January 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANA TOKLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-01-0246.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2008
Before Judges Lisa, Reisner and Alvarez.
Defendant Dana Tokley appeals from an August 8, 2006 order denying his petition for post-conviction relief (PCR). We affirm.
In connection with an armed robbery at the Quality Auto dealership in Pennsauken, New Jersey, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirmed the conviction. State v. Tokley, Docket No. A-4725-99 (App. Div. Oct. 4, 2002). In our opinion on the direct appeal we summarized the trial record as follows.*fn1
The State presented evidence to show that on November 11, 1996, Robert Owens, the manager of Quality Automobiles in Pennsauken, was approached by two masked men. One of the men held a gun and instructed Owens to "give me the money." Owens gave the man $900 from his pocket. Owens was instructed to enter the trailer office where he observed the second masked man, later identified as Jose Martinez, with the three female employees on the floor. Owens was instructed to open the safe, but he replied that there was no safe. Martinez told the gunman to "shoot him," but no shots were fired. Another employee, Joe Fels, started to enter the trailer. One of the men pressed a gun in Fels' chest and said, "Don't be a hero." Martinez then grabbed a pocketbook, and both men fled.
The key witness on behalf of the State was Martinez, then serving a twenty-year sentence for aggravated manslaughter. According to Martinez, he knew defendant through criminal activities. In November 1996, he along with Elliot Rosario and defendant planned to rob Quality Automobiles. Rosario had a problem and could not participate in the crime. Martinez described how he and defendant, each carrying a weapon and dressed in camouflage clothing and ski masks, drove into the car lot and committed the robbery. Martinez entered the trailer while defendant approached the man believed to have plenty of money on him for a car auction. Martinez instructed the women inside to lie on the floor. A short while later, defendant entered the trailer with the man and asked where the safe was. Another man arrived, and Martinez told him to empty his pockets.
Martinez stated that he decided to cooperate with the State after he was arrested for murder and Rosario was killed. He thought he might also be killed. He agreed to cooperate in exchange for a lesser charge. He realized that if he did not testify, the deal could be withdrawn and the original charges reinstated.
Defense counsel cross-examined Martinez at length about his long criminal history. Martinez acknowledged he agreed to testify and cooperate with the State. He described how he and defendant each had a weapon and that he took a purse or a wallet. He first gave a statement to the police on September 21, 1998, about the robbery at Quality Auto. Martinez claimed he took Rosario's place in the robbery because Rosario was sick from drinking too much, and defendant got all the money from the robbery.
At one point, defense counsel sought to elicit evidence concerning the factual [basis for his plea]. . . . Counsel said, "Essentially that [Martinez] consummated some kind of drug deal in a bar and then they go pick up the money for that drug deal" and two men are shot. He argued that in Martinez's statement, he said that while he, Rosario, and another man were at a bar in Camden, the topic of killing defendant came up. The trial judge found the evidence relevant to show Martinez had a motive to lie against defendant, but he said there was no need for testimony about the drug deal in order to understand Martinez's statement about killing defendant.
Before the jury, defense counsel questioned Martinez about a discussion to kill defendant. Martinez admitted the content of the discussion and that they were looking for defendant but could not find him. Later, he said it was Rosario's plan to kill defendant, and he went along with it.
On redirect, Martinez described his relationship with Rosario as something like a brother. He wanted to help him out of his debt to defendant. Martinez said the moment he found that defendant set up a drug transaction where he influenced Rosario to kill somebody who turned out to be the wrong guy, he was angry with defendant and if he could get away with it, he would kill defendant. Later, Martinez replied that defendant killed Rosario in front of him. Defense counsel immediately objected and asked for a mistrial. At sidebar, the prosecutor noted that she had not asked Martinez about Rosario's murder and suggested that a curative instruction by the judge should suffice. The judge denied defendant's motion for a mistrial and agreed to give a limiting instruction to the jury. The judge asked for a suggested instruction. Defense counsel suggested the judge state in some fashion that "any reference to any other criminal activity is not to be considered by the jury."
Neither the prosecutor nor defense counsel objected to the judge's charge. As noted, the jury returned a verdict of guilty.
[Id. at 2-5.]
