March 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SEAN WALLACE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-03-0349.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Payne and Waugh.
Following a jury trial, defendant Sean Wallace was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and other crimes. He was sentenced to a prison term of fifteen years subject to the eighty-percent period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed both defendant's conviction and his sentence in an unreported opinion, State v. Wallace, Docket No. A-6260-03T4 (App. Div. Jan. 19, 2006), and certification was denied. State v. Wallace, 187 N.J. 80 (2006). Thereafter, defendant filed a pro se motion for post-conviction relief (PCR), which upon appointment of counsel, was amended, argued and denied after an evidentiary hearing. This appeal followed.
On appeal, defendant raises the following arguments:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE THE CASE.
B) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT IN A MEANINGFUL MANNER.
C) TRIAL COUNSEL FAILED TO PROPERLY ADVISE DEFENDANT DURING THE PLEA BARGAINING STAGE.
D) TRIAL COUNSEL'S STRATEGY WAS DEFICIENT AND AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
At the trial of this matter, evidence permitted the jury to conclude that during the evening of January 6, 2003, the victim, Miguel Valentine Tursty, traveled with his girlfriend to an apartment complex where he was met by Zakari Elhamri, defendant, and Orlando Richardson. While the four men were in the vicinity of the apartment, defendant and the others robbed Tursty at gunpoint, taking one-hundred dollars. Not satisfied and seeking additional cash, Elhamri, defendant and Richardson, brandishing guns, forced Tursty to travel with them to a Red Roof Inn in South Brunswick where Tursty and his girlfriend had taken a room. Once there, Tursty sought additional money from a friend named Jean Carlos Abreu who was staying in an adjoining room with his girlfriend. However, a scuffle occurred between Elhamri and Abreu, and eventually, in the early morning hours of January 7, defendant and his companions left the motel and drove off. Shortly thereafter, their vehicle was spotted by the police. However, by the time it was stopped, it was found to contain only Elhamri and Richardson. Defendant, who had been identified by the victim and others and who apparently had escaped from the car during the police's pursuit, was arrested on January 14, 2003 while in court on another charge.
Following his arrest, defendant gave a statement to lead detective Donald Varga in which he claimed that he was not present at the scene of the crimes and did not know any of the individuals involved. Nonetheless, at the trial of the matter, defendant was identified by Tursty and two of the women present at the motel, all of whom testified that he was known as "Bubalis." Tursty testified additionally that defendant had been a friend of his at the time of the robbery.
Defendant, who had no record when the trial took place, testified on his own behalf. During the course of his direct testimony, defendant stated that he lived at 30 New York Avenue in Brooklyn, but that he would, on occasion, visit his mother, Yvonne Meyers, who lived in New Brunswick, traveling back and forth by train, since he did not have a driver's license, had never had a driver's license, and never had a car registered to his name. Defendant testified that he was employed as a reggae artist, working "from studio to studio," and as a cook in Flatbush. Defendant denied that he had been in New Jersey on the night of the robbery, and he denied knowing the victim or any of the other people identified as present during the course of the robbery and its aftermath.
On cross-examination, defendant confirmed that he had never driven a motor vehicle except for one test drive in Brooklyn, and that he had never owned a car. Defendant again denied that he knew any of the witnesses that had testified against him at trial, and he denied that he was known by the name of Bubalis, stating that his name was Fabulous - a name he had used for the past nine years.
In response to a question by the prosecutor, defendant stated that, on the night of January 6, he had been in Brooklyn at the Don Juan recording studio. After a side-bar conference during which defense counsel stated that he had not asserted an alibi defense and that no alibi witnesses had been identified, the prosecutor cross-examined defendant with respect to differences between defendant's statement to the police and the testimony that he had just provided regarding his presence at the recording studio. The following exchange took place:
Q: So, you were at a recording studio in Brooklyn?
A: Yes, miss.
Q: And did not tell the police that?
A: It didn't - they didn't ask me where I was. And they asked me - I try to remember what he asked me. He asked me where was - where was like, what, January 7, something like - I don't quite remember, but like January 7, something like that, you know.
