June 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY BROOKS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Payne and Miniman.
In April 2000, defendant, Anthony Brooks, was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1, second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4a. He was sentenced to sixteen years in custody, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Following an unsuccessful appeal to us, State v. Brooks, No. A-1272-00 (App. Div. January 21, 2003) and denial of certification by the Supreme Court, State v. Brooks, 176 N.J. 430 (2003), defendant moved for post-conviction relief (PCR), making multiple arguments in pro-se and counseled briefs. The arguments were rejected by Judge Michael L. Ravin in a thoughtful and extensive written opinion.
On appeal, defendant presents all of the arguments raised before Judge Ravin, doing so in a fashion that requires some explanation. First, he has reordered them into twelve groups lettered "A" through "L." Then, he has synthesized and grouped certain arguments under the headings "Ground One through Four." After that, he has reproduced the original arguments as set forth in his pro se and counseled briefs, retaining their original point headings and type face. Points with Roman numerals were raised in defendant's counseled PCR brief, whereas points with numbers written out in English were raised in defendant's pro se PCR brief. The arguments follow:
THE DEADLINE UNDER RULE 3:22-12 FOR THE FILING OF A POST-CONVICTION RELIEF PETITION MUST BE RELAXED IN THE CASE OF PETITIONER BECAUSE OF EXCUSABLE NEGLECT.*fn1
Ground One - The trial court gave an erroneous instruction to the jury on count one (1) of the indictment for first degree (1˚) Robbery which violated the Defendant's right to due process of law under the 5th. Amendment of the U.S. Constitution and right to a fair and speedy trial under the 6th. Amendment of the U.S. Constitution, and N.J. State Constitution's Equal Protection Clause.
THE TRIAL COURT'S ERRONEOUS INSTRUCTION TO THE JURY ON COUNT (1) OF THE INDICTMENT, FIRST DEGREE ROBBERY, VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AND FAIR TRIAL UNDER THE 6th. AMENDMENT OF THE U.S. CONSTITUTION AND THE N.J. STATE CONSTITUTION'S EQUAL PROTECTION CLAUSE.
THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS WHICH RAISE ROBBERY TO THE FIRST DEGREE ROBBERY, THAT IS, WHETHER DEFENDANT WAS ARMED WITH, USED OR THREATENED TO USE A HANDGUN DURING THE ROBBERY.
Ground Two - The Court violated the Defendant's 5th. Amendment Right to the U.S. Constitution, by denying the Defendant his right to due process when the Court amended the Indictment.
THE TRIAL COURT VIOLATED THE DEFENDANT'S 5th. AMENDMENT RIGHT UNDER THE U.S. CONSTITUTION, AND N.J. STATE CONSTITUTION, (ARTICLE 1 - PARAGRAPH 8) WHEN IT AMENDED THE INDICTMENT.
THE TRIAL COURT'S INSTRUCTION TO THE JURY ON AGGRAVATED ASSAULT UNDER 2C:12-1(B)(1) WHICH FIT THE DEFINITION OF AGGRAVATED ASSAULT UNDER 2C:12-1(B)(4), AN OFFENSE NOT CHARGED IN THE INDICTMENT, VIOLATED PETITIONER'S CONSTITUTIONAL RIGHT TO INDICTMENT AND DUE PROCESS OF LAW.
Ground Three - the trial Court's erroneous instruction of the Defendant's possession of a weapon for an unlawful purpose was contradictory, and inconsistent thus it denied Defendant a fair and speedy trial, and due process of law.
THE TRIAL COURT'S ERRONEOUS INSTRUCTION ON THE DEFENDANT'S POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSE, WAS CONTRADICTORY, INCONSISTENT, AND DID NOT DEFINE THE STATE'S BURDEN OF PROOF TO THE JURY. THUS DENIED THE DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW.
THE TRIAL COURT'S INSTRUCTION ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS CONFUSING AND TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO OBJECT TO THE INSTRUCTION AND APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THIS ISSUE ON APPEAL.
Ground Four - the Defendant was denied due process and the effective assistance of counsel, (both Trial and appellate) guaranteed by the U.S. Constitution (6th. Amendment) and N.J. State Constitution (Article 1, Paragraph 10) when his trial counsel failed to object to the issue of the State's burden of proof that prejudiced the jury, and the State's failure to charge the jury with the Defendant's presumption of innocence. Also Appellate counsel's failure to raise these issues on the direct appeal, denied the Defendant a fair trial and effective remedy.
THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON THE DEFENDANT'S PRESUMPTION OF INNOCENCE, VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AND FAIR TRIAL UNDER THE 5TH., AMENDMENT OF THE U.S. CONSTITUTION.
THE TRIAL COURT PROVIDED AN INADEQUATE INSTRUCTION ON THE PRESUMPTION OF INNOCENCE AND THE CONCEPT OF THE PRESUMPTION OF INNOCENCE WAS UNDERMINED BY ERRORS AT TRIAL.
