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State v. Echols

March 12, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
TERRENCE ECHOLS, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 398 N.J. Super. 192 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether defendant is entitled to post-conviction relief based on the ineffective assistance of trial or appellate counsel.

On September 3, 1994, at approximately 10:25 p.m., two assailants entered Franklin Powell's home and shot and killed him. Although the faces of the assailants were covered, witnesses later identified defendant Terrence Echols and co-defendant Joseph Brown as the men who entered Powell's apartment. Echols and Brown were arrested on September 8, 1994. Echols waived his Miranda rights and gave two statements. The gist of his statements was that he was outside in the parking lot, and he did not shoot Powell.

A grand jury indicted Echols on nine counts: conspiracy to commit murder; second degree burglary; murder; felony murder; possession of a firearm; possession of a weapon for an unlawful purpose; giving a false statement to the police; false swearing; and hindering his own prosecution. Brown was charged in six of those counts. Prior to trial, three people claimed that defendant had threatened them. Subsequent to the alleged threats, each provided a statement implicating defendant in the shooting. Two of the three individuals later repudiated their statements.

In June 1996, Echols and Brown were tried before a jury. The jury acquitted them of conspiracy and murder, but convicted both of felony murder, aggravated manslaughter, third-degree burglary, and the weapons offenses. Echols was also convicted of false swearing, false representation, and hindering. Echols received an aggregate sentence of life plus eighteen months, with a thirty-year and nine-month period of parole ineligibility. On direct appeal, Echols's convictions and sentence were affirmed, and on January 2, 2001, the Supreme Court denied certification.

Three incidents occurred during trial relevant to this appeal. First, the prosecutor noted that several of the witnesses had repudiated their statements and made a reference to the safety of the jurors. The second incident occurred when defense counsel indicated that he wanted to call a witness that would testify that he was outside the residence with defendant and several others when the incident occurred. After a Rule 104 hearing it was determined that the witness would present alibi testimony. The prosecutor objected, asserting that defendant was attempting to offer alibi testimony in contravention of the court rules that require timely notice of alibi. The trial court ruled that the State was aware of defendant's statement that he was in the parking lot when the victim was shot and found that the testimony was not surprise testimony. The third incident occurred when defense counsel requested that the trial court give the jury an alibi charge. The prosecutor objected. The trial court determined that this was not an appropriate case for an alibi charge and declined to give the charge.

Defendant filed a petition for post-conviction relief (PCR) in July 2001, which was denied by the trial court. On appeal, in a published opinion, the Appellate Division reversed and remanded for a new trial. The panel concluded that trial counsel was ineffective for failing to fully elicit alibi evidence and for failing to object to the prosecutor's opening statement, and that appellate counsel was ineffective for not raising those issues on appeal as well as the issue of the trial court's refusal to give an alibi instruction.

The Supreme Court granted the State's petition for certification and granted the Attorney General amicus curiae status.

HELD: This case does not meet the standard of ineffective assistance of trial or appellate counsel necessary to warrant a new trial. The comments by the prosecutor did not deprive defendant of a fair trial and the failure of trial counsel to object to the comments or the failure of appellate counsel to raise that issue on appeal would not have resulted in a different outcome. In addition, although it would have been appropriate for the trial court to have given the requested alibi charge, the failure to do so was clearly harmless error, and even if appellate counsel had raised that issue on appeal the result would not have been different.

1. New Jersey's post-conviction relief proceeding is the "analogue to the federal writ of habeas corpus." Court Rules 3:22-1 to -12 control the procedures for post-conviction relief and the burden is on the petitioner to establish the right to relief by a preponderance of the credible evidence. However, because post-conviction relief is not a substitute for direct appeal and because of the public policy "to promote finality in judicial proceedings," the rules provide various procedural bars. Notwithstanding certain exceptions to these general rules, the Court has emphasized that it is important to adhere to the procedural bars. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court created a two-part test to be used in evaluating claims of ineffective assistance of counsel. The first part of the test is satisfied by showing that counsel's "acts or omissions were outside the wide range of professionally competent assistance" considered in light of all the circumstances of the case. The second part is whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." New Jersey has adopted those standards and unless both parts of the Strickland test are established, defendant's claim must fail. (Pp. 13-16)

2. Although prosecutors are "afforded considerable leeway in making opening statements and summations," they are bound by "fundamental principles of fairness" and "must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." Reversal is justified when the prosecutor does not abide by these strictures and the conduct was "so egregious as to deprive defendant of a fair trial." And in general the remarks are not deemed prejudicial where no objection is made. Although the prosecutor should not have contrasted the threats and intimidation of the witnesses with the fact that the jurors would be hearing the case in a safe environment, the Court is convinced that the comments by the prosecutor did not deprive defendant of a fair trial. Moreover, no objection was made. In short, the prosecutor's brief reference to the safety of the jury in the beginning of the eighteen-day trial was not so egregious as to be reversible error. Further, the failure of trial counsel to object to the comments or the failure of appellate counsel to raise that issue on appeal could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different. (Pp. 16-19)

3. Although counsel might have attempted to elicit the same testimony in front of the jury as he and the prosecutor elicited during the Rule 104 hearing, his failure to do so did not render his performance "below an objective standard of reasonableness." Even if the Court assumes that trial counsel was ineffective for not eliciting before the jury more precise alibi testimony, defendant nevertheless failed to establish the second prong of the Strickland test, that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. (Pp. 20-21)

