February 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH COOKE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-01-0108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Payne and Waugh.
Defendant, Joseph Cooke, appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. On appeal, he makes the following arguments:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION WHERE THE TESTIMONY OF DEFENDANT, MS. UHLES, AND TRIAL COUNSEL ESTABLISHED THAT TRIAL COUNSEL WAS INEFFECTIVE UNDER STRICKLAND FOR FAILING TO INFORM THE TRIAL COURT OF POTENTIAL JUROR TAINT AND TO CALL MS. UHLES AS A FACT WITNESS IN SUPPORT OF DEFENDANT'S CONSENT DEFENSE.
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPPORT HIS REQUEST FOR POST-CONVICTION RELIEF.*fn1
Following a careful review of the record on appeal, we affirm.
Defendant was arrested on August 3, 1997 after he entered a home in Rutherford and committed homosexual fellatio on one of the male residents who was sleeping on a couch in the living room. According to the resident, a similar occurrence had taken place on July 28, 1997, but the police had not been called. Following his arrest, defendant gave a statement to the police in which he claimed that, on the night of the August crime, he had gone to New York, drunk a bottle of vodka, stopped in at a gay club, and returned to New Jersey by means that he did not recall. Defendant stated that he remembered being in his kitchen and looking at the clock, which indicated it was 2:20 a.m. He then remembered leaving the house and being approached by a police officer. Thereafter, he remembered nothing until he found himself in a house being held down by "some guy" with a police officer screaming at him. Defendant initially stated in response to police questioning that he had seen the victim before at the house in which defendant was found, but he had not been introduced to the victim, and they had never conversed. Defendant admitted that he had committed fellatio on the victim. Defendant additionally admitted, in connection with the July incident, that he assumed that the victim was sleeping, that he had placed the victim's penis in his mouth without his consent, and that he did not know who the victim was.
Defendant was charged in connection with the July and August events with two counts of second-degree burglary, N.J.S.A. 2C:18-2, two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(2).*fn2 Defendant was tried before a jury and was convicted of one count of second-degree sexual assault, only. At trial, defense counsel called no witnesses, but argued that the encounter between defendant and the victim had been consensual.
Defendant was initially sentenced as a third-degree offender to three years of probation. However, the State appealed that sentence, and defendant cross-appealed his conviction. In a published opinion, we affirmed defendant's conviction but reversed his sentence. State v. Cooke, 345 N.J. Super. 480 (2001). Certification was denied. State v. Cooke, 171 N.J. 340 (2002). Upon resentencing, a four-year custodial term with three years of parole supervision was imposed, and defendant was declared subject to Megan's Law. On appeal, we affirmed the custodial term, but vacated the three-year period of parole supervision.
While defendant's first appeal was pending, on March 30, 2001, defendant sought post-conviction relief. The matter was argued on August 11, 2004, and PCR was denied without an evidentiary hearing. Defendant appealed, raising numerous issues that we found to be procedurally barred by Rule 3:22-4 or Rule 3:22-5, or lacking sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). State v. Cooke, No. A-4265-04T4 (App. Div. June 27, 2006). However, we found potential merit in defendant's argument that an evidentiary hearing should have been held on claims of ineffective assistance of counsel arising from factual circumstances that defendant described in a certification in support of his motion as follows:
2. During the trial, and after the jury had already been impaneled, I was outside the Court House with my sister Theresa Bellina and my friend Anita Harris as the three of us wanted to smoke cigarettes. At the time, Anita started talking about the case and joked with me by saying "you gave bad head and that's why you are here." Kidding around, she said that I have to stop sneaking into people's houses. My sister said that "you didn't have any complaints until now, see what faggots get." This was essentially the tone of the conversations. They know that I was innocent, so they were making fun of the trial and what had happened to me.
3. Unfortunately, I noticed that there were two ladies from the jury that were also outside and were approximately four feet away from us. We did not notice the jurors at first because our backs were turned to them. Nonetheless, these two ladies were looking right at us. After we returned to Court, I immediately advised my trial attorney of what had taken place, but she told me not to worry about it, saying that it was "nothing." My lawyer assured me that the jurors could be instructed by the Judge that they should consider only what they hear in the courtroom.
