January 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY POOLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-02-0158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant, Henry Poole, appeals the Law Division's order of October 2, 2007, denying his petition for post-conviction relief ("PCR"). The PCR application related to defendant's 2002 conviction, after a jury trial, of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). We affirm.
We need not repeat the underlying facts, which were discussed at length in our unpublished opinion affirming defendant's conviction on direct appeal. See State v. Poole, No. A-1374-02T4 (App. Div. June 6, 2005), certif. denied, 186 N.J. 256 (2006). It will suffice to say that the jury found that defendant, along with two other men, had participated in the robbery of Juan Negron on the streets of Elizabeth in the early morning hours of October 14, 2000. After Negron was accosted at knifepoint, his attackers pulled him around a corner, went through his pockets and grabbed his wallet. The attackers then fled the scene in a truck, which the police stopped minutes later as it was going in the wrong direction down a one-way street. Defendant was one of the passengers inside the truck, along with a knife and several of Negron's personal items.
The jury rejected defendant's claim that he had not been involved in the robbery and that his presence in the truck was coincidental. He was sentenced to a merged sentence of thirteen years in prison, conditioned upon an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, defendant raised the following arguments, all of which we found to lack merit:
POINT I BECAUSE THE STATE PRESENTED NO EVIDENCE THAT DEFENDANT WAS IDENTIFIED AS ONE OF THE ROBBERS, DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II BECAUSE THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS ONE OF THE MEN WHO ROBBED THE VICTIM, HIS CONVICTIONS FOR ROBBERY AND WEAPONS OFFENSES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. (Not Raised Below)
POINT III THE COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER AS SUBSTANTIVE EVIDENCE THE VICTIM'S PRIOR INCONSISTENT STATEMENT THAT HE DID NOT REMEMBER ANY OF THE OTHER MEN FROM THE TRUCK DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
POINT IV THE TRIAL COURT'S INSTRUCTION TO THE JURORS TO TREAT BOTH SIDES AS THEY WOULD WANT TO BE TREATED IN A CIVIL LITIGATION OVER MONEY, DILUTED THE STATE'S BURDEN OF PROOF, AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
POINT V THE COURT ERRONEOUSLY CHARGED THE JURY THAT IT MUST RETURN A UNANIMOUS VERDICT BECAUSE "ANY OTHER VERDICT WOULD BE AN ILLEGAL VERDICT." (Not Raised Below)
POINT VI THE JUDGE ERRONEOUSLY INSTRUCTED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCEN[C]E" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (Not Raised Below)
POINT VII THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL WHEN HE TOLD THE JURY THAT JUSTICE DEMANDED A GUILTY VERDICT. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 10. (Not Raised Below)
A. THE PROSECUTOR MISSTATED EVIDENCE IN HER SUMMATION.
B. THE PROSECUTOR TOLD THE JURY THAT JUSTICE DEMANDED A GUILTY VERDICT.
POINT VIII THE COURT SENTENCED DEFENDANT TO THIRTEEN YEARS WITH EIGHTY-FIVE PERCENT PAROLE INELIGIBIILTY DESPITE RECOGNIZING DEFENDANT'S YOUTH AND COMPLETE LACK OF PRIOR RECORD. HIS SENTENCE SHOULD BE REDUCED.
After defendants' petition for certification was denied by the Supreme Court, he filed his PCR petition with the trial court and was thereafter assigned counsel. Upon hearing oral argument, the PCR judge, who was the same judge who had presided over defendant's trial, denied his petition.
In his oral ruling, the PCR judge found that defendant had failed to establish any substantive basis for relief concerning either his conviction or his sentence. Among other things, the judge specifically found that defendant's trial attorney's failure to object to certain aspects of the jury charge was not ineffective. The judge, while recognizing that proofs inculpating defendant in the robbery were circumstantial, nevertheless found the jury's verdict to be supported by the evidence. Consequently, trial counsel was not ineffective in failing to move for a new trial under Rule 3:20-1 on a contention that the verdict was against the weight of the evidence.