THE DEFENDANT WAS DENIED DUE PROCESS OF LAW, THE EFFECTIVE ASSISTANCE OF (BOTH TRIAL AND APPELLATE COUNSEL) GUARANTEED BY THE 6TH. AMENDMENT OF THE U.S. CONSTITUTION, AND THE N.J. STATE CONSTITUTION (ARTICLE I, PARAGRAPH 10) WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE ISSUES RAISED ABOVE (POINT 1, 2, 3, & 4) AND THE APPELLATE COUNSEL FAILED TO RAISE THE ISSUES ABOVE ON DIRECT APPEAL.
BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAS BEEN DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE.
THE STATE'S INTRODUCTION OF PETITIONER'S EMPLOYMENT STATUS INTO EVIDENCE AND COMMENT ON THIS SUBJECT WERE IMPROPER AND THE FAILURE OF PETITIONER'S TRIAL COUNSEL TO OBJECT AND PETITIONER'S APPELLATE COUNSEL TO RAISE THIS ARGUMENT ON APPEAL CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
PETITIONER'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE PROSECUTOR IMPROPERLY ARGUED THAT DEFENDANT SAT IN COURT AND COULD THUS TAILOR HIS TESTIMONY, THE TRIAL COURT FAILED TO GIVE A CURATIVE INSTRUCTION ON THIS IMPROPER COMMENT, AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON APPEAL.
APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO PETITIONER BY FAILING TO ARGUE THE STATE'S MISUSE OF PETITIONER'S PRIOR CONVICTIONS WAS PART OF AN OVERALL PATTERN OF PROSECUTORIAL MISCONDUCT DEMONSTRATED DURING PETITIONER'S TRIAL.
CUMULATIVE ERRORS DENIED PETITIONER THE RIGHT TO A FAIR TRIAL.
THE PETITION FOR POST CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
THE PROSECUTOR'S CROSS EXAMINATION AT TRIAL OF PETITIONER ON HIS SILENCE AFTER HIS ARREST DENIED PETITIONER HIS RIGHT TO A FAIR TRIAL, AND THE FAILURE OF TRIAL COUNSEL TO OBJECT AND APPELLATE COUNSEL TO RAISE THIS ARGUMENT ON APPEAL CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
The record in this matter indicates that at midnight on February 17, 1999, after Kabir Nunnally had purchased take-out food from Lincoln Chicken on Bergen Street in Newark, defendant approached Nunnally asking for cocaine and reaching into Nunnally's right front pocket. A struggle ensued, during which defendant struck Nunnally several times on the temple with his handgun and demanded money. Nunnally threw money on the ground, which angered defendant, who struck Nunnally again and ordered him to pick up the money and give him all the cash that he had. Nunnally complied, giving defendant $127, which he claimed was the proceeds of his paycheck. Following defendant's order to do so, Nunnally then started running. Defendant shot at him once, but Nunnally ducked behind a parked car.
Thereafter, Nunnally observed defendant entering the back seat of a light colored Honda, which was then driven off. Police, flagged down by Nunnally, gave chase and soon stopped the vehicle, finding defendant in the back seat with a loaded handgun lying next to him. Nunnally identified defendant at the scene.
At the trial, defendant testified on his own behalf. He stated that he had been approached by Nunnally, who sought drugs. When defendant thought Nunnally was reaching for a gun, a struggle ensued, a shot was fired, and defendant thought that he had been struck. Defendant then wrestled the gun from Nunnally and, spying a car in the parking lot occupied by a woman that he knew, defendant jumped in and ordered the driver to drive off. The car was subsequently stopped by the police and Nunnally's gun was found in defendant's possession.
Defendant denied owning the gun, committing the robbery, and firing the gun at Nunnally. The jury did not credit defendant's version of the events and returned a verdict against him on all counts of the indictment. As we have stated previously, on appeal we affirmed defendant's convictions; the Supreme Court denied certification; and Judge Ravin denied defendant's petition for PCR in a lengthy and detailed written opinion. This appeal followed.
We have carefully considered the arguments raised by defendant and his counsel and affirm substantially on the basis of Judge Ravin's opinion. We add only that the bulk of defendant's arguments, including his position that the court gave incorrect charges on first-degree robbery, aggravated assault, possession of a weapon for an unlawful purpose, and the presumption of innocence, could have been raised on direct appeal and are therefore barred by Rule 3:22-4. Defendant contends that his trial and appellate counsel were ineffective in failing to raise these arguments and that he is entitled to PCR as a result. However, to prevail, defendant must meet the dual evidentiary burdens set forth in Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984), as adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). He must establish both that counsel's performance was deficient and that the ineffectiveness of counsel so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Our review of this matter satisfies us that defendant has failed to meet his burdens, since as Judge Ravin correctly concluded, the charges as given adequately explained the law to the jury.
Defendant also contends that the State improperly accused him of tailoring his testimony at trial, noting that the Supreme Court prohibited such arguments in it decision in State v. Daniels, 182 N.J. 80, 98 (2004). However, Daniels was not decided until four years after defendant's trial, and was accorded only pipeline retroactivity. State v. Feal, 194 N.J. 293, 312 (2008). Defendant had exhausted his appeals prior to the Court's decision in Daniels. Thus appellate counsel was not ineffective in failing to raise this issue.