Q: So you didn't feel it was important at this time to tell the police you were somewhere else? You told [the police] you didn't know these people. You must have been told who these people were, correct?
Q: You must have been told who these people charging this against you were, correct?
A: No, I didn't tell them that - I don't understand.
Q: You said to Detective Varga . . . that you didn't know who these people were.
A: Yeah. Correct.
Q: Okay. When [Detective Varga] told you you were being charged with armed robbery because of what these people were saying, did you tell him where you were?
A: He didn't ask me that question, miss.
Q: You didn't think that was important?
A: I didn't say that. But he didn't ask me that question. But - wait. Hold up. I guess he asked me where I was. I tell him - I told him - wait. Hold up. Let me try to remember. I'm just trying to refresh my brain if he did ask me.
Q: Take you time.
A: Yeah. I guess he asked me where I was, I guess. I guess he asked me. I'm not - I'm not sure, but I guess he asked. He supposed to ask me.
Q: You're not sure?
A: He supposed to ask me.
Q: He was supposed to ask you?
A: I don't - I don't quite remember, but I think he did, though.
Q: Okay. And since then, have you told anybody where you were on this date.
A: On this date?
A: No, I don't - that never - that didn't mention. 6th [sic] didn't mention. Matter of fact, they didn't come to me with that question like, you know what I'm saying, about the 6th or something like that. They asked me where I was on the 7th. I don't quite remember. Yeah. They asked me where I was on the 7th, something like that.
Q: So you don't recall that at all? You don't recall, you know, telling the police at that point, look, I was somewhere else, I was with so and so?
A: Yeah. Yeah. Exactly. Exactly. Yeah.
Q: Did you tell them who you were with?
A: No, I didn't - I didn't. No.
Q: Did you tell them where it was?
A: Where it was?
A: I was in Brooklyn.
As we have stated, at the conclusion of the trial, defendant was found guilty of all charges against him.
In the PCR petition filed in the trial court, defendant argued that trial counsel was ineffective because he failed to "fully investigate Petitioner's alibi and present it at trial," and he claimed that an alibi witness, Dawn Kampf, would testify that she was present with defendant at Don Juan Studios in Brooklyn on the night at issue. A second argument, focusing on the prosecutor's cross-examination of defendant regarding the omission of facts from defendant's statement to the police was withdrawn at oral argument in light of the Court's decision in State v. Tucker, 190 N.J. 183 (2007). In his pro se brief, defendant argued additionally that counsel was ineffective as the result of his failure to investigate the background of the alleged victim, Tursty.*fn1 Defendant's request for a testimonial hearing was granted.
At the hearing, testimony was given by Dawn Kampf, defendant's mother Yvonne Meyers, defendant, and defense counsel, William Fetky. Kampf testified that she was a resident of Somerset, New Jersey, and that at the time of the events at issue, she had an intimate relationship with defendant. She testified further that, on January 6, 2003, defendant called her, suggesting that she meet him in New York. She agreed, arriving at Penn Station in New York at approximately 4:00 p.m., where she was met by defendant who drove her in his jeep to the Don Juan Studios. There, they met Barrington McCain, defendant's "best friend," and the studio's owner, Don Moody, as well as a number of other persons whose names Kampf could not recall. At approximately midnight, defendant drove with Kampf to Africa House, a club, where they remained until 4:00 a.m. At that time, defendant drove the couple in his Jeep to his apartment in Brooklyn, where they slept until early afternoon. Thereafter, defendant drove Kampf back to Penn Station, and she returned to New Jersey.
Approximately one week after the robbery had occurred, Kampf was informed by defendant's uncle, Lynval, that defendant had been arrested. Kampf later spoke to defendant's sister, who was trying to raise bail money, and then to defendant's mother, who informed Kampf of the date of the incident leading to defendant's arrest. Upon learning this information, Kampf stated to the mother that defendant could not have been involved because he was with Kampf at the time, and the mother responded that Kampf would be contacted by the public defender who had previously represented defendant, Mr. Fetky.