4. If a defendant fails to provide notice of alibi testimony, the court may preclude the evidence or provide other relief as set forth in R. 3:12-2(b). Despite properly allowing the jury to hear the alibi testimony, the trial court denied defense counsel's request to provide the jury with an alibi charge. We agree with the Appellate Division that that was error. However, although it would have been appropriate for the trial court to have given the requested alibi charge, the failure to do so was clearly harmless error. And even if appellate counsel had raised on appeal the trial court's failure to give the jury an alibi charge, the result would not have been different. It was error for the Appellate Division to conclude otherwise. (Pp. 21-26)

The judgment of the Appellate Division is REVERSED and the judgment of the Law Division denying defendant's petition for post-conviction relief is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued December 3, 2008

Defendant filed a petition for post-conviction relief in which he asserted multiple claims of ineffective assistance of trial and appellate counsel. The trial court denied the petition. On appeal, the Appellate Division reversed, concluding that trial counsel was ineffective for failing to fully elicit alibi evidence and for failing to object to a comment in the prosecutor's opening statement, and that appellate counsel was ineffective for not raising those issues on appeal as well as the issue of the trial court's refusal to give an alibi instruction. We granted the State's petition for certification and now reverse. We hold that this case does not meet the standard of ineffective assistance of trial or appellate counsel necessary to warrant a new trial.

I.

A.

We briefly recite the facts. On September 3, 1994, at approximately 10:25 p.m., two assailants entered Franklin Powell's home and shot and killed him. Although the faces of the assailants were covered, witnesses later identified defendant Terrence Echols and co-defendant Joseph Brown as the men who entered Powell's apartment. Darnell Jones told the police that Brown held a sheet over his head as he kicked Powell's door open and entered. A short while later, Jones heard shots and saw two men flee the apartment. In his second statement to the police, Jones identified defendant as the man accompanying Brown as they fled from Powell's apartment.

Defendant and Brown were arrested on September 8, 1994. Defendant waived his Miranda*fn1 rights and gave two statements. The gist of his statements was that he was outside in the parking lot, and he did not shoot Powell. Defendant essentially identified Keith Eutsey as a person who entered Powell's home. Based on those statements, defendant was released on bail and Eutsey was arrested and charged in the homicide. Later, defendant admitted to a private detective employed by Eutsey's attorney that he had falsely accused Eutsey. As a result, the charges against Eutsey were dismissed.

A grand jury indicted defendant on nine counts: conspiracy to commit murder; second degree burglary; murder; felony murder; possession of a firearm; possession of a weapon for an unlawful purpose; giving a false statement to the police; false swearing; and hindering his own prosecution. Brown was charged in six of those counts.

Prior to trial, three people, Shalika Thomason, Ada Dansby, and Tracie Irvin, claimed that defendant had threatened them. Subsequent to the alleged threats, each provided a statement implicating defendant in the shooting. Thomason, defendant's former girlfriend, claimed that on November 10, 1994, defendant came to her apartment armed with two guns and a knife. He tried to force her to leave the apartment and stuck her with a knife. Further, defendant complained to her that he would have to serve twenty-five years in jail because of what she told the police. After Thomason's friend attempted to intervene, defendant threatened to kill Thomason. Thomason told her friend to call the police and she did. Following the incident, Thomason told police that she had seen defendant enter Powell's home the night of his death, and saw him emerge immediately following the gunshots. She later repudiated her statement, claiming that she implicated defendant as revenge for his infidelity.

Tracie Irvin, the mother of the victim's son, gave a statement to the police on May 20, 1995. She said that defendant told her to stop talking about the murder or he would kill her. She testified that she saw defendant running from the back of Powell's house holding his side.

Ada Dansby, the mother of defendant's son, reported that on June 5, 1995, defendant robbed her and threatened to kill their son like he killed Powell because the boy's name included the victim's nickname, which was Quill. Dansby filed a complaint against defendant and gave a statement to the police that implicated defendant in Powell's death. She repudiated her statement at trial.

B.

In June 1996, defendant and Brown were tried before a jury. Relevant to this appeal, the following three incidents occurred during trial. First, the prosecutor made a comment in the opening statement alluding to the jury's safety. Second, defense counsel elicited alibi testimony that he asserted was not alibi testimony. Third, defendant's counsel later requested that the trial court give the jury an alibi charge, but the court denied that request.

The first incident occurred in the prosecutor's opening statement. The prosecutor outlined the State's case to the jury and summarized portions of the witnesses' expected testimony. He noted that several of the witnesses repudiated their statements, and then said:

[L]isten to everything with an open mind. [The witnesses who had allegedly been intimidated] are not people who like you are able to sit in a fairly nice courtroom in Essex County. The sheriff officers are here, so that you can feel safe and comfortable. You know that nothing is going to happen to you. You are just hearing evidence. Think about people who are living in the community and why they might say, Well, my son is more important. My life is more important. I never saw nothing. I don't want to be involved anymore. Get me out of this.

Keep an open mind. That is all I'm going to ask at this point. Listen openly and carefully to the evidence you hear from this witness stand.

[Emphasis added.]

There was no objection to those comments.

The second incident occurred when defense counsel indicated that he wanted to call Rashine Smallwood as a witness. After the prosecutor asked for a proffer, defense counsel replied that Smallwood would testify that he, Smallwood, was outside the residence with defendant and several others when the incident occurred. The prosecutor objected, asserting that defendant was attempting to offer alibi testimony in contravention of the court rules that require timely notice of alibi. When the trial court asked defense counsel if Smallwood would present alibi testimony, defense counsel replied no. Prior to ruling on the prosecutor's objection, the trial court ordered Smallwood to testify outside the presence of the jury. At that hearing, the following colloquy occurred between defense counsel and Smallwood:

Q: Where were you?

A: In the parking lot, ...


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