4. Another incident occurred in the elevator inside the Court House. There were approximately six people in the elevator, including myself and my trial lawyer. Me and my lawyer were talking about the case. Specifically, we were discussing the alleged victim's trial testimony and how my lawyer thought the case was going. When we went into the Courtroom, and everybody was asked to rise, I noticed that one of the female jurors was an individual that had been in the elevator, and undoubtedly, heard my conversation with my lawyer. Incidentally, this female juror was not one of the jurors that had overheard my conversation from outside. I immediately informed my attorney and asked her to advise the Judge about what had happened outside and in the elevator. Notwithstanding my request, trial counsel again informed me that it was not important and that the jury would be instructed that they are only to consider the facts offered during the trial while in the courtroom.
5. Finally, there were four individuals present at my trial, all of whom wanted to testify on my behalf regarding my good character. My friend Anita Harris and my sister Theresa Bellina, the individuals aforementioned, as well as my friend Kathy Kyes and my Godmother Carletiss Smalls could all have testified regarding their knowledge of my good character and reputation in the community. Additionally, Ms. Harris had probative and factual testimony regarding my prior relationship and background with L.B. [the victim] prior to the alleged incident. Incredibly, although my trial attorney asked me to have these individuals appear in Court so that they could testify, my trial attorney did not call a single witness at trial on my behalf.
We found that defendant's allegations, if true, were such as to suggest a reasonable likelihood of success under the two-pronged test established by Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), i.e., that counsel's performance was deficient, in that she "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that counsel's deficient performance created "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." We therefore reversed the judge's order denying PCR and remanded the matter for a hearing in accordance with State v. Preciose, 129 N.J. 451, 462 (1992) and Rule 3:22-10.
A hearing took place before a different judge on November 15, 2006, at which defendant, his counsel, Linda Peterson, and his friend, Anita Harris Uhles*fn3 testified. Defendant's testimony regarding the comments made outside the courthouse by his sister and friend regarding his sexual prowess, which were allegedly overheard by two jurors, mirrored the statement made in his certification. However, at the hearing, he did not repeat the claim that Uhles had stated to him that he had to stop sneaking into people's houses. Defendant testified that he believed the conversation was overheard by the two jurors, standing ten feet away, because defendant's sister and Uhles were "quite loud." Defendant testified additionally that, upon reentering the courthouse, he notified his trial attorney of the incident and "[s]he told me that it was really nothing to worry about. That at the closing of the case the Judge would instruct then they're only to take into consideration what was presented in court."
Defendant also testified regarding the elevator incident, stating that there were four, not six, people in the elevator, including one juror. Describing his conversation with his attorney in a fashion different from his certification, defendant stated that he "was pretty much bad-mouthing [the victim]," and that he was annoyed that the victim, who was then incarcerated, was wearing civilian, not prison, clothes when he testified at defendant's trial. According to defendant, upon seeing an occupant of the elevator entering the courtroom and realizing that she was a juror, he again informed his attorney of possible juror taint, but that she "didn't like really react."
With respect to the claim that Uhles had knowledge of a prior relationship between defendant and the victim, defendant testified that, in late June or early July, he had made arrangements with the victim to pick him up at Uhles's home in Carlstadt, and that Uhles had been standing on her porch with defendant when the victim arrived. Defendant testified additionally that, at that time, he had known the victim for two and one-half or three months. Additionally defendant testified that he informed his attorney that Uhles could testify as a fact witness regarding this episode, and that the attorney had stated that "the investigator would talk to her." However, it was his impression that the investigator had interviewed Uhles only as a character witness. When asked, "when you found out she was not going to testify did you have a discussion with your attorney about that," defendant responded, "I'm not sure if I did." However, defendant also stated that he informed his attorney both before and during trial that he wanted Uhles to testify.
At the conclusion of his direct testimony, defendant agreed with his counsel's statement that everything in the certification given in support of PCR was true and accurate.