In our opinion, we rejected defendant's contentions, among others, that the trial court erred in admitting evidence that defendant had committed a murder and a drug offense; that the court erred in admitting hearsay evidence; that the court failed to properly instruct the jury on accomplice liability; that the court failed to give a lesser included offense charge for second degree robbery; and that the court failed to caution the jury on the use of an alleged accomplice's testimony.
Defendant filed his PCR petition on May 29, 2003, and filed an amended petition on August 31, 2005, after counsel was appointed. Judge Linda Baxter, who had also presided over the original trial, conducted an evidentiary hearing on the PCR petition.
At the PCR hearing, defendant presented testimony that on the date of the robbery for which he was convicted, Veterans Day, he, his aunt, and his mother went to the cemetery where his brother, a veteran, was buried. Defendant's sister also testified that she had overheard Ernest Hill admit to committing the robbery. Defendant's trial attorney testified that even though defendant had provided him with a list of witnesses, including defendant's mother and sister, he failed to interview them, and therefore, also did not present them to the jury. Defense counsel stated that his trial strategy was to discredit Martinez, and that he did not consider or identify any other viable avenues of defense. Finally, two other witnesses testified that Martinez, the key witness against defendant, told them when they met Martinez in jail that he had lied about defendant's involvement in order to get a good deal from the State. The following evidence was adduced at the PCR hearing to support those facts.
Defendant testified that on the morning of November 11, 1996, he, his aunt, and his mother went to his brother's grave. He said that he told her that he wanted to go because he "was locked up at the time" of his brother's death and had never been to his grave before, but that he had to take his son to therapy at day care first because his son has cerebral palsy. He testified that he arrived at his mother's house around 9:30 a.m., and they left by about 9:35 a.m. to go to the cemetery, taking about an hour to get there. He testified that they were there for about forty-five minutes to an hour and fifteen minutes, and then left. After they left, his mother and aunt "wanted to go to the shopping center" where they shopped for about forty-five minutes while defendant waited in the car, and then when they came out, they went to get food at McDonald's and then went home. Defendant testified that he dropped them off at home and then went back to the day care center to check on his son, but by the time he got there the school had already transported the son home.
Defendant testified that when he talked to his attorney about the charges against him, defendant told him that "there ain't no way in the world I could have done that. . . . I told him there was witnesses, I gave him some names then, he said that right now he was going to send an investigator once he got all the paperwork." Defendant stated that prior to the trial, he "talked to [his] mother" and told her that he had been arrested for robbery, and she responded, "that's impossible . . . that's the day that we went up . . . to the [c]emetery." Defendant testified that he told this to his attorney during a meeting they had and that he also told his attorney at that time that his sister had overheard Hill say that he did the robbery. According to defendant, his attorney said that "he was going to get an investigator and he was going to look into [defendant's] paperwork." Defense counsel asked defendant for Hill's address and defendant also relayed his aunt's contact information, but defendant said that defense counsel indicated that he did not "think that they would allow an investigator to go" to Maryland to talk with her.
Defendant testified that he wrote several letters to his attorney, in which he made the following statements: "you did not even question any of the witnesses or get all the evidence . . . you got some names and numbers from the first time we met and you didn't even investigate that yet"; "a lot of people I need to give you addresses for my case"; "you told me to call and you wasn't in"; "you don't even talk to me about my case and you don't even interview the witnesses about the robbery"; "[t]he train is coming and I'm on the tracks just laying there waiting to get railroaded and you are letting it happen"; "you were going to visit and you never showed up, like always"; "I got proof I didn't do these crimes and you know that, but you still didn't do no investigation"; "[r]emember the guy, E-Train, I told you about? . . . That's the guy that did the robbery . . . at the car lot"; and "[b]elow is a list of names of witnesses I would like for you to make contact with and subpoena . . . . I've yet to speak with a defense investigator".
Defendant testified that at trial, when the judge asked his attorney if there were any witnesses that they were going to call, his attorney responded, "Not at this time." Defendant said that he believed that the attorney meant that he was planning to call his mother and sister "later" because he was under the impression that those witnesses he listed for his attorney would be testifying. However, his attorney, after a break, told the court, "Defense rests." Defendant explained that he "didn't know the law as much as [he] know[s] it now and [he] thought you could still . . . get it in." Defendant, therefore, continued after the trial to write letters asking his attorney to take the statements of witnesses.
