June 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WARREN DREW JENKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-08-2755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Payne and Lyons.
Following a third trial, the first two having ended in mistrials, defendant was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; two counts of first-degree carjacking, N.J.S.A. 2C;15-2; aggravated manslaughter, N.J.S.A. 2C:11-4, as a lesser included offense of knowing murder; felony murder, N.J.S.A. 2C:11-3a; two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree theft, N.J.S.A. 2C:20-7; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4). Defendant was sentenced to an aggregate term of life with a fifty-year period of parole ineligibility. We affirmed both defendant's convictions and his sentence, State v. Jenkins, 249 N.J. Super. 464 (App. Div. 2002), and certification was denied, State v. Jenkins, 185 N.J. 299 (2005).
Defendant then moved for post-conviction relief (PCR). An evidentiary hearing was held, and the petition was denied. On appeal, defendant makes the following arguments through counsel:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed To Conduct A Proper Investigation
B. Trial Counsel Failed to Call Thomas Cross As A Witness
THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS AND CONCLUSIONS OF LAW REGARDING TRIAL COUNSEL'S ALLEGEDLY INDUCING DEFENDANT NOT TO TESTIFY. (Not Raised Below.)
Defendant makes the following additional argument in a pro se brief:
APPELLANT/WARREN DREW JENKINS WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL ON HIS (FIRST) PETITION FOR (PCR) BY COUNSEL/ALAN JOHN CLARK, IN WHICH DENIES APPELLANT HIS FEDERAL WRIT OF HABEAS CORPUS, AND APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND ON DIRECT APPEAL.
The record indicates that, on July 14, 1995, John Deventer, a retired Hanover police chief, drove George and Elsie Wolf and a gardener to Fairmont Cemetery in Newark to tend a grave plot there dedicated to the Hoffmans. Upon arrival, Deventer left the gardener at the cemetery, and he drove the Wolfs to Giordano's bakery to pick up breads that they had ordered, returning with the Wolfs and their purchases to the cemetery. While Deventer and the gardener completed tending the graves, the Wolfs, who remained in their Lincoln Town Car, were accosted by two black men and taken from the car at gunpoint. The two men then sought the car keys from Deventer, but he initially fought the men off, eventually stating that he was a cop. At that point, Deventer was fatally shot in the abdomen at the command of one of the assailants. The men then took the keys and a rosary from Deventer's pocket, stole the Wolfs' car, and drove off. The bread remained in the car. Thomas Cross was identified as one of the assailants by George Wolf. Defendant was later identified by a cemetery worker, Edward Fisher, as being present in the vicinity of the Hoffman plot at the approximate time of the crime.
Evidence provided at the third trial by Evelyn Cruse, a woman who lived with defendant's cousin, Gary Jenkins, established that after the crime had occurred, defendant had made her an unsolicited gift of the Giordano bread purchased by the Wolfs. Defendant was further connected to the crime by Lafayette Kollick, who testified that, while seated in his van, he had observed a dark car approach at high speed, followed by a red car. The driver of the dark car, wearing white gloves or socks on his hands, got out of the vehicle and entered the red car, which pulled up next to it. The dark car was subsequently identified as the Town Car that belonged to the Wolfs; the red car was identified as a Chevrolet Beretta, stolen by Cross in West Orange on July 9. Kollick tentatively identified the driver of the Town Car as defendant by means of a photo lineup.
During the afternoon of July 14, defendant and his companion Cross also carjacked a white Honda in Maplewood that had been driven by Rose Weinbaum, accompanied by her two-year-old daughter, to take her father to the doctor. During the carjacking, the father was assaulted, and a gun was pointed at Rose Weinbaum. Later, the carjacked Honda was located in Newark, and its driver, Thomas Cross, was apprehended after a chase. Cross was identified by Weinbaum as the carjacker both in a photo and an in-person line-up. When the car was returned to Weinbaum, she reported that her daughter's car seat, a stroller, a baby blanket, and other items were missing. The items were subsequently given by Cross to Stacy LaBerth, the mother of two of his children. LaBerth testified at the third trial that she had seen Cross driving the Lincoln Town Car on the day of the murder and carjackings.