Kampf acknowledged that, as the result of the prior representation, she knew Fetky. However, she did not contact him regarding defendant's alibi, but simply awaited his call. When asked why she had not called, Kampf's response was:
Well, because I didn't really know what was going on with the case, and Sean and I had gotten into a big argument, so I was - I talked with the mother, and I was - I thought somebody was going to send me something in the mail or, you know, contact me in some kind of way, and nobody ever did. I didn't know if they needed me or not.
Kampf later testified that her dispute with defendant arose after defendant's daughter's mother learned of the relationship between Kampf and defendant, and that the dispute occurred on Memorial Day. Kampf's inaction in the four-month period prior to her fight with defendant was not explained. When confronted with the fact that defendant's best friend, Barrington McCain, had acted in a similarly passive manner, Kampf stated that "when you're not from this country, you get scared, and you don't want to get involved in legal matters."
Defendant had been released from jail on January 24 and remained out of custody until rearrested on July 10, 2003, after failing to appear in court for a scheduled hearing. Kampf testified that, during the period that he was out of jail, she saw defendant seven or eight times. Nonetheless, defendant never took her to Fetky so that she could provide a alibi statement. After the fight and rearrest, Kampf did not see or have other contact with defendant until Father's Day 2004, when she visited him in prison at his request.
Defendant's mother, Yvonne Meyers, did not have direct knowledge of defendant's alibi, but was told by defendant that at the time of the crime, he was in New York with Kampf. According to Meyers, Kampf confirmed that statement. However, despite the fact that Meyers was frequently in the presence of her son's attorney, Fetky, she never mentioned the alibi to him or, indeed, ever speak to him.
Defendant's testimony was, on the whole, consistent with that of Kampf. However, unlike his trial testimony, defendant stated that he had told the police at the time of his arrest that he had been in New York when the crimes occurred. At the hearing, unlike trial, defendant conceded that he had been known by the name Bubbleous. However, he stated that he had changed his name to Fabulous in 2000 when he determined that his former name was too commonly used. Defendant explained the inconsistency between his trial testimony and the hearing testimony of Kampf regarding his driving and car ownership by stating that he had a permit, not a license, and that although he owned an Isuzu SUV, it was registered in a friend's name. Although, according to defendant, on the night that the robbery had occurred he had taken Kampf to sleep at the apartment that he shared with the mother of defendant's daughter, he was not asked whether the mother was present or her reaction to the presence of a new girlfriend.
At the hearing, defendant claimed that he had discussed his alibi with Fetky, eventually identifying Kampf, McCain and Moody as persons who could confirm it, and providing the telephone numbers for Kampf and Moody. Defendant testified additionally that, when released from jail, he informed both Kampf and Moody that they would be contacted by Fetky, but did nothing more to insure that the statements of those witnesses or of other persons present at the studio would be taken. Defendant claimed that he was unable to utilize the telephone at the jail to contact the people present at the studio because the telephone was "blocked." He did not explain why he did not telephone or personally contact them after making bail.
According to defendant, he had a "very rocky relationship" with Fetky, who brushed defendant off when he sought to discuss his alibi and never returned his phone calls. When confronted with Fetky's time sheets disclosing eight conferences between him and defendant prior to trial, defendant maintained that Fetky consistently refused to listen to defendant's evidence regarding his alibi. Defendant was asked: "You were out on bail for quite a while. Did you ever go get any of these people and drag them over to Mr. Fetky's office and show them to him?" Defendant responded" "People in New York, they don't really like New Jersey." Defendant explained his failure to bring Kampf to Fetky's office by stating that the fight between the two had occurred in January, while defendant was initially in jail, not in May, as Kampf had testified. While in jail, defendant did not call Kampf because her phone, too, had a block on it. After his release, defendant did not travel to Somerset to see Kampf because, at the time, she was seeing another man and defendant did not wish to cause a problem and because she had gone to Canada. Defendant did not attempt to get Kampf to go to Fetky's office because he was "so mad."
