July 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS PIERCE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-09-3008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 19, 2010
Before Judges Payne, C.L. Miniman, and Fasciale.
Defendant Louis Pierce appeals from the denial of his petition for post-conviction relief (PCR) in connection with his conviction of two counts of first-degree attempted murder, contrary to N.J.S.A. 2C:11-3a and 2C:5-1; two counts of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); and one count each of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2); and second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7. After merging various convictions for sentencing purposes, the judge sentenced defendant to an aggregate term of life in prison with twenty-five years of parole ineligibility; all shorter-term sentences were to run concurrently with the life term. Defendant's convictions and sentences were affirmed on appeal, and the Supreme Court denied his petition for certification. State v. Pierce, No. A-1221-00 (App. Div. Feb. 10, 2003), certif. denied, 177 N.J. 222 (2003).
On or about December 11, 2003, defendant filed a pro se PCR petition in which he claimed he received ineffective assistance of counsel. Assigned counsel filed a brief in support of the petition on July 6, 2007. Oral argument on the petition was held on September 10, 2007. The judge found that an evidentiary hearing was not required and denied the petition. On October 3, 2007, defendant filed a notice of appeal. We now affirm the denial of PCR.
On November 5, 1996, Mike Rozier and Bart Merriel drove to Camden from the home of Rozier's mother in Cinnaminson. While on their way to a restaurant owned by Rozier's brother, Rozier and Merriel stopped at the McGuire projects around 10:45 p.m. to talk to a group of people, which included Jerome Williams, a man named Daron, a man named Lou, James Hymon, a girl, and defendant, with whom Rozier spoke and shook hands. Rozier had talked to defendant "three or four times" over the previous "four or five years," although he did not know defendant's name at the time. Everyone was drinking liquor, and Rozier and defendant were sniffing cocaine.
While Rozier and Merriel were preparing to leave shortly after midnight, Rozier, standing approximately thirteen yards from defendant, saw defendant pull out a gun and shoot Merriel. Rozier testified that he yelled at defendant and moved toward him, at which point defendant, while facing Rozier, shot Rozier twice in the abdomen and once in the right hand. Defendant then walked away after the shooting.
Williams, on the other hand, testified at trial that Lou, not defendant, did the shooting. When asked if defendant was the man named "Lou," Williams responded, "No. No." Hymon also contradicted Rozier, testifying at trial that he was introduced to a man named "Lou" that night. Hymon testified, "The guy Lou pulled out the gun and... shot Bart and then Mike at the same time, Mike Rozier was walking away before any shooting occurred, he had started walking away and after he shot Bart then he shot Mike."
Williams, also known as Fidel, drove Rozier and Merriel to Our Lady of Lourdes Medical Center, where Rozier received medical treatment and his clothes were removed.*fn1 Officer William Wiley testified that he followed the car carrying Rozier and Merriel to the hospital after observing it speeding. The driver identified himself as James Watson rather than Jerome Williams. When Wiley asked Merriel for his account of the shooting, Merriel, who was in the same room as Rozier, said, "Whatever Mike said was what happened." Rozier talked with the police and gave a description of his assailant.*fn2
In the meantime, Sergeant Richard Desmond responded to the McGuire projects. Finding nothing of evidential value, Desmond proceeded to the hospital and spoke with Rozier. Desmond testified that Rozier rebuffed his attempts to obtain information; he did not recall speaking to Merriel.
Williams did not give a statement to the police at the hospital, but did so six days later on November 12, 2006. In that statement, Williams confirmed that "Lou" was at the crime scene. Williams was shown a photo array by the prosecutor's office at a later date; he testified that the shooter was not in that photo array but defendant's picture was there.
Hymon was questioned by the police shortly after the shooting, but he was released after Rozier and Merriel told the police he was not the shooter. Hymon testified that he was shown a photo array on February 25, 2000, but did not recognize anyone in it. Hymon also testified that defendant was not the shooter.*fn3
Bruce Gilbert, an investigator with the Camden County Prosecutor's Office, testified to the photo array he showed Williams at the prosecutor's office. Gilbert confirmed that Williams did not recognize anyone in the array in any manner, even after he asked Williams if anyone in the array was present the night of the shooting. Gilbert also testified that he showed Hymon the same photo array he showed Williams. Gilbert stated that Hymon recognized defendant in the photo array but said the shooter was not in it. Hymon also viewed a photocopy of a lineup and did not see the shooter in it.
After Rozier left Cooper University Hospital, he stayed at his mother's house. He did not go to the police and did not give a formal statement. However, on November 10, 1997, a year after the shooting, Rozier met with a police officer he knew as "Peppy" and gave a taped statement. Rozier was also shown two photo arrays, one large and one small, which he believed contained the same pictures. Rozier identified defendant in both photo arrays as the shooter. Rozier also identified defendant in court as his assailant, saying he was "positive" that defendant was the shooter and "I don't forget nobody shooting me for nothing."
