May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BERNARD BRANDON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-08-2779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2009
Before Judges Lyons and Espinosa.
Defendant Bernard Brandon appeals from an order denying his post-conviction relief (PCR) application. Following a jury trial, defendant was found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4c; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced on the manslaughter conviction to thirty years imprisonment, with fifteen years parole ineligibility. Concurrent terms of ten years with a five year parole disqualifier and five years, with a two-and-one-half year parole disqualifier, were imposed respectively for aggravated assault and possession of a weapon without a permit. The conviction for possession of a weapon for an unlawful purpose was merged into the other convictions. Appropriate fees and penalties were also imposed. We affirmed his conviction on appeal on March 19, 2001. State v. Brandon, No. A-6265-98T4 (App. Div. Mar. 19, 2001). The Supreme Court denied defendant's petition for certification on July 5, 2001. State v. Brandon, 169 N.J. 608 (2001).
Defendant filed a pro se PCR petition on or about August 17, 2001. An amended petition was filed on December 21, 2004, by assigned counsel.
PCR hearings were conducted on March 16, April 11, May 31, and June 21, 2006. On June 21, 2006, the PCR court entered an order denying relief. On August 31, 2006, defendant appealed the order denying him relief and on April 23, 2008, we temporarily remanded the matter to the PCR court to reconstruct the record of its factual findings and legal conclusions. On August 7, 2008, the PCR court rendered an opinion on the record, again denying PCR relief. The matter is now before us on appeal.
The facts, as apparently found by the jury, are stated in our earlier opinion as follows:
During the early morning hours of March 12, 1993, Reginald Johnson and Donald Jamison were sharing some heroin in the hallway of a building. Rose Jackson, the "common-law" wife of Reginald Johnson, waited outside the building and a man named Dobson was standing nearby. Defendant approached Dobson and asked if there was "any product." Dobson said no and defendant then asked Jackson if there was any heroin in the hallway. She replied that she did not know. Defendant went into the building and confronted Johnson and Jamison. They told defendant they were not selling drugs but defendant would not accept that response. There was some yelling back-and-forth and defendant pulled out a gun. Johnson and Jamison attempted to flee up a flight of stairs, but were followed by defendant. Several shots were fired by defendant and both Johnson and Jamison were hit. Jamison died of his wounds. An extended police investigation ensued and eventually focused on defendant. By early 1994, the police had contacted defendant's mother and his employer, letting them know defendant was wanted for questioning. Defendant, however, was not apprehended until May 1996, when the police received an anonymous tip that defendant was at a certain location in Newark. He was approached by several officers and told to remove his hands from his pockets.
Defendant refused to do so and was grabbed from behind by one of the officers. In defendant's hand was a switchblade. [State v. Brandon, supra, No. A-6265-98T4 (slip op. at 3).]
On appeal, defendant now raises the following issues for our consideration:
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. The prevailing legal principles regarding claims of ineffective assistance of counsel, evidentiary hearings and petitions for post-conviction relief.
B. Trial counsel was remiss by allowing the prosecutor, without any objection, to elicit testimony during re-direct examination of Rose Jackson regarding her testimony previously identifying the defendant as the perpetrator during two prior hearings, thereby impermissibly bolstering her credibility.
C. Trial counsel was ineffective by failing to request an appropriate limiting instruction to the jury pursuant to N.J.R.E. 404(b) once the court ruled it would permit the State to elicit testimony that the defendant possessed a knife when he was arrested as being relevant to the issue of flight.
D. In the event it is determined appellate counsel should have raised a specific issue regarding the absence of a limiting instruction to the jury pursuant to N.J.R.E. 404(b), thereby rendering Rule 3:22-4 applicable, the defendant was denied the effective assistance of appellate counsel.
E. The defendant is entitled to an evidentiary hearing regarding his contention that he failed to receive adequate legal representation at the trial level, and the matter should be remanded to the trial court to afford the defendant such a hearing.
In essence, defendant's argument is that it was error for the trial court not to have conducted an evidentiary hearing concerning defendant's allegations of ineffective assistance of trial counsel because there were, in fact, two specific instances where trial counsel was ineffective. Defendant argues that trial counsel was, first of all, remiss by allowing the prosecutor, without objection, to elicit testimony during the redirect examination of Rose Jackson that she had previously identified defendant as the perpetrator at two prior hearings, impermissibly bolstering her credibility. Secondly, defendant argues that trial counsel was ineffective by failing to request an appropriate limiting instruction, pursuant to N.J.R.E. 404(b), regarding testimony that defendant possessed a knife when he was arrested. Defendant also argues that, in the event it is determined that appellate counsel should have raised the N.J.R.E. 404(b) limiting instruction issue on direct appeal, defendant should be found to have received ineffective assistance of appellate counsel and is entitled to relief.
