February 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALLAQUAN JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-03-0886.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Cuff and Fisher.
On October 20, 1999, Shavonne Young, defendant's sixteen-year old girlfriend and the mother of their two children, died after being shot six times. Defendant was charged with having perpetrated this crime and, after a lengthy trial, defendant was convicted of: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree burglary, N.J.S.A. 2C:18-2; third-degree terroristic threats, N.J.S.A. 2C:12-3; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Merging the felony murder conviction with the purposeful and knowing murder conviction, the trial judge imposed a term of life imprisonment with a thirty-year period of parole ineligibility. Lesser concurrent terms on the other convictions were also imposed.
On appeal, defendant argued he had not received the effective assistance of counsel, that evidence was improperly admitted pursuant to the excited utterance exception to the hearsay rule, that the trial judge incorrectly charged the jury on the issue of flight, and that the sentence imposed was manifestly excessive. We affirmed by way of an unpublished opinion. State v. Jackson, No. A-1978-01T4 (App. Div. July 7, 2003). The Supreme Court denied defendant's petition for certification on October 29, 2003. 178 N.J. 34 (2003).
Defendant filed a petition for post-conviction relief on September 21, 2005. For reasons set forth in an oral decision, the trial judge rejected defendant's request for an evidentiary hearing and denied the petition. Defendant has appealed the order denying post-conviction relief, presenting the following arguments for our consideration:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to obtain a plea agreement.
B. Trial counsel failed to properly cross-examine state witnesses.
C. Trial counsel failed to interview John Travis Lovett.
D. Trial counsel failed to request a charge on the lesser included offense of passion/provocation.
E. Trial Counsel failed to object to the double counting of an aggravating factor.
F. Trial counsel failed to prepare a defense based on defendant's mental status.
G. Trial counsel failed to present a professional opening statement.
H. Trial counsel failed to object to the admission of evidence that defendant had committed past wrongs.
I. Trial counsel failed to call Malika Williams to testify at trial.
J. Trial counsel failed to consult with defendant in a meaningful manner.
K. Trial counsel's strategy was deficient and amounted to ineffective assistance of counsel.
II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
III. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.
IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
V. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We find no merit in these arguments.
In affirming the judgment of conviction, we previously rejected the Sixth Amendment arguments regarding "the performance of defendant's trial counsel" to the extent they were disclosed by the record. State v. Jackson, supra, slip op. at 8. However, we also indicated that "to the extent that contentions forming the basis for defendant's claim lie outside the trial record, they may be raised in a post-conviction relief proceeding." Id. at 8-9. Although some of the claims of attorney ineffectiveness raised in the trial court and in this appeal were disclosed by the record before us on direct appeal, and for that reason may be rejected as having already been adjudicated, we nevertheless have examined each of the claims currently pursued and found them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding defendant's Point I.
In defining the level of competence required by the Sixth Amendment, it is understood that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984)). In addition, there is "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, and that to rebut that strong presumption, "a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy,'" State v. Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). See also State v. Fritz, 105 N.J. 42 (1987).
The bulk of defendant's contentions regarding the preparation and performance of trial counsel run counter to the tactics taken by defendant at trial. That is, although he had confessed to shooting Ms. Young, defendant took the stand at his trial and attempted to retract his confession. In addition, as we stated in our opinion disposing of defendant's direct appeal,
Defendant maintained that he and Young had consensual relations on October 16, 1999. He stated that after he discovered that Young had accused him of sexual assault, he had attempted to speak with her. He had then become despondent, and stole his brother Steve's handgun. Defendant contended that he, his brother Kalief, and Kalief's girlfriend Malika [Williams] then drove to Young's apartment to speak with her and to frighten her. Defendant asserted that he and Malika waited in the vehicle while Kalief went inside with the gun to frighten Young, and that Kalief had shot Young. [State v. Jackson, supra, slip op. at 5.]
Despite having urged this theory at trial, defendant now criticizes counsel's failure to seek a jury instruction on passion/provocation manslaughter or to obtain a psychiatric evaluation with a view toward presenting a temporary insanity defense. Considering that defendant's theory at trial was that the shooting was done by his brother, we conclude that these hindsight contentions do not conform with the requirements of Strickland in that they present only a criticism of the reasonable tactical position previously chosen. See State v. Arthur, 184 N.J. 307, 319 (2005). Accordingly, defendant's arguments in his PCR petition were properly rejected by the trial judge. See Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694 (holding that judicial scrutiny of counsel's performance "must be highly deferential" and must avoid viewing the performance under the "distorting effects of hindsight"); see also State v. Norman, 151 N.J. 5, 37 (1997).
Defendant is also critical of trial counsel's failure to interview Johnny Travis Lovett, who testified in favor of the State. As we observed in our earlier opinion, Lovett, who was a co-worker of defendant, testified he had a conversation with defendant on Wednesday, October 20, 1999, in Lovett's apartment, during which defendant told Lovett, "I think I shot Shavonne."
During a subsequent conversation about fifteen minutes later, defendant told Lovett that the gun was discharged four times and defendant thought the bullets hit her in the stomach. [State v. Jackson, supra, slip op. at 6.]
Lovett was called as a witness by the State and was cross-examined by defense counsel.
The record suggests that defense counsel did not interview Lovett because Lovett had avoided counsel's attempts to discuss the matter. Defendant contends in his PCR petition that Lovett was a close friend and would not have avoided speaking with his attorney. In any event, assuming the truth of defendant's contention that trial counsel was not diligent in seeking to discuss the matter with Lovett prior to trial, defendant has not revealed what further information would have been obtained if the interview had occurred. Accordingly, in applying the second prong of the Strickland test, defendant failed to show any prejudice emanating from counsel's failure to interview Lovett.
We lastly refer to defendant's argument that his attorney should have called Malika Williams to testify. Defendant did not submit an affidavit or certification that would indicate what Malika Williams would have said if called to testify at the time of trial, a fact which is fatal to this contention. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We also find insufficient merit in all the arguments contained in defendant's Points II, III, IV and V to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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