July 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HORACE BRANCH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-12-4344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Gilroy and Chambers.
Defendant Horace Branch appeals from the January 24, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
This is defendant's fourth appeal arising from his conviction of first-degree felony murder, first-degree aggravated manslaughter, various weapon offenses, and other related charges. Because the trial facts were discussed at length in our prior opinion, State v. Branch, 301 N.J. Super. 307, 314-18 (App. Div. 1997), and in the Supreme Court's decision affirming in part and reversing in part, State v. Branch, 155 N.J. 317, 319-21 (1998), it is unnecessary for us to detail either the evidence against defendant for these crimes or the protracted procedural history leading to this appeal.
Nevertheless, the following will suffice to place this appeal in context.
On December 13, 1994, following defendant's trial by jury, the trial judge set aside defendant's conviction for felony murder. After merging several of the convictions, defendant was sentenced to an aggregate term of life plus fourteen and one- half years with a thirty-year period of parole ineligibility. Defendant appealed, and the State cross-appealed. On appeal, we reversed the vacation of the felony murder conviction and affirmed the other convictions. Branch, supra, 301 N.J. Super. at 334. We remanded to the trial court to not only re-sentence defendant on the felony murder conviction, but to also state its reasons for imposing consecutive sentences on four of the convictions. Id. at 333.
On certification granted, the Court reversed our decision reinstating the felony murder conviction, but leaving undisturbed defendant's other convictions and the sentences imposed thereon. Branch, supra, 155 N.J. at 319. In addressing a collateral issue raised by defendant concerning his trial attorney's failure to request a passion/provocation manslaughter instruction, the Court stated:
Before us, defendant asserts that he raised the issue of imperfect self-defense and, thereby, alerted the trial court to the necessity for a passion/provocation manslaughter instruction. In New Jersey, there is no such defense as imperfect self-defense. State v. Bowens, 108 N.J. 662, 625 (1987). It appears that at the charge conference, when the question of imperfect self-defense arose, the trial court chose simply to give a self-defense charge. Trial counsel never requested a passion/provocation manslaughter charge. Although defendant was found in possession of the murder weapon, his theory at trial was that he did not possess the gun, that Pettie possessed the gun, and that that was the gun that went off in the course of the hallway struggle. The question for resolution is whether trial counsel failed to perceive the passion/provocation defense as relevant to these circumstances or declined as a matter of strategy to cloud the issues by having it suggested that the client acted intentionally but with provocation. See State v. Choice, 98 N.J. 295, 300-01 (1985) (explaining when trial strategy may override need to instruct on all available verdicts).
Both of these issues arise as a matter of plain error because trial counsel did not object to the instructions at trial. We have a sense that they can be better addressed on post-conviction relief, during which time a closer examination of defendant's trial strategy may be undertaken.
[Id. at 329-30.]
On October 29, 1999, the trial court re-sentenced defendant. Defendant appealed, and we remanded for a second re- sentencing, the State having conceded certain sentencing errors. State v. Branch, No. A-2224-99 (App. Div. Dec. 11, 2000). In the interim, on January 13, 2000, defendant filed a pro se petition for PCR. Although defendant requested the trial court to grant an evidentiary hearing to explore the issue as framed by the Court, it denied his request, determining that "the record in this case simply did not contain any evidence supporting such a [passion/provocation] charge." In rejecting defendant's argument that the Court had remanded the matter for an evidentiary hearing, the trial court reasoned that the Court was not inviting an evidentiary hearing on the issue when the Court stated that the matter had not been raised below and could "be better" addressed on PCR.
On appeal, we affirmed the convictions and sentences, but remanded to the trial court to conduct an evidentiary hearing on the passion/provocation jury instruction issue.
Because the Supreme Court's remand did not specifically order an evidentiary hearing on the issue, we determine no fault with the PCR judge in interpreting the Supreme Court's decision as only inviting that defendant raise the issue by PCR, and for the PCR judge to exercise his discretion in determining whether to grant an evidentiary hearing. However, contrary to the PCR judge, we view the Supreme Court's order of remand as directing that an evidentiary hearing on the issue be conducted. The Court had the trial record before it but, contrary to this court, did not conclude that such a charge was unwarranted. Accordingly, we are satisfied that the Court's use of the phrase "closer examination of defendant's trial strategy may be undertaken" implicitly directed that an evidentiary hearing on the issue be conducted. Id. at 330 [(emphasis added)]. Such an evidentiary hearing must be conducted even if the trial court, after its consideration of the trial record, believed that an evidentiary hearing is not warranted. "When a case is remanded, as occurred here, the trial court must 'obey in the particular case the mandate of the Appellate Court precisely as it is written.'" Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241, 247 (App. Div. 2003) (quoting Flanigan v. McFeely, 20 N.J. 414, 420 (1956)[)].
