April 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT TOWNES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95-01-0128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges C.L. Miniman, Baxter and King.
Defendant, Lamont Townes, appeals from an October 30, 2007 order that denied his petition for post-conviction relief (PCR). The trial judge rejected defendant's various claims as meritless. We agree, and affirm the October 30, 2007 dismissal of defendant's PCR petition.
The State's proofs elicited during defendant's 1996 jury trial established that on October 29, 1994, brothers Gregory and Jeffrey Jackson were robbed at gunpoint, and Roberto Esquilin was shot to death at point blank range by two men wielding a nine millimeter handgun and a shotgun. After locating the vehicle the two assailants were driving, police traced it to Yolanda Mikell, who informed police that she had loaned the vehicle to defendant, who is her nephew.
Mikell testified at trial that on the day she lent defendant and co-defendant Lionel Miller the car, Miller was in possession a nine millimeter handgun. Police apprehended defendant, who gave a statement acknowledging his involvement with Miller in the crimes at issue. The State also presented the testimony of Jerry Clyburn, who testified that he was with Miller and defendant on the day in question, and remained in the car's back seat "scared to death" while defendant and Miller shot Esquilin. Defendant testified that he was seated in the car while Miller and Clyburn shot Esquilin, and had no prior knowledge that they intended to do so.
On February 14, 1996, the jury found defendant guilty of murder, armed robbery and related weapons offenses. The judge sentenced him on March 29, 1996 to a term of life imprisonment, of which thirty-five years was to be served before parole eligibility. We affirmed his conviction on direct appeal. State v. Townes, No. A-5590-95 (App. Div. April 9, 1999). In doing so, we rejected defendant's arguments that the jury instructions on identification and accomplice liability were defective, and that the prosecutor's summation was inflammatory and denied him a fair trial. Id. at 12.*fn1
On February 16, 2000, defendant filed a pro se petition for PCR, which was dismissed without prejudice by order of May 25, 2001, because the petition failed to state a basis upon which post-conviction relief could be granted. Not until January 19, 2007, did defendant, with counsel, file an amended petition. Some three months later, he filed a pro se motion seeking the recusal of the PCR judge, who was also the judge who had presided at his 1996 trial.
In a comprehensive and well-reasoned oral opinion, the judge denied the recusal motion and the PCR petition. On appeal, defendant raises the following claims:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to request a charge on lesser included offenses.
B. Trial counsel failed to request an appropriate charge on accomplice liability.
C. Trial counsel failed to request a charge on self-defense.
D. Trial counsel failed to investigate Walter Lambert and failed to present him as a witness at trial.
E. Trial counsel failed to properly cross-examine Clyburn.
F. Trial counsel failed to properly cross-examine Jeffrey and Gregory Jackson.
II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
III. THE TRIAL COURT ERRED IN NOT CHARGING THE JURY APPROPRIATELY SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
IV. THE LOWER COURT ORDER MUST BE REVERSED SINCE A VOIR DIRE OF JURORS OCCURRED IN DEFENDANT'S ABSENCE.
V. THE LOWER COURT ORDER MUST BE REVERSED SINCE EVIDENCE OF ONE CRIME MAY HAVE BEEN USED TO CONVICT DEFENDANT ON BOTH CRIMES.
VI. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT SHOULD HAVE GRANTED THE MOTION FOR RECUSAL.
VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
VIII. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.
IX. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d. 674, 693 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 688 n.26 (1984).
We turn first to Point I, in which defendant maintains that trial counsel was ineffective because he failed to request specific jury charges, failed to call as a witness Walter Lambert, and failed to properly cross-examine three others. We begin with defendant's contention that the judge erred when he rejected defendant's claim that counsel was ineffective for failing to request jury charges on passion/provocation manslaughter, reckless manslaughter and aggravated manslaughter as lesser included offenses of murder and felony murder. As the judge correctly observed, a court should not charge the jury on "an included offense unless there is a rational basis for a verdict convicting defendant of the included offense." State v. Cassady, ___ N.J. ___, ___ (2009) (slip op. at 15) (quoting N.J.S.A. 2C:1-8e).
"[I]n determining whether a manslaughter charge should have been given, courts must look at the inferences that can be properly drawn from the proofs contained in the record. '[T]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.'" State v. Hammond, 338 N.J. Super. 330, 337 (App. Div.) (quoting State v. Powell, 84 N.J. 305, 314 (1980)), certif. denied, 169 N.J. 609 (2001).
