June 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIYL DOCK, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2009
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 case "boils down to" a credibility contest between Allen and the two girls.
In his charge, the judge instructed the jury that in evaluating a witness's credibility, they were entitled to consider, among other things, "[t]he appearance and demeanor of [the] witness." By doing so, the judge permitted the jurors to consider Allen's shackled appearance as part of their evaluation of his credibility. The jury apparently believed the State's witnesses, and rejected Allen's testimony, because they convicted defendant of murdering Stewart and shooting Allen. We affirmed defendant's conviction on direct appeal. State v. Dock, No. A-5331-98 (App. Div. October 11, 2000).*fn1 The Court denied his petition for certification. State v. Dock, 167 N.J. 630 (2001).
On February 18, 2004, defendant submitted a pro se PCR petition that apparently was not filed by the criminal division manager's office. On March 1, 2007, defendant resubmitted his earlier petition, which was treated by the court as a first petition and deemed timely filed. It is from the denial of that petition, as supplemented by assigned counsel, that defendant now appeals. In his supplemental petition, defendant argued that: he was denied due process of law when Allen was forced to testify while handcuffed; trial counsel was ineffective for failing to object to such a grievous violation of defendant's right to a fair trial; appellate counsel was ineffective for failing to raise these issues on direct appeal; trial counsel was ineffective because without defendant's consent he waived defendant's right to be present at a portion of the trial; and defendant's sentence on his murder conviction was illegal.
After oral argument, the judge reserved decision and issued a written opinion on August 7, 2008 in which he denied all of defendant's claims, except as to sentencing. The judge agreed with the latter contention, finding that the No Early Release Act, N.J.S.A. 2C:43-7.2, did not apply to the crime of murder at the time defendant murdered Lamont Stewart. Consequently, the judge resentenced defendant to a fifty-year term of imprisonment, with thirty years of parole ineligibility.
In his written opinion, without the benefit of an evidentiary hearing, the judge concluded that defendant was not denied due process of law or his right to effective assistance of trial and appellate counsel. The judge concluded that trial counsel had deliberately chosen, as part of his trial strategy, to permit Allen to testify while handcuffed. He also held that even if counsel had not made such a decision, shackling Allen was reasonable, and was essential to courtroom security. The judge reasoned:*fn2
First, trial counsel's decision to permit the "handcuff scenario" was calculated in a[n] unmistakable strategy choice as overtly evident in his direct examination and his unsuccessful oral motion in limine to limit the State's cross-examination. Second, given the trial court's knowledge of and "feel for the case" the unrecorded decision to allow Maurice Allen's testimony in civilian garb but handcuffed was reasonable and essential to courtroom security. Third, the rules of law announced in State v. Artwell, 177 N.J. 526 (2003) and State v. Smith, 346 N.J. Super. 233 (App. Div. 2002) are prospective only and are not, therefore, applicable to the case at bar. Fourth, the factual information and legal argument propounded by the pro se defendant and retained counsel falls woefully short of satisfying the two pronged test embodied in Strickland, supra, and Fritz, supra.
The judge also concluded that, as a matter of trial strategy, defense counsel "elicit[ed] from Allen, at the very outset, all his negatives to weaken the impact of cross-examination." That conclusion, the judge said, "can be offered with a fair degree of certainty." The judge also observed that it was "unclear, but certainly not improbable" that defense counsel's "strategy [also] included deliberately having Allen testify in restraints and calling the jury's attention to the handcuffs and his inmate status."
The judge acknowledged that he had not recited on the trial record the reasons for the restraints, and had not issued a curative instruction to the jury directing them to ignore Allen's handcuffs when evaluating his credibility. During the PCR proceeding, the judge did, however, retrospectively reach a determination that restraining Allen was an absolute necessity. Specifically, he explained that because Allen was a New Jersey State inmate, not an Essex County detainee, and was serving a seven-year term with three years of parole ineligibility, extra security was required. The judge also explained that Allen's criminal record, borne out by his own testimony, contained crimes of violence and included an established pattern of serious criminal behavior for approximately eight to ten years, and a propensity to conceal his whereabouts. In short, the judged concluded, Allen posed an escape risk.