During cross-examination, defendant acknowledged that he never mentioned to his attorney in his letters that he was with his mother on November 11, 1996. Even though defendant continued to write letters to his attorney after the trial was over, defendant did not write anything in those letters to "indicate that [he was] upset that [defense counsel] didn't put [the] alibi defense on." The assistant prosecutor also questioned defendant about his extensive criminal record, including convictions for witness tampering and perjury.
Scott Griffith, defendant's trial attorney, also testified. Griffith had represented defendant in three different matters around the same time.*fn2 He stated that he identified the issue in the Quality Auto robbery trial as "whether or not [defendant] did it," rather than whether a robbery occurred at all, and that his approach was to show that the main witness "was a liar." However, he admitted that he made the decision "not to pursue any other avenues of defense" without "any investigation of those other avenues." He also testified that "the whole issue of going to visit [defendant's] brother at the grave site and all that, I had never heard that before." Griffith said he had lunch with defendant's mother, Carol Tokley, at the McDonald's during the trial, and she never said anything regarding the trip to the cemetery, but he did "remember discussions with her about the murder." However, Griffith admitted it was "possible" that he did discuss an alibi defense, but that he did not remember.
Griffith testified that defendant told him "reasonably early on in the case" "that Ernest Hill was the guy that did the robbery." Griffith explained that he was not going to call Hill to testify because he anticipated that Hill would simply invoke his Fifth Amendment right. When asked hypothetically whether he would have called defendant's sister, Marcella McDonald to testify about Hill's statement, Griffith responded that he would not because "[i]n [his] estimation she's not credible." He testified that he would not have called Carol Tokley for the same reason. Griffith mentioned that defendant had sent him a letter "thanking [him] for doing a good job on his [second] trial" and "suggesting . . . that [he] did well on the first case as well, but that because the jury heard about the murder of Elliot Rosario, . . . that's why they found him guilty and that it should have been a mistrial."*fn3 Griffith acknowledged that he never hired an investigator, even though he was aware that he could have gotten one through the Public Defender's Office.
Carol Tokley, defendant's mother, testified that on Veterans Day, Monday, November 11, 1996, defendant "came to [her] house . . . right around 9:30" in the morning after bringing his son who has cerebral palsy to day care "[b]ecause [they] had planned to go to the cemetary [sic] to visit [her] son Kenny Parker's grave." She testified that "Kenny died July the 27th, 1995" but that defendant "was not allowed to come to the funeral because he was incarcerated." Kenny was a veteran, and "[t]hat's why he was buried at General Dole's [sic] Cemetery" in Arneytown. Defendant drove his mother and her sister (his aunt), Adlene Conway, to the cemetery, arriving around 11:00 a.m. that morning and staying for approximately forty-five to sixty minutes. Carol Tokley acknowledged that defendant "was with [her] the whole time." After visiting the grave, she testified that she, her sister, and defendant went to the shopping center, where defendant waited in the car while the women went inside; they all then ate lunch around 2:00 p.m., and arrived home around 3:30 p.m. Defendant brought his mother home but left shortly thereafter.
Mrs. Tokley also testified that she attended defendant's trial because defendant had "told [her] to be in the courtroom, that, . . . [she] would be called as a witness." She never received a subpoena, but defendant's attorney did telephone her to ask her to bring defendant clothes. She testified that even though she knew her son was "going on trial", she was not aware of the alleged date of the crime with which he was charged. She asserted, "I did not know it was on November the 11th until I got into this courtroom, and when I got into this courtroom and they said, this case happened November the 11th, so, . . . I said, well, it couldn't have been [defendant] because [defendant] was with me." She testified that during a "break in the trial" she spoke with defense counsel, and she told him, "let me get on the stand, and he said, you know, that he --whatever, he had everything under control because . . . not a witness in the world that believes all this stuff that [Martinez] is saying."
