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State v. Davis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAHEEM DAVIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 92-12-1405.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 22, 2008

Before Judges Cuff, Fisher and Baxter.

Defendant Raheem Davis appeals from the denial of his petition for post-conviction relief. The petition was denied without an evidentiary hearing. We affirm.

Defendant is serving an aggregate term of sixty years with a thirty-year period of parole ineligibility for kidnapping, six counts of aggravated sexual assault, aggravated assault, and possession of a weapon (a stick or metal object) for an unlawful purpose. In 1997, we affirmed the conviction in all respects but for the sentence. State v. Davis, No. A-4770-94 (App. Div. July 1, 1997). Defendant was resentenced in August 1997, we affirmed the newly imposed sentence, State v. Davis, No. A-953-97 (App. Div. April 13, 1999), and the Supreme Court denied certification, 165 N.J. 487 (2000).

We derive the following facts from our opinion on direct appeal:

Defendant's conviction and sentence stemmed from an incident that occurred on May 6, 1992, just after midnight. At that time, J.B., a 26-year-old woman, approached defendant and his co-defendant Timothy Jackson for the purpose of purchasing $10 worth of crack cocaine. Initially, J.B. agreed to have sex with defendant and Jackson in exchange for a $30 bag of crack cocaine. However, she changed her mind and attempted to hand the drugs back to Jackson. It was then that defendant accused J.B. of taking some of Jackson's drugs before handing the bag back to him. Defendant and Jackson began assaulting J.B. and ripped off her clothes, ostensibly to search for the allegedly missing cocaine. When the beating and the strip search failed to produce the missing cocaine, the attack became sexual. Jackson had vaginal intercourse with J.B. twice and attempted to sodomize her. Defendant then invited a third individual, Samuel Vincent, to rape her as well. Vincent had vaginal intercourse with J.B. and left the area. After that, defendant had vaginal intercourse with J.B. Then he and Jackson forced J.B. to perform oral sex on both of them.

Fearful that J.B. would inform the police about what they had done, Jackson and defendant began assaulting her again, beating her about the head, face and neck. When J.B. fell to the ground, defendant held her legs open, and Jackson pushed a stick inside her vagina. Jackson also struck J.B. on the side of her neck and arms with a metal pipe.

When Jackson stopped beating her, a fourth individual, Dallas Merrick, came upon the scene. Defendant grabbed J.B. by her hair and forced her to have oral sex with Merrick. Thereafter, Merrick had vaginal intercourse with her. Ultimately, J.B. was permitted to leave the area. She was subsequently hospitalized for her injuries. Defendant and Jackson were identified by J.B. through photographic arrays.

At trial, defendant testified that he had vaginal and oral sex with J.B. but that it was consensual. He blamed Jackson for the injuries sustained by J.B. Defendant denied that he invited Vincent or Merrick to have sex with J.B. and denied holding her down while they did so.

[Davis, supra, slip op at 3-4.]

In his petition, defendant asserts he received ineffective assistance of trial counsel and appellate counsel because they failed to contest the admission of evidence that the victim knew him as a local drug dealer. Defendant also contends that his trial and appellate counsel neglected to challenge an unduly suggestive out-of-court identification and an unduly prejudicial summation by the prosecutor. Defendant also argues that the trial judge impermissibly admitted testimony by the victim regarding defendant's statements to her during an encounter at the county jail. Defendant also alleges that he was denied a fair trial due to cumulative error. Finally, defendant asserts he should have been afforded an evidentiary hearing and that his sentence is illegal.

Following oral argument, Judge Kelly denied the petition.

The judge found that defendant did not satisfy the two prong test to establish ineffective assistance of counsel because identification was never an issue at trial. According to defendant, the victim and he engaged in consensual sex in exchange for drugs. Similarly, defendant acknowledged that he knew the victim was a drug user and supplied drugs to her, and the trial judge provided a limiting instruction. Therefore, the victim's testimony that she knew defendant from prior drug transactions was harmless.

The judge also rejected the argument that defendant was denied a fair trial because the prosecutor extolled the changes the victim had made in her life in her summation. The judge noted that defendant's attorney had mounted a strong, yet fair, attack on the victim as a person not worthy of belief due to her history as a drug addict. Judge Kelly found the prosecutor's comment fairly responded to the broad attack on the victim's credibility. Moreover, this was an issue that was procedurally barred because it was not raised on appeal.

The judge also held that the admission of the jailhouse encounter between the victim and defendant was properly admitted. He found that defendant's effort to convince the victim to drop the charges allowed the jury to infer that defendant was conscious of his guilt.