More importantly, the judge reasoned, Allen's "willingness to offer himself as a witness for [defendant] was insufficient for the court not to ponder or consider that he was an ever-present danger to [defendant], who attempted to murder him." Consequently, Allen's handcuffing "was warranted under the circumstances of the case and, therefore, advanced 'an essential state interest' -- security." The judge observed that "the exposure of a restrained witness in the presence of the jury," "[a]lthough egregious," was "acquiesce[d] by the defense."
The judge also reasoned that "[t]he developing case law of Artwell was established three plus years after [defendant's] trial and the contextual circumstances are such that a finding of ineffective assistance for a transgression of fundamental fairness is simply not supportable." The judge noted that if there was any prejudice, "it was clearly nullified by the self-inflicted wounds of Maurice Allen, [defendant's] preferred witness. Any error viewed in the context of Allen's testimony, cannot be said to be prejudicial or to have deprived [defendant] of a fair trial."
The court concluded by stating that "without establishing a prima facie case of ineffective assistance, the syllogistic argument of due process shortcomings is fatally flawed." Similarly, the judge rejected defendant's claim that appellate counsel's failure to raise the handcuffing issue constituted ineffective assistance.
The judge then denied defendant's remaining claim that trial and appellate counsel were ineffective for failing to object to, and raise, respectively, defendant's exclusion from two brief exchanges between the judge and two State's witnesses for the purpose of assuring the witnesses' appearance in court at a later time. The judge explained that the discussions with the State's witness were not at critical stages of the proceeding, and failed to qualify as "stages at all" under applicable caselaw.
On appeal, defendant asserts:
I. THE DEFENDANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO SUMMON WITNESSES ON HIS BEHALF, UNDER BOTH THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION, WHEN HIS STAR WITNESS, MAURICE ALLEN, WAS FORCED TO TESTIFY IN RESTRAINTS AND/OR IN THE ABSENCE OF AN INSTRUCTION THAT THE RESTRAINTS COULD NOT BE USED TO DETERMINE ALLEN'S CREDIBILITY
II. THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED UNDER BOTH ART. I, § 10 OF THE NEW JERSEY CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL PERMITTED, WITHOUT OBJECTION, THE DEFENDANT'S STAR WITNESS TO TESTIFY WHILE HANDCUFFED AND FAILED TO REQUEST A JURY INSTRUCTION FORBIDDING THE CONSIDERATION OF THE RESTRAINTS IN DETERMINING THE WITNESS'S CREDIBILITY AND/OR THE DEFENDANT'S GUILT
III. TRIAL COUNSEL'S WAIVER WITHOUT THE DEFENDANT'S CONSENT OF HIS RIGHT TO BE PRESENT AT HIS OWN TRIAL, AND THE COURT'S EXCLUSION OF THE DEFENDANT FROM PROCEEDINGS VIOLATED THE DEFENDANT'S RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO BE PRESENT AT HIS OWN TRIAL
IV. ON APPEAL OF HIS CONVICTIONS THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
V. IT WAS AN ERROR TO DENY THE DEFENDANT'S PETITION IN THE ABSENCE OF AN EVIDENTIARY HEARING
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).
Although a court is not required to conduct an evidentiary hearing on every PCR petition, trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance of counsel claims when a defendant presents a prima facie claim and the facts supporting the claim are outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). As we observed in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), similar to "a summary judgment motion, the [PCR] judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim."