Just prior to the time that Cross left the doctor's parking lot in Weinbaum's Honda, Rose Weinbaum observed a red car, which had been haphazardly parked, pull out, with the Honda following closely behind it. Weinbaum recorded the red car's license plate, which was later traced to the stolen Baretta. Defendant was identified as a person driving the Baretta on July 14 by Edward Barden, with whom Cross had been living, Evelyn Cruse, the recipient of the bread, and by Stacy LaBerth, the recipient of the baby supplies. Each witness testified to the close personal association between defendant and Cross on the date of the crimes, stating that, when observed, they were either seen together or looking for each other.
At trial, defendant, who did not testify, sought to convince the jury that the cemetery murder had been committed by Willie Drewery, who had been involved in another shooting in the cemetery at approximately the same time as Deventer's murder, but whose involvement in that murder had been ruled out by the police. Alternatively, defendant claimed that the murder had been committed by a person known only as "Chuckie."
In seeking post-conviction relief, defendant claimed that, despite his high regard for trial counsel, who represented him in all three murder trials, as well as in two unrelated trials for carjacking, counsel had been ineffective under standards established in Strickland v. Washington, 466 U.S. 668, 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).
Defendant made similar claims against appellate counsel.*fn1 Although the trial judge determined that defendant had not made out a prima facie case of ineffectiveness, because the case had attracted considerable public interest, the judge nonetheless ordered a hearing in the matter. At that hearing, testimony was provided by defendant, an uncle of defendant's and defendant's trial counsel. At its conclusion, the trial judge denied post-conviction relief, determining that defendant had not met his burden of demonstrating Strickland's first prong: that "counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.*fn2 This appeal followed.
On appeal, defendant claims that trial counsel failed to conduct a proper investigation of Edward Fisher, the cemetery employee, Stacy LaBerth, the mother of Cross's children, Gary Jenkins, the companion of Evelyn Cruse and the recipient of the bread, and Willie Drewery, the person defendant sought to identify as the perpetrator of Deventer's murder.
Fisher, a cemetery worker, had identified defendant's picture as most resembling the person he had seen in the cemetery at the approximate time of the murder. At the PCR hearing, defendant claimed that defense counsel should have interviewed him to determine "if there had been any suggestibility on behalf of the investigating officers" who spoke to him. Our review of the record discloses that the issue of suggestibility was thoroughly explored on direct examination at trial. Further, our review satisfies us that, although counsel may not have interviewed Fisher, he was in possession of the State's discovery regarding Fisher's identification, and had cross-examined him in the two prior trials and at a Wade*fn3 hearing conducted prior to the first trial that fully explored the circumstances of Fisher's identification of defendant.
The Supreme Court has held:
"[C]counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Whether this duty has been satisfied is measured by "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Ibid. Put differently, when counsel's decision to limit an investigation is supported by "reasonable professional judgments," we will not find deficient performance. Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3125, 97 L.Ed. 2d 638, 657; accord State v. Savage, 120 N.J. 594 (1990). [State v. Martini, 160 N.J. 248, 266 (1999).]
Under this standard, we find no deficiency in defense counsel's trial preparation.
LaBerth testified only at the third trial, and only after she had been indicted for the intent to distribute forty bags of heroin in a school zone. During the third trial, that fact was disclosed, and as a consequence, the trial judge ordered that the prosecutor's file on LaBerth be produced. Defendant testified at the PCR hearing:
[R]eviewing my transcripts, there's nothing to indicate that that file had ever been retrieved for the defense.
So I was made unaware of what was contained in the file if anything, that may have had exculpatory benefit to me. I felt it was necessary for my lawyer to obtain this information but he didn't.
Additionally, defendant argued in his brief on appeal:
Stacy LaBerth claimed that she had seen defendant and Thomas Cross on the morning of the shooting in a Baretta (ostensibly the one taken from Michael Calabria five days earlier), and later that day had seen Cross in a Lincoln Town Car (apparently the Wolfs') with defendant following in another vehicle. Defendant's alleged link with Cross on the day of the shooting surely necessitated an investigation by trial counsel. (Transcript references omitted.)
