October 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRANCE COOPER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Criminal Part, Essex County, Indictment No. 02-05-1962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 25, 2009
Before Judges C.L. Miniman and Simonelli.
Defendant Terrance Cooper appeals the denial of his first application for post-conviction relief. Because the PCR judge failed to conduct an evidentiary hearing and failed to consider all the issues presented, we reverse and remand for a hearing.
Defendant was charged in a six-count indictment with first-degree carjacking, contrary to N.J.S.A. 2C:15-2a(1), (2), (3); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; third-degree receiving a stolen automobile, contrary to N.J.S.A. 2C:20-7; and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a.
At 3:00 a.m. on November 14, 2001, Kim Lewter was returning home from a co-worker's birthday party in her Honda Accord. She stopped at a red light at the intersection of South Tenth Street and South Orange Avenue in Newark. She testified at trial that defendant opened the unlocked passenger door of her car and said, "Get out the car, bitch, before I kill you." Defendant jumped into the car, took out a gun, and struck her in the right temple with his hand. She opened her door and defendant tried to remove her hand from the steering wheel and take the car keys from the ignition. Defendant pushed her out of the car, got behind the wheel, and sped away.*fn1
The victim testified she ran five blocks to her house, woke up her husband, and called the police. When the police arrived, they drove her back to the scene, where she discovered her purse and cell phone. She described the carjacker and gave a formal report at the police station. She could not identify defendant from photographs in several "mug shot" books.
On November 19, 2001, a Hillside policeman heard a car alarm coming from a Honda Accord parked on the side of the road. Defendant was seated in the vehicle, and the officer stopped and asked defendant if he knew how to turn off the alarm. Defendant, pointing to a nearby house, said his friend had the key. When none of the six men in the house responded after defendant called for his friend, the officer told defendant to return to his car. The officer checked the license plate number and learned that the car had been stolen in an armed carjacking in Newark.
At that point, defendant exited the car and started to cross the street. The officer called for backup, drew his weapon, and shouted for defendant to stop. Both men tussled as the officer attempted to handcuff defendant, who was finally subdued when the backup unit arrived. The officer sustained minor injuries.
The next day, police assembled a photo array of defendant and five similar-looking individuals and the victim was asked if she could identify the carjacker. She selected the photograph of defendant and identified him in court during her trial testimony.
Defendant testified at trial that he knew the victim from seeing her purchase drugs on the street, including from him prior to November 14, 2001. At 2:30 a.m. that day, defendant was at an all-night restaurant on South Orange Avenue between Sixth and Seventh Streets when the victim pulled up to him in her car and asked for his friend "Malik," with whom defendant sold drugs on the street. Defendant told her "Malik" was not around and asked what she wanted. She responded she wanted some cocaine. Defendant said if she gave him a ride to 377 Tenth Street, he would sell her the drugs. She unlocked the passenger side door and drove him to this address. He went in and, when he returned with the drugs, the victim said she had no money. Defendant asked if he could borrow her car as payment for the drugs, promising to return it immediately and bring her more cocaine when he returned. She agreed, got out of the car, and defendant drove off. He did not return the car as promised, but used it to make another drug transaction with a friend and to transport drugs to Hillside.
After trial, defendant was found not guilty of first-degree carjacking and first-degree armed robbery but guilty of the lesser-included offense of second-degree robbery by threat or force. Defendant was also found not guilty on the two handgun charges but guilty of receiving the stolen automobile and resisting arrest. He was sentenced to an extended term of twenty years on the robbery conviction and to concurrent five-year terms on the other charges. On direct appeal, defendant raised the following issues:
POINT ONE -- DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED UNDER THE UNITED STATES CONSTITUTION AMEND 6, NEW JERSEY CONST. ART. 1 PAR. 10.
POINT TWO -- THE STATE'S FAILURE TO SUSTAIN ITS BURDEN OF PROOF REQUIRED AN ENTRY OF JUDGMENT OF ACQUITTAL IN DEFENDANT TERRANCE COOPER'S FAVOR; IN THE ALTERNATIVE, THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT THREE -- JURY'S INCONSISTENT VERDICT WHICH REJECTED CARJACKING COUNT AND GUN POSSESSION WHILE FINDING GUILT ON ROBBERY CANNOT STAND.
We noted the only argument made respecting ineffective assistance of counsel was a failure to request a Wade hearing, but identification was irrelevant because defendant testified the victim loaned her car to him. We rejected the second point because defendant failed to provide a transcript of his motion for a new trial. We rejected his third argument because the robbery charge related to both the car and the purse and, in any event, inconsistent verdicts are not a basis to set aside a verdict. Thus, we affirmed in all respects.
Defendant timely served his first application for PCR on November 16, 2006. In his pro se PCR petition and brief, defendant raised the following issues:
POINT I -- PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
(a) Counsel's Failure to Request a Charge of Theft by Deception, as a Lesser Included Offense to Robbery, as Consistent With the Proofs, Denied the Petitioner of Effective Representation, as the Omission Left Petitioner Subject to a Second Degree Conviction for Robbery of the Automobile.