We turn to an analysis of defendant's claims concerning Allen's appearance before the jury while handcuffed. In Artwell, supra, 177 N.J. at 535-38, the Court held that requiring a defense witness to testify before the jury while handcuffed, in the absence of a specific finding explaining why such restraints were necessary for courtroom security, violated the due process provisions of the United States and New Jersey Constitutions. In particular, the Court observed that "the right to a fair trial requires that trial courts allow inherently prejudicial practices 'only where justified by an essential State interest specific to each trial.'" Id. at 534 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1345-46, 89 L.Ed. 2d 525, 534 (1986)). The Court held that "[t]he appearance of a defense witness in restraints undermines the credibility of the testimony that witness offers on the defendant's behalf" and is an inherently prejudicial practice, id. at 536-37, which can be justified only where the trial court "'has reason to believe [such shackling] is necessary to maintain security of the courtroom.'" Id. at 537 (quoting Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982)).
The Court described the prejudice to a defendant from the shackling of his witness:
[T]he danger lies "not merely in the fact that the jury may suspect that the witness committed a crime," but in "the inherent psychological impact" that restraints will have on the jury's assessment of credibility. Requiring a witness to testify in shackles also encourages the jury to perceive the defendant as one who must turn to the testimony of a putatively "guilty" individual to help salvage his case. [Id. at 536-37 (internal citations omitted).]
The Court emphasized that to ensure effective appellate review, the trial court should conduct a hearing outside the presence of a jury and state on the record its reasons for shackling the witness. Id. at 537-38. Such reasons can include the seriousness of the present charge, the witness's prior criminal record, any history of escapes or attempted escapes, and the risk of attempted revenge or harm to others. Id. at 538. In addition, the judge must "'instruct the jury in the clearest and most emphatic terms that it give such restraints no consideration whatever in assessing the proofs and determining a guilt.'" Ibid. (quoting State v. Roberts, 86 N.J. Super. 159, 162-63 (App. Div. 1965)).*fn3
In State v. King, 390 N.J. Super. 344, 363-64 (App. Div.), certif. denied, 190 N.J. 394 (2007), we observed that although the Artwell Court expressly made the portion of its opinion prohibiting defense witnesses from testifying in prison garb prospective, it did not specify that its change in policy concerning the handcuffing of witnesses was prospective only. For that reason, we held that Artwell's ban on the routine shackling of defense witnesses, without a finding of necessity, should be applied retroactively:
In State v. Artwell, the Supreme Court held that defense witnesses may not appear in physical restraints unless the trial court determines in a hearing, out of the jury's presence and for specific reasons, that the restraints are "necessary to maintain the security of the courtroom." The Court also held that a defense witness is prohibited from testifying in "prison garb." The latter holding was expressly made prospective; the former was not. Artwell did not apply its ban on defense 8witnesses testifying in "prison grab" to the witness in that case, and used the term "going forward" to specify that the change in policy was prospective only. However, regarding a defense witness testifying while handcuffed, the Court found that "the trial court's failure to state on the record its reasons for requiring defendant's witness to appear in restraints was reversible error." As a result, the Artwell Court "vacate[d] defendant's conviction and remand[ed] it for a new trial."
[Ibid. (internal citations omitted).]
In State v. Russell, 384 N.J. Super. 586, 592-99 (App. Div. 2006), overruled on other grounds by State v. Kuchera, ___ N.J. ____ (2009) (slip op. at 23-26), yet another panel of this court concluded that the Artwell holding concerning the shackling of witnesses should be applied retroactively when Artwell was decided a week after the conclusion of the defendant's trial. However, in State v. Echols, 398 N.J. Super. 192, 214-15 (App. Div. 2008), rev'd on other grounds, ___ N.J. ____ (2009), the panel held in dicta that Artwell's ban on indiscriminate shackling of defense witnesses should not be given retroactive application. Thus, no court has ever squarely held in a published decision that Artwell's ban on indiscriminate shackling of defense witnesses should not be given retroactive application.
Here, the trial record reflects no contemporaneous reasons for the use of restraints on Allen. Although the judge eight years later observed that restraints were necessary in light of Allen's prior record; the risk that Allen would attempt to escape; and the risk that Allen might attempt to injure defendant, we do not view such after-the-fact explanation as persuasive. See Kuchera, supra, slip op. at 19. Moreover, in light of Allen's testimony that defendant was not the person who shot him, we reject the judge's conclusion that Allen posed a risk to defendant.