Testimony was also given by Fetky at the hearing. Because Fetky, a pool attorney, had returned his file in the matter to the Public Defender's office at the conclusion of trial, his testimony on direct examination was based solely on his recollection. Although Fetky lacked specific knowledge of his initial conversation with defendant, he testified that, as a matter of standard practice, he raised with his clients each of the potential defenses available to criminal defendants, including the existence of an alibi defense. Fetky recalled that defendant had indicated that "at the time of this incident, he was at a recording studio somewhere." However, Fetky was never able to substantiate the alibi. Defendant's PCR attorney asked:
In this case, did, to the best of your memory, the defendant ever bring you, to your office, anybody whom he described as someone who could provide an alibi for him?
I don't recall that happening. All I can say is that if I had a viable alibi defense in this matter or in any other matter, I can not conceive of any reason why I wouldn't follow it up. I just can't.
Everybody makes mistakes, but that's not a mistake that I can see myself making. I just don't know why I wouldn't follow that up.
On cross-examination, Fetky's file in the matter, opened on January 28, 2003, with the exception of documents filed under "correspondence," was produced. After examination of the file, Fetky confirmed that no notice of alibi had been filed, although he testified that he might initially have filed such a notice, but have been unable to "firm it up."*fn2 In that regard, Fetky testified that if defendant had given him the name of a person he was with or a place where he claimed to have been, it would "absolutely" have been his practice to investigate the information. Fetky stated: "If Dawn Kampf ever contacted me or [her name] was provided to me and was able to testify in his trial that she was with Mr. Wallace on the night of this incident, I can not conceive of any reason on this planet why I would not call her." Additionally, Fetky confirmed that defendant's mother had never provided him with alibi information.
At the conclusion of the hearing, the motion judge first summarized the evidence provided by Kampf and observed:
I don't find her testimony to be credible at all. She was - basically her demeanor was that this was sort of a joke, that she was here to testify, and she kept on saying, I guess, I guess, and her story is just not credible. It's preposterous.
By that I mean here's a woman who knows the criminal justice system.*fn3 She's a mature woman in her 40s, and she has crucial information allegedly about her lover being charged with an armed robbery, and she never ever goes to see Mr. Fetky, never ever calls Mr. Fetky, and she knows who Mr. Fetky is.
She could even look him up in the phone book, William Fetky, Kirkpatrick Street, New Brunswick. And then conveniently she gets into a spitty-spat with this defendant, so that's an excuse for her not to talk to him so he can tell her, go see Mr. Fetky. It's just totally preposterous testimony.
The judge further did not find credible the testimony of defendant's mother that, despite her knowledge of her son's alibi, she never mentioned it to Fetky. The judge similarly dismissed the testimony of defendant as "totally incredible."
In that regard, the judge noted the inconsistencies between defendant's trial and hearing testimony, and he dismissed as unbelievable defendant's excuses for not bringing his alibi witnesses to Fetky's attention.
In contrast, the motion judge found Fetky, an experienced criminal lawyer, to have testified truthfully. In this regard, the judge credited Fetky's testimony that if he had been given any leads with respect to the identity of alibi witnesses, he would have investigated them. The judge concluded:
I find in this post-conviction relief [matter] that there's no ineffective assistance of counsel by Mr. Fetky. Mr. Fetky everybody knows. He makes mistakes, of course. Everybody makes mistakes. I even make mistakes. But the mistake that Mr. Wallace is saying was made in this case by Mr. Fetky would be a colossal series of mistakes bordering on not ineffective assistance of counsel, but bordering on criminality. And it's totally incomprehensible, totally without basis, totally without fact.
The motion judge's determination to deny post-conviction relief was governed, as a legal matter, by the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 688, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted in New Jersey 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 in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
In this regard, the judge found as a matter of fact that Fetky's performance was not deficient, finding credible Fetky's testimony that he would not have neglected to pursue a defense as important as an alibi defense, and that his failure to present such a defense must have been the result of defendant's failure to provide him with sufficient evidence to perfect the claim through reasonable investigation. We give deference to such findings when supported by adequate, substantial and credible evidence, as here. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005); State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Viewed de novo, Toll Bros., Inc. v. Tp. of W. Windsor, 173 N.J. 502, 549 (2002), we also agree with the judge's legal conclusion that Strickland's standards were not met in this case.
We decline to consider defendant's remaining arguments on appeal, determining that none was raised before the motion judge. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).