Therefore, we remand this matter to the trial court for the purpose of conducting an evidentiary hearing on the issue of whether defendant was denied effective assistance of trial counsel based on counsel's failure to request the trial court to instruct the jury on passion/provocation manslaughter, as that issue was framed by the Supreme Court. Branch, supra, 155 N.J. at 330. We request that the hearing be conducted expeditiously. We take no position on the merits of defendant's claim of ineffective assistance of counsel on this issue. We also direct that the trial court correct the amended judgment of conviction.
[State v. Branch, No. A-2647-05 (App. Div. May 2, 2007) (slip op. at 22-23).]
On February 24, 2008, the trial court conducted an evidentiary hearing pursuant to our remand, at which defendant and his trial counsel testified. At the conclusion of the hearing, the court determined that defendant's trial counsel had made a specific decision, after consulting with defendant, that it was in the best interest of defendant not to request a passion/provocation instruction. Accordingly, the trial court entered an order denying defendant's PCR petition.
On appeal, defendant argues:
THE MATTER MUST BE REMANDED FOR REARGUMENT ON THE PETITION FOR POST-CONVICTION RELIEF AS THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND PCR COUNSEL AS TO A CHARGE ON PASSION/PROVOCATION MANSLAUGHTER.
THE CONVICTIONS FOR POSSESSION OF A WEAPON MUST BE VACATED AS THERE WAS NO STIPULATION AS TO "LACK OF A PERMIT" EVER INTRODUCED INTO EVIDENCE.
THE CONVICTIONS FOR POSSESSION OF A WEAPON AND HOLLOW NOSE[-]POINT BULLETS MUST BE VACATED AS THE COURT DID NOT CHARGE WHAT CONSTITUTED "POSSESSION[."]
THE CONVICTION FOR AGGRAVATED MANSLAUGHTER MUST BE VACATED AS IT IS PREDICATED ON A DEFICIENT CHARGE ON THE UNDERLYING "POSSESSION" OF A WEAPON THAT INFLICTED THE SERIOUS BODILY INJURY RESULTING IN DEATH.
ALL CONVICTIONS MUST BE VACATED FOR THE CUMULATIVE EFFECT OF THE ERRORS.
We have considered defendant's arguments in Points II through V in light of the record and applicable law, and we are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The issues presented are time barred, having been raised more than fourteen years post conviction. R. 3:22-12(a). Although the rules permit an exception where the delay "was due to defendant's excusable neglect," no such showing has been made here. Ibid. The rule may also be relaxed to prevent injustice.
R. 1:1-2 (permitting relaxation of a rule "if adherence to it would result in an injustice"). In determining whether to relax the rules, the court must "'consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim.'" State v. DiFrisco, 187 N.J. 156, 168 (2006) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).
Defendant has failed to meet this standard.
Moreover, defendant's arguments in Points I through V are also procedurally barred for other reasons. Petitions for PCR are not substantive for an appeal from conviction. R. 3:22-3 and -4; State v. McQuaid, 147 N.J. 464, 483 (1997). An issue that could have been raised on direct appeal, but was not, will not be considered on PCR. R. 3:22-4. Here, each issue asserted could have been raised by defendant on direct appeal. Nor has defendant presented any reasons for justifying relief from being procedurally barred. Ibid.
We now turn to defendant's argument in Point I that he was denied effective assistance of trial counsel, appellate counsel and PCR counsel. Defendant contends that his trial attorney failed "to adequately request a charge on passion/provocation manslaughter," contending that his attorney "did not fully understand the law applicable to such offense." Defendant asserts that not only did his appellate counsel fail to raise that argument on direct appeal, but PCR counsel also failed to adequately present the argument at the evidentiary hearing. We reject defendant's contentions.
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn1 State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).
"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In assessing counsel's representation, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694- 95.
To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).
