January 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-03-1111.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Wefing, Grall and LeWinn.
Defendant Michael Jackson appeals from the denial of his application for post-conviction relief. Because defendant's evidence was adequate to require a hearing on one of his claims of ineffective assistance of counsel and his claim of newly discovered evidence, we reverse and remand for an evidentiary hearing.
Defendant and his co-defendant Ethan Blane White were tried to a jury on an indictment charging crimes, including capital murder, committed during the invasion of an apartment in Newark on September 19, 1991. There were three intruders, but the third was never identified. One of the residents, Hwa Ryun Paik, died as a consequence of injuries resulting from repeated brutal blows delivered by the intruders. Although her husband, Young Bae Paik, was also beaten and kicked before the trio left the apartment with the money they found, he survived.
Proximate to the time that the men left the Paiks' apartment, a neighbor of the Paiks, Audrey Chitty, heard a noise on her porch and from her window saw defendant drop from an adjacent roof to her porch. In the process, defendant lost his hat. Chitty later retrieved the hat and gave it to the police.
Defendant lived in the same neighborhood as Mr. Paik and Mrs. Chitty; they both recognized him and subsequently selected his photograph from an array. Mr. Paik also identified the hat found by Mrs. Chitty as the one worn by defendant on the night his wife was killed. There was no forensic evidence linking either defendant or White to the crime or the hat recovered by Mrs. Chitty. A hair removed from the hat did not match either defendant's or White's hair.
Neither defendant nor White testified at trial.
On October 21, 1994, the jurors found defendant guilty of second-degree burglary, N.J.S.A. 2C:18-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; felony murder, N.J.S.A. 2C:11-3(a)(3); reckless manslaughter, a charge submitted to the jury as a lesser included offense on a count of the indictment charging murder; two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-5d; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The jurors were unable to reach a verdict on any of the State's charges against co-defendant White. Defendant was sentenced to a life-term of imprisonment and a forty-year term of parole ineligibility. The judgment of conviction and sentence was entered on December 14, 1994.
White subsequently pled guilty to reckless manslaughter in return for the State's agreement to dismiss the charges included in this indictment and others. Because this indictment included a charge of capital murder, White was permitted to enter a plea to second-degree manslaughter without providing a factual basis. See R. 3:9-2.
This court affirmed defendant's conviction and sentence on direct appeal, and the Supreme Court denied his petition for certification. State v. Jackson, No. A-4673-94 (App. Div. Mar. 19, 1998), certif. denied, 156 N.J. 411 (1998). On that appeal, defendant raised four issues:
(1) testimony relating to his declaration against penal interest was admitted although never provided in pretrial discovery, (2) the prosecutor disparaged the defense in summation and his remarks exceeded the bounds of fair comment, (3) the trial court committed plain error in its jury instructions, and (4) the trial court erred by imposing a separate consecutive sentence on the conviction for first[-]degree robbery. [Slip op. at 2-3.]
On November 10, 1999, defendant filed a timely application for post-conviction relief. R. 3:22-12(a). The court took no action until April 5, 2006, when the court asked the public defender to assign new counsel for defendant because no brief had been submitted. Counsel was assigned, but in November 2006 defendant retained an attorney. In support of defendant's application, counsel submitted affidavits of co-defendant Ethan White, defendant's uncle, Robert Haywood, defendant and Robert Hasanoeddin, an investigator employed by the State in the Office of the Public Defender.*fn1 By the time defendant's motion was perfected, Mrs. Chitty had died. The record does not include the date of her death.
The following facts were disclosed in the sworn affidavits. Acknowledging his role in Mrs. Paik's death, White swore that defendant was not one of his two confederates and that he was prepared to identify the men who were responsible. He further swore that he had not taken any action to exonerate defendant prior to trial because he could not do that without implicating himself in the commission of the crimes. He explained that on September 19, 1991, he and defendant were not even speaking because he had robbed defendant to support his own heroin addiction. Consistent with the evidence at trial, White further explained that he knew the Paiks and had played chess with Mr. Paik prior to the night of the crime. Further, indicating that defendant had accompanied him on some of these visits, White suggested that Mr. Paik could have recognized defendant because of these prior contacts. In addition, he indicated that he executed the affidavit of his own free will and not due to any pressure, threats or coercion.