Detective Jerome Boyd, the officer known as "Peppy," was assigned to investigate the shooting approximately a year after it happened. Boyd confirmed that Rozier looked at the two photo arrays and gave a taped statement. Boyd said that Rozier "picked [defendant] right out" of both arrays, after which Boyd told Rozier the name of the person he identified. Boyd testified he had no other involvement in the case other than taking Rozier's statement, showing the photo arrays, issuing a warrant, and charging defendant.
Merriel never talked to the police because, according to Rozier, Merriel did not want to cooperate with them. Rozier testified that Merriel had problems with defendant in the past. Merriel died before the trial commenced from causes unrelated to the shooting.
At trial, defendant called Marla Wallace, defendant's girlfriend of twenty-one years, as an alibi witness. Wallace and defendant were living together in Philadelphia in November 1996. Wallace first heard about the shooting on the news at 5:30 a.m. one weekday, although she could not remember the specific date. Wallace testified that defendant was with her when she heard the news. Wallace said that Merriel was a "friend of the family" and to her knowledge, there were no bad feelings between defendant and Merriel. Wallace also twice spoke with defendant's investigator; neither time did she tell the investigator about the news report, but she did tell the investigator that she knew Merriel.
In rebuttal, the State called Cathy Simons, an employee in the news department of WPVI TV Channel Six, to testify. Simons examined the logs and transcripts for the November 6, 1996, newscast that aired at 5:30 a.m. She found no record of any news story about the shooting during the 5:30 a.m. show. The first time her station aired a story about the shooting was during the 5:00 p.m. Action News telecast on November 6. Gilbert was also called to rebut Wallace and testified that he spoke with her on June 14, 2000, before she testified. Wallace told him for the first time that day that she was going to testify about hearing a television news broadcast on Channel Six Action News at 5:30 a.m. Defendant was convicted on all counts.
After we affirmed defendant's convictions and sentences, and the Supreme Court denied certification, defendant filed a timely pro se application for PCR. In it, he raised the following issues:
POINT I -- THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. Trial Counsel's Failure To Investigate Significant And Compelling Exculpatory Evidence, As Requested By Defendant, Constitutes Ineffective Assistance Of Counsel.
B. Trial Counsel's Failure To Satisfactorily Challenge The State's Evidence Concerning "Tip Information," Which Would Have Satisfied A Threshold Showing Of Evidence Of Impermissible Suggestibility In The Identification Procedure; Thereby Warranting A Full Wade Hearing.
C. Trial Counsel's Failure To Present Evidence of "Tip Information" During The Motion For A Wade Hearing In Order To Demonstrate How Said "Tip Information" Was Used To Influence Witness (Mike Rozier) Into Making An Out Of Court Identification Which Resulted In The Petitioner[']s Arrest.
D. Defendant Was Denied Effective Assistance Of Counsel At Trial By Counsel's Failure To Conduct An Adequate Independent Investigation Of Potential Witnesses In Preparation Of This Case Was Unreasonable, And Deprived The Petitioner Of The Effective Assistance Of Counsel, In Violation Of His Constitutional Rights Under The Sixth, And Fourteenth Amendments Of The United States Constitution And Article 1[,] Paragraph 10 Of The New Jersey Constitution.
E. Trial Counsel's Failure To Alert Trial Judge Of Prosecutorial Misconduct Wherein Prior To Testifying, A Witness For The Defense, Informed Trial Counsel Of Being Interrogated Directly Outside Of The Court Room By Prosecutor's Investigator About The Giving Of Testimony As A Witness On Behalf Of Louis Pierce.
F. Ineffective Assistance Of Appellate Counsel For Failure To Raise Meritorious Issues.
G. Newly Discovered Evidence.
POINT II -- CUMULATIVE ERROR.
PCR counsel was assigned and filed a brief in support of defendant's petition. The matter was heard on September 10, 2007, and denied. This appeal followed.
Defendant raises the following issues for our consideration:
POINT ONE -- TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO ADVISE MR. PIERCE ON HIS RIGHT TO TESTIFY.
POINT TWO -- PCR COUNSEL'S FAILURE TO RAISE THE ISSUE OF A DEFENSE WITNESS APPEARING IN HANDCUFFS DENIED MR. PIERCE THE EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).
POINT THREE -- PCR COUNSEL'S FAILURE TO RAISE THE ISSUE OF THE ADMISSION INTO EVIDENCE OF PREJUDICIAL HEARSAY AT TRIAL DENIED MR. PIERCE THE EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW.)