Passion/provocation manslaughter has four elements: 1) adequate provocation; 2) lack of time to cool off between the provocation and the slaying; 3) the provocation actually impassioned the defendant; and 4) the defendant did not actually cool off before the slaying. State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). Passion/provocation manslaughter is essentially a homicide that would be a purposeful or knowing murder but for its commission in the heat of passion, so long as it was committed before sufficient time has passed which would allow an ordinary person to cool off. Ibid.; N.J.S.A. 2C:11-4b(2). Accordingly, passion/provocation manslaughter "'contains all the elements of murder except that the presence of reasonable provocation, coupled with defendant's impassioned actions, establish[es] a lesser culpability.'" Viera, supra, 346 N.J. Super. at 212 (quoting State v. Robinson, 136 N.J. 476, 482 (1994)). At the evidentiary hearing giving rise to this appeal, defendant and his trial counsel testified. Defendant testified that on the day of the incident he had gone to a building in Newark to purchase drugs. After he gave a drug dealer known as Pettie the money, the dealer gave him "fake drugs." After discovering that he received fake drugs, defendant became provoked and entered the building to get his money back.
PCR COUNSEL: Okay. Let me ask you this question. What is the basis in your mind as to the passion[/]provocation charge? What would provoke you in your mind which would have made it so that you were provoked into committing an act and didn't have enough time to cool off?
DEFENDANT: The fact that I gave somebody my money to purchase drugs and the drug they returned to me was fake drugs. And that right there had me heated and I just went off.
PCR COUNSEL: And was that person that sold you these bad drugs was it [a] male or female?
DEFENDANT: It was a female.
PCR COUNSEL: And was it the fact that a female drug dealer beat you for your drugs provoked you into entering the premises; correct?
PCR COUNSEL: Is that the only thing you did enter the premises on the provocation?
DEFENDANT: That's it.
PCR COUNSEL: And then after that your testimony was?
DEFENDANT: That I tried to get my money back and I spoke to her and it turns out the drug that was sold to me which came from her, she got hostile, swung a coat at me, pulled a gun on me. I feared for my life. I was jumped on and in the course of that me and her struggled with the weapon. The weapon goes off.
PCR COUNSEL: Okay. Do you have any period of time which you could have cooled off after you found out you got beat for these drugs?
PCR COUNSEL: How long after you found out that the drugs were no good, that they didn't get you high, until you went back to the premises to confront her?
DEFENDANT: On the spot, right there on the spot.
PCR COUNSEL: Were you acting rational at the time, sir?
DEFENDANT: Was I acting rational?
PCR COUNSEL: Or were you just very angry?
DEFENDANT: I was highly upset. I was upset [beside] the fact that, you know, I aimed that nobody take nothing from me. Nobody going to take nothing from me. That was my money. I gave him my money and he came back with some fake -- some fake drugs.
PCR COUNSEL: And you feel that -- do you feel that because she sold you bad drugs that you got provoked and in a rage?
DEFENDANT: Yes, absolutely.
PCR COUNSEL: Did you enter that premises under the heat of passion?
DEFENDANT: I was up --- I was highly upset. I wanted my money back.
THE COURT: And your defense is that --was that in part of the struggle somebody else shot a gun and then somebody else died as a result; right?
DEFENDANT: Well, my defense was that I didn't shoot nobody. I was -- apparently I tried -- I didn't want to get shot. I feared I was about to be shot. Me and [Pettie] was struggling and in the course of that I was jumped on and the gun went off.
PROSECUTOR: And what rose you to the level of this passion was the fact that you had bought bad drugs; correct?
DEFENDANT: That's correct.
Trial counsel, an experienced trial attorney, having tried approximately 140 - 150 cases, including twenty murder trials as of 1994, testified that he had discussed the defense of passion/provocation with defendant. He further testified that it was his recollection that he did not request a passion/provocation instruction because it would conflict with defendant's trial testimony of being innocent, with the gun being accidentally discharged during a struggle with the drug dealer.
PCR COUNSEL: Okay. And a lesser[-]included offense that is viable also could have been passion[/]provocation; correct?
TRIAL COUNSEL: Yeah, it's possible. If the jury chose to believe the State's version of the events that [defendant] was the shooter and given his testimony version that he was angry because of the purchase of beat drugs by [Pettie], this female drug dealer, who [defendant] knew and knew that she was with her crew, that they were likely armed.