The judge also rejected defendant's claim that he should have been sentenced to a crime that was one degree lower. After not only reviewing the record but also consulting his prior bench notes, the judge concluded that the aggravating sentencing factors sufficiently outweighed the asserted mitigating factors, and did not justify treating defendant as a second-degree offender. The judge did note that he had "attempted to give some mercy" to defendant by sentencing him to thirteen years, which is in the lower range for a first-degree offense. See N.J.S.A. 2C:43-6(a)(1)-(4).
Defendant now advances, through his counsel, the following points in appealing the denial of PCR relief:
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED
A. DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED DUE TO COUNSEL'S INEFFECTIVENESS BY NOT RAISING THE TRIAL COURT'S ERRONEOUS JURY INSTRUCTION.
B. THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT FAILED TO ADDRESS THE MERITS OF DEFENDANT'S CLAIM.
C. THIS MATTER MUST BE REMANDED BECAUSE PCR COUNSEL DID NOT ADVANCE DEFENDANT'S CLAIM.
Defendant also raises the following supplemental points in a pro se submission:
POINT I AT THE POST-CONVICTION RELIEF HEARING, THE PETITIONER'S COUNSEL FAILED TO [ARGUE] THE PETITIONER'S CLAIM FROM THE POINT OF VIEW OF INEFFECTIVE ASSISTANCE OF COUNSEL AS HE BARELY ARGUED THE ERROR COMMITTED IN THE INSTRUCTION OF ROBBERY THAT WAS UNCONSTITUTIONAL, AND STATED THAT WAS DEALT WITH (ARGUED AND DECIDED). IT ALSO FAILS TO [ARGUE] THE UNCONSTITITIONAL [INSTRUCTION] FOR THE PRESUMPTION OF INNOCENCE R.3:22-4.
POINT II THE COURT DEPRIVED THE DEFENDANT OF DUE PROCESS XIV AMENDMENT AND A FAIR HEARING BY OMITTING ARGUMENTS FROM THE POST-CONVICTION RELIEF HEARING RECORDS OF THE DATE OCTOBER 02, 2007. ABUSING ITS DISCRETION BY PUTTING THE PETITIONER OUT [OF] THE COURT ROOM WHILE PETITIONER'S CLAIM[S] WERE ARGUED BY THE PCR COUNSEL BARRING THE PETITIONER FROM RAISING ADDITIONAL ARGUMENTS AT [THE] HEARING.
POINT III THE [TRIAL] COUNSEL FAILED TO OBJECT TO (A) THE COURT'S ERRONEOUS INSTRUCTION OF ROBBERY, THAT INSTRUCTED THE JURY TO RENDER A GUILTY VERDICT ON THE COUNT OF ROBBERY IN THE FIRST DEGREE, IT DELIBERATELY INTERFERED WITH THE JURY'S DUTY TO RETURN A VERDICT VIOLATING XIV, V AND VI, AMENDMENT GUARANTEED TO A JURY'S VERDICT. (B) THE UNCONSTITUTIONAL PRESUMPTION OF INNOCENT THAT STATED: ABSENT THAT THE THEY ARE TO BE PRESUME INNOCENT DEPRIVING THE DEFENDANT OF PROTECTION UNDER THE LAW. (Not Raised Below)
POINT IV THE COUNSEL FAILED TO OBJECT TO: (A) THE COURT'S ERRONEOUS INSTRUCTION OF IDENTIFICATION THAT COERCED THE JURY TO TAKE AS EVIDENCE THE FICTITIOUS STATEMENT THAT THE VICTIM MADE AN IDENTIFICATION OF THE THREE-REMAINING DEFENDANTS LEFT IN THE COURT ROOM TO THE JURY DETERMINATION DEPRIVING THE DEFENDANT OF V, IV, XIV AMENDMENT RIGHT AS THERE WAS A LACK OF DESCRIPTION OF THE DEFENDANT REDUCING THE STATE BURDEN OF PROOF BY USING [R. 3:18-1.] (B) THE COURT'S ERRONEOUS INSTRUCTION FOR THE TRUSTWORTHINESS THAT FAIL TO PROPERLY CHARGE THE JURY WITH THE PROPER FACTORS AND THE LAW RELEVANT TO THIS CASE ON THE ISSUE DERAILING THE JURY TO CONCEDER [SIC] A UNRELATED ELEMENT TO THAT PARTICULAR ISSUE. (C) THE INSTRUCTION ALSO COMPELLED THE JURY TO FIND EACH DEFENDANTS NOT GUILTY JOINTLY IN REGARD OF THAT ISSUE HOLDING THE JURY FROM MAKING A DETERMINATION OF THE TRUSTWORTHINESS OF IDENTIFICATION. DEPRIVING THE DEFENDANT OF FAIR [TRIAL] AND A JURY FINDING AND V, VI, XIV AMENDMENT PROCESS OF LAW. (Not Raised Below)
POINT V THE COUNSEL FAILED TO OBJECT TO (A) THE INACCURATE INSTRUCTIONS FOR ACCOMPLICE LIABILITY THAT IMPROPERLY INFORM THE JURY THAT THEY COULD FIND ACCOMPLICE GUILTY OF A LESSER DEGREE OFFENCE THAN THE PRINCIPAL AND HOW THEY COULD ARRIVE TO THAT DETERMINATION.