(b) In Light of the Dual Facts Relating to This Case, and the Potential for Juror Confusion, Counsel's Failure to Request That the Court Mold the Charges to These Facts, Amounted to Ineffective Assistance of Counsel.
POINT II -- PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, FOR COUNSEL'S FAILURE TO RAISE THE ISSUES ARTICULATED HERE.
Included among defendant's pro se arguments were contentions that his trial counsel was ineffective for cross-examining the victim about defendant robbing her of her purse or struggling with her for it. The victim had not testified to anything about her purse on direct examination, except to say that she found it at the scene when she returned with the police. With that issue injected by his own counsel, defendant argued there should have been a charge for theft by deception and the charge should have been tailored with respect to the two items allegedly stolen, the necessity of which he highlighted by pointing to the jury's request for a recharge on carjacking and robbery. Finally, his claim of ineffective assistance of appellate counsel was limited to that attorney's failure to raise the above issues on direct appeal.
Defendant's PCR counsel then raised the following issues in his PCR brief:
PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF BECAUSE HIS TRIAL ATTORNEY RENDERED INEFECTIVE [sic] ASSISTANCE OF COUNSEL.
A. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO PREJUDICIAL COMMENTS BY THE STATE IN OPENING STATEMENTS.
B. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISATNCE [sic] OF COUNSEL BY ADVISING HER CLIENT TO TESTIFY ON HIS OWN BEHALF AT TRIAL.
C. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ADVISE HER CLIENT OF THE PREJUDICIAL EFFECT OF HIS TESTIMONY THAT HE SOLD DRUGS WOULD HAVE ON THE JURY.
D. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO PREJUDICIAL COMMENTS BY THE STATE IN SUMMATIONS.
As to the first and fourth issues raised by PCR counsel, the prosecutor gratuitously commented during his opening statement that the victim was a "good citizen" for stopping at a red light and she struggled with defendant "to her great credit." During his summation, the prosecutor made the following comments:
Ladies and gentlemen, let me let you in on a little secret that you probably already figured out for yourself, yourselves. Someone has come in here and lied to us. I'm not gonna sugar coat it. I'm not gonna say somebody's just mistaken; someone was in error; ah, someone might have forgotten a few details, no. Somebody came in here and lied to us. Now, let's see if we can figure out who that someone is.
Now, what we have here, what we have seen today is the defendant take the stand; a man with three convictions. You are allowed, in judging this case, to assess that, to evaluate that, to determine whether this man is worthy of your trust of your belief. He has come before you and he's said well, I'm a drug dealer. But believe me, I took this lady's car, but believe my version. Question is, why? Who, in their right minds, would believe that? And ladies and gentlemen, let me dissuade you with one point right off the bat.
The prosecutor also commented, "[t]o her great credit, she fought him. A lot of people would say you shouldn't do that, but I mean, to her credit, she was not going to give up her car without some sort of struggle." Defendant's attorney objected only once during the prosecutor's closing comments when he remarked that defense counsel was trying to shift the onus to the victim, the police, and the prosecutor.
In deciding the PCR application, the judge first noted, incorrectly, that a direct appeal had not been filed. He then listed the points raised by defendant pro se and his PCR counsel, but failed to include defendant's pro se Point II, undoubtedly leading to his failure to consider it. He discussed only the facts to which the victim testified, although the jury returned a not guilty verdict on much of what she claimed.
The PCR judge concluded defendant failed to prove the prosecutor's objectionable opening and closing remarks caused him any prejudice and that his trial attorney's lack of objection, in light of other comments to which she did object, was no more than a tactical decision on her part. Thus, defendant failed to show counsel's decision undermined the reliability of the trial.
As to defendant's claim that his trial attorney rendered ineffective assistance by advising him to testify at trial, the judge found that defendant showed prejudice but concluded, "Counsel's recommendation that Petitioner testify at his own trial was merely counsel's strategy to present the case in the best light to Petitioner." The judge also noted, "Despite the fact Petitioner was convicted, Counsel's actions did not render the trial meaningless or deprive Petitioner of effective assistance of counsel."
Lastly, with respect to defendant's claim his counsel was ineffective for failing to advise him of the prejudicial effect of his testimony about the drug transaction with the victim, the judge concluded defendant was present for the Sands/Brunson*fn2 hearing. As a result, he "would be made aware of the prejudicial possibilities associated with taking the stand." Thus, the judge concluded defendant failed to prove ineffective assistance of counsel in this respect.
Although the judge listed most of defendant's pro se claims of ineffective assistance of counsel, he addressed none of them, possibly because he thought there had been no direct appeal.
Defendant raises this issue for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
This issue is comprised of several arguments, which we have numbered as follows:
1. Trial counsel was ineffective because she failed to object to prejudicial comments by the prosecutor during his opening and closing statements.
2. Trial counsel was ineffective because she urged defendant to testify, thus removing the entire identification question from the case.
3. Trial counsel was ineffective because she failed to discuss the great potential for prejudice from his prior criminal history and the drug transaction in which he claimed he and victim were engaged.
4. Trial counsel was ineffective because she failed to request a charge of theft by deception, as defendant pro se contended in his PCR petition.