According to Mrs. Tokley, she and her daughter Marcella McDonald also attended defendant's sentencing; defense counsel at that time told the court that she was present, but the judge did not allow Carol Tokley to speak. She testified that had she been allowed to speak: "I don't know whether it was too late or not, but I was going to tell them there's no way that Dana is guilty of this because Dana was with me at the time." Mrs. Tokley admitted that she never told defense counsel specifically about the trip to the cemetery because when she "would call [his] office and leave a message . . . . [he] never got back. He never called me back." She only told him one day during the trial while they were having lunch at McDonald's, "let me testify. Let me get on the stand." But even at that time, she did not tell him about the alleged trip to the cemetery.
Marcella McDonald, defendant's sister, testified at the PCR hearing that on November 11, 1996, she heard Ernest Hill tell her husband Herbert that "he robbed . . . the car place" and that they would see it "in the paper the next day"; an article about the robbery appeared in the Courier-Post on Tuesday, November 12, 1996. She also testified that prior to December 1999, she was never contacted by anyone in the Prosecutor's Office, nor was she contacted by defendant's attorney. Further, she testified that she did not "even know about the trial" and did not attend the trial, but she did go, at her mother's request, to defendant's sentencing in April 2000. When she realized that defendant was being sentenced for the same robbery to which Hill admitted, she "wrote a letter" on April 10, 2000, and "had it notarized" because she "[knew] that he did not do" the robbery. McDonald also signed an affidavit in May 2000, after speaking with Scott Griffith, but he told her that she "[would] say anything to get [defendant] off."
Michael Krunelis, a prison inmate, testified on defendant's behalf that he met Jose Martinez while the two men were imprisoned at Riverfront Correctional Facility. Krunelis testified that Martinez told him that he was having trouble sleeping, because "I have done something and I . . . told [on] this dude Tokley. I [Krunelis] said[,] you told on this dude Tokley? He said to me, yes." Krunelis said that Martinez told him that "he lied to the court and the prosecutor about this dude Tokley" in order to "save [his] ass." Krunelis said that he did not previously know either Martinez or defendant, but that after he was transferred to Northern State Prison, he ran into defendant there and told him what he had learned from Martinez. Krunelis also revealed that he had been in prison for roughly sixteen years and was serving a forty-year sentence for two robberies. He also affirmed that at the time of the evidentiary hearing he had a civil suit pending against Northern State Prison, the State of New Jersey, and the parole board in which he alleged that a police officer assaulted him.
Jay Shannon Hunter, another prison inmate, also testified at the PCR hearing. According to Hunter, he had been transferred from Rahway (East Jersey State Prison) to Riverfront. Once he arrived at Riverfront, Martinez asked to speak with Hunter because he had heard that Hunter and defendant were friends, and Martinez did not want any "problems." Hunter testified that Martinez tried to explain to him that he and defendant "caught a chase together" and that Martinez had heard that defendant was "going to get me when he catch me because I lied on him." According to Hunter, Martinez said that "detective somebody was like, listen, man, you're a nobody -- we want the kid Tokley, man. He was like . . . you know what I'm saying? You're a nobody to us . . . . [S]ave yourself" and then Martinez said that "he had to start saying shit, start lying, anything [he] knew." Martinez told Hunter, "[t]his is what I did to save my ass." Hunter thought that Martinez's insistence in talking to him "was funny and kind of entertaining because [he] was like, dude, why are telling me all of this?" Hunter testified that about three years later, he was transferred to Northern State Prison where he ran into defendant and told him about his conversation with Martinez.
In a lengthy oral opinion placed on the record on August 8, 2006, Judge Baxter rejected the PCR petition. She found that defense counsel had done a thorough and effective job of cross-examining the State's chief witness, Jose Martinez. She concluded that defense counsel was ineffective in failing to interview witnesses whom defendant had asked him to interview, in the sense that defense counsel should always interview possible witnesses, but she concluded that there was not a reasonable probability that this ineffective conduct affected the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984). She also recalled, from presiding over the original trial, that despite his criminal record, Martinez was a very well-spoken witness who stood up to cross-examination.