We note at the outset that the record is replete with efforts by the PCR judge to encourage and develop a full record. The judge repeatedly invited PCR counsel to have defendant, as well as others, testify. The record also reflects that PCR counsel knowingly relied on the affidavit of prior trial counsel for defendant, in lieu of his testimony. Further, PCR counsel did not wish to have defendant himself testify at length, but instead wanted to rely on defendant's certification.
Lastly, defendant, himself, willingly and knowingly waived his appearance at further PCR hearings at one point. The PCR court was well aware that "courts ordinarily should grant evidentiary hearings . . . if a defendant has presented a prima facie [case] . . . in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). It is clear that the PCR court was solicitous and receptive to all parties' applications for a full and complete evidentiary hearing.
To evaluate whether Brandon was denied effective assistance of counsel, the court must turn to the standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 692 (1984), and adopted by the Supreme Court of this State in State v. Fritz, 105 N.J. 42, 58 (1987). See State v. Savage, 120 N.J. 594, 612-13 (1990). In Strickland, the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93; see also Savage, supra, 120 N.J. at 613. To assist in this determination, the Court outlined a two-part standard based upon grounds of performance and prejudice. To satisfy this standard, a defendant carries the following burdens:
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 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 [court's holding] . . . 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 analyzing the "deficient performance" prong, "the test is whether counsel's conduct fell below an objective standard of reasonableness." Savage, supra, 120 N.J. at 614. A defendant therefore, must demonstrate that the attorney's actions "were beyond 'the wide range of professionally competent assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695). Reviewing courts should note that "'counsel is strongly presumed to have rendered adequate assistance' and to have made 'all significant decisions in the exercise of reasonable professional judgment.'" Ibid.
Moreover, reviewing courts must be mindful that their inquiry is whether counsel's performance was "reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 694. "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchallengeable.'" Savage, supra, 120 N.J. at 617-18 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2065-66, 80 L.Ed. 2d at 695).
With regard to the satisfaction of the second prong, that is, that defendant has been prejudiced by the actions of his counsel, the Strickland Court held that there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also Fritz, supra, 105 N.J. at 52.
The reviewing court's principal focus "must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699. The Court, however, also added that when the errors of counsel are so substantial that "no amount of showing of want of prejudice could cure it," it is unnecessary for a defendant to demonstrate prejudice. U.S. v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2046, 80 L.Ed. 2d 657, 668 (1984). As a matter of state law, our Supreme Court has articulated that, "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Savage, supra, 120 N.J. at 615.
This case turned largely upon the credibility of the eye witnesses as to the identification of defendant as the shooter and the facts and circumstances that occurred at and immediately before the time of the shooting. Rose Jackson's testimony on both points was central to the prosecution's case. Jackson had consistently identified defendant as the shooter from the first time she was presented with a photo array containing his photograph. Defendant testified that on the night of the shooting, defendant approached her as she was outside a building on Howard Street to inquire about the availability of drugs. Defendant then proceeded into the hallway of the building where Johnson and Jamison were sharing heroin. She testified that she saw defendant pull a gun as she looked into the hallway, as well as heard Johnson say that defendant had a gun. She ran back to her home at that time.
Defendant claimed, both in his counsel's opening and summation, that Jackson is lying to cover up the fact that Johnson, her "husband," was robbing defendant when defendant, in self-defense, fired shots. Defendant asserted Jackson's testimony was incredible by pointing to the inconsistencies in her prior statements as compared to her court testimony.
Defendant argues that it was improper for the prosecutor on redirect to ask Jackson whether her identification at trial of defendant was consistent with her two identifications of him at earlier hearings. Defendant argues that this was an improper bolstering in violation of N.J.R.E. 607, which provides "a prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an expressed and implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence."
An allegation of recent fabrication is not usually made by counsel directly, rather it is through implication. State v. Johnson, 235 N.J. Super. 547, 553-55 (App. Div.), certif. denied, 118 N.J. 214 (1989).
After having reviewed defense counsel's cross-examination of Jackson and his summation, we discern that the impression that defense counsel was attempting to make to the jury was that the inconsistencies between Jackson's earlier statements and her trial testimony indicated that her trial testimony was both incredible and newly made up following various pretrial proceedings.