Robert Haywood's affidavit tended to cast doubt upon the testimony given by Mrs. Chitty. In 2002, Haywood was interviewed by Hasanoeddin. He did so at the request of the attorney then working on defendant's application for post-conviction relief. Haywood, who is defendant's uncle, knew Mrs. Chitty and spoke to her several times in 1991 and during defendant's trial in 1994. He swore that Mrs. Chitty told him she was not certain whether defendant was one of the men she saw on the night Mrs. Paik was killed and that she was afraid of one of the men whom she saw jump onto her porch. Haywood also knew Gerald Roberts, a friend of defendant, who told Haywood that Roberts was with him on the night of the crime. According to Haywood, he told defendant's trial attorney that Roberts was willing to provide alibi testimony on defendant's behalf.
Defendant's affidavit included the following assertions. Although he asked his trial attorney to call both Haywood and Roberts as witnesses at trial, to the best of his knowledge, the lawyer did not interview either man, told him he would not call Roberts to testify and would not allow defendant to give testimony on his own behalf.
On this application for post-conviction relief, defendant argued that his trial counsel's performance was deficient for failure to: request a cross-racial identification charge; adequately advise defendant about his right to testify; adequately investigate critical facts relevant to Mrs. Chitty's identification and his alibi defense; file a pre-trial motion for severance; and argue factors in mitigation of sentence. He also contended that appellate counsel was ineffective for failure to challenge the adequacy of the jury instruction on identification. Finally, he argued that he was deprived of a fair trial by prosecutorial misconduct during discovery and trial and the court's failure to order severance sua sponte.
For reasons stated in a letter opinion dated June 27, 2008, the trial court rejected these arguments. With respect to the claims of trial error, the court concluded that the claims were barred pursuant to Rule 3:22-4 and Rule 3:22-5. The court addressed and rejected each of the issues defendant raised to establish that his trial and appellate counsel provided "ineffective assistance."
On appeal defendant argues:
I. MR. JACKSON WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO NUMEROUS EGREGIOUS ERRORS COMMITTED AT TRIAL BY HIS ZEALOUS ADVOCATE.
A. Defense Counsel was constitutionally ineffective for failing to request that the Court give a cross-racial identification instruction to the jury.
B. Defense Counsel was constitutionally ineffective for failing to adequately investigate critical issues that support Mr. Jackson's innocence.
C. Defense Counsel was constitutionally ineffective by depriving Mr. Jackson of his due process right to testify on his own behalf.
D. Defense Counsel was constitutionally ineffective for failing to file a pre-trial motion for severance from co-defendant White.
II. MR. JACKSON WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY APPELLATE COUNSEL.
III. THE TRIAL COURT DEPRIVED MR. JACKSON OF A FUNDAMENTALLY FAIR TRIAL WHEN IT FAILED TO ADEQUATELY INSTRUCT THE JURY CONCERNING CROSS-RACIAL WITNESS IDENTIFICATION.
IV. THE TRIAL COURT DEPRIVED MR. JACKSON OF A FAIR TRIAL BY TRYING HIM AND CO-DEFENDANT JOINTLY WHEN JOINED [sic] RESULTED IN SUBSTANTIAL AND INJURIOUS PREJUDICE.
V. THE PROSECUTOR'S ACTIONS, INCLUDING DISCOVERY VIOLATIONS, DISPARAGING DEFENSE COUNSEL, AND IMPROPER COMMENTS DEPRIVED MR. JACKSON FROM [sic] A FAIR TRIAL.
A. Discovery violations deprived Mr. Jackson of a fair trial.
B. Improper statements by the prosecutor deprived Mr. Jackson of a fair trial.
VI. DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO PROPERLY AND ZEALOUSLY ARGUE MR. JACKSON'S MITIGATING FACTORS AND DOWNPLAY AGGRAVATING FACTORS AT SENTENCING.
VII. THE COURT SHOULD REVERSE MR. JACKSON'S CONVICTION AND ALLOW A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE IN THE FORM OF NEW EXCULPATORY TESTIMONY.
A. Mr. White's testimony is material, not merely cumulative, impeaching, or contradictory.
B. Mr. White's testimony is evidence that was discovered after completion of trial and was not discoverable by reasonable diligence beforehand.