Judge Baxter found defendant and his PCR witnesses unpersuasive, and found defense counsel to be a credible witness at the PCR hearing. She also rejected defendant's additional PCR arguments, including claims that counsel: failed to cross-examine Martinez about certain statements (which the judge concluded were not inconsistent with his trial testimony); failed to request a Bielkiewicz*fn4 charge; failed to request the proper accomplice charge; failed to cross-examine Martinez at greater length about a murder Martinez claimed defendant committed (an omission which the judge found to be legitimate trial strategy); and failed to present additional evidence of third-party guilt. Many of these arguments repeated claims previously raised and rejected on direct appeal, albeit characterizing them as ineffective assistance.
Judge Baxter also rejected defendant's request for a new trial based on newly-discovered evidence in the form of testimony from the two prison inmates.
On this appeal, defendant raises the following points for our consideration:
POINT I: DEFENSE COUNSEL'S FAILURE TO INVESTIGATE AND CALL WITNESSES AT TRIAL PREJUDICED DEFENDANT BECAUSE THE WITNESSES WOULD HAVE PROVIDED A MATERIAL ALIBI DEFENSE NOT RAISED AT TRIAL AND SUPPORTED THE THIRD-PARTY GUILT DEFENSE PARTIALLY RAISED AT TRIAL. ALTERNATIVELY, THE TESTIMONY OF THE WITNESSES SHOULD HAVE BEEN CONSIDERED NEWLY DISCOVERED EVIDENCE THAT WARRANTED A NEW TRIAL. U.S. CONST. AMENDS. VI; XIV; N.J. CONST. ART. I, ¶ 1.
POINT II: DEFENSE COUNSEL'S FAILURE TO REQUEST THE MODEL CHARGE THAT INSTRUCTED THE JURY THAT IT WAS REQUIRED TO GIVE THE ACCOMPLICE'S TESTIMONY STRICT SCRUTINY WAS PREJUDICIAL BECAUSE THE CENTRAL ISSUE IN THE TRIAL WAS THE ACCOMPLICE'S CREDIBILITY. U.S. CONST. AMENDS. VI; XIV; N.J. CONST. ART. I, ¶ 1.
POINT III: DEFENSE COUNSEL'S FAILURE TO CROSS-EXAMINE MARTINEZ ON HIS INCONSISTENT STATEMENTS ABOUT CRITICAL ISSUES AT TRIAL VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. ALTERNATIVELY, THE DEFENSE COUNSEL'S TESTIMONY AT THE PCR HEARING ESTABLISHED THAT THE STATE WITHHELD EXCULPATORY EVIDENCE FROM THE DEFENSE AT TRIAL U.S. CONST. AMENDS. VI; XIV; N.J. CONST. ART. I, ¶ 1.
POINT IV: DEFENSE COUNSEL'S FAILURE TO REQUEST A BIELKIEWICZ INSTRUCTION WAS PREJUDICIAL BECAUSE ALL THREE VICTIMS TESTIFIED AT TRIAL THAT ONLY ONE OF THE PERSONS COMMITTING THE ROBBERY HAD A WEAPON. U.S. CONST. AMENDS. VI; XIV; N.J. CONST. ART. I, ¶ 1.
POINT V: DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE CONSENTED, FOR NO POSSIBLE STRATEGIC REASON, TO THE ADMISSION OF HEARSAY EVIDENCE THAT WAS THE STATE'S ONLY MEANS TO PROVE MOTIVE. U.S. CONST. AMENDS. VI; XIV; N.J. CONST. ART. I, ¶ 1.
POINT VI: THE ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE SHOULD BE REVERSED BECAUSE THE JUDGE'S CONCLUSION THAT THE NEW EVIDENCE WOULD BE "MERELY CUMULATIVE" WAS UNREASONABLE. U.S. CONST. AMENDS. VI; XIV; N.J. CONST. ART. I, ¶ 1.
Having reviewed the record, we conclude that these points are without merit.
A defendant claiming ineffective assistance of counsel must establish not only that counsel was ineffective, but that it is likely that the ineffective representation affected the trial result. Once it has been determined that below-standard legal assistance has occurred, the court must consider whether "there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. See State v. Fritz, 105 N.J. 42, 60-61 (1987).
