January 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHJAN ALSTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-09-1070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Reisner and Yannotti.
Defendant Rahjan Alston appeals from an order dated August 2, 2007 denying his petition for post-conviction relief (PCR). We affirm.
These are the most pertinent facts. Two young men, Wayne Couey and defendant's brother Rasu Lee, had gotten into a series of altercations and fights in April and May 2000. On May 26, 2000, defendant, who was seventeen years old, was with Lee when a car carrying Couey and Antoine Mouzone drove by them. Defendant fired a gun at the car, killing Mouzone. In a statement to the police, taken in the presence of defendant's mother, defendant admitted firing at the victims' car. However, he claimed he did so because he thought one of the passengers "had something in his hand" and he was "scared and started shooting."
At the trial, defendant raised a claim of self-defense. The jury acquitted defendant of murder, but convicted him of aggravated manslaughter, N.J.S.A. 2C:11-4a, aggravated assault, N.J.S.A. 2C:12-1b(1), and associated weapons offenses. He received an aggregate twenty-year sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On his direct appeal, defendant raised the following issues, including a challenge to his confession:
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL (Not Raised Below).
THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF AQUITTAL.
THE TRIAL COURT ERRED BY ADMITTING THE AUTOPSY PHOTOS AS THEY WERE UNDULY PREJUDICIAL AND NOT PROBATIVE.
THE TRIAL COURT ERRED IN RULING THAT THE REPORT OF OFFICER RAGSDALE COULD NOT BE ADMITTED INTO EVIDENCE UNDER RULE 803.
THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL.
THE ERRORS COMMITTED, IN THEIR ENTIRETY, DENIED DEFENDANT A FAIR TRIAL.
THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.
We rejected all of those arguments and affirmed the conviction and sentence. State v. Alston, No. A-5906-02 (Mar. 2, 2005), certif. denied, 183 N.J. 590 (2005). Defendant then filed the PCR petition giving rise to this appeal.
In his PCR petition, defendant claimed: that in addressing the passion/provocation manslaughter charge, defendant's trial counsel was ineffective for failing to request a jury instruction that a continuing course of ill treatment by the victim against defendant or his brother could constitute adequate provocation; that trial counsel should have challenged defendant's confession on the grounds that defendant's mother had a conflict of interest and coerced defendant into waiving his Miranda rights; and that trial counsel should have consulted with defendant before advising the judge that defendant waived his right to be present for in-chambers questioning of jurors during selection.
Judge Sokalski, who had also been the trial judge, conducted an evidentiary hearing on the PCR petition on July 27, 2007. Defendant testified that his attorneys told him before jury selection that the judge might question jurors privately in chambers. He contended, however, that his counsel did not ask him if he wanted to be present in chambers for that questioning. He testified that, had he been told, he would have wanted to be present because "the jury selection is the most important part" of the trial. However, he also stated that he did not remember hearing the judge "say that you could go to chambers with them." He claimed he did not say anything to his counsel about wanting to go in with them, because he did not know he had a right to accompany them.
On cross-examination, defendant admitted that he had a good relationship with his attorneys, and he never asked them at any point to excuse a juror, even though he knew he could do so. Further, after the prosecutor read to him the transcript section in which the judge clearly explained that defendant could be present in chambers, defendant testified that he did not remember that discussion. When asked why he did not object when his attorney told the judge that defendant did not need to be present in chambers, defendant responded that perhaps he had "drifted off" or was "daydreaming." He also admitted that after his attorneys went into chambers during jury selection, they did not tell him what happened in chambers, and he never asked them what happened.
Defendant also admitted that his confession was the truth, and that had he testified at trial, he would have said the same thing he told the police. He further admitted that his mother did not induce him to say anything that was not true; rather she advised him to tell the police what he had already told her, namely, the truth about who did the shooting and why.
On the issue of his confession, defendant testified that on the day he was arrested his mother told him that she had heard that his brother had done the shooting. However, defendant admitted to his mother that he was the shooter. When the police brought defendant to the police station, they brought his mother also, because he was a juvenile. Although he did not want to speak to the police, defendant followed his mother's advice to speak with them and "tell the truth." He followed her advice because he trusted her judgment.
