May 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REGINALD VENABLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-11-1374.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Skillman and Fuentes.
In 2003, defendant Reginald Venable was tried before a jury and convicted of first degree armed robbery, N.J.S.A. 2C:15-1, second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, and third degree unlawful possession of handgun without a permit, N.J.S.A. 2C:39-5b. The same jury convicted defendant, in a bifurcated proceeding, of second degree possession of a handgun by a person previously convicted of one of the offenses enumerated in N.J.S.A. 2C:39-7. The court sentenced him to an aggregate term of fifty years, with a twenty-year period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction and sentence on direct appeal, State v. Venable, Docket No. A-4618-02 (App. Div. Oct. 15, 2004), and the Supreme Court denied defendant's petition for certification, 183 N.J. 591 (2005). On July 19, 2005, defendant filed a post conviction relief (PCR) petition in the Law Division Criminal Part, alleging infective assistance of trial counsel. By order dated April 3, 2007, Judge Malone denied the petition. Defendant now appeals from this order raising the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE THE ADMISSION OF HEARSAY DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE CO-DEFENDANT TESTIFIED IN PRISON GARB.
DEFENDANT IS ENTITLED TO A FULL EVIDENTIARY HEARING ON HIS CLAIMS.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
Defendant's pro se supplemental brief contains the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE THE ADMISSION OF HEARSAY DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION (Supplement to Counsel's Point One)
THE PCR COURT ERRED IN NOT RULING ON THE INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL ISSUE REGARDING THE TRIAL JUDGE'S ERROR IN FAILING TO PROPERLY INSTRUCT THE JURY THAT THEIR ASSESSMENT OF DIXON'S CREDIBILITY SHOULD NOT BE AFFECTED BY HIS PROMISE TO TESTIFY TRUTHFULLY AND THE STATE'S APPARENT FAILURE TO VACATE HIS PLEA BARGAIN AND THAT THE JURY COULD NOT USE DIXON'S GUILTY PLEA AS SUBSTANTIVE EVIDENCE OF GUILT
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL POINT FOUR THE CUMULATIVE ERRORS COMMITTED BY TRIAL COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF A FAIR TRIAL THAT RESULTED IN A MANIFEST INJUSTICE
We reject these arguments and affirm substantially for the reasons expressed by Judge Malone in his oral opinion delivered from the bench on April 3, 2007. We add only the following brief comments.*fn1
As to the argument presented in Point III of appellate counsel's brief, we note that although the co-defendant witness testified in prison garb, the record reflects that he was seated in the witness box when the jury was brought back into the courtroom and there was no evidence that the witness was shackled while so seated. Furthermore, in State v. Kuchera, 198 N.J. 482, 500 (2009), our Supreme Court rejected, "as a matter of law or constitutional doctrine . . . that a witness can never testify in prison garb." Rather, the Court left the decision whether to permit a witness to testify in prison garb to the sound discretion of the trial court. Id. at 501. Here, defendant has not presented any evidence to support the conclusion that the trial court abused its discretion in permitting the witness to testify while dressed in prison garb.
Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), defendant argues in Point I of his pro se appellate brief that he was denied his Sixth Amendment right of confrontation because his attorney failed to call as a witness the person who assisted the victim of the robbery by interpreting his communications with a responding police officer. We disagree.
The Sixth Amendment "prohibit[s] the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony." State ex rel J.A., 195 N.J. 324, 342 (2008). The Confrontation Clause's "ultimate goal is to ensure the reliability of evidence . . . by testing [it] in the crucible of cross-examination." Crawford, supra, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed. 2d at 199. Thus, the Crawford Court held that "[t]estimonial statements of witnesses absent from trial [will be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59.
Here, the victim of the robbery testified at trial, identified defendant as the person who robbed him, and was thoroughly cross-examined by defense counsel. The so-called "interpreter" did not witness any aspect of the robbery. This person's involvement was limited to assisting the victim, who did not speak English, in reporting the event to a police officer who happened to be driving nearby. The concerns articulated by the Court in Crawford are not applicable to this individual.
Our conclusion is consistent with decisions reached by a number of federal courts that have examined this question. See, e.g., United States v. Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (concluding that the translator at defendant's immigration interview "was merely a 'language conduit' and not a declarant"); United States v. Cordero, 18 F.3d 1248, 1252 (5th Cir. 1994) (upholding the admission of testimony by DEA agent as to defendant's statements made through an interpreter); United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991) (upholding the admission of a translated statement where defendants' offered "no reason to doubt the accuracy of [the] translation"). See also Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 604 (2008) ("The interpreter's role is merely that of a conduit from the primary witness to the trier of fact.").
The balance of defendant's arguments lack sufficient merit to warrant comment in a written opinion. R. 2:11-3(e)(2).