements or in closing statements or even posing questions or any colloquy with the court is not evidence." The jury is presumed to have followed that instruction. State v. Feaster, 156 N.J. 1, 65 (1998); State v. Manley, 54 N.J. 259, 271 (1969).
We find no manifest injustice here. The State presented sufficient evidence that defendant was in possession of a gun without the requisite permit, a contention that proceeded without significant dispute. The State's proofs were simple and direct. Crespo offered that he saw defendant holding a gun, and the State presented an affidavit from the State Police indicating that defendant did not have a permit for any kind of weapon.
Most important, during his summation, defense counsel clarified and corrected his prior statement to the jury, explaining as follows:
Now last night, ladies and gentlemen, when I was reviewing my notes I noticed that I need to correct from when I gave my opening statement.... Yesterday I misspoke when I said that [defendant] was guilty of count four of the indictment and not guilty of counts one, two and three. What I meant to say and you will see is that there is no dispute that [defendant] does not have a permit to carry a handgun which is an element of count four. And you'll see a sheet that says it's one of the things that, you know, you have to have a--to have a gun in this state you have to have a permit. There is no dispute that [defendant] did not possess a permit to possess a firearm, but he did not and does not admit that he was in possession of a handgun at any time during the early morning hours of July 10[,] 2004.
We find no error here, but the statement generates yet another issue on appeal. ` Defendant contends that his convictions should be reversed because he received ineffective assistance of counsel. Specifically, he argues that defense counsel's representation "fell below the objectively reasonable standard" when counsel made the comment regarding defendant's guilt.
In State v. Fritz, 105 N.J. 42, 49-58 (1987), the New Jersey Supreme Court recognized a criminal defendant's constitutional right to the assistance of "reasonably competent counsel," and adopted the federal standard for evaluating claims of ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 2065-68, 80 L.Ed. 2d 674, 693-98 (1984). Under this two-prong test, a we must determine: (1) whether counsel's performance "fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; and (2) whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698, State v. Allegro, 193 N.J. 352, 366 (2008); State Loftin, 191 N.J. 172, 197-98 (2007).
Ineffective assistance of counsel claims are particularly suited for post-conviction review because they usually "involve allegations and evidence that lie outside the trial record," and therefore "they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). See also R. 3:22-4(a). However, where, as here, "the trial record discloses the facts essential to" the claim, "defendant should not be required to wait until post-conviction relief to raise the issue." State v. Allah, 170 N.J. 269, 285 (2002). See also State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).
Defendant did not meet his burden of establishing that his counsel was ineffective. First, he did not satisfy the first prong of the Strickland test, that his counsel's conduct fell below an objective standard of reasonableness. Defendant's confession was deemed admissible at trial, and was listed as potential evidence for the State. Crespo, who allegedly saw defendant holding a gun, was listed as a potential witness for the State. At the beginning of trial, defense counsel believed that the State would introduce defendant's confession and that defendant would testify on his own behalf. Defendant had filed a notice of self-defense, and, according to defense counsel, defendant had intended to testify that he was in possession of a weapon to defend himself. Defense counsel was forced to make a tactical decision as to what evidence to present and what to include in his opening statement.
Even if defendant could establish the first prong of the Strickland test, he cannot satisfied the second, that he was prejudiced by defense counsel's comments. As we previously noted, defense counsel's comment did not generate prejudice such that defendant was deprived of a fair trial. As we previously noted, the offensive comment was made during the opening statement, which the trial judge informed the jurors that it was not evidence to be considered. Second, the State presented sufficient evidence to convict defendant of the charge of possession of a weapon without the requisite permit. Finally, during his closing statement, defense counsel clarified and corrected his prior misstatement to the jury, and there is no reason to believe that the jurors disregarded his explanation.
The record does not support the conclusion that there is reasonable probability that "but for counsel's deficiency, the outcome would have been different." See Allah, supra, 170 N.J. at 284 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). We reject defendant's ineffective assistance of counsel claim.
Lastly, defendant contends that the trial court erred by denying his motion for acquittal at the close of the State's case because the State presented insufficient evidence to convict defendant on those counts. Specifically, defendant argues that the State did not provide sufficient evidence to prove that he intended to cause serious bodily injury to Crespo, or that he was even in possession of a gun on the morning of the alleged shooting. We disagree.
The trial judge denied defendant's motion for acquittal finding that there was sufficient evidence to warrant a conviction of the charges involved and said:
In this instance we have testimony from [Crespo] as to the conduct of the defendant; that the defendant came to the scene with a weapon in his hand; that he was the only person with a firearm in his hand; that his behavior was menacing in demeanor; that he in fact feared for his personal safety and after he fled he heard a noise that was a thud which he believed to be a gunshot.
The evidence presented by [Wilson] was that he conducted an examination of the scene, found holes starting with the outermost door and going into interior surfaces which led him to discover a bullet that he retrieved and that he finds is certainly consistent with testimony that a gunshot was fired in the direction where [Crespo] was.
And finally we have the testimony from Miss Golphin with respect to the fact that the defendant had use of her car at the time that--not with her permission, but at the time that the event occurred, and that he admitted to her that he had participated in what was described as a drive-by which she understood to mean a drive-by shooting, although she did at the time did find that he was joking.
Rule 3:18-1 addresses judgments of acquittal, providing that:
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.
When evaluating such motions, courts must view the totality of evidence, be it direct or circumstantial, in a light most favorable to the State. More specifically, we must give the government in this setting'the benefit of all its favorable testimony as well as of the favorable inferences [that] reasonably could be drawn therefrom[.]' [State v. Perez, 177 N.J. 540, 549 (2003) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).]
The applicable standard is "whether such evidence would enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the crime or crimes charged." Ibid. (citing Reyes, supra, 50 N.J. at 459). The trial court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). And, the appellate court applies the same legal standard. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996).
Giving the State the benefit of all favorable inferences as required on a motion for judgment of acquittal, the trial judge correctly denied the motion.