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State v. Kinard

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HASANI KINARD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-12-4327.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2009

Before Judges Winkelstein and Chambers.

Defendant Hasani Kinard appeals from the denial of his petition for post-conviction relief. We affirm substantially for the reasons set forth by the trial judge.

Defendant was convicted by a jury of first-degree aggravated manslaughter, as a lesser included offense of murder, N.J.S.A. 2C:11-4(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree aggravated arson, N.J.S.A. 2C:17-1(a); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1). At trial, the State contended that defendant shot and killed Terry Cory as he was fleeing down a Camden Street and that defendant thereafter burned his girlfriend's car which he had used to leave the scene of the crime. Defendant received an aggregate sentence of twenty-seven years in prison, with seventeen years of parole ineligibility. Defendant's conviction and sentence were affirmed on direct appeal. State v. Kinard, No. A-2040-00 (App. Div. Mar. 24, 2003).

In this appeal, defendant raises the following issues:

POINT I.

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to request a charge that if a witness lied about one thing the jury could find that he lied about everything.

B. Trial counsel failed to investigate the case before trial.

C. Trial counsel failed to properly cross-examine State witnesses.

D. Trial counsel was ineffective since he failed to advise defendant that he had a right to participate in sidebar and in-camera discussions with potential jurors.

E. Trial counsel was ineffective since he failed to object to leading questions posed by the prosecutor.

F. Trial counsel was ineffective during summation.

POINT II.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT REFUSED TO DISMISS THE JURY PANEL.

POINT V.

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN ALLOWING THE VOIR DIRE OF JURORS IN DEFENDANT'S ABSENCE.

POINT VI.

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT VII.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-4.

POINT VIII.

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Defendant's brief also lists, without discussion, the following issues that were raised in defendant's pro se petition for post-conviction relief:

Trial counsel failed to request a hearing on the issue of the suggestibility of pre-trial identification.

Defendant had an all white jury.

Defendant challenges the jury instructions. Appellate counsel refused to raise the issue challenging the court's failure to dismiss the jury panel.

Defendant's brief lists, without discussion, the following issues that were raised either during oral argument before the trial court or in defendant's certification in support of his post-conviction relief petition:

Defendant contends that State witnesses had recanted.

Trial counsel failed to suggest to the jury that reasonable doubt existed.

Defendant contends that he did not take the stand in order to avoid implicating other people and because of his attorney's advice. Defendant contends that Kenneth Adams shot Terry Cory.

Post-conviction relief is appropriate where a defendant's substantial constitutional rights were violated in the conviction proceedings. R. 3:22-1. Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitutions, Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), and are properly raised in post-conviction relief proceedings. State v. Preciose, 129 N.J. 451, 460 (1992) (stating that ineffective assistance of counsel claims were "particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding"). A defendant's constitutional rights to counsel are violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.

Ordinarily, an evidentiary hearing will be held on ineffective assistance of counsel claims, provided defendant has made out a prima facie claim for post-conviction relief. State v. Preciose, supra, 129 N.J. at 462-63. In determining whether defendant has done so, the court must look at the facts from the perspective most favorable to defendant. Ibid. In order to establish a prima facie case, a defendant must establish two elements:

(1) that his attorney's performance was deficient and

(2) that without these deficiencies, in reasonable probability, "the result of the proceeding would have been different."

Id. at 463-64. These standards apply to both claims of ineffective assistance of trial counsel and appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (2007), certif. denied, 194 N.J. 444 (2008). After a careful review of the record against this standard, we conclude that defendant has not set forth a prima facie case to support a claim of ineffective assistance of counsel.

Defendant contends that his trial counsel should have conducted an investigation and cross-examined witnesses in an attempt to show that Kenneth Adams was the person who shot Cory. In his certification in support of his petition, defendant states that he saw Adams shoot Cory. He contends that effective cross-examination by defense counsel would have shown that Adams was present at the scene and that Adams's hair style and height matched the description of the shooter. He argues that counsel should have conducted a further investigation to show that Adams committed the crime.

We reject this argument. Certainly, a defendant may present evidence that another person committed the crime. State v. Cotto, 182 N.J. 316, 332 (2005). While defendant's testimony would have connected Adams to the shooting, defendant chose not to testify at trial. He explains that he did not do so "because I did not want to implicate people I thought were my friends and because I took my lawyer's advice not to testify." This circumstance does not show ineffective assistance of counsel, but rather reflects a choice defendant made.

The petition does not include any other certifications or affidavits that connect Adams to the crime. When a defendant contends that "his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant contends that appellate counsel was ineffective for failing to address a problem that arose during voir dire. In the course of the voir dire, one juror stated: "I worked at the Camden County Jail, so I have knowledge of the defendant." After a follow-up question, the juror was excused.

Defense counsel, not having heard what the juror said, requested a sidebar. The court reporter advised that the juror had said "defendant." Defense counsel then moved to strike the entire jury panel.

In response to a question from the court, defense counsel indicated that he was "almost positive" that the jurors behind him could not have heard the statement because he barely heard it. Neither the prosecutor nor the trial judge had heard the juror say "defendant" because his voice was so low.

The trial judge then interviewed in camera the six jurors from the jury box located closest to the speaker. None of them had heard the reference to defendant, although one said he thought the excused juror had said "he knew the family." The court did not interview all of the jurors in the courtroom that day concluding that the rest could not have heard the statement. The motion to strike the jury panel was denied.

Defendant contends that there was no basis for the court's assumption that the other jurors had not heard the remark, and that under these circumstances, he was denied a fair trial. We find no error here. The fact that the judge, defense attorney, prosecutor, and six jurors in the box did not hear the statement provides a sound basis for the trial judge's conclusion that other jurors had not heard the statement either. Indeed, after the in camera interviews, defense counsel acknowledged that a mistrial motion "lost steam given the testimony of the siX jurors" and recognized that it would have to be denied. Defendant has not come forward with additional evidence that any jurors heard the statement.

Further, even if jurors had heard the statement, the error was harmless, because in the end, all of the jurors learned that defendant had been in jail. Under cross-examination, Ronnie Williams testified that the conversation he overheard between defendant and his father occurred at the Camden County jail. In light of this testimony, the trial court immediately gave a comprehensive limiting instruction that not all people charged with crimes can post bail, and the fact that defendant was in jail should not be considered when determining defendant's guilt or innocence. As a result, any error regarding defendant's presence in jail made during the voir dire was harmless and appellate counsel was not ineffective for failing to raise this issue on appeal.

Defendant also contends that defense counsel at trial erred by failing to advise defendant of his right to participate in sidebar conferences and in camera voir dire of potential jurors and that appellate counsel erred in not raising this issue on appeal. In 2005, the Court recognized that a defendant's right to participate in every stage of the trial ordinarily included voir dire sidebar conferences. State v. W.A., 184 N.J. 45, 48 (2005). This case was thus decided after defendant's trial in 2000 and after his direct appeal was concluded in 2003.

Even if this newer case law applies to defendant, the harmless error standard of review governs. Id. at 63-64. Defendant has not shown that his absence from the voir dire sidebar conferences caused him harm. He has not identified one juror that he would have rejected if he had been able to participate at the voir dire sidebars or in camera reviews. Accordingly, any error by trial counsel in not advising defendant of this right is harmless, and appellate counsel was not ineffective for failing to raise this issue on defendant's direct appeal.

The balance of the issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge McNeill in his oral opinion.

Affirmed.

20090519

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