August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN FRANKLIN MILLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 97-07-0848.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2009
Before Judges Stern and Rodríguez.
Defendant John Franklin Miller appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
These are the salient facts. In April 1999, following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20- 3a; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and fourth-degree terroristic threats, N.J.S.A. 2C:12-3a. The State moved to sentence defendant to an extended term. Judge Charles A. Delehey granted the State's motion and, after appropriate merger of offenses, sentenced defendant to a fifty-year term with a twenty-five-year parole disqualifier on the armed robbery conviction. On direct appeal we affirmed. State v. Miller, No. A-7072-98T4 (App. Div. Feb. 8, 2001), certif. denied, 168 N.J. 294 (2001).
The State's proofs can be summarized as follows. On January 16, 1997, at approximately 10:30 p.m., the victim, a twenty-six-year-old woman, was walking on Pennington Avenue in Trenton. As she attempted to hail a taxicab, defendant approached from behind. He held a knife to her back and told her to hop over the wall onto the grounds of a reservoir. The victim had never seen defendant before.
Once over the wall, defendant directed the victim to the other side of the reservoir. She complied, but walked backwards. She was scared to turn her back to him because she saw that he was holding a long silver knife with a brown or black handle. The victim was wearing a black leather coat with a fur collar. She did not scream for help out of fear that he would stab her.
Defendant told her to remove her clothing. The victim questioned him "why?" He told her to do it before he stabbed her and that he wanted to have sex. She took off her coat and threw it on the ground. Then she kicked off her shoes and started to run through the reservoir towards Pennington Avenue.
Defendant gave chase. She screamed for help. Eventually, she saw two men on the street. As she was telling them what had happened, a marked police vehicle arrived. The police officers indicated that someone had notified them of an ongoing incident. She gave the police a description of her attacker. The officers went to the reservoir area and found her shoes, keys, $420 worth of WIC checks and a child support check for $81.82. However, they did not find her leather coat. The victim was taken to police headquarters to look at photographs of possible suspects. She could not make a selection.
Two weeks later, defendant was brought to police headquarters in connection with an unrelated investigation. During this investigation, defendant consented to have his photograph taken. This photograph was then shown to the victim of the assault in an eight-picture photographic array. She selected defendant's photograph as her assailant.
Defendant filed pro se a first PCR petition. Judge B. Thomas Leahy, upon a motion for reconsideration, ordered that PCR counsel be assigned to represent defendant. Counsel filed an amended verified petition and a supplemental brief, alleging that defendant had been denied his right to due process of law, a fair trial and the effective assistance of trial and appellate counsel because the out-of-court and in court identifications were not challenged. He also argued that his sentence was illegal. In a supplemental letter brief, counsel argued that trial counsel was ineffective for failing to investigate whether the fingerprints found on the knife were that of defendant. He also argued that the State failed to disclose the victim's pending criminal charges for the disorderly persons charge of issuing bad checks, N.J.S.A. 2C:21-5c(4).
Judge Andrew J. Smithson determined that an evidentiary hearing was not necessary and issued a written opinion and an order denying defendant's PCR petition on July 2, 2007. After correctly identifying the standards for judging claims of ineffective assistance of counsel,*fn1 and for requiring an evidentiary hearing,*fn2 the judge wrote in pertinent part:
In his initial brief petitioner raised two grounds for post-conviction relief. First, he argued that both his trial and appellate counsel were ineffective for failing to object to in and out of court identifications made by the victim. In preparation for trial, counsel requested a Wade hearing to challenge the admissibility of the victim's out of court identification of Miller. A Wade hearing was conducted and the trial court denied the motion.
If defense counsel renewed his objection to the out of court identification, it is very likely that the court would have deferred to its early ruling and overruled his objection. Petitioner can point to no facts that would suggest otherwise. It was reasonable for trial counsel to allow the introduction of the out of court identification where the trial court had already heard and decided the issue. Defense counsel provided effective assistance of counsel by filing a motion for a Wade hearing and dealing with this issue pre-trial. Appellate counsel was not ineffective for failing to raise this issue on direct appeal for the reasons previously set forth.
Second, petitioner argued that his sentence was rendered illegally because the trial court found that the aggravating factor "extreme cruelty" raised his sentence above the presumptive term of imprisonment. Petitioner's arguments stems [sic] from the United States Supreme Court holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). In Blakely, the Supreme Court found that apart from a defendant's prior record, it is unconstitutional for a judge to raise a defendant's sentence above the presumptive term based on an aggravating factor not found by the jury. The New Jersey Supreme Court decided in State v. Natale, 184 N.J. 458 (2005) that the Supreme Court's ruling in Blakely only applies to cases that either raised a Blakely issue on direct appeal or were on direct appeal at the time that Natale was handed down.
Neither avenue of applicability is available to petitioner's case. Petitioner filed his direct appeal on October 31, 2000 and the Appellate Division rendered their decision on February 8, 2001. The New Jersey Supreme Court's decision Natale was handed down on August 2, 2005. On direct appeal, petitioner argued that the trial court erred by improperly balancing the aggravating and mitigating factors. This is not a Blakely issue. Petitioner did not argue that his sentence was illegal because it was outside the presumptive term. Therefore, he is not entitled to relief.