Whether the file was produced or not, it is clear that defense counsel cross-examined LaBerth at great length as to whether she had received favorable treatment in exchange for her trial testimony, eliciting LaBerth's admission that she had been told by an investigator employed by the Prosecutor's Office that if she cooperated in the murder trial, it might help on LaBerth's charges. Additionally, testimony was given by Mary Ellen Goger, the prosecutor assigned to LaBerth's case, with respect to the plea offered to LaBerth, which was for three years imprisonment without any period of parole disqualification. Testimony was also provided by Investigator Timothy Braun, who stated that the Prosecutor's Office had recently learned of LaBerth's identity, that the investigators had sought a statement from her, and that such a statement had been provided on a date after LaBerth's indictment. At the time that the statement was given, a bench warrant for LaBerth's arrest had been issued because of her failure to appear in court. However, Braun arranged for the warrant to be vacated and for LaBerth to be released on her own recognizance. Braun also confirmed that, prior to LaBerth's statement, he had discussed with LaBerth the fact that if she cooperated, it could favorably affect the sentence in her criminal case. As a final matter, these circumstances were fully discussed by defense counsel with the jury in his closing argument as impeaching LaBerth's credibility. It is thus clear that the jury was fully apprised of the potential consequences flowing from LaBerth's cooperation, and that the proper foundation for the jury's credibility determination had been laid. In these circumstances, we agree with the trial judge that ineffectiveness of trial counsel was not demonstrated.
We also reject defendant's claim that defense counsel was ineffective because he failed to interview LaBerth prior to trial. The trial transcript indicates that counsel sent his investigator to conduct such an interview, but that LaBerth refused to talk to her.
Defendant argues further that defense counsel should have interviewed Gary Fisher, the companion of Evelyn Cruse, the person to whom defendant had given the Wolfs' bread, claiming that Fisher could have rebutted the testimony of Cruse with respect to contacts between defendant and Cross on the day of the crimes and their ties to the stolen bread. At the PCR hearing, counsel recalled being asked to conduct an investigation. However, counsel stated that Gary Fisher had no direct knowledge of the case and thus the investigation was not ordered. Defendant has offered nothing to refute that statement. Thus, we reject his attempt to premise a claim of ineffectiveness on that aspect of counsel's conduct.
As a final matter, defendant claims that defense counsel should have interviewed Willie Drewery, the person that defendant argued had committed the crime. However, discovery had revealed that Drewery's motive in committing a contemporaneous shooting at the cemetery was to break up a romantic relationship involving Drewery's daughter, and that the bullets used were of a different caliber from those used in Deventer's murder. In these circumstances, we agree with the trial court that defense counsel properly declined to interview Drewery, anticipating that if called as a witness, he would assert his Fifth Amendment right not to testify, and concluding that any statements by Drewery denying involvement in the Deventer crime would have been discoverable, thereby undercutting defendant's third-party culpability defense.
On appeal, defendant argues additionally that trial counsel was ineffective because he failed to call co-defendant Thomas Cross as a witness, claiming that Cross would have exculpated him. We do not regard defendant's unsubstantiated claim to be sufficient to "'overcome the presumption that, under the circumstances,' defense counsel's strategic decision not to call [Cross] as a defense witness" was reasonable, and we regard it to have been "'sound trial strategy.'" State v. Arthur, 184 N.J. 307, 320 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 674-75 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 165, 100 L.Ed. 83, 93 (1955)). While determining what witnesses to call to the stand may be "one of the most difficult strategic decisions that any trial attorney must confront," Arthur, supra, 184 N.J. at 320, here it was not. At his own trial, Cross had inculpated defendant; Cross had given no independent indication that his testimony would differ at defendant's trial; and if it had differed, the Cross trial transcripts would have provided a strong foundation for Cross's impeachment.
Defendant raises for the first time on appeal the argument that the matter must be remanded "for the PCR court to state its findings and conclusions of law regarding trial counsel's allegedly inducing defendant not to testify." In this regard, defendant suggests that his will was overborne. However, such argument was not raised at the PCR hearing. At that time, defendant testified only that he wanted to testify and that he followed his attorney's advice not to do so because his extensive criminal record would then have been spread before the jury. In the course of the hearing, the following colloquy occurred between defendant and the prosecutor regarding defendant's decision not to take the stand:
Q: And insofar as your - the fact that you did not take the stand, you discussed that with Mr. Greenman prior to the end of the trial, is that correct?