C. Mr. White's testimony would likely change the jury verdict.
VIII. THE NEWLY DISCOVERED EVIDENCE SHOULD BE ADMITTED BECAUSE IT DEMONSTRATES MR. JACKSON WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
IX. THE COURT SHOULD REVERSE MR. JACKSON'S CONVICTION AND ALLOW A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE IN THE FORM OF TESTIMONY THAT CAN BE USED TO IMPEACH THE STATE'S KEY WITNESS.
X. DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE BY FAILING TO ADEQUATELY INVESTIGATE CRITICAL ISSUES IN THE CASE, PARTICULARLY THE STRENGTH OF [MRS.] CHITTY'S IDENTIFICATION BY NOT CALLING MR. [HAYWOOD].
In order to obtain relief from a conviction based upon ineffective assistance of counsel, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed. 2d 674, 694, 698 (1984)); see State v. Allegro, 193 N.J. 352, 366 (2008) (noting that "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would" have been different but for counsel's error). The trial court concluded that defendant did not make the requisite showing. For the most part, we agree with that assessment.
The notable exception to our agreement with the trial court's decision on counsel's performance is defendant's claim about counsel's failure to investigate and present information provided by Haywood. We refer to Mrs. Chitty's admission of doubt about her identification of defendant and the trial court's conclusion that "trial counsel may well have determined Mr. Haywo[o]d was not a credible witness based on their interactions. Given that trial counsel had wrung several damaging concessions out of [Mrs.] Chitty, trial counsel may have weighed the risk of further, weak testimony damaging defendant's credibility." While it is true that courts must give a "heavy measure of deference to counsel's judgments," Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695; State v. Chew, 179 N.J. 186, 205 (2004), in according deference a court may not infer a tactical reason for a decision made by counsel without any support in the record.
To the contrary, post-conviction relief proceedings are the preferred procedure for addressing claims of ineffective assistance of counsel because, in that context, the court can order an evidentiary hearing to develop a relevant record.
State v. Preciose, 129 N.J. 451, 460-62 (1992) (discussing the reasons for a hearing to develop a record, including permitting counsel to "explain the reasons for his conduct and inaction").
Generally, when "a defendant has presented a prima facie claim in support of post-conviction relief" an evidentiary hearing should be granted. Id. at 462. In this case, the only evidence linking defendant to the crimes were the identifications of Mr. Paik and Mrs. Chitty. On the record of this trial, the most obvious distinction between the evidence relevant to defendant, who was convicted, and co-defendant White, who was acquitted, was that Mrs. Chitty identified defendant but not his co-defendant. The importance of Mrs. Chitty's identification is apparent. Counsel's disregard of evidence of her disavowal of that identification was sufficient to demonstrate a "reasonable likelihood" that defendant would succeed in establishing deficient performance and resulting prejudice. Id. at 463. Accordingly, it was error to deny this claim without an evidentiary hearing.
With the foregoing exception, we find the claims defendant offers to establish trial error and ineffective assistance of counsel lacking in sufficient merit to require more than brief comment in a written opinion. R. 2:11-3(e)(2). Those comments follow.
Defendant's claim that his trial counsel failed to investigate his alibi defense lacks adequate support. As the trial court noted, defendant did not provide an affidavit from the potential witness to support that claim.
Defendant's claim that counsel improperly infringed upon his right to testify at trial is belied by the record. The transcript demonstrates that the trial court addressed defendant prior to defendant's electing to refrain from testifying. A review of the court's colloquy with defendant compels the conclusion that the court advised defendant of his right and that defendant fully understood and freely waived that right. Thus, in accordance with State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005), we reject the argument presented in sub-point C of Point I.
Defendant's objections to the identification charge and to prosecutorial misconduct during discovery and at trial were addressed on direct appeal. Jackson, supra, slip op. at 5-9. For that reason, defendant could not re-litigate those issues in this post conviction proceeding and may not do so on this appeal. R. 3:22-5. Accordingly, we reject the claims raised in sub-point A of Point I and Points III and V.