5. The PCR judge erred in failing to conduct an evidentiary hearing and failed to consider defendant's pro se contention respecting a theft-by-deception charge.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, id. at 420-421 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the PCR judge." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court...." Ibid.
PCR petitions are governed by Rule 3:22 and are limited to substantial denial of constitutional rights during the conviction proceedings, lack of jurisdiction, illegal sentences and grounds for habeas corpus. R. 3:22-2. "It is the state analogue to the federal writ of habeas corpus." State v. McQuaid, 147 N.J. 464, 482 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)). PCR is not, however, a substitute for direct appeal. R. 3:22-3. Any ground for relief that was not raised on direct appeal is barred unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
"Ineffective assistance of counsel claims may often fall within Rule 3:22-4(c), because those claims are grounded in the Sixth Amendment of the United State Constitution and the New Jersey Constitution." McQuaid, supra, 147 N.J. at 484. They "often cannot reasonably be raised on direct appeal or in prior proceedings." Ibid. Where the issue of ineffective assistance of counsel is raised on direct appeal, it may fall under the bar of Rule 3:22-5, which bars relitigation of a claim already decided. But preclusion "'should be effected only if the issue is identical or substantially equivalent' to that issue previously adjudicated on its merits." Ibid. (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438, 444 (1971)). Where a claim of ineffective assistance of counsel is different from the claim raised on direct appeal, it will not be barred. Id. at 494. None of the precise claims of ineffective assistance of counsel were raised on appeal and none are barred by Rule 3:22-5. We are also satisfied that none are barred by Rule 3:22-4 because, contrary to the State's argument before us, defendant has challenged the effectiveness of his appellate counsel and, thus, it is irrelevant whether any could have been raised on direct appeal.
The right to counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const. amend. VI, XIV; N.J. Const. art. I, § 10. In New Jersey, this guarantee requires not just the presence of an attorney, but the effective assistance of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A] criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." State v. Fritz, 105 N.J. 42, 58 (1987).
To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court 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 under Fritz. Whether the defendant's constitutional right to counsel has been abridged is "measured by applying 'a simple, two-part test.'" State v. O'Neal, 190 N.J. 601, 629 (2007) (Rivera-Soto, J., concurring).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
To meet the first prong of the Strickland/Fritz test, a convicted defendant must identify acts or omissions by the trial counsel that were not the result of reasonable professional judgment. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002); Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. The defendant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A court analyzing a defendant's argument under this first prong "must give great deference to counsel's performance and must strongly presume that the attorney's conduct constituted reasonable professional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22 (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). The court should not review the attorney's performance with the benefit of hindsight, but rather should evaluate the conduct from counsel's perspective at the time. Id. at 22 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). This prong requires the court to determine whether counsel's acts or omissions, in light of the existing circumstances, were squarely outside the ambit of professionally competent assistance. Ibid. Consequently, informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).
If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the defendant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed. 2d at 696. "[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div. 1992). The reviewing court "should presume... that the judge or jury has acted according to the law." Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). Thus, relief should only be granted where a defendant demonstrates that counsel's error is "so serious as to undermine the court's confidence in the jury's verdict or the result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
The judge clearly erred in failing to consider any of the issues raised by defendant pro se. Those issues, trial counsel's alleged failure to request a theft-by-deception charge and failure to mold the charge to the facts where two objects were allegedly taken, are not insubstantial. The claim that appellate counsel was ineffective in failing to raise them exempts them from any procedural bar and requires a remand for an evidentiary hearing at which both trial and appellate counsel must testify.
With respect to the issues the PCR judge did address--those raised by defendant's PCR counsel, the judge had no factual record before him to support his conclusion that counsel's failure to object to the prosecutor's opening and closing remarks was a tactical decision on her part. Such a finding can only be made based on testimony of trial counsel, which is notably missing. Neither can it be inferred from the fact that she objected once during the prosecutor's opening statement and once during his closing argument. This baseless finding undermines the PCR judge's conclusion that defendant failed to show his counsel's decision undermined the reliability of the trial. As a consequence, this issue must be remanded for an evidentiary hearing at which trial counsel must testify and the judge must then reconsider his decision.
We affirm the PCR judge's rejection of the two ineffective assistance of counsel claims regarding the advice allegedly given to defendant with respect to testifying in his own defense, but do so on other grounds. Any such advice, necessarily, was given off the record. Rule 3:22-8 requires that a petition be verified by the defendant and "set forth with specificity the facts upon which the claim for relief is based." The trial court was not required to elicit, through a hearing or otherwise, what advice trial counsel gave defendant regarding whether or not to testify. State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988). Rather, it was the responsibility of trial counsel to advise defendant on whether or not to testify and to explain the strategic consequences of defendant's choice. Ibid. Here, no facts respecting the advice given by trial counsel were set forth in a petition or even in PCR counsel's brief, which is fatal to a claim of ineffective assistance of counsel. State v. Hughes, 128 N.J. Super. 363, 368 (App. Div. 1974). Thus, we affirm the portion of the order denying relief on this ground.
Affirmed in part and reversed and remanded in part. We do not retain jurisdiction.