In applying this standard, there is a strong presumption that the attorney in question acted within the range of reasonableness and competency. State v. Norman, 151 N.J. 5, 37-38 (1997). An attorney's objectively reasonable strategic decisions are within the range of competency. See State v. Arthur, 184 N.J. 307, 319 (2005); State v. Drisco, 355 N.J. Super. 283, 290-91 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003). It is defendant's burden to prove prejudice under the second prong, Arthur, supra, 184 N.J. at 319, and "[j]udicial scrutiny of counsel's performance must be highly deferential," Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. We agree with the PCR judge that defendant did not satisfy this standard.
Defendant's Point I hinges on defense counsel's failure to interview defendant's mother and sister concerning their knowledge of relevant events. We conclude that this argument is without merit because, after hearing the PCR testimony of these witnesses, Judge Baxter found them not credible. She also found defendant not credible as a PCR witness and believed the PCR testimony of defendant's trial attorney, Scott Griffith. We are bound by the judge's factual findings so long as they are supported by substantial record evidence, and we pay particular deference to her credibility determinations. State v. Locurto, 157 N.J. 463, 470-74 (1999).
After hearing Carol Tokley's testimony, Judge Baxter concluded that she was a nice person but that her memory was not reliable. We have read the transcript, and we conclude that Judge Baxter's evaluation is unassailable. Even on a cold record, Mrs. Tokley's testimony is incredible. She attended her son's trial and therefore knew the date of the robbery with which he was charged. She allegedly knew that she had critically important testimony to offer, because her son was with her at the cemetery at the exact date and time that the robbery was taking place. Yet despite knowing this, she admitted that she had lunch with defense counsel during the trial and never told him this crucial information. She contended at the PCR hearing that during this lunch, she asked defense counsel to let her testify, but she did not mention what testimony she wanted to offer. No rational jury would believe this version of events. We find no reason to disturb Judge Baxter's conclusion that defendant did visit the cemetery with his mother on some occasion, but not on the day of the robbery.
Having read the PCR testimony of defendant's sister, Marcella McDonald, we also find no basis to disturb Judge Baxter's conclusion that McDonald would not have been a convincing trial witness. She testified that on the day of the robbery, November 11, 1996, she heard Ernest Hill, known as "E-Train," bragging to her husband that he had committed a robbery and that it would be reported in the newspapers the next day. Skeptical of his story, McDonald read the newspaper on November 12 and discovered an article about the robbery; she even cut the article out of the newspaper and kept it. Yet, despite speaking to her brother approximately twice a week during the years between his arrest and his trial, she contended she had no idea that he was accused of the Quality Auto robbery to which E-Train had confessed in her presence. She testified that it was only when she attended defendant's sentencing that she realized he was being sentenced for the crime about which E-Train had told her husband.
Marcella's testimony was inconsistent with defendant's PCR testimony in significant respects. According to defendant, shortly after his indictment, his mother told him that his sister Marcella had heard E-Train talking about committing the auto store robbery. Defendant contended that he then told this information to his attorney. This contradicted Marcella's testimony that she had no idea, until defendant's sentencing, that E-Train was talking about the same robbery for which defendant was accused. We find no error in Judge Baxter's determination that calling McDonald as a trial witness would not have helped the defense.
According to defendant's attorney, Scott Griffith, neither defendant nor defendant's mother gave Griffith any information about an alleged alibi. Griffith also testified to a letter he received from defendant some time after the trial, stating that Griffith did a good job of representing him. The letter did not mention that defendant's mother might have been an alibi witness. Nor, according to defendant, did any of the letters defendant sent to Griffith prior to the trial tell Griffith that defendant was allegedly with his mother at the time of the robbery. Judge Baxter found Griffith to be a credible witness and did not believe defendant on the alibi issue.
Griffith testified that his trial strategy was to impeach and discredit Martinez, and he believed it was sufficient to focus all of his energies on that strategy, which he expected to succeed. Griffith admitted that defendant had told him that E-Train committed the robbery. However, he asserted that he did not send an investigator to interview E-Train because it was inconceivable to him that E-Train, a known criminal with whom he was familiar, would confess to the auto store robbery even if he had committed it. And if he had subpoenaed E-Train as a trial witness, he anticipated that E-Train would invoke his Fifth Amendment right against self-incrimination.