Q: And it was his professional advice to you that he recommended that you not take the stand, correct?
Q: And he gave you reasons and discussed with you the basis for his recommendation that you not take the stand, isn't that correct?
Q: And you never indicated that you were not taking his advice, is that correct?
A: To put it on the record it was an argument, a discussion between himself and I, that he felt as though it would be in my best interest not to take it. Being he was more skilled with the legal law, I took his advice.
We cannot construe the foregoing as establishing a foundation for a claim of duress. We therefore decline to address the issue that defendant has newly raised. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In his pro se brief on appeal, defendant asserts that his PCR counsel was ineffective because he (1) never filed a brief in support of defendant's PCR application, but only an amended verified petition for post-conviction relief; (2) focused his arguments on ineffective assistance of trial counsel and failed to raise the multitude of issues arising from the trials; (3) filed the amended verified petition before discussing same with defendant; and (4) through an investigator, conducted an inadequate investigation of Cross to determine his willingness to testify that he had falsely accused defendant of complicity in the Deventer murder, failed to insure that witnesses LaBerth and Fisher were investigated, and failed to order an investigation of Gary Jenkins and a person named Larry Jackson. Defendant also listed various legal issues that he claimed should have been raised by PCR counsel: (1) prosecutorial misconduct; (2) confusing jury instructions regarding Cross; (3) violation of the principles of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986); (4) excessive sentencing; and (5) an improper charge on the elements of conspiracy. He complained as well that PCR counsel had not conferred adequately with him and had not asserted issues that defendant sought to have raised, in violation of State v. Rue, 175 N.J. 1 (2002).
We reject defendant's argument that PCR counsel was ineffective because he failed to file a brief in support of defendant's petition. Although that brief is not included in the record on appeal, there are frequent references to it by both defense counsel and the prosecutor in the transcript of the PCR hearing. We conclude on that basis that an appropriately supported brief was filed. We also conclude that no violation of State v. Rue occurred. Defendant did not file a pro se brief with the trial court raising arguments that PCR counsel failed to address. Moreover, defendant was given a full opportunity to express the basis for his claim of ineffective assistance of counsel during defendant's testimony at the hearing. We therefore find no factual foundation for defendant's claim.
We likewise reject the claim that Babatunde Folarin, the investigator assigned to PCR counsel was ineffective. As requested, he interviewed Cross, finding his credibility to be suspect and finding Cross to be more interested in his own defense than in aiding defendant by exonerating him. With respect to witnesses LaBerth, Gary Jenkins, and Larry Jackson, insufficient information was provided by defendant and his relatives to permit them to be located. Moreover, as previously stated, it does not appear that any possessed knowledge that would have aided in defendant's defense and thus, even if ineffectiveness on the part of the investigator is presumed, defendant has failed to demonstrate Strickland's second prong - that there was a reasonable probability that the investigator's inadequate performance materially contributed to defendant's conviction.
Defendant also challenges the prosecutor's position at trial, accepted by the trial judge and incorporated into his jury instructions, that defendant could be found guilty of Deventer's murder as a principal, arguing that Cross had already been found by a jury to have been the principal, and thus that defendant could only be an accomplice.*fn4 We have not been provided with the record of Cross's trial, and thus are unable to assess the basis for his conviction. Moreover, we have been offered no precedent that would support defendant's position that juries in two murder prosecutions, viewing different evidence and witnesses, could not reach inconsistent verdicts as to which defendant was the principal. As a final matter, we note that the argument was not presented to the trial court. We therefore decline to address it further. Arthur, supra, 184 N.J. at 327.
In a further legal challenge to the trial judge's jury instructions, defendant claims, without legal support, that because the judge spoke of Cross in his charge, he should have instructed the jury that the fact of Cross's arrest and indictment should not be considered as evidence of his guilt. This argument, and defendant's further arguments with respect to the judge's instructions on conspiracy and accomplice liability, were not raised before the PCR judge and are likewise barred. Ibid. Moreover, following our review of the charges, we are satisfied that they accurately set forth governing principles of law, and that no error occurred.
Defendant's sentencing arguments, addressed on direct appeal, 349 N.J. Super. at 480, are barred by Rule 3:22-5. We decline to address any of defendant's remaining arguments, finding them to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).