January 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID PAGE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2009
Before Judges Lisa and Alvarez.
Defendant David Page appeals from the July 2, 2008 denial of his petition for post-conviction relief (PCR). We affirm.
A jury convicted defendant of six counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one through six); six counts of second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (counts seven through twelve); and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count thirteen). Following the jury verdict, defendant entered a guilty plea to one count of second-degree possession of a weapon by a previously-convicted person, N.J.S.A. 2C:39-7 (count fourteen).
On February 18, 2005, defendant was sentenced on count one to a mandatory extended term under N.J.S.A. 2C:43-7.1b (Three Strikes Law) of fifty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On each remaining first-degree robbery conviction, defendant was sentenced to fifteen years subject to NERA, concurrent to count one. Counts seven through twelve were merged with their companion counts of first-degree robbery. The judge imposed seven years imprisonment with a five-year period of parole ineligibility on the second-degree possession by a previously-convicted person conviction, to be served consecutive to the other sentences. Defendant's aggregate sentence was fifty-seven years, subject to forty-eight and one-half years of parole ineligibility. His convictions and sentence were affirmed on direct appeal, except for the sentence on count fourteen.*fn1 State v. Page, No. A-4777-04 (App. Div. March 20, 2007) (slip op. at 3). Defendant's petition for certification was denied. State v. Page, 193 N.J. 223 (2007).
The PCR petition, including the request for an evidentiary hearing, was denied in an oral decision rendered on June 30, 2008. On appeal, defendant contends that the PCR judge erred in the application of procedural bars and on the merits:
POINT I - THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN DENYING POST-CONVICTION RELIEF BECAUSE OF PROCEDURAL BARS.
(A) THE INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS RAISED IN POST-CONVICTION RELIEF WERE NOT PROCEDURALLY BARRED BECAUSE THEY WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY EQUIVALENT" TO THE ISSUES RAISED ON DIRECT APPEAL.
(B) THE PROSECUTORIAL MISCONDUCT ARGUMENT RAISED IN POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED BECAUSE IT COULD NOT HAVE BEEN FAIRLY ADJUDICATED BASED ON THE EXISTING TRIAL RECORD.
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION; TRIAL COUNSEL'S INADEQUATE CROSS-EXAMINATION; AND TRIAL COUNSEL'S FAILURE TO PRESENT A MEANINGFUL DEFENSE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ*fn2 TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.
(A) THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.
(B) THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.
POINT IV - DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.
Additionally, defense counsel relies upon the points raised by motion counsel:
PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES ARE NOT BARRED BY R. 3:22 ET SEQ.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE CUMULATIVE EFFECT OF COUNSEL'S ERRORS DEPRIVED PETITIONER OF A FAIR TRIAL.
PETITIONER WAS THE VICTIM OF PROSECUTORIAL MISCONDUCT.
PCR COUNSEL INCORPORATES BY REFERENCE ALL ISSUES RAISED BY PETITIONER IN HIS PETITION.
Defendant's brief on appeal also refers back to his pro se petition arguments made to the PCR court:
INEFFECTIVE ASSISTANCE OF COUNSEL.
HARMLESS ERROR DOES NOT APPLY TO MY CASE.
A brief summary of the facts developed during the trial is warranted. Defendant and another man who was never identified, approached three men talking on a front porch during the early morning hours of August 10, 2002, and pointed a gun at one of them, Clyde Martin. Ed McKinney, the second man in the group on the porch, fled into the house. Martin and Cory McGowan, the third man, were robbed of their belongings by defendant and the other assailant. Africa Barbour was in her car across the street talking to Alfonso Newsome when the robbery occurred; she saw what was taking place and put her key in the ignition to drive away. Defendant and his companion stopped her, and robbed her and Newsome. The two men ran down the street, jumped into a car and drove away.
