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State v. Fletcher

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TIEHEEN FLETCHER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-10-4248-D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 3, 2010

Before Judges C.L. Miniman and Waugh.

Defendant Tieheen Fletcher appeals from the denial of his petition for post-conviction relief (PCR) following his conviction on June 26, 1998, of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b. Defendant also pled guilty that same day to another indictment charging him with third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-4a. He was sentenced to life imprisonment with thirty years of parole ineligibility on the murder conviction and two concurrent five-year terms of imprisonment on the two third-degree convictions. The second-degree conviction was merged for sentencing purposes.

I.

Defendant's convictions were based on the following evidence. Early in the morning of August 8, 1997, Michael Joyner was at the corner of Avon Avenue and Twelfth Street in Newark with Elizabeth Kurbansade and Glenn Gray. Joyner heard defendant and Gregory Brantley arguing for two to three minutes "about some drugs." Defendant and Brantley, who were about fifty feet away from Joyner, were in front of a building on the corner of Avon Avenue and Eleventh Street. After they stopped arguing, defendant walked up Twelfth Street past Joyner.

As Brantley got into his car, he greeted Gray and drove away. All three witnesses then heard multiple gunshots. Kurbansade heard about eight; Joyner heard four or five; and Gray could not specify how many he heard, but he saw Brantley's car swerve and crash. Gray and Kurbansade started to run. Defendant ran past Gray on Twelfth Street and turned onto Avon Avenue. As defendant approached Joyner, he placed a silver-looking gun in his waistband and said he "got his fat ass."

Joyner, Gray, and Kurbansade gave statements to the police. After Joyner was arrested on a drug charge, he identified defendant from a photographic array on September 2, 1997; he did not mention the argument before the shooting.

Gray was arrested on some outstanding warrants for possession of heroin and gave a statement to the police on August 14, 1997, after which he was released on his own recognizance. He said he knew defendant because he had seen him selling drugs in front of a building Brantley was going to buy. Gray said he never saw a gun. Although he had not mentioned this previously, Gray testified at trial that while he was in prison for two days, he was two or three jail cells away from defendant and overheard him saying he had "messed his life up, he didn't want his family messed up," and he had made a big mistake.

Kurbansade gave a statement on August 14, 1997, in which she said that she heard about eight shots, started to run, and saw defendant holding a gun in his right hand as he was running. She identified defendant from a photographic array. At trial she claimed that she was "real high" on the night of the murder and partially recanted her statement. Because she was sick and threatened with jail, she claimed she only told the police what she thought they wanted to hear and denied the truth of her statements implicating defendant. However, she admitted that she had known defendant for about five years and said he sold heroin in the area.

Detective Gil Gialanella denied threatening to jail Kurbansade if she did not cooperate. However, he said she was "[v]ery nervous, very upset, [and] scared" while she was giving her statement.

The medical examiner testified that Brantley's death was caused by a bullet to the brain fired from a distance in excess of eighteen inches. Louis Alarcon, a ballistics expert, testified that the six shell casings found at the scene were fired from a semi-automatic nine-millimeter pistol. He was not sure whether the bullet removed from Brantley's brain was fired from one of those casings. From the location of each casing, he opined that the shots were fired while the shooter was moving.

II.

Defendant appealed his convictions, we affirmed, and the Supreme Court denied certification. State v. Fletcher, No. A-4398-98 (App. Div. Jan. 9, 2001), certif. denied, 169 N.J. 604 (2001). In his direct appeal, defendant raised the following issues:

I. The admission of highly prejudicial and irrelevant evidence of other bad acts deprived defendant of a fair trial. (U.S. Const. amends V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9, 10). (Partially raised below).

II. The admission of Elizabeth Kurbansade's prior inconsistent statement was contrary to State v. Gross*fn1 and State v. Mancine*fn2 and denied defendant a fair trial and his right to controntation. (U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10).

III. Based on an erroneous interpretation of State v. Clawans*fn3 , the trial court mistakenly sustained the State's objection to defense counsel's summation and gave a "curative instruction" that improperly shifted the burden of proof to defendant.

