March 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KELVIN ROGERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-12-1240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 10, 2010
Before Judges Cuff and C.L. Miniman.
Defendant Kelvin Rogers appeals from the denial of a petition for post-conviction relief (PCR). He is serving an extended term as a persistent offender of fifty-four years in prison with an eighteen-year period of parole ineligibility following his 1998 conviction of first degree robbery, second degree possession of weapon for an unlawful purpose, and third degree unlawful possession of a weapon.*fn1 This court affirmed the conviction and sentence, State v. Rogers, No. A-1475-98 (App. Div. February 14, 2000) (slip op at 12-13); the Supreme Court denied defendant's petition for certification, 165 N.J. 137 (2000).
This matter returns to us following a remand ordered by this court. State v. Rogers, No. A-4836-05 (App. Div. Oct. 19, 2007). We directed the judge to conduct "an evidentiary hearing on the factual issues raised by defendant in the trial court, to be followed by the issuance of findings of fact" that did not adopt the State's brief and eliminated the judge's personal opinion about the skills of defendant's trial counsel. Id. at 9-10, 13.
In his PCR petition, defendant argued that trial counsel failed to investigate an alibi defense. As instructed by this court, the trial and PCR judge convened an evidentiary hearing to allow defendant to air his various claims regarding the ineffective assistance of trial counsel. Defendant was produced from state prison but advised the judge that he did not wish to proceed. Defendant informed the judge that he never had a discussion with trial counsel about an alibi. Defendant also informed the judge that he "just want[ed] to be left alone at this point."
The judge inquired whether defendant wanted to testify that he was at a mosque at the time of the robbery. Defendant responded, "What, 11 years later?" When the judge stated that he could do so at that time, defendant replied that "it's not going to benefit." At this point, PCR counsel advised defendant that this hearing was his opportunity to be heard. Defendant was advised to testify if, indeed, he had an alibi, his trial attorney was advised of the alibi, but his trial attorney failed to provide notice to the State of the alibi defense, failed to investigate or failed to assemble witnesses to support the defense. In response, defendant asked to be excused from the hearing. Reluctantly, the PCR judge permitted defendant to waive his appearance and defendant left the courtroom.
Following oral argument, the judge rendered comprehensive findings of fact and conclusions of law, ultimately finding that defendant had not established that he was entitled to PCR. The judge found that defendant failed to establish a prima facie case of ineffective assistance of counsel in that the record contained nothing but a bald allegation that defendant informed trial counsel that he had an alibi for the time and place of the offense. The judge also held that defendant's contention that the identification procedure was unduly suggestive and inadmissible as evidence was addressed on direct appeal.
The judge also found that defendant suffered no harm from testimony by one of the police officers that he knew defendant. This testimony contained no hint of any prior criminal activity by defendant; in fact, the officer testified that he knew defendant from school and basketball games.
The judge also rejected the contention that the police were required to bring a sign language interpreter to the scene of the crime to assist conversation between the police and the victim. Therefore, the judge also rejected the argument that trial counsel provided ineffective assistance of counsel for failing to raise this issue at trial.
On appeal, defendant raises the following arguments:
I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED ROGERS OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.
A. Rogers Was Deprived of His Constitutional Right To Effective Assistance of Counsel Under the United States Constitution and the New Jersey Constitution.
B. Trial Counsel Failed to Raise Rogers' Alibi Defense.
C. Trial Counsel Failed to Represent Rogers Effectively During the Trial.
II. ROGERS' RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE POLICE DISPLAYED HIM TO THE ALLEGED VICTIM IN AN IMPERMISSIBLY AND UNNECESSARILY SUGGESTIVE SHOW-UP IDENTIFICATION PROCEDURE.
A. The Identification Procedures Were Unnecessarily and Impermissibly Suggestive.
B. The Show-Up Identification of Rogers Did Not Bear Sufficient Indicia of Reliability to Permit Its Admission.
III. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY ROGERS.
Defendant had the opportunity for an evidentiary hearing. He refused to testify and knowingly and voluntarily waived his appearance. As to the remaining issues, we have thoroughly reviewed the record in its entirety and conclude that the oral opinion rendered on December 19, 2007, addresses all issues raised by defendant and conforms to the mandate issued by this court. We affirm substantially for the reasons expressed by the PCR judge in his oral opinion.