Here, the judge concluded that a charge on passion/provocation manslaughter was not warranted because there was no evidence satisfying the requirement of N.J.S.A. 2C:11-4b(2), that defendant acted in the heat of passion resulting from reasonable provocation. The judge also reasoned that the proofs required the jury to determine the identity of the shooter, not the state of mind with which he acted. As the judge commented, whoever murdered Esquilin, emerged from a vehicle, pointed a gun at Esquilin and shot him dead at point-blank range. Those proofs were not compatible with a mental state of recklessness. See Hammond, supra, 338 N.J. Super. at 338 (holding that the record did not rationally support a conclusion that the defendant's state of mind was reckless, in light of numerous shots fired at the victim at point-blank range).
Thus, had trial counsel requested a jury charge on passion/provocation manslaughter, or aggravated or reckless manslaughter, the judge would have been correct had he denied such request. Under those circumstances, counsel cannot be deemed ineffective for failing to request them. See State v. Marshall, 148 N.J. 89, 241, cert. denied, 522 U.S. 180, 188 S.Ct. 140, 139 L.Ed. 2d 88 (1997) (holding that counsel cannot be deemed ineffective for failing to challenge a search warrant where there was no showing that probable cause was lacking). Consequently, defendant's claim that counsel was ineffective for failing to request such jury charges is meritless.
The same is true of defendant's contention that trial counsel was ineffective because he failed to request an instruction on self-defense. Pursuant to N.J.S.A. 2C:3-4a, the use of force in self-defense is "justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." As the State points out, defendant fails to identify any evidence that would support such a charge. Furthermore, our own canvass of the record demonstrates that none of the evidence presented at trial would support a self-defense instruction. Defendant was either involved and was the aggressor, or he was not involved in the incident at all. Again, because such an instruction would likely not have been given even had counsel requested it, counsel cannot be deemed ineffective for failing to so request. Ibid.
We likewise agree with the judge's rejection of defendant's claim that counsel was ineffective for failing to request an appropriate instruction on accomplice liability. The judge correctly determined that because an instruction on lesser included offenses was not required, there was likewise no need for an instruction that an accomplice may be guilty of a lesser offense than the principal.
We turn next to defendant's claim that counsel was ineffective for failing to call Walter Lambert as a witness. As we have repeatedly observed, such a bald and unsubstantiated claim cannot support an allegation of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant must support such claim by presenting a certification from Lambert that specifies the facts to which Lambert would have testified had he been called. Ibid. Defendant's failure to do so is fatal to his claim of ineffective assistance of counsel relating to the failure to call Lambert as a witness. Ibid.
Next, we consider defendant's claim that trial counsel was ineffective because he failed to properly cross-examine Clyburn, Jeffrey Jackson and Gregory Jackson. The record establishes that contrary to defendant's claims, defense counsel aggressively cross-examined Clyburn, establishing both that Clyburn originally said he knew nothing about the shooting and that all of the charges pending against Clyburn were dismissed after he began cooperating with police. Like the PCR judge, we are not persuaded by defendant's claim that cross-examining Clyburn on the question of whether he did or did not exit the vehicle during the shooting would have changed the outcome of the trial. We are satisfied that defendant has not established, and indeed cannot establish, that but for the alleged deficiency in the cross-examination of Clyburn, the result would have been different. Under those circumstances, his claim of ineffective assistance must fail. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
We likewise agree with the judge's conclusion that trial counsel's cross-examination of Jeffrey and Gregory Jackson were not instances of ineffective assistance of counsel. Defendant supported his claim by pointing to the Jacksons's statements to police that the robbers demanded their money, whereas at trial the Jacksons stated that the assailants said "run it." During the trial testimony, both witnesses testified that "run it" is synonymous with "give it up" or "give me what you've got." Thus, there was no inconsistency, and counsel cannot be faulted for not seeking to impeach the two on this subject. We therefore reject defendant's claims to the contrary as meritless.
In Point II, defendant claims that the denial of his petition must be reversed because cumulative errors by counsel amounted in the aggregate to ineffective assistance. Because defendant has failed to demonstrate that counsel made any errors, it stands to reason that there can be no cumulative effect of such nonexistent errors. Consequently, we decline to entertain this claim. R. 2:11-3(e)(2).