IV. Numerous instances of prosecutorial misconduct deprived defendant of his due process right to a fair trial. (U.S. Const. amend. XIV; N.J. Const. art. 1, ¶ 10). (Not raised below).

V. The trial court's failure to instruct the jurors regarding the effect of witnesses' actual or perceived expectation of favorable treatment by the state, when both of these witnesses testified that they saw defendant run from the scene of the shooting, deprived defendant of his federal and state constitutional rights to a fair trial and to due process of law. (U.S. Const. amends. V, VI and XIV; N.J. Const. art. 1, ¶¶ 1, 10 and 12). (Not raised below).

VI. The sentence of the court was manifestly excessive. [Id. at 2-3.]

Defendant pro se raised two additional issues, which we have renumbered to run consecutively:

VII. The testimony of Michael Joyner that defendant and the victim were arguing about drugs minutes before the shooting was improper lay opinion testimony because Joyner did not testify to any facts he actually perceived that rationally supported his opinion. As a result, the State should not have been allowed to use this evidence and other evidence of defendant's other crimes as the motive for the charged offenses. (Partially raised below).

VIII. The cumulation of trial errors deprived defendant of a fair trial. (Not raised below). [Id. at 3.]

Defendant filed his PCR petition on July 19, 2002, wherein he raised the following grounds for relief:

a. Trial Counsel was Ineffective for not using Evidence of Defendant's Statement to the Police where this Evidence would have Clearly Supported a Verdict on any of the three forms of Manslaughter Submitted to the Jury and would have Supported an Instruction on Self-Defense.

b. Trial Counsel was Ineffective for not Calling Defendant as a Witness.

c. The Jury's General Verdict of Murder Must be Vacated Because one of the Predicates for Conviction (Knowingly Causing Serious Bodily Injury, which Resulted in Death) is Indistinguishable from Aggravated and Reckless Manslaughter.

In his pro se supporting brief, defendant urged that Rule 3:22-4 does not bar the latter claim because it involves the deprivation of a right guaranteed by the United States Constitution.

In a supplemental supporting brief filed by PCR counsel, defendant raised multiple additional issues, which we have relettered to run consecutively to his first three issues:

d. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to obtain a plea agreement on her client's behalf.

e. Petitioner's trial attorney rendered ineffective assistance of counsel by shifting the burden of proof onto the defense.*fn4

f. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to object to inappropriate commentary by the prosecutor in her closing statements.*fn5

g. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to allow [defendant] to testify on his own behalf.

h. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to argue self-defense.

i. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to investigate and interview potential witnesses.

j. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to present evidence that the victim was a known drug dealer.

k. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to present evidence relevant to challenging the perception of Michael Joyner.

l. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to object to autopsy photographs being moved into evidence.

m. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to argue that Judge Cohen double counted an element of the crime as an aggrav[a]ting factor.*fn6

At some unspecified date after April 11, 2006, defendant submitted a handwritten addendum to his petition in support of PCR in which he raised an additional ground for relief, which we have lettered to run consecutively as follows:

n. Trial counsel was ineffective for failing to investigate the State's ability to introduce evidence of defendant's other bad acts and that of the victim[']s state of mind to establish motive where without conducting such an investigation trial counsel unreasonably omitted evidence which would have clearly supported a verdict on any of the three forms of manslaughter submitted to the jury and would have supported an instruction on self-defense.

The PCR judge heard the matter on October 26, 2007, and denied defendant's request for an evidentiary hearing. After counsel argued his petition, defendant argued pro se that he always wanted to assert self-defense, but his trial attorney told him that it was not a viable defense because the police never found a weapon on the victim. The judge explained that defendant was merely revealing a defense strategy which required him to admit that he committed the homicide and that another defense strategy would be to allow the State to try to prove the charge beyond a reasonable doubt. The judge also noted that an unsuccessful strategy did not equate to ineffective assistance of counsel.