Petitioner raised three additional claims in a February 7, 2007 letter brief. Petitioner first contended that he was denied effective assistance of counsel because his attorney failed to investigate whether the fingerprints on the knife used to threaten [the victim] were his. He argued that since an expert witness could not find petitioner's fingerprints on the weapon, this fact should have been exploited at trial and failure to do so prejudiced him.
Petitioner conceded that the knife was not processed or preserved for fingerprint evidence at the time of the initial investigation and was handled by numerous individuals. Therefore, even if the trial attorney had investigated the possibility of fingerprinting at the time, it is likely that no usable evidence would have been obtained. In addition, petitioner provided a written statement during the investigation admitting that he used a knife against the victim and gave the location of the knife. The knife was recovered in the located [sic] that petitioner described.
Petitioner's trial attorney agreed to stipulate to the chain of custody because the knife was used in a homicide of which petitioner was later convicted. If defense counsel were to challenge the chain of custody or the forensic contents of the knife, this may have opened the door for the State to bring in facts related to the homicide that would have severely prejudiced petitioner before the jury. Under the circumstances, it was not ineffective assistance of counsel to leave potential fingerprint evidence unanalyzed.
Petitioner argued that he was denied effective assistance of counsel because his attorney failed to investigate the criminal background of [the victim]. He also stated that he was denied due process on this ground. An investigation into [the victim's] criminal history reveals that she was ultimately convicted of three disorderly persons offenses. Disorderly persons offenses are not admissible to impeach a witnesses credibility. State v. Rowe, 57 N.J. 293, 302 (1970). Therefore, it was not ineffective assistance of counsel for trial counsel to fail to investigate [the victim's] criminal background.
At oral argument, PCR counsel raised one additional issue. He argued that the State's failure to disclose the charges against [the victim] amounted to a Brady violation and thus violated petitioner's constitutional right to due process. The United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963). In order to establish a Brady violation, the defendant must show that (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed. 2d 706, 713 (1972). Assuming arguendo that the prosecution had knowledge of [the victim's] pending charges and that the trial judge permitted cross-examination of [the victim] regarding her disorderly persons offenses, petitioner's argument fails with regard to the materiality requirement. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. State v. Knight, 145 N.J. 233, 246 (1996). A reasonable probability is one that is sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed. 2d 481, 494 (1985).
It is not reasonably probable that the disclosure of [the victim's] pending charges would have resulted in a different outcome. Even if, as petitioner suggests, the jury could have considered that [the victim] changed her testimony in return for a favorable disposition of her pending charges, the evidence against petitioner was overwhelming. Petitioner could not point to any inconsistencies between [the victim's] statement and her testimony at trial. In addition, the jury considered a statement petitioner gave to police confessing that he had indeed threatened [the victim] with a knife.
On appeal, defendant contends:
THE COURT COMMITTED PLAIN ERROR PURSUANT TO R. 2:10-2, THAT WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT WHEN IT FOUND VARIOUS FACTS THAT WERE NOT SUPPORTED BY THE RECORD AND WHEN IT FAILED TO ADDRESS COUNSEL'S LEGAL ARGUMENTS.
A. The Court Erred When It Failed To Discuss Counsel's Argument That The Victim's Pending Charges Would Have Been Admissible, Not As Impeachment Evidence, But Rather As N.J.R.E. 404(B) Evidence That Would Show a Motive To Lie In Order To Receive A Lesser Sentence On Her Pending Charges.
B. The Court Erred When It Failed To Discuss Counsel's Legal Argument That The Photographic Line Up Was Impressively Suggestive And Prejudicial In The Way That The Photos Were Arranged.
From our careful review of the record, we conclude that these arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We merely note that we are persuaded by the analysis and reasons expressed by Judge Smithson in his July 2, 2007 written opinion. To the extent he may be understood at stating that it was not ineffective to fail to check the victim's criminal background, we agree with the meaning of his statements in context that, given the disorderly persons charges, any additional pretrial investigation would not have made a difference for purposes of trial.
Defendant also contends that:
THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
We conclude that Judge Smithson was correct in denying an evidentiary hearing.
It is well-settled that when issues of defective performance of trial counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is not a direct appeal, but rather an application for post-conviction relief attended by a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-462 (1992). Therefore, when arguing that counsel failed to conduct a pre-trial investigation or interview witnesses, a petitioner "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Further, when a petitioner alleges that his or her attorney inadequately investigated the case, petitioner must assert facts that "an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. See also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).
Here, defendant has not made a prima facie showing of ineffective assistance. In fact, most of his allegations of ineffective assistance can be decided by a review of the trial transcript.
Finally, we note that the evidence establishes that petitioner committed the crimes of which he was convicted. Counsel's representation, no matter how effective, cannot alter the evidence and the inferences to be drawn therefrom.