February 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AHMED BOUNGHARES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-07-1444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Rodríguez and Waugh.
Defendant Ahmed Bounghares appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In March 2000, defendant was convicted of several offenses arising from three separate episodes involving theft of merchandise from two department stores, Value City and Sears. In each instance, the State alleged defendant conspired with "another person, whose identity is unknown" to commit these offenses. These offenses include: third-degree conspiracy to commit theft of movable property, N.J.S.A. 2C:5-2 and 20-3(a); third-degree theft of movable property, N.J.S.A. 2C:20-3(a); third-degree conspiracy to commit theft of movable property in excess of $500, N.J.S.A. 2C:5-2 and 20-3(a); and second-degree robbery, N.J.S.A. 2C:15-1. All three episodes were captured on store security cameras. It is undisputed that defendant's image is shown on the videotapes.
Defendant did not appear at jury selection or the first day of trial, but was present for the second day when closing arguments were heard and the verdict was returned. The trial judge denied defendant's motion for a new trial and imposed the sentence. Defendant filed pro se a motion for reconsideration or change of his sentence pursuant to R. 3:21-10. The judge denied this motion.
Defendant appealed, alleging, among other things, ineffective assistance of trial counsel. We affirmed the conviction, but corrected the judgment of conviction so that the sentence imposed for the episode at Value City ran consecutive to the sentence imposed for the episodes at Value City, as the judge had intended. State v. Bounghares, No. A-4552-01T4 (App. Div. November 8, 2004), certif. denied, 182 N.J. 630 (2005).
Defendant filed, pro se, a first PCR petition. Assigned counsel filed a supplemental brief. The petition alleged: 1) the charge on robbery was defective, 2) defendant was not provided with an Arabic interpreter at trial, did not understand the proceedings and was unable to participate in his own defense; 3) trial counsel rendered ineffective assistance by failing to fully investigate the law and facts of the case and, consequently, failing to advise defendant of the risks of going to trial; 4) jury selection took place out of defendant's presence; 5) joinder of three offenses in one indictment was prejudicial; 6) ineffective assistance of appellate counsel; 7) the trial judge's failure to properly instruct the jury on the permissible and impermissible uses of other crimes evidence admitted pursuant to N.J.R.E. 404(b); and 8) trial counsel was ineffective by conceding an element of robbery in his opening statement.
Judge Anthony Mellaci heard oral argument, declined to hold an evidentiary hearing and denied the petition. The judge concluded that several of the arguments were procedurally barred by virtue of Rule 3:22-4, grounds not raised in prior proceedings; and Rule 3:22-5, grounds expressly adjudicated. Nonetheless, the judge considered the merits of the arguments and rejected them. The judge also found, based on the trial record, that trial and appellate counsels rendered effective assistance. The judge disposed of the factual allegation as to defendant's understanding of English by noting that, according to defendant's presentence report, defendant "speaks three different languages and he speaks English fluently."
On appeal, defendant contends that the post-conviction court erred in denying relief because: (a) the jury charge relating to robbery was defective and trial counsel failed to provide a factual defense to the robbery, and that appellate counsel was ineffective for failure to raise the issue of the defective jury charge on appeal; (b) defendant was prejudiced by the joinder of three offenses in one indictment as well as the trial court's failure to provide a Rule 404(b) limiting instruction; (c) trial counsel was ineffective by conceding an element of robbery in his opening without consulting his client; (d) trial counsel was ineffective by failing to advise defendant of his right to an interpreter at trial; and (e) appellate counsel was ineffective for failing to raise issues (a) and (b). We reject these arguments.
Defendant first contends that his claims were "not litigated on direct appeal and failure to raise all ineffective assistance of counsel claims on direct appeal did not procedurally bar claim in post-conviction proceeding." We disagree.
It is well-settled that a PCR petition is not a substitute for direct appeal. R. 3:22-3; State v. Marshall, 148 N.J. 89, 146 (1997). Thus, matters which may be resolved without reference to evidence outside the trial record must be pursued in a direct appeal. State v. Marshall, supra, 148 N.J. at 147. Moreover, any ground for relief not raised in a prior proceeding cannot be raised in a PCR petition "unless the court on motion or at the hearing finds (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." R. 3:22-4.
Defendant's PCR claims regarding: the robbery jury charge as to robbery; alleged deficiencies in jury curative instructions; absence of an Arabic interpreter; defendant's absence during jury selection; and joiner of offenses were either raised and adjudicated on direct appeal, or could have been raised but were not. Therefore, we decline to address these claims.