On cross-examination, defendant admitted that he had a fourth-degree conviction in New York for assault arising from a fight with an ex-lover and that he had two convictions for driving while intoxicated. In the following exchange, defendant denied much of the substance of his statement to the police.
Q: Mr. Cooke, the night that you were arrested did you tell Detective Morrissey that you had never been introduced to [the victim] before?
A: No, I did not.
Q: Did you tell Detective Morrissey that you had never spoken to him before?
A: No, I did not.
Q: Did you tell Detective Morrissey that you did not have a relationship with [the victim].
A: No, I did not.
Q: So that when she testified to that at your trial she was lying?
A: Yes, she was.
As previously stated, testimony on defendant's behalf was also provided by Anita Uhles. According to Uhles, she told defendant that he was "in trouble because he didn't give good enough head," and that he "better not try to break into anybody's houses to get that kind of thing." While this banter was occurring, two jurors -- one heavy-set -- were standing eight to twelve feet away who were "listening or attempting to listen." The heavy-set juror seemed to be leaning in order to hear, and "[w]hatever she heard, she would repeat to the other woman that was with her." Upon returning to the courtroom, Uhles noticed the two women and determined from their tags that they were jurors, and she brought the matter to defendant's attention.
With respect to a prior relationship between defendant and the victim, Uhles testified that she had observed the victim sitting in a car when he picked up defendant. As defendant entered the car, Uhles observed the victim smack him in the back of the head, and then drive off. Uhles had not heard any conversations between defendant and his attorney. She testified that she did not recall, prior to trial, ever being contacted by anyone from the office of defendant's lawyer.
Defendant's attorney, Linda Peterson, testified for the State. She stated that, prior to defendant's trial, she had been defense counsel on approximately fifty trials. Peterson did not have a specific recollection of some aspects of defendant's trial, including the reports of her investigator regarding witness interviews. She did recall that defendant had at least one prior conviction, that defendant had offered to obtain character witnesses, including Uhles, but that she had determined not to utilize them because it would have led to disclosure of defendant's prior record and could have provided grounds for additional convictions. Peterson did not recall any of the character witnesses also being offered as fact witnesses. She had no independent recollection of defendant informing her of the conversation outside the courthouse allegedly overheard by the two jurors or of having discussed the case with defendant in the elevator in the presence of a juror. However, Peterson testified that she doubted that the elevator incident happened. She stated: "As a general principle I don't discuss cases in elevators."
At the conclusion of the hearing the judge ruled in favor of the State, observing first that defendant's allegedly ineffective counsel had obtained an acquittal on five of the six counts against him. Focusing on the conversation outside the courthouse, the judge stated that he did not know from either Cooke's or Uhles's testimony whether the two jurors actually overheard the conversation between defendant, his sister and Uhles. Indeed, he remarked that he did not even know if defendant mentioned "any of this" to his attorney. In this regard, the judge found Peterson to be a "much more credible witness" than defendant, who he found not to have been "as credible as he could have been." The judge credited Peterson's statement that she never discussed cases on the elevator. He noted that Peterson remembered Uhles, but found that she made a reasonable strategic decision not to call character witnesses. In conclusion, the judge found that Mr. Cooke, who had a motive to fabricate that his attorney lacked, either did not discuss the matters raised in his PCR petition with his attorney or that they did not happen. Finding that Strickland's standards had not been met, the Judge denied defendant's application.
Our review of the record offers no basis for reversing the decision of the PCR judge. That record discloses defendant's allegations of two instances of potential juror taint, which he claims to have brought to his attorney's attention, to no avail. Additionally, it discloses defendant's allegation of the existence of a prior relationship with the victim, known to Uhles, but unexplored at trial. However, as was brought out at the hearing, the existence of such a relationship was denied by defendant in a statement given to the police on the day of his arrest -- a statement that defendant sought to repudiate at the PCR hearing. This factual contradiction, together with defendant's varying descriptions of the elevator episode, provide a solid foundation for the judge's determination that defendant, and by inference Uhles, were not credible, a determination that, along with the judge's other factfinding, we decline to disturb. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. M.A., 402 N.J. Super. 353, 365 (App. Div. 2008).