February 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARVIN BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2008
Before Judges Lisa and Alvarez.
Defendant Marvin Brown appeals from a February 8, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted in Essex County of murder, N.J.S.A. 2C:11-3, and was sentenced on October 27, 2000, to an extended life term subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a thirty-five year parole disqualifier pursuant to the Graves Act, N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:43-7(a)(6). On the same indictment, defendant was also convicted by the jury on counts of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a), which were merged into the murder count. On the additional conviction for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), defendant received a concurrent five-year term. The sentences were imposed consecutive to the sentence that defendant was then serving for federal crimes.
Thereafter, we remanded for resentencing as the version of NERA in effect when the crime occurred did not impose an 85% parole disqualifier on convictions for murder.*fn1 Accordingly, defendant's current sentence is now an extended life term subject to a thirty-five year parole disqualifier pursuant to the Graves Act.
Defendant filed his PCR petition on May 8, 2006, and a letter brief was thereafter filed by assigned counsel on November 13, 2006. Oral argument was conducted on January 26, 2007, and Judge Petrolle's order denying relief was entered on February 8, 2007.
On appeal, defendant raises the following points:
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE OF DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF THE JUDGMENT OF CONVICTION
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
A. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY DID NOT CROSS-EXAMINE ANY OF THE STATE'S WITNESSES
B. DEFENSE COUNSEL FAILED TO OBJECT TO PREJUDICIAL TESTIMONY AND INADMISSIBLE HEARSAY TESTIFIED TO BY MICHAEL ADAMS
C. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A HEARING PURSUANT TO N.J.R.E. 104 IN REGARD TO THE RELIABILITY [OF] KAMAL JOHNSON'S STATEMENT AND APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THIS ISSUE
D. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO INADMISSIBLE PHOTOGRAPHS AND KAMAL JOHNSON'S STATEMENT IN VIOLATION OF THE DEFENDANT'S SIX AMENDMENT RIGHT TO CONFRONTATION
The convictions arise out of the killing of eighteen-year-old Terrence Hines on Bergen Street in Newark. Hines, while in the company of Kamal Johnson, was "playing around" on a street corner when he encountered defendant, exchanged some words, and put up his fists as if to fight him. Because defendant viewed the confrontation as a challenge to his honor, he called for backup. Minutes after he placed the call from a phone booth, a green Lincoln Navigator pulled up. Defendant walked over to the vehicle and spoke briefly with the occupants. At least one and perhaps as many as three men alighted from the vehicle and chased the victim, shooting as they ran. Hines tripped and fell and was shot repeatedly while on the ground as his assailants stood over him. The shooters returned to the SUV and drove away.
Portions of the incident were witnessed by Ricky Singleton, who had no prior acquaintance with the victim, defendant, or the men in the car. Shortly after the Navigator was detained, Singleton was able to identify the vehicle as the same one that he had seen parked on Bergen Street and two of the occupants as individuals he had seen entering the SUV after the shooting.
Michael Adams, a long-time friend of Hines who was also acquainted with defendant, testified for the State at the trial. When Hines told him about the confrontation with defendant right after it occurred, Adams immediately attempted to intercede on Hines' behalf. Defendant assured Adams that he was going to "let it go" shortly before the green Lincoln Navigator pulled up in front of where the men were standing. Defendant walked over to the SUV, briefly spoke with the occupants, returned and told Adams that he "couldn't stop it." The vehicle went around the corner, returned to Bergen Street, and came to a halt. Adams heard gunfire and saw Hines, who was standing at the public phone booth, drop the phone and begin to run, while chased by two men who were shooting. He watched as Hines was shot while lying prone on the ground. When Adams asked defendant for protection because he had witnessed the crime, defendant assured him that he would be safe and suggested that Adams take the victim's money from his pockets. Adams declined the offer and, instead, left the scene. He eventually gave police a statement and identified defendant's picture from a photo array.
Kamal Johnson also testified, but was a reluctant witness. Although he cooperated with police pre-trial, his memory had to be refreshed during trial. Ultimately, a portion of his pre-trial statement was introduced as substantive evidence without the benefit of a State v. Gross hearing.*fn2 Johnson testified that when he saw the victim and defendant exchanging words and putting up their fists, he had grabbed defendant while another bystander grabbed the victim. Pre-trial, Johnson said that defendant then threatened both himself and the victim that he would "do them dirty." At trial, however, Johnson said that defendant cursed and yelled at him, "[Y]ou're doing me dirty." In both his pre-trial statement and his testimony, Johnson acknowledged that after the incident, defendant immediately went to the Bergen Street phone booth and made a call.