We note that there is no merit to defendant's allegation that the judge failed to correct prosecutor's characterization of robbery in her closing summation using the shorthand phrase "theft plus force." The judge clearly instructed the jury that his characterization of the law was controlling and the jury was to disregard any contrary statements made by counsel. Defendant's argument that the judge failed to charge lesser-included offenses on the Value City robbery count is also contrary to the record. The judge not only charged the jury as to lesser-included offenses, but the jury, in fact, acquitted defendant on one of the robbery counts and found him guilty of the lesser-included offenses of conspiracy and theft. Accordingly, we reject these contentions on the merits.
The two-pronged analysis for determining whether a defendant was rendered ineffective assistance of counsel was set forth in Strickland v. Washington, supra, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), as adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction...resulted from a breakdown of the adversary process that renders the result unreliable. [Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
Where counsel's performance is so deficient as to amount to a complete denial of representation, the prong requiring a showing of prejudice is presumed even where it can be shown defendant was not actually prejudiced by counsel's performance. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2046, 80 L.Ed. 2d 657, 668 (1984).
In Strickland, the Court cautioned that it is far too easy to second-guess counsel's decisions after the fact and, with the benefit of hindsight, label a failed strategy "deficient".
Thus, the Court urged that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." "Merely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000) (internal citation omitted).
Defendant raises several issues centering the robbery conviction for the second Sears episode. During that episode, the Sears guard confronted defendant and attempted to subdue him by grabbing defendant's arms. The guard succeeded in grabbing defendant around the torso with both hands, whereupon defendant struck the guard on his forearm.
At the PCR hearing, defendant argued that the guard may have come into contact with a painful protuberance on defendant's wrist, the result of a childhood injury, which could have caused defendant to involuntarily lash out and strike the guard. Defendant argued that if evidence on this point had been developed by trial counsel, the jury could have found the act of hitting the guard was not "force used in the course of the theft" but was instead an instinctive response unrelated to furtherance of the shoplifting. Therefore, defendant alleges that trial counsel was ineffective.
Defendant relies on State v. Lopez, 187 N.J. 91 (2006), for the proposition that the use of force must be contemporaneous with the intent to steal.
We conclude that Lopez is not on point. It involves the applicability of the robbery statute to "afterthought robbery," or situations where force is used with some purpose in mind other than theft and where, as an afterthought, a defendant decides to commit a theft while the victim is incapacitated. Such is not the situation here, where defendant committed the theft and used force against the guard in the course of "immediate flight after" the commission of the theft. N.J.S.A. 2C:15-1a.
Moreover, defendant's arguments on this point are not supported by the proofs at trial. The uncontroverted testimony of the guard is that he grabbed defendant around the torso, not the arms or wrist. Defendant hit the guard at least twice in the arm and attempted to strike him several more times as they struggled. We note that the jury watched a security camera videotape of the struggle. Thus, the jury was able to form its own impression of events.
As to defendant's argument that he was prejudiced by trial counsel's failure to object to the joinder of offenses or to request an N.J.R.E. 404(b) limiting instruction, we conclude that these arguments are without merit. The PCR judge found no reversible error in joining the three offenses under a single indictment:
Defendant's argument that joinder of the three incidents prejudice defendant should have been raised on direct appeal and I'll [sic] procedurally barred pursuant to Rule 3:22-4. Regardless, the offenses charged in this instance were the same or similar. Two of the incidents occurred at Sears and [the Sears guard] was involved in both of those incidents.
Moreover, the incidents established defendant's typical modus operandi is to walk into a department store with another individual, use that individual to assist him in removing merchandise from that store without purchasing it.
In addition, defendant has failed to prove prejudice in this instance because the jury's verdict indicates just because it felt he committed a robbery at Sears, did not lead them to conclude he must have committed a robbery at Value City.
We agree with this analysis.
Rule 3:7-6 permits joinder of multiple charges in a single indictment where "the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." A test for whether prejudicial joinder requires severance is whether evidence of one crime would be substantively admissible to prove guilt of another crime under N.J.R.E. 404(b). State v. Pitts, 116 N.J. 580, 601-02 (1989). Where the same evidence would be equally admissible in separate proceedings, there is no prejudice in joining the offenses in a single indictment. Ibid.
N.J.R.E. 404(b) permits a court to admit evidence of other crimes, wrongs or acts for purposes of showing something other than a disposition to commit such acts, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."
Defendant argues that, because he was not arrested at the scene of the first Sears incident, identity was in issue or would have been had trial counsel not stipulated to identity. To be admissible on the issue of identity, the other crimes evidence must go to a "signature crime." State v. Fortin, 162 N.J. 517, 532 (2000). Defendant also argues the trial judge was required to specifically instruct the jury on the permissible uses of such evidence. State v. Cofield, 127 N.J. 328, 341 (1992). We reject these arguments.