POINT FOUR -- AN EVIDENTIARY HEARING IS REQUIRED TO PROVE THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO ADVISE MR. PIERCE OF HIS PLEA OFFER.
POINT FIVE -- THE CLAIMS IN MR. PIERCE'S PETITIONS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
With respect to Points Two and Three, 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) (internal quotations omitted). This is particularly so when the opportunity to present the question or issue to the trial court was readily available. 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).
It is readily apparent that Points Two and Three could easily have been presented to the PCR judge, who would then have had a opportunity, if appropriate, to conduct an evidentiary hearing. Neither of the issues raised "go to the jurisdiction of the trial court or concern matters of great public interest." Nieder, supra, 62 N.J. at 234 (internal quotations omitted). As a result, we will not consider them.
We nonetheless note with respect to the issue of handcuffs that State v. Artwell, 177 N.J. 526, 536-37 (2003), held that "[t]he appearance of a defense witness in restraints undermines the credibility of the testimony that [the] witness offers on the defendant's behalf" and barred the general practice of handcuffing criminal witnesses unless necessary for security. However, the Artwell Court specifically held, "going forward, a trial court may not require a defendant's witness to appear at trial in prison garb." Id. at 539 (emphasis added). We decided the direct appeal on February 10, 2003, and the Supreme Court decided Artwell on July 2, 2003. Defendant is not entitled to retroactive application of Artwell to the issue raised for the first time in his PCR appellate brief.
Before addressing Points One and Four, we briefly consider Point Five in which PCR appellate counsel incorporates the points defendant raised in his PCR petition. They all allege ineffective assistance of counsel, primarily relating to alleged failures to investigate. 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). Defendant's petition in support of PCR is bereft of any facts to support any of the claims he makes, and we find them to be without merit. Accordingly, we address only Points One and Four on the merits.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citations omitted), 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. (citation omitted). We review fact-findings for clear error and accord deference to credibility determinations. Ibid. (citations omitted). 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 (citation omitted). 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.
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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted in New Jersey by State v. Fritz, 105 N.J. 42, 57-58 (1987). 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 attorney that were not the result of reasonable professional judgment. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). 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 (citation omitted). 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 (citation omitted).
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.) (quotation omitted), certif. denied, 130 N.J. 17 (1992). 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) (citation omitted).
In his affidavit submitted as part of his PCR petition, defendant averred that he informed trial counsel at the start of and continuously throughout trial that he wanted to testify. Defendant claimed trial counsel said they had time to talk about him testifying but "never addressed [his] desire to testify after several requests." He also stated that when he "finally got the opportunity to talk to Judge Snyder concerning testifying[,] Judge Snyder stated, 'It was too late!'"
The PCR judge noted the trial judge's discussions regarding defendant's right to testify. He also noted that there were no affidavits setting forth how things would have been different. The judge pointed out that if defendant had testified, his nine prior convictions would have been brought to the jury's attention. The judge characterized any potential testimony about an alibi as cumulative, and this and all his other assertions "would have come in the face of the overwhelming evidence from the State," including Rozier's testimony. The judge thus determined that, even if the first prong of Strickland were satisfied, the prejudice prong had not been met, and defendant had not made a prima facie showing.
In the interest of brevity, we will assume that trial counsel was ineffective in failing to counsel defendant about his right to testify. State v. Bey, 161 N.J. 233, 270-71 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000). In the context of a PCR petition alleging ineffective assistance of counsel due to an alleged failure of counsel to inform a defendant of his right to testify, the Supreme Court has found that
"it is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages [of] doing so or not doing so." State v. Bogus, 223 N.J. Super. 409, 423 [(App. Div.), certif. denied, 111 N.J. 567 (1988)]. Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it. To ensure that counsel meets that obligation, it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant... of his or her right to testify. This will best ensure that defendant's constitutional rights are fully protected. Indeed, counsel's failure to do so will give rise to a claim of ineffectiveness of counsel. [State v. Savage, 120 N.J. 594, 630-31 (1990).]
Determining whether counsel's performance prejudiced the defendant under the second prong can be accomplished by examining the record of previous proceedings. Bey, supra, 161 N.J. at 273-75 (finding counsel's performance did not prejudice the defendant and the defendant was aware of his right to testify after examination of trial record, including colloquy among the court, the defendant, and defense counsel in which the court asked the defendant and defense counsel about jury charges on the right to remain silent).
Here, as in Bey, defendant cannot satisfy prong two of the Strickland test, which we may examine first. Strickland, supra, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699. Defendant argues in essence that he was denied a constitutional right when counsel did not advise him of his right to testify, and this failure in and of itself prejudiced him. This argument is insufficient under Strickland because defendant fails to show how this equates to a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Defendant has further failed to demonstrate that counsel's error is "so serious as to undermine the court's confidence in the jury's verdict or the result reached." Chew, supra, 179 N.J. at 204. This is especially true because defendant has failed to specify what he would have said in his testimony. We need not engage in speculation as to the nature of defendant's testimony, as he had the burden to establish that the result of the proceeding would have been different had he testified. Obviously, no evidentiary hearing was required where he failed to make out a prima facie case in this regard.