So, I mean, if they -- if the jury accepted the State's version that he was the shooter and [defendant's] version that he was angry and he went back to get his money back or good drugs, conceivably it could fit.
PCR COUNSEL: So not only could the jury have accepted that but, in fact, it could have been -- it could have been asked to the trial judge, Judge, we ask also for the lesser[-]included offense of passion[/]provocation for the reasons you just stated; correct?
TRIAL COUNSEL: That could have been asked, yes.
PCR COUNSEL: You could have done that; correct?
TRIAL COUNSEL: I could have.
PCR COUNSEL: You could have. In this case did you?
TRIAL COUNSEL: I don't have the access to the file and apparently I did not.
PCR COUNSEL: Okay. Anything prevent you from asking for the lesser[-]included [offense] of passion[/]provocation?
TRIAL COUNSEL: No. Except I just -- if I asked for [aggravated manslaughter] I -- I guess it would have been inconsistent. Maybe I wasn't thinking that the jury would accept the State's version and rather than have two inconsistent offenses I would opt to choose the one I thought most reasonable.
PCR COUNSEL: That's not your --- that's not your recollection, that's your speculation, so you don't recall; correct?
TRIAL COUNSEL: That's it, in hindsight.
PCR COUNSEL: So did the notion of passion[/]provocation ever cross your mind that you would ask for that jury charge? Do you recall? I know --
TRIAL COUNSEL: I don't . . . think I thought about it because [defendant's] version of what happened was that he went there angry. He got confronted. He got jumped and that he was not armed and somehow during the tussle he got his hands on the drug dealer's gun and during that tussle the gun went off, somebody got hit.
PCR COUNSEL: Okay. So then my question again is, in hindsight would you have requested passion[/]provocation manslaughter in this case?
TRIAL COUNSEL: If I had to do it again today, probably not.
PCR COUNSEL: No? You would have gone --
TRIAL COUNSEL: I mean, it's still a tough scenario to put yourself in, that if you're going to ask the jury to say I acted recklessly when the incident happened that caused the death, basically you're saying, that's an affirmative act on my part that caused the death. And then on the other hand, if you go at the same time, I was in -- my passions were inflamed. I was angry and that's what caused it, I -- I wouldn't put those two on the table at the same time.
PCR COUNSEL: Did you discuss it with your client, his options? I mean, you were tossing with the idea, I'm feeling, you were tossing with the idea of possibly going with passion[/]provocation as opposed --
TRIAL COUNSEL: Well, I mean, throughout my visits with him we talked about whether it was self-defense, passion[/]provocation or reckless manslaughter. We talked about them all. But then during the course of the trial things firm up a little bit. And so at the end of the trial you know or you ask for the charge that you think might provide the best defense.
And in this instance I apparently chose to ask for [aggravated manslaughter] to be charged and did not ask for passion[/]provocation manslaughter.
PRC COUNSEL: Did you discuss it though specifically with [defendant], the passion[/]provocation?
TRIAL COUNSEL: I'm sure I -- I'm sure I discussed all of the charges. I just don't have the independent recollection of when I might have discussed those particular charges with him.
PCR COUNSEL: Okay. What was your defense at trial, by the way?
TRIAL COUNSEL: That he didn't do it. That I accepted what his version was, that he went to get his drugs, that in a tussle that [Pettie], who drew her gun -- he was trying to get the gun away from her or knock it away. And as he was knocking it away from her it discharged and the bullet hit somebody.
PROSECUTOR: His defense was that he went into the hallway, no robbery ever occurred and that [Pettie] and him got into a struggle 'cause he was upset about the --that he was upset about the beat drugs. And in the course of the struggle [Pettie] had a gun and [Pettie's] gun went off.
TRIAL COUNSEL: Right. But I don't call that self-defense. I mean, that's like -- almost like an accident. I mean, like he --
PROSECUTOR: Well, basically that he was not guilty of anything.
TRIAL COUNSEL: Oh, yeah . . . .
PROSECUTOR: He was . . . tried this case or you tried this case and his defense was that he was the victim here. He was the victim of a drug dealer that sold him beat drugs.
TRIAL COUNSEL: Right.
PROSECUTOR: He was the victim of an assault by the drug dealer that sold him beat drugs. And then as a result of that this other individual in the hallway died at the hands of the drug dealer's, that sold him the beat drugs, gun.
TRIAL COUNSEL: I think that's right.