We consider defendant's next three Points together. In Points III, IV, and V, defendant does not challenge counsel's performance. Instead, the claims he advances in these three Points relate solely to alleged errors made by the trial judge. We will not repeat these claims because we have already set them forth above. We agree with the State these claims are procedurally barred, because each could have been raised on direct appeal. Consequently, defendant is barred from raising them in the context of a PCR. R. 3:22-4. That Rule specifies that any ground for relief not raised on direct appeal is barred from assertion in a PCR unless the ground for relief could not reasonably have been raised in the prior proceeding, enforcement of the bar would result in fundamental injustice, or the denial of relief would be contrary to the Constitution of the United States or the State of New Jersey. Ibid. It is a "well-settled principle that 'post-conviction proceedings are not a substitute for direct appeal.'" State v. Mitchell, 126 N.J. 565, 583 (1992) (quoting State v. Cerbo, 78 N.J. 595, 605 (1979)).
Each of the claims defendant now seeks to raise in Points III, IV and V could have been asserted on direct appeal, and he has presented no basis for a conclusion that the failure to do so constituted excusable neglect. Moreover, defendant has not established that such claims implicate constitutional rights or that our refusal to discuss his contentions in the PCR setting would result in a fundamental injustice.
In particular, we reject his claim that the judge should have sua sponte charged the jury on self-defense or the lesser included offenses that we have already discussed. Quite simply, there was no obligation to do so. Defendant's claim that a portion of the jury voir dire occurred in his absence is likewise meritless because there is no support in the record for defendant's claim that he was absent during the voir dire which concerned the possibility that the jurors violated the court's directive not to discuss the trial. Likewise, defendant's claim that evidence of one count of the indictment may have been used to improperly convict defendant on both crimes is meritless in light of the instruction the judge gave to the jury instructing them to evaluate the evidence separately as it applied to each count of the indictment. Under these circumstances, defendant has presented no basis, certainly not a meritorious basis, for us to disregard the procedural bar of R. 3:22-4. We thus decline to consider the claims defendant raises in Points III, IV and V.
In Point VI, defendant contends that the judge erred when he denied defendant's motion that he recuse himself from presiding over defendant's PCR proceedings. We begin by observing that a disqualification decision is entrusted to the sound discretion of the trial judge. Marshall, supra, 148 N.J. at 275-76. Recusal is not required unless the movant demonstrates the prejudice or the potential bias of a judge. Id. at 276. Moreover, "[a]n error by the court in [a] previous proceeding does not necessarily justify an inference of bias and will not, by itself, furnish a ground for disqualification." Ibid.
This last observation is especially important here, because defendant's sole basis for claiming the judge should have recused himself is the decision we rendered in co-defendant Miller's appeal from the denial of PCR. There, we reversed this same judge's denial of Miller's PCR and we remanded Miller's PCR proceedings to a different judge. We did so because the judge commented at Miller's PCR hearing that PCR proceedings were simply "another round of appeals that are being cranked up" by defendants. For that reason, we remanded Miller's PCR proceeding to a different judge. State v. Miller, No. A-0399-01 (App. Div. February 20, 2003) (slip op. at 12).
Apart from the judge's comments in the Miller PCR proceeding, defendant's motion for recusal presented no reasons why his motion should have been granted. Taken to its logical conclusion, defendant's argument would require this judge to recuse himself from every PCR petition whenever any defendant advanced such an argument.
Our careful review of the record demonstrates that defendant's claims regarding his denial of his recusal motion are entirely meritless. As we have observed, an erroneous ruling in another matter does not, standing alone, warrant an inference of bias. Marshall, supra, 148 N.J. at 276. Consequently, we reject the claim defendant advances in Point VI.
We turn to defendant's remaining claims. In Point VII, he argues that the order denying his PCR petition must be reversed because his claims are not procedurally barred by R. 3:22-4. We have already considered that claim and decline to analyze it further. In Point VIII, defendant argues that the order denying his PCR petition must be reversed because the five-year time bar of Rule 3:22-12(a) should not be applied to preclude his claims. There is no need to address the time bar because neither the PCR judge, nor we, have relied upon the passage of time between 1996 and 2007 as a basis for denying defendant's claims.
Finally, we reject the claim defendant advances in Point IX, where he asserts that the trial judge erred in denying his request for an evidentiary hearing. Because none of defendant's claims were meritorious, the judge was not obliged to afford him an evidentiary hearing on those claims. State v. Preciose, 129 N.J. 451, 462 (1992). Consequently, we reject the argument defendant advances in Point IX.