During defendant's counsel's summation, he commented on Jackson's testimony. In particular, he said:
What else doesn't make sense? Rose [Jackson] says in her statement and to the extent her account differs or now it's not clear in my mind, perhaps it's clearer in your mind.
But, she says in her statement that as the man is--basically she's out on the porch and we already described, it was described to us that the porch is about out here (indicating.) She's out on the porch and what does she hear? She hears Reggie yell: He's got a gun. She says she turns around and looks inside. It is unclear whether she had been looking inside before or not. In one account she says: No. Later she says: No. I made a mistake. I was looking back and forth, regardless.
She says as she turns around, what she does see is the man reach into his waist. Pull out the gun. But we know if that's what Rose is saying she sees, if she turns and she sees that, then Reggie could never have seen the gun first because the man would have his back to Reggie, his front to Rose and Rose would have had to have seen the gun first.
Now, think about it. That's if it's the way she says it happened in her statement. That's if it's the way it seems like she says it happened in court.
It doesn't make sense. It can't happen that way. Now, there has been a lot of pretrial hearings. There's been discussion with the police on this. They live together and, quite frankly, I'm sure it's reasonable to infer they tried to get their stories together.
But, little things like that, ladies and gentlemen, can slip your mind. And, when does it slip your mind? It slips your mind when you're making it up. Because if it happened that way, what would you have? You'd have a memory of it happening that way.
You know, things have happened in your life. You have a memory. A memory is something that you can recall. You remember that's the way it happened. It almost is like a little replay in your mind and you say: No, that's what I remember. Yes, think about it. Yes, that's the way it happened.
If you're fabricating, if you're making it up, then you can say it happened one way and not catch the fact that it logically couldn't happen that way. You can screw up your story and that's what that is, a little indication there's a problem there.
We recognize that a prior consistent statement offered to bolster a witness's testimony is generally inadmissible. See Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 607 (2008). However, a prior statement may be admitted in evidence to support the credibility of a witness for the purpose of rebutting an expressed or implied charge of recent fabrication. Palmisano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997). We find that there is a clear implication in the record by defendant's counsel that Jackson's trial testimony changed from her testimony at earlier hearings and her earlier statements. Therefore, we find the questions on redirect by the prosecutor to be permissible under the N.J.R.E. 607 recent fabrication exception.
Based on that analysis, any objection that would have been raised by defense counsel pursuant to N.J.R.E. 607 should and would not have been sustained by the trial court.*fn1 Consequently, we see no demonstration by defendant that counsel's performance in this regard was deficient. Moreover, even if the trial court were to have sustained defense counsel's objection, given our review of the trial record, we do not see that there would have been a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different.
Defendant also argues that trial counsel committed error when he did not seek a limiting instruction under N.J.R.E. 404(b) with respect to the testimony concerning defendant possessing a switchblade at the time of his arrest.
In our opinion dated March 19, 2001, disposing of defendant's direct appeal, one of the points raised was that it was reversible error for the trial court to have admitted evidence of defendant being in possession of a switchblade knife at the time of his arrest. We disagreed. However, we not only disagreed, but we stated as follows, "[n]or do we find the jury instructions on this topic [the circumstances surrounding defendant's arrest] to have been erroneous." State v. Brandon, supra, No. A-6265-98T4 (slip op. at 4). Consequently, we have already ruled on the merits of the instructions given at the time of trial regarding the jury's use of evidence concerning defendant's possession of a switchblade. That avenue of PCR relief is barred pursuant to Rule 3:22-5. More importantly, our earlier opinion demonstrates no flaw in the instructions on this topic and consequently any objection by trial counsel would not have been sustained or have resulted in any prejudice to defendant.
After our review of these two specific points, it is clear that there was no prima facie case made out of ineffective assistance of trial counsel and, hence, there was no need for evidentiary hearings greater than those held in the matter. See State v. Marshall, 148 N.J. 89, 157-58 (1997), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
In sum, because we find no ineffective assistance of trial counsel, there was no need for an evidentiary hearing greater than that held by the PCR trial judge.
Lastly, we turn our attention to defendant's argument that appellate counsel should have raised the issue of the N.J.R.E. 404(b) limiting instruction on direct appeal and, therefore, defendant was denied ineffective assistance of appellate counsel. In light of our earlier analysis of the issue and our earlier ruling on the adequacy of the jury charge with respect to this topic, we find that argument to be without merit. R. 2:11-3(e)(2).
Accordingly, the order denying defendant PCR relief is affirmed in all respects.