PROSECUTOR: Right. That was his essential defense. He was not guilty.
TRIAL COUNSEL: Right.
PROSECUTOR: Do you remember or do you recall the charge conference with Judge Feinberg where the defendant didn't want any lessers, that his view was this was all or nothing and the jury was going to buy into the fact that he was the victim. And that if you gave lesser[-]included offenses to the jury there was more of a risk that he would be convicted.
TRIAL COUNSEL: I don't recall the charge conference particularly, but in reading the Appellate opinion that remanded back to this [court for a] hearing, there's reference that I did ask for some sort of lesser[-]included [offense].
PROSECUTOR: On the record, but I'm talking about the charge conference with the judge in the back. And that was actually largely as a result of my telling Judge Feinberg that we needed to have the aggravated manslaughter and the reckless manslaughter. Because it arguably was in the case.
TRIAL COUNSEL: I just don't --
PROSECUTOR: Do you recall that?
THE COURT: He doesn't recall.
TRIAL COUNSEL: Not really.
PROSECUTOR: But the defendant in this case, from the outset of this incident until the conclusion of the trial, his version of the events placed him as the victim and [Pettie] as the defendant -- as the culprit.
TRIAL COUNSEL: As the bad guy, yeah; right.
PROSECUTOR: And the individual responsible for the death.
TRIAL COUNSEL: Yes, Yes.
PROSECUTOR: In which case a passion[/]provocation defense would be completely inconsistent with "I'm the victim."
TRIAL COUNSEL: Right.
TRIAL COUNSEL: Yes.
PROSECUTOR: And that was pretty much the way the testimony went in to the jury.
TRIAL COUNSEL: Right. You're quite right.
THE COURT: In any event, you're quite clear in your recollection that [defendant] was pretty consistent in his defense; correct? That he didn't do it.
TRIAL COUNSEL: Right, right.
THE COURT: I'm going to ask you this once more and again, you don't have to answer it. You know, you answer it in the way you see fit. In 1994 it's been established, everyone has agreed that you talked to [defendant] . . . in order to determine whether or not you should request passion[/]provocation. We've all discussed thoroughly why you would and why you wouldn't; right? You didn't.
TRIAL COUNSEL: I didn't.
THE COURT: You didn't.
TRIAL COUNSEL: No.
THE COURT: I gather from -- and this is not a surprise to anybody because this is --this is what I said when I originally heard this first, because --
TRIAL COUNSEL: I didn't do it. I, like always in every case, if I don't see it in the case I'm not going to ask for it.
THE COURT: Okay. So you didn't do it because you didn't see it in the case.
TRIAL COUNSEL: Right.
THE COURT: You believe.
TRIAL COUNSEL: Right.
THE COURT: You don't have a specific recollection but that's what you do.
TRIAL COUNSEL: If I don't see it[,] I don't ask for it.
THE COURT: And to ask for something you don't see would be what?
TRIAL COUNSEL: The natural course of things. I mean, I can't ask for something that I know is unavailable or unwarranted.
THE COURT: Would that be in the best interest of your client to request something that is unwarranted?
TRIAL COUNSEL: No. I mean, I wouldn't think so.
THE COURT: Especially in a situation as here where you've testified that you believe that this is a situation where it could have very well resulted in a potential detriment to your client.
TRIAL COUNSEL: It could have been a detriment because it could have been perceived [as] two defenses going in opposite directions and -- and I wouldn't want a jury to think that we weren't consistent or we didn't have an adequate theory of the case.
We recognize the difficulty of the trial court, prosecutor, PCR counsel and trial counsel in reconstructing events that occurred during trial fourteen years earlier. Based on the record of the PCR evidentiary hearing, we are satisfied that the trial court correctly concluded that trial counsel did not request a passion/provocation instruction because it would have been contrary to defendant's trial testimony that the gun accidentally discharged during the struggle with the drug dealer, not that he intentionally fired the gun at the victim in the heat of passion. Under those facts, "viewed as of the time of counsel's conduct," we cannot conclude that "trial counsel's actions did not equate to sound trial strategy." Castagna, supra, 187 N.J. at 314 (internal quotations and citations omitted). Accordingly, defendant did not overcome the strong presumption that his trial counsel's decision not to request a passion/provocation instruction was "within the wide range of reasonable professional assistance." Ibid. (internal quotations and citation omitted).