With respect to defendant's claims about cross-racial identification, we recognize that defendant did not raise the issue on direct appeal. The obvious reason, however, is that the rule governing jury instructions involving cross-racial identifications was established by the Supreme Court years after defendant's trial in State v. Cromedy, 158 N.J. 112 (1999). Because defendant presents no argument on why that rule should be applied retroactively, see State v. Purnell, 161 N.J. 44, 54 (1999) (discussing the factors relevant to retroactive application of a new rule of law), we decline to revisit our prior decision on the adequacy of the identification instruction given in this case, which we found to be consistent with the model jury instruction in effect at the time. Jackson, supra, slip op. at 9. Moreover, we cannot conclude that trial or appellate counsel's performance was outside the "wide range of reasonable professional assistance" for failure to challenge the instruction on the basis of a rule of law not yet established. Jack, supra, 144 N.J. at 249.
The arguments presented in support of sub-point D of Point I and Point IV also lack merit. "Rule 3:7-7 allows for joinder of defendants who are 'alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.'" State v. Sanchez, 143 N.J. 273, 281 (1996). While "Rule 3:15-2(b) . . . provides for relief from a prejudicial joinder," id. at 282, at the time of trial there was no indication of prejudice warranting severance. Co-defendant White had not announced his willingness to testify on defendant's behalf, and there were no problematic pre-trial statements by either of the defendants or antagonistic defenses. See id. at 282-95 (discussing grounds for severance). Under the circumstances, a motion for severance would not have been granted, and, for that reason, counsel's failure to file one was wholly consistent with proper representation of defendant and not prejudicial.
With respect to defendant's claim that counsel failed to make appropriate arguments at the time of sentencing, it suffices to note that defendant's argument consists of nothing other than generalized criticisms of the arguments presented. There is no discussion of arguments that counsel should or could have made to dissuade the trial court from finding aggravating factors that were supported by the record or lead the trial court to find mitigating factors the court declined to weigh in defendant's favor. Accordingly, we reject the issue raised in Point VI.
In Point II, defendant raises arguments with respect to appellate counsel's performance. Each is cast in terms of that attorney's failure to raise claims of ineffective assistance by trial counsel. Because a claim of ineffective assistance of trial counsel need not be raised on direct appeal, defendant cannot establish any prejudice resulting from his appellate counsel's decision to raise these claims on direct appeal.
There is an additional matter that must be considered in an evidentiary hearing - White's newly announced willingness to exonerate defendant and identify those who he now claims actually participated in these horrific crimes. In State v. Allen, 398 N.J. Super. 247, 258-59 (App. Div. 2008), this court held that a claim of newly discovered evidence raised on an application for post-conviction relief should be addressed.
To obtain a new trial on the grounds of newly discovered evidence, "the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the original trial and not discoverable by reasonable diligence beforehand; and (3) of the sort which would probably change the jury's verdict if a new trial was granted." State v. Carter, 85 N.J. 300, 314 (1981).
The absence of any one of these elements warrants denial of the motion. State v. Johnson, 34 N.J. at 212, 223 (1961). [Id. at 258.]
Given defendant's denial of his presence at the scene of the crime, there is no reason to assume that he would have knowledge of the possibility that White was present at the scene and, therefore, in a position to identify his accomplices and exonerate defendant. Moreover, in light of White's affidavit indicating his unwillingness to say anything that would implicate himself in the crimes while he was under indictment for capital murder, his evidence cannot be deemed to have "been discoverable by reasonable diligence" prior to trial. Ibid. White's testimony exonerating defendant and implicating his accomplices could not be deemed immaterial or cumulative, and, if believed, is the sort of evidence that "would probably change the jury's verdict." Ibid.
The newly discovered evidence at issue in Allen was quite similar in import to the testimony White swore he was now willing to present on behalf of defendant. In that case, an inmate confined with defendant "admitted being present when the victim [of defendant's crime] was shot and [said that he would testify] that defendant was not the shooter." Id. at 257. This court reasoned:
We recognize that post conviction statements of persons who did not testify at trial, particularly when serving time at the same institution as the defendant, are "inherently suspect." State v. Robinson, 253 N.J. Super. 346, 367 (App. Div.), certif. denied, 130 N.J. 6 (1992). However, [these] post-judgment exculpatory statements to third parties, and confirmed by affidavit, must be tested for credibility and cannot be summarily rejected. . . . [Id. at 258-59.]
On that basis, this court remanded for an evidentiary hearing to consider whether a new trial was warranted under the standard applicable to motions for newly discovered evidence. Id. at 259. We see no principled basis for reaching a different conclusion on the facts of this case.
The order denying defendant's application for post-conviction relief is affirmed in part, reversed in part and remanded for further proceedings in conformity with this decision.