A short time later, David Melvin and Eric Perez were robbed at gunpoint while standing at a nearby street corner. When police responded to the scene, as they had received a report of a robbery in progress, they saw the victims on the ground while two men stood over them. The officers gave chase and arrested defendant near where some of the stolen items and a gun had been discarded. Defendant was taken to the police station; during the course of a show-up he was identified by all six victims as the gunman.
Before defendant's trial began, the prosecutor told the jury that all six robbery victims would be testifying, as he had represented during the plea cutoff hearings. During the trial, however, only three of the six testified. Curiously, the three who failed to appear represented one victim from each pair that was robbed. When McGowan, Newsome and Perez failed to appear, the judge postponed the trial to the following day and issued arrest warrants. The three additional victims were never located.
In trial counsel's opening statement, he mistakenly argued that the only way defendant could have participated in the robberies was if he had the use of a vehicle. Victim testimony during the trial and the cross-examination of police by defense counsel established that defendant actually did flee with his cohort in a car. Defense counsel, contrary to his opening statement, therefore argued in summation that the testimony that defendant fled in a car was untrue. Defendant did not testify at trial, nor produce any witnesses. Defense counsel argued in his closing, in addition to his other points, that defendant had been misidentified.
Under the familiar test for ineffective-assistance-of-counsel claims, a defendant must first demonstrate that counsel's performance "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. Secondly, a defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. R. 3:22-10(a). See also State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
The motion court opined that because defendant failed to raise the issue of prosecutorial misconduct on direct appeal, he was barred from raising it via a PCR petition. R. 3:22-4. The court also found that defendant was revisiting issues previously adjudicated on direct appeal and that he was barred from doing so pursuant to Rule 3:22-5.
When the court applied the Strickland v. Washington test, it concluded that petitioner had not met his obligation to prove that the representation provided by his attorney 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. The court considered the attorney's strategy not only reasonable given the overwhelming proofs, but that defendant utterly failed to establish "that his attorney was not well-prepared, thoroughly familiar with the record and persistently and forcefully advocating for his interests." In addition, as the court stated, defendant failed to prove that but for any decision made by his attorney, "the outcome of his case would have been different." Relying on State v. Fritz, supra, 105 N.J. 42, the court noted that prejudice is not presumed but must be proven by the petitioner, and that defendant had not identified any prejudice flowing from his attorney's conduct. Id. at 52.
Defendant's attorney now contends that the motion judge erred by applying procedural bars because the issues raised on the direct appeal were not identical, or substantially equivalent, to those previously raised. On appeal, as did PCR counsel, defendant contends that the State's failure to produce all six victims at trial amounts to prosecutorial misconduct that prejudiced his right to a fair trial. No explanation is proffered by defendant as to why that particular argument, even if it had merit, could not have been raised on direct appeal.
PCR counsel claimed, without any foundation, that the three witnesses who did not appear would not have identified defendant. This is indeed a bald assertion, insufficient to afford defendant any relief. Cummings, supra, 321 N.J. Super. at 170.
Defendant also contends trial counsel's damaging cross-examination of witnesses, failure to conduct adequate pretrial investigation, and failure to present a meaningful defense constituted ineffective assistance. Defendant, however, does not suggest how a different trial strategy, a more thorough pretrial investigation or a better cross-examination could have yielded a more favorable outcome for defendant.
It is also asserted that counsel, during summation, mistakenly referred to Perez, who failed to appear, as Melvin, the victim who did appear. Again, defendant does not explain how the mistaken reference prejudiced him.
As the PCR judge noted, a defendant must establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. A reasonable probability is one which undermines confidence in the outcome of the trial. Ibid. Defendant must prove by a preponderance of the evidence that trial counsel's conduct fell outside the broad spectrum of competent legal representation. See Fritz, supra, 105 N.J. at 52. Defendant has failed to carry that burden.
Absent a prima facie case of ineffective assistance of counsel, there is no entitlement to an evidentiary hearing. See Preciose, supra, 129 N.J. at 462. No prima facie case was established here; therefore, no evidentiary hearing was necessary.
None of the remaining arguments, by reference or otherwise, warrant further consideration in a written opinion. R. 2:11-3(e)(2).