On appeal, we found that Johnson's trial testimony, given after he read his pre-trial statement, that defendant put his fists up and yelled and cursed at him was appropriately admitted as recollection refreshed pursuant to N.J.R.E. 612. State v. Brown, No. A-3156-00T5 (App. Div. Dec. 12, 2002) (slip op. at 8). We also found that no error occurred when Johnson's pre-trial statement that defendant threatened both he and the victim, i.e., that he would "do them dirty," was admitted as substantive evidence even in the absence of a Gross hearing. Id. at 10-11. We concluded that the admission of the evidence substantively did not have the clear capacity to affect the outcome of the trial, nor did it otherwise deny defendant a fair trial. Id. at 11. Our rationale was that the threat to the victim was "explicit in the testimony of Adams as well as implicit in Johnson's admissible testimony." Ibid.
On the direct appeal, we also determined that Adams' passing reference to his brief conversation with Hines, and Hines' stated fear for his life as a result of the confrontation with defendant, was admissible as res gestae. Ibid. The testimony was offered to explain why Adams spoke to defendant. Ibid. We noted that defense counsel's strategic decision against cross-examination of any of the State witnesses was best left for resolution by way of PCR review. Id. at 27-28.
It is axiomatic that in order to prevail on an ineffective assistance of counsel claim, a defendant must establish not only the particular aspect of counsel's performance that was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Given the highly deferential review to which counsel's performance is entitled, we conclude in this case that none of the alleged deficiencies actually prejudiced the outcome of the trial. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
Defendant contends that, at a minimum, the matter should be remanded for an evidentiary hearing on the question of defense counsel's strategic decision not to cross-examine any of the State's witnesses. During the trial, Judge Petrolle addressed this issue by requesting that counsel "confirm on the record that his election not to cross-examine witnesses is a conscious election . . . that's part of a conscious strategy on the part of the defense." Defense counsel responded as follows:
Your Honor, I confirm what you said and would just indicate that I have elected, by way of strategy, not to question each witness individually after hearing their direct examination, and that's been the basis as opposed to an overall strategy of not cross-examining all the witnesses. I've made an individual election, based upon the direct testimony of each and every witness to this Court and I would expect to do that throughout the rest of the trial.
In summation, counsel explained to the jury the reason for the lack of cross-examination:
I didn't plan not to ask any witness in this trial any questions. I listened to what they said on direct examination and I decided individually in each case did I have a reason to ask any witness any question. . . . If I didn't have to question a witness, I wouldn't.
Counsel pointed out to the jury that nine of the State's eleven witnesses either did not mention defendant in their testimony or did not say anything that defendant disputed. He concluded, "I submit to you, ladies and gentlemen, none of those witnesses said anything that would lead you to be convinced beyond a reasonable doubt that [defendant] had anything to do with the murder or a conspiracy to commit murder."
Instead, trial counsel in summation launched a full-bore attack on the credibility of Johnson and Adams. He discussed Johnson's pending drug charge and his palpably reluctant and vague testimony. He referred to Adams' criminal history, mentioned the fact that Adams was a convicted drug dealer, and asserted that Adams testified only to curry favor with the prosecutors' office. He stressed that Adams' brother was an investigator in the prosecutor's office and suggested that the relationship was the real reason that he testified, as it got him out of jail. Counsel said that the State's case rested in great part on Adams, the "kid [who] lives in the shadows."
We concur with the PCR judge's conclusion that counsel did a more than adequate job of representing defendant in the face of overwhelming proofs, including eyewitnesses. We also agree that defense counsel explained his trial strategy on the record and used it to good effect in his closing to the jury. As the PCR judge said:
What we have here is a record that's replete with evidence that's demonstrative of guilt. We have a record that explains the strategy of the attorney. The strategy . . . is worthy of deference and respect by the Court, and the Court does have respect and deference for that strategy. . . . [T]he performance by the attorney does not violate the first prong of the Strickland/Fritz test, and . . . it is entitled to the respect and deference that is called for in Preciose. In the circumstances here, . . . there is no need for an evidentiary hearing because the record, when one looks at the summation, and when one looks at the interview of the attorney, fully discloses the . . . approach, the strategy, the reasoning of the attorney. He explains himself not only to the jury, but to all who were there, and all who read the record. He explains himself effectively and convincingly.
Our courts have acknowledged that no per se deprivation of the right of confrontation occurs when counsel, as a matter of trial strategy, elects not to cross-examine a witness. See e.g., State v. Buonadonna, 122 N.J. 22, 37 (1991). Defendant was not deprived of his right of confrontation. Rather, counsel's trial strategy enabled him to make the best of the State's overwhelming proofs.
Furthermore, defendant does not explain how the outcome of his trial would have differed had counsel cross-examined any witness. He merely claims that the failure to cross-examine in and of itself raises a presumption that he was denied his Sixth Amendment right of confrontation.