We agree with the State here, that the evidence of each episode was relevant to show intent with regard to the conspiracy charges, both of which trial counsel contested, as well as the intent to commit theft. Specifically, with regard to conspiracy, the State is required to prove an agreement "with the purpose of promoting or facilitating" a crime. N.J.S.A. 2C:5-2. Therefore, we conclude that the trial judge's instructions were proper in this case. Where an error could have been challenged at trial but was not, the standard of review is plain error. State v. Krivacska, 341 N.J. Super. 1, 42-43 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002). The trial judge gave a limiting instruction charging the jury to consider each offense independently. The verdict forms reflected this requirement and a jury is presumed to have followed instructions. State v. Burns, 192 N.J. 312, 335 (2007).
Moreover, even if trial counsel had objected, joinder was still not inappropriate. As the PCR judge noted the three incidents do involve a common modus operandi: working with a partner to shoplift clothing from a department store. As such, they are relevant to the issue of intent.
Therefore, we conclude that because there was no error by the judge, there was no deficiency in trial counsel's failure to object. For the same reason, appellate counsel cannot be said to have been deficient in failing to bring claims that have no merit.
Defendant argues trial counsel rendered ineffective assistance in conceding an element of robbery in his opening statement without consulting with defendant. Trial counsel told the jury:
Now, the Prosecutor has explained to you what she believes the facts to be. And a lot of that I'm not going to contest. My client has never contested the fact that he was present on those three occasions and that shoplifting occurred.
The real issue here is whether the shoplifting and the theft, and I'll explain the difference, turned into robbery, which is much different and much more serious.
Defendant cites State v. Harrington, 310 N.J. Super. 272 (App. Div.), certif. denied, 156 N.J. 387 (1998), to support his contention that counsel's performance was deficient.
In Harrington, defense counsel conceded the defendant had committed the robbery in a felony-murder case, which effectively ensured defendant's conviction for felony murder. In effect, defense counsel conceded to the full charge against defendant, not just an underlying element. This appears to have been the product of a thoughtless statement by defense counsel and possibly of an imperfect understanding of a relevant affirmative defense. Id. at 281-82.
Here, by way of contrast, trial counsel's concessions as to shoplifting and identity do not fall outside the presumption of sound trial strategy. In light of the eyewitness testimony, the video recordings and evidence the defendant rented the car used in the Value City incident, evidence of defendant's presence at the scene of all three incidents was strong, as was evidence that he had committed the charged thefts. Trial counsel apparently sought to limit defendant's exposure on the robbery charges while avoiding the potential to undermine defendant's credibility by pursuing baseless defenses. Therefore, trial counsel did not render ineffective assistance.
Defendant also contends trial counsel inadequately advised him on, and erroneously encouraged him to reject, a plea offer from the State. Defendant argues that in the face of the proofs against him and the possible consequences of a guilty verdict, he should have been better informed. The PCR judge found this claim lacked credibility.
Where a defendant claims that counsel failed to explain the facts or consequences of a plea agreement to the defendant, the defendant is required to submit affidavits providing "pinpoint" factual support for such claims. State v. Sheika, 337 N.J. Super. 228, 249 (App. Div.), certif. denied, 169 N.J. 609 (2001). Defendant has not done so here. Without any other proof on the issue, defendant acknowledges that counsel informed defendant of the plea offer, discussed it with him, and rendered an opinion on the merits of accepting the offer. Defendant made the ultimate decision.
Defendant contends that trial counsel rendered ineffective assistance in failing to advise him of his constitutional right to an interpreter. Defendant asserts that his mastery of English was insufficient to understand court proceedings and assist in his defense. However, the PCR judge found this claim lacked a factual underpinning. Defendant indicated in his signed plea cutoff form that he did not need an interpreter. Defendant's presentence investigation report indicated he was fluent in English. Additionally, defendant was not present for jury selection or the presentation of evidence on the first day of trial. He was present only for closing arguments on the second day of trial. An interpretation of the summation would not have been useful.
Defendant also contends that "a full testimonial hearing is required to determine the issue of whether or not defendant effectively represented by trial and appellate counsel." We disagree.
Pursuant to State v. Preciose, 129 N.J. 451 (1992), a defendant is entitled to an evidentiary hearing on if there are matters outside the trial record and a prima facie claim of ineffective assistance has been established. Id. at 462-63. To establish a prima facie case, defendant must show, when the facts are viewed in the light most favorable to the defendant, a reasonable likelihood of succeeding pursuant to the Strickland/Fritz standard. Because defendant has not established any meritorious claims of ineffective assistance of counsel, he is not entitled to a hearing. Moreover, the issues raised can be determined from our review of the record.
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