(B) THE COURTS' ERRONEOUS INSTRUCTION TO THE JURY THAT NEUTRALIZED THE JURY TO ARRIVE TO A DETERMINATION OF GUILTY OR INNOCENT ON THE ACCOMPLICE LIABIITY ISSUE. (C) THE COURT'S ERRONEOUS INSTRUCTION THAT INTRODUCED A NEW OPTION: THAT THEY SHOULD CONSIDER WHETHER OR NOT THEY SHOULD FIND THE DEFENDANT GUILTY OR INNOCENT IT ALSO FAIL TO INSTRUCT ON THE LESSER INCLUDED OFFENSE DEPRIVING THE DEFENDANT OF DUE PROCESS OF LAW VI AMENDMENT RIGHT OF A JURY FINDING VI, XIV AMENDMENT RIGHT. (Not Raised Below)
Preliminarily, we note that most, and perhaps all, of defendant's substantive claims could have been raised on his direct appeal, and therefore would be procedurally barred under Rules 3:22-4 and 3:22-5. Indeed, a review of the point headings from defendant's brief on direct appeal with the issues now listed for our consideration on PCR review, reveals the similarity, if not the identity, of the issues presented. The only arguable difference is that defendant has now cast the issues in terms of alleged ineffective assistance of counsel. Consequently, we will address the merits of his claims, despite the alleged procedural bars.
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims, courts apply a strong presumption that defense 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. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). As the Supreme Court recently reiterated, "strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
Measured by these well-settled standards, we are satisfied that the trial judge had a sound basis to reject defendant's various PCR claims. We are persuaded that his trial attorney was not ineffective on the matters that have been identified, and also that defendant sustained no actual prejudice because of those alleged failures. There was no need for an evidentiary hearing before the PCR judge, because defendant's claims did not rise to the level of a prima facie case warranting additional testimony. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Nor is there a prima facie showing that defendant's counsel at the PCR hearing was constitutionally ineffective.
We need comment only on defendant's claim that he was prejudiced by his trial attorney's failure to seek relief regarding a portion of the jury charge, in which the judge stated:
If you are not convinced beyond a reasonable doubt that the defendant, each defendant separately now, committed the crime of robbery, and that while doing so he was armed with a deadly weapon or used or threatened the use of an immediate deadly weapon at the time of the commission of the robbery, the verdict should be guilty of robbery in the first degree.
The judge clearly misspoke when he stated that the jury should find defendant guilty if it found the evidence of each required element of the offense was "not" sufficient to prove his culpability. However, read in its proper context, that misstatement was inconsequential, given the charge as a whole, which repeatedly and properly reminded the jurors that the State had the burden of proving all of the required elements beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 106-07 (1997) requiring the charge to be assessed in its entirety rather than taking the words in isolation); State v. Dixon, 346 N.J. Super. 126, 135 (App. Div.) (same), certif. denied, 172 N.J. 181 (2002).
We have fully considered the remainder of defendant's arguments, including all of the points set forth in his supplemental brief, and find they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
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