As to the only two of eleven witnesses who implicated defendant in the crime, the PCR judge noted that there was "not much left to be accomplished on cross-examination." Once their criminal histories and Adams' family connection to the prosecutor's office were elicited on the State's direct examination, nothing further was required in order for defendant to attack their credibility. Defendant has therefore failed to overcome the presumption that, under the circumstances, counsel's actions "might be considered sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95.
Defendant also contends that counsel was ineffective due to his failure to object to prejudicial and inadmissible testimony by Adams. By way of introduction, we note that Rule 3:22-5 bars reconsideration on PCR of issues previously decided on direct appeal. We previously found that Adams' testimony regarding his conversation with Hines was admissible res gestae evidence. We will not revisit this issue. To recast it under the guise of ineffective assistance of counsel does not avoid application of the procedural bar. See State v. Marshall, 173 N.J. 343, 350-53 (2002).
Defendant also complains about the fleeting reference made by Adams to defendant being "in the county jail." Trial counsel did request to be heard at sidebar when the statement was made and objected to the line of questioning. Although the court overruled the objection, the judge instructed the State to make no further references to defendant being in jail. In other words, despite trial counsel's failure to object to the specific comment, the trial judge addressed it sua sponte. This is the best result that defendant could have obtained; had the judge gone further and charged the jury to ignore the reference, he would have merely highlighted it.
Furthermore, even if this issue had merit, which it does not, because it could have been addressed on direct appeal, defendant is now procedurally barred from raising it. R. 3:22-4; State v. Murray, 315 N.J. Super. 535, 540 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000). As the PCR judge said, the reference was fleeting and vague, and no grounds are even suggested as to how it might have affected the jury's verdict. See State v. Macon, 57 N.J. 325, 336 (1971).
Defendant asserts that trial counsel was ineffective because he did not demand an N.J.R.E. 104 hearing with regard to Johnson's pre-trial statement. He further contends that appellate counsel was ineffective for not raising the issue. Our prior opinion on direct appeal dealt with this claim comprehensively. Whether trial counsel or appellate counsel raised it is irrelevant. It was previously addressed, and we found that the lack of a Gross hearing neither prejudiced defendant nor deprived him of a fair trial. We concur with the PCR judge that pursuant to Rule 3:22-5, defendant is barred from revisiting this issue.
Defendant's final point is that trial counsel's failure to object to the admission of Polaroid pictures of the occupants of the SUV, two of which Singleton identified as the men who got into the passenger's side of the vehicle after the shooting, was ineffective assistance of counsel. The Polaroid pictures were introduced into evidence through the testimony of the investigating officer who showed them to Singleton. We concluded on direct appeal that the photos were admissible under the governmental record rule, N.J.R.E. 803(c)(8). Moreover, the pictures were used to identify two individuals, neither of whom were defendant. As we said, there was "absolutely no prejudice to this defendant" from the admission. Now defendant contends that the photo array was inadmissible hearsay under the principles enunciated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). This argument will not be revisited because the substance of the claim was already considered on direct appeal. R. 3:22-5. Even if we were to consider the Crawford objection to be a new argument separate and apart from the prior hearsay objection, the admission of the photographs simply did not prejudice defendant.
Defendant reiterates his contentions concerning the substantive use of Johnson's pre-trial statement regarding defendant's threats to the victim as well as Johnson. We need not respond other than to state again that issues discussed on the merits on direct appeal will not be reconsidered under the guise of ineffective assistance of counsel. R. 3:22-5.
As Judge Petrolle concluded, defendant's ineffective assistance of counsel claims are time-barred under Rule 3:22-12(a). The judgment of conviction was entered in 2000, and the PCR petition was filed more than five years later in 2006.
By way of explanation, defendant offers that after trial, he was returned to federal custody and was moved to several different prisons. Once returned to State custody, no law library was available to him. Defendant contends that the time bar should not apply because these circumstances constitute "excusable neglect." See R. 3:22-12(a). Unfortunately for defendant, "[i]gnorance of the law and rules of court does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). These circumstances do not establish "excusable neglect," and as a result, the time bar prevents consideration of his claims.
Defendant urges that because his Sixth Amendment right to counsel is implicated in his ineffective assistance claim, substantial constitutional issues require relaxation of the five-year time bar. In virtually every PCR petition, however, the substantive claims relate to ineffective assistance of counsel and, therefore, of necessity, implicate the Sixth Amendment right to counsel. The assertion that defendant's Sixth Amendment rights were prejudiced, by itself, does not warrant relaxation of the time bar. Relaxation of the time bar also requires the presence of "exceptional circumstances," which are lacking in this case. State v. Afanador, 151 N.J. 41, 52 (1997); State v. Mitchell, 126 N.J. 565, 580 (1992).
Defendant also argues that any prejudice to the State resulting from the delay is minimal because the five-year proscription was exceeded by just a few months. Obviously, that argument is without merit as it converts the time bar into a mere guideline.