Furthermore, the judge did not instruct the jury to disregard Allen's handcuffs when evaluating his credibility. As in King, where identification was also the principal issue at trial, here the damage to Allen's credibility from the jury seeing him in restraints extinguished any possibility of defendant's acquittal. Only if the jury had viewed Allen as credible was the jury likely to accept Allen's testimony and question the reliability of the State's two teenage witnesses. Thus, where Allen was the only witness who could raise a reasonable doubt about defendant's guilt, we cannot find the routine shackling of Allen here to be harmless "even if, for the sake of argument, the 'harmless error' doctrine can apply in a case in which a witness testified in handcuffs before Artwell was decided." King, supra, 390 N.J. Super. at 365. The damage to Allen's credibility from the shackling was exacerbated by defense counsel's failure to request a curative instruction and by his failure to object to the judge's instruction that the jury could consider Allen's "appearance and demeanor" when it evaluated his credibility. Thus, if the holding in Artwell is applied retroactively, which we conclude it should be, defendant would be entitled to relief, unless he waived his right to object to Allen's shackling.*fn4
Although there is no record support for the judge's conclusion that defense counsel's failure to request removal of the handcuffs was the result of trial strategy, the record tells us that there was considerable discussion off the record between the judge and defense counsel about defendant's misgivings concerning calling Allen as a witness and defendant's fear that Allen's testimony could hurt defendant, not help him. Thus, the record at least suggests the possibility that defendant, in offthe-record discussions with the judge, did consent to Allen's shackling for reasons of strategy. On balance, we conclude that the appropriate remedy is a remand to develop a record on the question of whether defendant and his attorney made a conscious decision to permit the restraints so as to blunt the damage from Allen's testimony if Allen unexpectedly turned on defendant and named him as the shooter, or whether for any other reason defendant waived his right to object to Allen's appearance before the jury while restrained.
Our lingering concern -- that tactical considerations did in fact motivate defense counsel's actions -- causes us to stop short of ordering a new trial, and to instead order a remand where the issue of waiver of defendant's due process rights can be aired. The judge's refusal to grant an evidentiary hearing was error, and we now remand for such hearing.
On remand, the judge should determine, after considering the testimony of trial counsel, whether counsel waived his right to object to the handcuffing of Allen for any legitimate tactical or strategic reasons. If the judge decides that trial counsel's failure to object to the shackling, and failure to request a curative instruction, were the result of counsel's legitimate strategy decision, the judge should also take testimony on whether defendant consented to such decision, and whether defendant's consent constitutes a waiver of his right to object to Allen's shackling before the jury.
If, after conducting an evidentiary hearing, the judge answers all of those questions in the affirmative, then the judge should deny defendant's ineffective assistance of counsel claim. If, in contrast, the judge concludes either that such strategy decision does not fall within the broad range of acceptable professional performance the Court identified in Fritz, supra, 105 N.J. at 52, when it endorsed "extreme deference in evaluating the performance of counsel," ibid., or that defendant did not knowingly waive his right to object to the shackling, then the judge should grant defendant's PCR petition and order a new trial. Stated differently, if the first prong of the Strickland/Fritz test is satisfied, on this record there can be no doubt that the shackling of Allen satisfied the second prong, which requires a showing that counsel's ineffective assistance prejudiced the defense. Ibid. Thus, the granting of defendant's PCR petition would then be required.
Defendant also contends that the judge's brief discussions with two of the prosecution witnesses outside defendant's presence denied him a fair trial. This claim lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. The judge spoke to the two witnesses about scheduling matters. Nothing affecting the merits of the trial was discussed. What occurred here bears no similarity to the situation in State v. W.A., 184 N.J. 45, 65 (2005), where the Court concluded that barring the defendant from sidebar during jury voir dire denied the defendant a fair trial.
Reversed and remanded for an evidentiary hearing on defendant's due process and ineffective assistance of counsel claims, related to Allen's appearance before the jury while shackled. We do not retain jurisdiction.