The judge issued a written opinion and entered an order that day denying PCR. In his four-page opinion, the judge did not separately address each of defendant's PCR claims nor did he explain why defendant failed to prove each of his claims.*fn7 The judge stated the law applicable to PCR and dismissed all of defendant's ineffective-assistance-of-counsel claims, broadly stating they were founded upon tactical decisions, "which remain within the realm of counsel's prerogative." He also found, "Not only has defense not asserted any valid claims that counsel's performance was unprofessional, as determined under the first prong [of Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 2064-66, 80 L.Ed. 2d 674, 693-96 (1984)], but he also failed to show that but for those errors, the jury would have found in his favor."

III.

In this appeal, defendant contends:

POINT I

THE COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

In his pro se supplemental brief, defendant raises the following additional issues, which we have renumbered to run consecutively:

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL GUARANTEED HIM BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS, IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDMENTS VI & XVI; N.J. CONST. ART. 1, PAR. 10.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATING THE STATE[']S ABILITY TO INTRODUCE EVIDENCE OF THE DEFENDANT'S PRIOR BAD ACTS AS RELEVANT TO MOTIVE, AND WITHOUT CONDUCTING SUCH AN INVESTIGATION AND TAKING INTO CONSIDERATION THE STATE'S ABILITY TO ESTABLISH MOTIVE AND BOLSTER THE CREDIBLITY OF ITS PRIMARY WITNESS USING THAT EVIDENCE, SUPPRESSING EVIDENCE THAT ALTHOUGH WOULD HAVE PROVIDED THE STATE WITH A MOTIVE, ALSO WOULD HAVE BOLSTERED THE DEFENSE; WOULD HAVE SUPPORTED AN INSTRUCTION AND VERDICT ON A LESSOR OFFENSE, AND WOULD HAVE SUPPORTED AN INSTRUCTION ON SELF-DEFENSE.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ADVISING DEFENDANT OF THE JUDGE[']S DUTY TO INSTRUCT THE JURY ON LESSOR INCLUDED OFFENSES WITH A RATIONAL BASIS IN EVIDENCE AND OF HIS RIGHT TO TESTIFY DURING TRIAL, BEFORE CALLING DEFENDANT AS A WITNESS DURING THE SUPRESSION HEARING, WHERE COUNSEL WAS WELL AWARE OF DEFENDANT'S DESIRE TO PROCEED TO TRIAL WITH THE DEFENSE OF SELF-DEFENSE AND OF THE DEFENDANT'S WILLINGNESS TO PLEAD GUILTY TO A PLEA OF 10 YEARS WHICH WAS THE STATUTORY MAXIMUM FOR PASSION PROVOCATION MANSLAUGHTER.

C. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING A CURATIVE INSTRUCTION RELEVANT TO INADMISSIBLE HEARSAY WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION AND A FAIR TRIAL.

POINT III

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON DIRECT REVIEW WHERE APPELLATE COUNSEL FAILED TO INVESTIGATE, DISCOVER, AND ARGUE THE DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL OUTLINED AT SUBSECTION C. OF POINT [II] HERE IN THIS BRIEF.

POINT IV

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF (PCR) COUNSEL AS IT IS MANDATED BY RULE 3:22-6(d).

A. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVANCE A CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHICH DEFENDANT DESIRED BE RAISED, AND FURTHER, FOR NOT FOR AT LEAST ENSURING THAT DEFENDANT WAS SUCCESSFUL IN ADVANCING THAT CLAIM HIMSELF.

B. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE, DISCOVER, AND ARGUE[] ADDITIONAL CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL RELEVANT TO BOTH TRIAL COUNSEL AND DIRECT APPELLATE COUNSEL.

C. PCR COUNSEL WAS INEFFECTIVE FOR NOT ARGUING, LISTING OR INCORPORATING[] IN HIS BRIEF A CLAIM MADE BY DEFENDANT IN HIS PEITION FOR PCR.