On appeal, defendant raises the following arguments:

POINT I

DAVIS RECEIVED INEFFECTIVE ASSISTANCE FROM DEFENSE COUNSEL AND APPELLATE COUNSEL FOR FAILING TO PROPERLY RAISE THE ISSUES THAT THE TRIAL COURT ERRONEOUSLY PERMITTED J.B. TO TESTIFY TO DAVIS' OTHER CRIMES AND BAD ACTS IN VIOLATION OF N.J.R.E. 404(b), NAMELY THAT SHE HAD SEEN HIM SELLING DRUGS ON THE STREET, HAD PURCHASED DRUGS FROM HIM ON PRIOR [OCCASIONS] AND THAT SHE ENCOUNTERED DAVIS WHILE HE WAS INCARCERATED AND WITHOUT APPROPRIATELY DETAILED AND TIMELY LIMITING INSTRUCTIONS. (U.S. Const. Amend[s.] VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

POINT II

THE PCR COURT REVERSIBLY ERRED IN REJECTING DAVIS' ARGUMENT THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL ON THE DIRECT APPEAL FOR FAILURE TO MOVE FOR A MISTRIAL BASED UPON THE IMPROPER REMARKS MADE DURING THE STATE'S CLOSING ARGUMENT AND FOR FAILURE TO RAISE THAT ISSUE ON DIRECT APPEAL. (U.S. Const. Amend[s]. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

POINT III

DAVIS' WAS DENIED HIS RIGHT TO DUE PROCESS OF THE LAW, RIGHT TO A FAIR TRIAL AND TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL ON THE DIRECT APPEAL FOR THEIR FAILURE TO ARGUE THAT THE OUT-OF-COURT IDENTIFICATION PROCEDURE USED FOR VIEWING THE PHOTOGRAPHIC ARRAY WAS UNDULY SUGGESTIVE AND TAINTED THE IN-COURT IDENTIFICATION OF DAVIS BOTH OF WHICH SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

POINT IV

PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO DAVIS IN FAILING TO INCLUDE AND ARGUE TO THE PCR COURT THAT DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO DAVIS IN FAILING TO OBJECT TO J.B.'S TESTIMONY ON DAVIS' STATEMENTS AT THE JAIL ON THE GROUNDS THAT HE WAS DENIED HIS RIGHT TO COUNSEL AT THAT POINT. (U.S. Const. Amend[s]. VI & XIV; N.J. Const. (1947) Art. I, Para. 10) (NOT RAISED BELOW).

POINT V

THE CUMULATIVE EFFECT OF DAVIS' GROUNDS FOR POST-CONVICTION RELIEF WARRANT A REVERSAL OF HIS CONVICTIONS AND SENTENCES.

POINT VI

IN THE ALTERNATIVE AND AT A MINIMUM DAVIS HAVING DEMONSTRATED A PRIMA FACIE CASE SHOULD HAVE BEEN GRANTED HIS REQUESTED EVIDENTIARY HEARING ON HIS GROUNDS FOR POST-CONVICTION RELIEF.

POINT VII

THE PCR COURT REVERSIBLY ERRED IN FAILING TO FIND THAT DAVIS' SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for post-conviction relief:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law.

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

A defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). Claims of ineffective assistance of counsel are well suited for post-conviction review. Preciose, supra, 129 N.J. at 460.

The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "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. This State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.

Adequate assistance of counsel is measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be not "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Applying this standard to the issues raised by defendant precludes relief. As noted by Judge Kelly, identification was never an issue in this case. The only issue at trial was whether the sexual relations were forced or consensual. Defendant admitted that he engaged in consensual sex with the victim in exchange for drugs. Similarly, he admitted his involvement in the drug trade. Defendant revealed at trial that he was incarcerated; therefore, any prejudice derived from the victim's testimony of her encounter with defendant at the county jail was greatly minimized.

In her summation, the prosecutor extolled the changes the victim had made in her life. The remarks were in direct response to a very forceful attack on the victim's credibility. Moreover, the State presented overwhelming evidence of defendant's guilt. Under the circumstances, we discern no prejudice to defendant from these remarks.

Finally, post-conviction relief provides a remedy for an illegal sentence. R. 3:22-2(c). It does not provide relief for an excessive sentence. State v. Murray, 162 N.J. 240, 246 (2000). The sentence imposed following remand is a legal sentence.

We have reviewed the record in its entirety and conclude that defendant has failed to carry his burden to establish that either trial or appellate counsel were ineffective. We, therefore, affirm the August 21, 2006 order denying defendant's petition for post-conviction relief substantially for the reasons expressed by Judge Kelly in his August 15, 2006 oral opinion.

Affirmed.

20081201

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