In her testimony at the PCR hearing, defendant's mother admitted that she believed defendant when he told her that he did the shooting. She wanted him to tell the police the truth. She also testified that because she knew the police who were questioning him, and had grown up with them, she trusted them and believed that telling the truth was the best way to proceed.
In a written opinion dated August 2, 2007, Judge Sokalski rejected defendant's PCR contentions. Relying on State v. Coyle, 119 N.J. 194, 227 (1990), he found there was "no evidence to indicate that defendant and the decedent, Antoine Mouzone either maintained a close relationship or that the decedent consistently physically abused defendant or his brother, Rasu Lee." The judge considered testimony that defendant's brother had "several fights with Wayne Couey" and testimony about two incidents that occurred about two weeks prior to the shooting. In one incident someone other than the decedent or Couey fired a shot at defendant, and in the other, a shot was fired at the door of one of defendant's friends. The judge concluded that these incidents warranted the basic passion/provocation charge, which was given. However, citing State v. Guido, 40 N.J. 191 (1963); State v Kelly, 97 N.J. 178 (1984); and State v. Coyle, supra, Judge Sokalski concluded that this case did not involve the kind of persistent ill treatment, such as spousal abuse, which would warrant the "course of ill treatment" charge.
The judge likewise did not credit defendant's testimony that he was not aware of his right to be present in chambers during jury voir dire. Relying on State v. W.A., 184 N.J. 45 (2005), the judge concluded that defendant waived his right to participate in the in-chambers voir dire.
Addressing defendant's confession, Judge Sokalski concluded that defendant was precluded from raising the issue on a PCR, because it was either raised or could have been raised on direct appeal. See R. 3:22-4; R. 3:22-5. However, addressing the merits of the claim as well, Judge Sokalski did not believe defendant's testimony "that his mom convinced him to give a statement even though he knew he had the right to remain silent." The judge also did not credit the mother's testimony "that she coerced him" into speaking to police.
On this appeal, defendant raises the following points for our consideration:
THE TRIAL JUDGE ERRED IN FINDING THAT THE TRIAL AND APPELLATE ATTORNEYS WERE NOT INEFFECTIVE IN FAILING TO RAISE THE FOLLOWING ISSUES: THAT A CHARGE SHOULD HAVE BEEN GIVEN ON A CONTINUING COURSE OF ILL TREATMENT AS PART OF THE PASSION/PROVOCATION MANSLAUGHTER DEFENSE; AND THAT THE PRESENCE OF THE DEFENDANT'S MOTHER DURING INTERROGATION REPRESENTED A CONFLICT OF INTEREST.
A. Defendant Was Denied the Effective Assistance of Counsel When His Trial Attorneys Failed to Request An Instruction That a Course of Ill-Treatment Could Amount to a Reasonable Provocation For Passion/Provocation Manslaughter and When His Appellate Attorney Failed to Raise This Issue on Appeal.
B. Defendant was Denied His Federal and State Constitutional Rights to the Effective Assistance of Counsel When His Trial Attorney Failed to Challenge the Admissibility of His Statement on the Grounds that the Mandate of State v. Presha Was Not Satisfied.
We conclude that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons stated in Judge Sokalski's cogent opinion. We add the following comments.
Relying on our recent decision in State in the Interest of A.S., 409 N.J. Super. 99 (App. Div.), certif. denied, ___ N.J. ___ (2009), defendant claims that his mother had a conflict of interest in counseling him to tell the truth to the police, because she knew that her other son was also suspected of the shooting. We reject this contention. Defendant's mother needed to be present to satisfy State v. Presha, 163 N.J. 304 (2000). She did not have the same conflict as in A.S. Unlike the mother in A.S., defendant's mother was not related to the victim, she was not hostile to defendant, and she did nothing to mislead or coerce him into making a statement to the police. Rather, she simply told defendant to tell the truth. See State in the Interest of Q.N., 179 N.J. 165, 177 (2004).
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