On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-01-0477.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, C.L. Miniman and Baxter.
Defendant Jamiyl Dock appeals from an August 7, 2008 order that denied his first petition for post-conviction relief (PCR). He maintains that he was denied a fair trial when a crucial defense witness was forced to testify before the jury while handcuffed, without the judge having found that the restraints were necessary for courtroom security. He also argues that trial counsel's failure to object to this highly prejudicial shackling of his witness denied him the effective assistance of counsel. Although the trial in question was conducted four years before the Court in State v. Artwell, 177 N.J. 526, 537-38 (2003), prohibited the routine shackling of defense witnesses, we conclude that in light of the particular facts presented here, defendant was entitled to an evidentiary hearing on his ineffective assistance of counsel claim. We reverse and remand for such hearing.
On August 10, 1997, two friends, Lamont Stewart and Maurice Allen, were shot on South 17th Street in Newark in broad daylight by a man in a red Honda. Stewart died of his injuries, and Allen survived. Two girls, one eighteen years old and the other twelve, were each standing outside about a block from each other when the shooting began. Although each girl separately identified defendant as the shooter during both in-court and out-of-court identifications, their descriptions of the shooter's appearance differed markedly. Moreover, each one's testimony contained numerous inconsistencies on crucial details of the shooting. The twelve-year-old witness contradicted herself on whether the shooter was the driver or the passenger of the red car, where the shooter was positioned while shooting into Allen's car, and what she heard first -- tires screeching or gunshots. The eighteen-year-old witness also contradicted herself, first testifying that the shooter never emerged from the red Honda, then changing her mind and saying he stood behind Allen's car while firing. The two girls also provided different descriptions of the gun, one saying it was black, and one saying it was silver.
After calling a number of other witnesses, the State rested without calling Allen, who, after his arrest on a robbery charge, had written to the Essex County Prosecutor's Office saying "they got the wrong man." A lieutenant from the Prosecutor's Office testified that Allen gave a false name when he went to the hospital for treatment of his wounds, and that police were unable to find him for two months after the shooting despite an intense effort.
Before a recess on January 26, 1999, defense counsel advised the judge that he was not certain if he would call Allen as a witness. The judge granted the defense a brief continuance so that trial counsel could discuss with defendant and his family whether Allen would be called. The next day, the defense called Allen to the stand. Without any objection by defense counsel, the judge required Allen to testify with his hands shackled behind his back. The judge made no finding that shackling Allen was necessary for courtroom security.
The defense began Allen's direct examination by asking if he was incarcerated at the time; Allen acknowledged he was. The defense then asked if that was why Allen was wearing handcuffs. He again answered in the affirmative. Next, the defense asked Allen how long he had been incarcerated, to which he responded he had been imprisoned for a year and a half.
Allen testified that on August 10, 1997, he and Lamont Stewart, whom he had known since seventh grade, were in Allen's car when he heard the screech of tires. Looking up, he saw a man step out of a red Honda and run while shooting in his direction. He and Stewart stepped out of his car to avoid the hail of bullets, but Stewart had been badly wounded and fell to the ground as soon as he emerged from Allen's car.
Allen testified that he had seen the shooter two hours earlier at Stuyvesant Avenue after Allen snatched a chain from the neck of a woman who was talking on a telephone. Allen asserted that after he stole the chain, an unidentified man began chasing him, and that it was this man who later shot him and Stewart. Allen admitted that he entered the hospital under his cousin's name because of outstanding warrants for his arrest. He also conceded he avoided police for more than two months after the shooting because of those same warrants.
During his direct examination, Allen was asked to draw a diagram of Stuyvesant Avenue. At defense counsel's request, Allen's handcuffs were repositioned to the front. The judge interrupted and stated, "Ladies and gentlemen, I know it's difficult for you to see but I want him to draw over here, for reasons that are apparent. Once he is done, I'll ask him to step aside so you can see it."
During cross-examination, at the prosecutor's request, Allen, still in handcuffs, drew another diagram. On cross-examination, Allen was forced to acknowledge that as a result of six indictments between October 1986 and June 1998, he incurred four separate convictions for receiving stolen property, as well as convictions for attempted burglary, burglary, aggravated assault and resisting arrest. He acknowledged that the sentence he was then serving, seven years in prison, three years to be served without parole eligibility, was the result of his conviction for possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school, unlawful possession of a weapon and possession of a weapon for an unlawful purpose.
Immediately after Allen listed all of his convictions, the judge instructed the jury that Allen's convictions could be used to evaluate his credibility. The judge also explained that the jury had the right to consider whether a person who has been convicted of a crime would be "more likely to ignore the oath requiring truthfulness on the [witness] stand than a law abiding citizen." The judge instructed the jury that in making that determination, they were entitled to consider the nature and degree of Allen's prior convictions and when they occurred. At no time did defense counsel object to Allen's appearance before the jury while shackled or ask the judge to instruct the jury that the handcuffs should play no role in its evaluation of Allen's credibility.
The trial prosecutor, in summation, compared Allen to "Judas" because he "betrayed his friend" Lamont Stewart. She also argued that "you could look at him and see Maurice Allen is from the neighborhood." She also asserted that Allen's credibility was the key to the case, saying the ...