Points II.B., II.C., and III were not raised by defendant before the PCR judge. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This is particularly so when the opportunity to present the question or issue to the trial court was readily available. See Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Accordingly, only issues of sufficient public concern or that concern a lower court's jurisdiction will be considered for the first time on appeal. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998); State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989); Nieder, supra, 62 N.J. at 234-35. No such issue has been raised in these three points. We also recognize that Points IV.A., IV.B., and IV.C. were not presented to the PCR judge, but we will nevertheless consider them to determine whether a remand is required.

IV.

With respect to Points I and II.A., we review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)).

However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

The right to counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const. amend. VI, XIV; N.J. Const. art. I, § 10. In New Jersey, this guarantee requires not just the presence of an attorney, but the effective assistance of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A] criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and adopted in New Jersey under Fritz. Whether the defendant's constitutional right to counsel has been abridged is "measured by applying a 'simple, two-part test.'" State v. O'Neal, 190 N.J. 601, 629 (2007) (quoting Fritz, supra, 105 N.J. at 52).

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]

To meet the first prong of the Strickland/Fritz test, a convicted defendant must identify acts or omissions by the trial counsel that were not the result of reasonable professional judgment. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002); Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. The defendant must show that "counsel's representation 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. A court analyzing a defendant's argument under this first prong "must give great deference to counsel's performance and must strongly presume that the attorney's conduct constituted reasonable professional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22 (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). The court should not review the attorney's performance with the benefit of hindsight, but rather should evaluate the conduct from the counsel's perspective at the time. Id. at 22 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). This prong requires the court to determine whether counsel's acts or omissions, in light of the existing circumstances, were squarely outside the ambit of professionally competent assistance. Ibid. Consequently, informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).

If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the defendant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed. 2d at 696. "[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.) (quoting Fritz, supra, 105 N.J. at 60-61), certif. denied, 130 N.J. 17 (1992). The reviewing court "should presume . . . that the judge or jury has acted according to the law." Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). Thus, relief should only be granted where a defendant demonstrates that the counsel's error is "so serious as to undermine the court's confidence in the jury verdict or the results reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).

To make out a prima facie claim for post-conviction relief, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

It is clear from the applicable law that the only issue before us is whether defendant made out a prima facie case of ineffective assistance of counsel, that is, whether he proved both prongs of Strickland. If he did, then an evidentiary hearing was required.

V.

A.

In Point I, defendant contends that the PCR judge erred in denying him an evidentiary hearing because he made out a prima facie case of ineffective assistance of counsel in two respects. First, he contends that his counsel was ineffective because counsel pressured him not to testify at his trial.*fn8 Second, he contends his counsel was ineffective because she failed to interview Sandy Baldwin, who was with the victim an hour before he was shot; a woman named "De-De," who was with defendant when the victim shot at him; and a man named "Blizz," who was also with defendant when the victim shot at him.*fn9

With respect to the second contention in Point I, defendant has not provided an affidavit from any of the three witnesses to demonstrate to what they would have testified. Defendant has failed to "assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. Because defendant did not do so, he has failed to demonstrate that his counsel was ineffective. As a result, the judge did not err in denying an evidentiary hearing with respect to this second claim.

Turning to the first contention in Point I, after the trial judge ruled on defendant's motion for a judgment of acquittal at the close of the State's case, the judge inquired about defendant's intent to testify:

THE COURT: Have you discussed with [defendant] the question or issue of whether he is going to testify himself and have you explained to him that he has a right to testify if he wants to, he has an equal right not to testify if he doesn't want to, and have you discussed those issues with him and the consequences of both choices?

[DEFENSE COUNSEL]: Yes, I have, your Honor.

THE COURT: What is his and your decision as to whether he is going to testify?

[DEFENSE COUNSEL]: He is not going to testify.

THE COURT: And have you also discussed whether or not in that event that you want a jury charge on the fact that the jury may not take that into account in any way, shape or form? Only if you and your client want such a charge, some attorneys prefer not to mention it at all.

[DEFENSE COUNSEL]: We have discussed it, your Honor, and we have decided to request that the court give that charge to the jury.