Defendant argues in Point Four that he should be granted an evidentiary hearing to prove that trial counsel failed to advise him of a plea offer and thus rendered ineffective assistance to him. In addressing this argument, the PCR judge observed that the trial judge "did himself explain the plea offer to the defendant." The judge concluded that defendant was not prejudiced because even if trial counsel failed to review the plea offer with him, the trial judge "clearly did so on the record and, therefore, the second prong under Strickland regarding prejudice is not met."
"'[T]he plea bargain stage is a critical stage with regard to the right to effective assistance of counsel.'" State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996) (quoting United States v. Barber, 808 F. Supp. 361, 378 (D.N.J. 1992), aff'd, 998 F.2d 1005 (3d Cir. 1993)). Consistent with this, "'an attorney's conduct is incompetent when a plea offer is never communicated by the attorney to the client.'" Ibid. (quoting Barber, supra, 808 F. Supp. at 378).
The first reference on the record to a plea offer occurred on August 9, 1999, during a pre-trial hearing. At that hearing, the judge, with defendant present, stated, "There has been an offer extended; it's a flat twenty on both matters. My understanding is the defendant does not want that." Confirming the terms of the offer for the court, the prosecutor said, "the offer was a flat twenty on both cases." Defendant's attorney, who was not the same individual who represented defendant at trial, said he "received several communications from my client asking that this matter -- he doesn't wish this matter be postponed any further, that he wants the matter to go immediately to trial. This is against my advice." Former counsel then stated, "You know, I'm putting my concern on the record. But, my client more than emphatically pointed out he doesn't want this thing to be delayed any further and wants it immediately on the trial list and immediately tried." Near the conclusion of the hearing, the judge asked former counsel if he wanted additional time to investigate the case or consider the plea offer. After consulting with defendant, former counsel informed the judge that defendant "would like more time to prepare his defense."
During the second day of trial, the court again raised the topic of a plea agreement with defendant. Addressing defendant directly, the court said,
Mr. Pierce, just so you know it, there's been some discussion as a result of my intervention, quite honestly, concerning the possibility of negotiating a plea again contingent upon the presiding judge approving it, although I'm not asking you right this minute what your position is, it just would be helpful if you just listen to what your attorney has to say and what observations she has to make when reaching a conclusion, okay? All right, Mr. Pierce? Hear what I just said?
Defendant responded, "I heard you."
The trial judge mentioned plea discussions again the next day in the context of defense counsel's difficulty in securing the testimony of certain witnesses. The judge said, "I talked to [defendant] Monday, said do you want to reconsider the opportunity to plead open. In fact there's been continuing negotiations and discussions concerning a plea...." Later that day, the court addressed defendant directly:
THE COURT: Mr. Pierce, there's also been some discussions about pleas, I don't know if that's on or off anymore. There would be no guarantee anybody would let you, at least the presiding judge would accept a plea agreement at any point in time. You want to continue to discuss it with your attorney, that's up to you. I can't tell you what if anything the State's position is because I did not involve myself any further in any plea negotiations.
THE DEFENDANT: Told me briefly yesterday and this morning.
THE COURT: I'm not trying to push you. I don't care about it. It's up to you.
THE DEFENDANT: You just said it would be unlikely anyhow it would be accepted.
THE COURT: Well, not your offer because that wasn't -- the State had offered before and I don't know if it's still on the table a 10 with some Brimage number which means a parole ineligibility. I couldn't in good conscience with the charges outstanding allow you out on the street in any event even if the State said that's okay.... I'm not participating in any great extent. I'm asking the State what their position is. I asked your attorney what her position is.... I don't even know if you two reached an agreement whether or not the presiding judge would approve a plea agreement at this late date anyhow but --
THE DEFENDANT: That would be your decision right?
THE COURT: No. My boss makes that decision.... You want to continue those discussions, talk to your attorney. If anything happens, have your attorney call [the prosecutor] and we'll see what the State's position is at that point in time....
Examining the prejudice prong first, it is clear that defendant cannot establish a prima facie case of ineffective assistance of counsel. Even if trial counsel failed to inform defendant of a plea offer, defendant cannot show he was prejudiced.
Defendant has failed to allege any specific facts proving that he was prejudiced by counsel's alleged error, such as the length of the plea offer and whether he would have accepted it. This further prevents defendant from establishing a prima facie claim of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170 ("[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.").