Griffith also did not believe that E-Train's girlfriend Lilly, to whom E-Train had allegedly given jewelry from the robbery, would be helpful if, as Griffith was told, Lilly was still romantically involved with E-Train. Further, he did not think that she would waive her Fifth Amendment rights in order to testify at trial that she received stolen property from E-Train. At the PCR hearing, the defense did not call E-Train or Lilly as witnesses.
Griffith also testified that he had no recollection of Marcella McDonald's name being mentioned as a possible witness prior to the trial. However, he also asserted that, after observing her testify at the PCR hearing, there was "[n]o way" he would have called her as a witness, because she was "not credible." While he had no recollection of hearing from defendant's mother about an alibi, he also did not believe that calling defendant's mother to testify as an alibi witness would have been an effective trial strategy. We find no error in the PCR judge's decision to credit Griffith's testimony, nor in her decision that he exercised legitimate trial strategy in concentrating on discrediting Martinez, even if it was not a winning strategy. See Arthur, supra, 184 N.J. at 318-19.
Defendant's Point III does not warrant discussion, beyond the following. R. 2:11-3(e)(2). Griffith insisted that he did not have Martinez's statement to police that he (Martinez) was not present when Tokley shot Elliott Rosario. Griffith insisted that if he had that statement he would have brought it to the trial judge's attention when Martinez "blurted out" information about the murder. However, Martinez actually testified on direct examination that he was in the "Vroom Building" when Rosario was killed, so the contradiction was before the jury. We find no ineffective assistance in Griffith's strategic decision to limit his cross-examination of Martinez about the alleged murder.
We also find no merit in defendant's argument that defense counsel should have requested a charge under State v. Bielkiewicz 267 N.J. Super. 520 (App. Div. 1993), which would have instructed the jury that defendant could be found guilty of a lesser offense if he did not share Martinez's intent to use a weapon in the commission of the robbery. Griffith explained that he did not request a Bielkiewicz charge because it was inconsistent with his central trial strategy which was to convince the jury that Tokley was innocent of all charges. We agree with Judge Baxter's conclusion that the failure to request the charge made no difference to the outcome of the trial. At the original trial, Martinez testified that he and defendant were both carrying guns. Moreover, it was clear from the robbery victims' testimony that both robbers intended to use guns to intimidate the victims.*fn5 See State v. Norman, supra, 151 N.J. at 37-38. Further, Griffith articulated a reasonable strategic reason for not requesting the charge.
We also agree with Judge Baxter's conclusion that failure to request a more specific charge on the scrutiny due to accomplice testimony made no difference to the outcome. The jury was well aware that Martinez's credibility was central to the case and was the issue on which they needed to focus their attention.
We find no merit in defendant's Point V, concerning certain hearsay testimony. Griffith could not recall why he did not object to Martinez's testimony that he was participating in the robbery in place of Rosario, because Rosario had told him he needed to commit the robbery as a means of repaying a debt to Tokley. However, Griffith testified that the hearsay did not hurt Tokley's defense; rather it hurt Martinez's credibility because Tokley would not have committed the robbery to repay himself a debt that Rosario owed him. Having reviewed the original trial transcript, we conclude that this was a reasonable trial strategy, particularly because Martinez's somewhat rambling explanation of this point would likely have hurt rather than helped his credibility.
On the issue of newly-discovered evidence, we find no error in the court's giving little weight to the testimony of the two prison inmates who contended that while they were incarcerated with Martinez, he told them that he lied about Tokley committing the robbery. The two inmates then allegedly reported these conversations to defendant when they later encountered him in prison. The defense failed to present an affidavit or testimony from Martinez himself, who, according to these witnesses, was consumed with guilt over his lies. Moreover, defendant's prior convictions for witness tampering and perjury raise a significant question as to whether he procured false testimony from these witnesses, with whom he served time in prison.
We find no error in Judge Baxter's conclusion that there was no inconsistency in Martinez's testimony about whether Tokley went inside the auto store, and therefore Griffith was not ineffective in failing to further cross-examine Martinez on that issue.
Defendant's additional PCR contentions, including his remaining arguments concerning Griffith's performance at the trial, are without sufficient merit to warrant discussion here. R. 2:11-3(e)(2). We reject those arguments for the reasons stated in Judge Baxter's August 8, 2006 oral opinion.