THE COURT: I will give that charge. Mr. Fletcher, just want to ask you: Has your lawyer, [defense counsel] here, explained to you [that] you have the right to take the witness stand and testify in this trial, you understand that?

THE DEFENDANT: Yes.

THE COURT: Has she also explained to you that you have an equal right not to testify? No one can force you to testify if you don't want to, has she explained that to you?

THE DEFENDANT: Yes.

THE COURT: You understand that?

THE DEFENDANT: Yes.

THE COURT: After having talked it over with her, have you and she agreed you're not going to testify?

THE DEFENDANT: Yes.

THE COURT: You understand the prosecutor may not comment on that fact in any way, shape or form? I will at the request of your lawyer explain to the jury that they can't hold that against you in any way, shape or form or consider that in any way.

In other words it's not proper for them to consider that, it's not, he didn't testify.

In defendant's PCR certification, he merely alleged the facts to which he would have testified. He did not certify to the substance of his discussions with counsel respecting the decision to testify or not. He did not establish in any way that she improperly compelled him to remain silent at trial despite his protests that he wanted to testify. Thus, he did not even attempt to impeach his above-quoted statement at trial. An argument in a brief is not sufficient to raise an ineffective-assistance-of-counsel issue. See Cummings, supra, 321 N.J. Super. at 170-71 (bare assertion, without more, is insufficient to establish a prima facie case); State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007) (same), certif. denied, 194 N.J. 444 (2008). As a result, defendant did not make out a prima facie case of ineffective assistance of counsel under the first prong of Strickland.

B.

Accordingly, we turn to Point II.A. in defendant's pro se supplemental brief on appeal. There he first argues that his counsel was ineffective in failing to investigate the admissibility of prior "bad-act" evidence under N.J.R.E. 404(b), to which she interposed an objection that was overruled, and in failing to interview the victim's widow, to whose testimony she objected but was overruled. He asserts the absence of such investigation and interview led counsel to mistakenly believe that, with his statement to the police successfully suppressed, the State would not be able to establish its theory of motive.

Second, he contends that his trial counsel was ineffective because she successfully sought to suppress his statement to the police that the victim shot at him the night before the homicide, whereas she ought to have used it to show why the police targeted defendant despite his cooperation in the investigation. Third, he argues that his statement to the police "would have clearly supported a verdict on passion/provocation manslaughter," on which the jury was instructed but had only the evidence of the argument immediately before the shooting.*fn10

As to defendant's first contention, our review of the record does not support his claim that his counsel was unfamiliar with evidence rules or was surprised by the testimony to be offered by the victim's widow. She properly objected on both occasions, the judge heard argument, and overruled the objection. This does not amount to ineffective assistance of counsel. His second and third contentions clearly express concerns about his trial counsel's strategic and tactical decisions with respect to defendant's statement to the police.

Strategic decisions made by defense counsel will not present grounds for reversal on appeal:

"The defendant cannot * * * request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). To justify reversal on the grounds of an invited error, a defendant must show that the error was so egregious as to "cut mortally into his substantive rights * * * ." [State v. Ramseur, 106 N.J. 123, 281-82 (1987) (citing State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)).] [State v. Buonadonna, 122 N.J. 22, 44 (1991).]

The same can be said with respect to counsel's advice to a client respecting the advantages and disadvantages of having a jury consider a statement he or she gave to the police. There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. We will not view counsel's performance "under the 'distorting effects of hindsight.'"

State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694).

VI.

Last, we consider the issues raised in Point IV of defendant's pro se supplemental brief on appeal. There, he contends in Point IV.A. that his PCR counsel was ineffective for not advancing the claims made in Point II.A. of his supplemental brief on appeal as he requested, which led him to submit the undated addendum to his PCR petition in which he advanced argument m. Because the PCR judge did not comment on his addendum, he contends his counsel was ineffective for failing to advance this claim on his behalf. In Point IV.B., defendant urges that his PCR counsel was ineffective for failing to investigate the facts discussed in Points II.B., II.C., and III of defendant's supplemental brief on appeal. Finally, in Point IV.C., defendant contends that his PCR counsel was ineffective for failing to include in his PCR brief the third ground for PCR stated in defendant's pro se petition--that the jury's general verdict of murder must be vacated because one of the predicates for conviction is indistinguishable from aggravated and reckless manslaughter. Relying on State v. Rue, 175 N.J. 1 (2002), defendant urges that he was deprived of the effective assistance of PCR counsel and that the outcome of his PCR proceeding would have been different had counsel been effective.

In Rue the Supreme Court resolved a conflict between R.P.C. 3.1, "which generally bars lawyers from advancing frivolous claims," id. at 18, and Rule 3:22-6, which requires PCR counsel to "'advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit,'" id. at 13 (quoting then R. 3:22-6). The Court concluded that Rule 3:22-6 trumped R.P.C. 3.1:

Put another way, for nearly forty years, and directly in the face of RPC 3.1, our Rules have taken a unique position regarding PCR representation. That choice was obviously motivated by our view of the critical nature of faithful and robust representation of a defendant at a PCR proceeding. PCR is a defendant's last chance to raise constitutional error that may have affected the reliability of his or her criminal conviction. It is not a pro forma ritual. That is why we require provision of counsel. Under our scheme that attorney is responsible to communicate with his client and investigate the claims. State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000); State v. Casimono, 298 N.J. Super. 22, 27 (App. Div. 1997) (remanding case to trial court to determine whether PCR counsel fulfilled his obligations to interview trial counsel, meet with defendant, submit brief, and argue on behalf of defendant); State v. King, 117 N.J. Super. 109, 111 (App. Div. 1977). Based on that communication and investigation, counsel then must "fashion the most effective arguments possible." Velez, supra, 329 N.J. Super. at 133.

In some cases, the record will give PCR counsel a wealth of grist for his or her mill, in some cases, not. At the very least, where communication and investigation have yielded little or nothing, counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition. That kind of conduct contravenes our PCR rule. [Rue, supra, 175 N.J. at 18-19.]

Here, PCR counsel did not denigrate or dismiss defendant's claims, negatively evaluate them, or in any way aid and support the State's opposition. Nor does defendant contend that PCR counsel failed to communicate with defendant and investigate his claims.

The only issue raised under Rue in Points IV.A. and IV.C. is whether PCR counsel failed to advance arguments made by defendant. Contrary to his claims in Point IV.C., there is no requirement under Rue that assigned PCR counsel repeat arguments advanced in defendant's pro se PCR brief in counsel's supplemental PCR brief. Defendant does not contend that his pro se brief contained any fatal errors that required correction. Thus, it was entirely proper for PCR counsel to rely on defendant's pro se PCR brief at the time counsel supplemented it and at oral argument.

We next consider whether PCR counsel was ineffective in failing to include the argument advanced in defendant's addenda to his PCR petition and to counsel's PCR brief. We must conclude that PCR counsel was not ineffective because we have already determined that there is no merit to the arguments raised in Point II.A. of defendant's supplemental brief on appeal, which mirrors the added point in defendant's addendum to PCR counsel's brief.

PCR counsel also argued that defendant wanted to testify but that his trial attorney talked him out of it despite the fact that he had no prior convictions and his statement was not incriminating. He urged that trial counsel simply erred in objecting to the admission of defendant's statement to the police because she failed to appreciate that it would tend to prove self-defense and at the very least support the lesser-included offense of passion/provocation manslaughter. He then relied on the briefs for the balance of defendant's arguments. Thus, counsel did advance the argument made in defendant's PCR addendum, which defendant himself briefed. Rue requires no more.

We next consider Point IV.B. in which defendant contends his PCR counsel was ineffective for failing to investigate, discover, and argue additional claims of ineffective trial and appellate counsel. Those claims were not made before the PCR judge. Because we are not in a good position to evaluate claims of failure to investigate and discover evidence, the claims made in Point IV.B. of defendant's pro se supplemental brief on appeal are remanded to the PCR judge in the first instance, who shall consider them as part of defendant's first PCR petition.

Affirmed in part and remanded in part.


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