July 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RODNEY BATES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1964.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2010
Before Judges Lihotz and Ashrafi.
Defendant Rodney Bates appeals from denial of his petition for post-conviction relief (PCR). We affirm.
The following facts were developed at a bench trial. Billy Joe Lane worked as a maintenance supervisor for the Village of Haddonfield apartment complex in Barrington, New Jersey. On March 8 and 9, 2006, Lane's crew repaired a rotting floor joist just outside apartment 262A, where defendant resided with Debra Hohing. The crew removed a small piece of flooring and replaced the joist. Lane testified that he thought the only work remaining on March 9 was to lay down carpet.
According to Lane, defendant complained to him that the work was not satisfactory. He told Lane that his crew was not going to finish the job and that he was going to call an inspector. Lane told defendant, "well f-- you. I'm going to get that work done."
According to Lane, defendant went into his apartment and came back out with a knife. Lane jumped back about three feet from defendant. Defendant told Lane, "This is what you're going -- going to get if you keep on doing it." Lane described the knife as a silver folding knife, about four fingers in length. He said defendant was "jamming it upwards."
Angel Montesino, a member of the maintenance crew, was in defendant's apartment repairing the bathroom faucet when the incident occurred. He heard commotion in the hallway. He looked and saw defendant's back. He did not see a knife but saw that defendant was making hand motions. Defendant then turned around and twisted his hand into his pocket, as if he was putting something into his pocket.
Lane called the complex manager, who called the police. Defendant got in his car and left. Defendant surrendered to police when they approached his car. No knife was recovered.
According to defendant, on March 8, Lane and his crew had removed flooring to repair the floor joist and defendant noticed that other joists were also rotted. He questioned Lane on the work they were doing. Lane cursed at defendant and refused to answer his questions, referring defendant to Montesino. Defendant and Hohing claimed that Lane's crew had finished the repair work on March 8. Dissatisfied with the repair work, defendant called a town inspector.
The next day, Montesino was repairing a faucet in defendant's bathroom, and defendant's front door was unlocked. Lane walked into defendant's apartment without knocking, getting one foot in the door. Defendant told Lane to get out. Lane left the apartment, and defendant locked the door. He then heard keys rattling outside his door. As Lane unlocked and opened the front door, defendant told him to get out. Lane left, screaming.
Defendant testified he never threatened Lane and never brandished a knife. Defendant claimed Lane fabricated the story about the knife because defendant had contacted a town inspector. The defense also claimed that management had past issues with defendant, although the trial court noted that there had been at least five years since any conflict.
Defendant was charged with third-degree making terroristic threats, N.J.S.A. 2C:12-3a, (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, (count three).
Defendant waived his right to a jury trial. A bench trial was held before Judge Louis R. Meloni on January 9, 2007. The judge found defendant guilty on all counts. Defendant moved for a new trial pursuant to Rule 3:20-1, seeking to introduce additional testimony. The court denied the motion. Defendant was sentenced to three years' probation on each count, to run concurrently, and statutory fees and penalties were also imposed.
Defendant filed a notice of appeal on May 7, 2007, but he withdrew the appeal on August 1, 2007. An order dismissing the appeal was entered on August 20, 2007.
Defendant then filed a PCR petition, which was denied on October 11, 2007, by Judge Irvin J. Snyder. On December 6, 2007, defendant filed another PCR petition. The court vacated its previous order pursuant to Rule 1:13-1 and designated defendant's petition as his first.
Defendant filed a pro se brief in support of PCR claiming ineffective assistance of counsel and violation of his due process rights because the State failed to produce a weapon. PCR counsel also filed a letter-brief on defendant's behalf claiming ineffective assistance of counsel in trial counsel's failure to object to inadmissible hearsay testimony and failure to investigate and present mitigating factors and to argue the overvaluing of aggravating factors at sentencing.
No evidentiary hearing was held on defendant's petition. On December 11, 2008, Judge Snyder denied defendant's petition, holding that it was procedurally barred under Rule 3:22-3 because appellate review was available and because defendant failed to establish a prima facie case of ineffective assistance of counsel. Defendant filed a notice of appeal on March 18, 2009.*fn1
On appeal, PCR counsel raises the following points:
R. 3:22-3 SHOULD NOT BE HELD TO BAR A DETERMINATION ON THE MERITS OF THIS PETITION.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT IS ENTITLED TO A DETERMINATION ON THE MERITS OF ALL HIS CLAIMS IN SUPPORT OF HIS PETITION.
Defendant has also filed a supplemental pro se brief on appeal raising the following points:
THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT FOUND IN N.J.S.A. TITLE 2C THE NEW JERSEY CODE OF CRIMINAL JUSTICE, LAW OF EVIDENCE, 2C:1-13, et. seq., IN THAT THE GUILTY VERDICT ON CHARGE 2C:12-3A WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT FOUND IN N.J.S.A. TITLE 2C THE NEW JERSEY CODE OF CRIMINAL JUSTICE, LAW OF EVIDENCE, 2C:1-13, et. seq., IN THAT THE GUILTY VERDICT ON CHARGE 2C:39-4D WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT FOUND IN N.J.S.A. TITLE 2C THE NEW JERSEY CODE OF CRIMINAL JUSTICE, LAW OF EVIDENCE, 2C:1-13, et. seq., IN THAT THE GUILTY VERDICT ON CHARGE 2C:39-5D WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
THE COURT FAILED TO FOLLOW ITS OWN RULES REQUIRING ACQUITTAL WHICH RESULTED IN A VERDICT AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
THE CUMULATIVE EFFECT OF THE COURT'S FAILURES AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
A criminal defendant has the right to petition for PCR under Rule 3:22. "[A] petition pursuant to this rule . . . is not . . . a substitute for appeal from conviction or for motion incident to the proceedings in the trial court . . . ." R. 3:22-3. Also, any ground for relief that could previously have been asserted in prior proceedings is barred from PCR consideration. R. 3:22-4(a). However, claims of ineffective assistance of counsel are not barred by these rules. See, e.g., State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005); State v. Preciose, 129 N.J. 451, 459-60 (1992); State v. Guzman, 313 N.J. Super. 363, 374-75 (App. Div.), certif. denied, 156 N.J. 424 (1998).
Defendant's claim that there was insufficient evidence to support the verdict was procedurally barred by Rule 3:22-3 and Rule 3:22-4. See State v. Morales, 120 N.J. Super. 197, 200 (App. Div.), certif. denied, 62 N.J. 77 (1972); see also State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (matters that could have been raised on direct appeal normally may not be considered in a PCR petition), modified on other grounds, 162 N.J. 240 (2000).
The ineffective assistance claims were not barred. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Preciose, supra, 129 N.J. at 460. "Hearings are required on ineffective assistance of counsel claims where there is a factual dispute on matters that are not part of the record, and where 'a defendant has presented a prima facie claim in support of post-conviction relief.'" State v. Cooper, 410 N.J. Super. 43, 56 (App. Div. 2009) (quoting Preciose, supra, 129 N.J. at 462), certif. denied, 201 N.J. 155 (2010). Here, defendant was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel because he failed to establish a prima facie case.
To establish a prima facie claim of ineffective assistance of counsel, [f]irst, 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 the "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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).]
This test was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
Defendant first argues that counsel was ineffective in failing to object to inadmissible hearsay testimony. Elizabeth Compton, the apartment manager, testified as follows:
Q: Did you receive any calls from your maintenance supervisor that day?
A: Quite a few, yes.
Q: Quite a few? What was the nature of those calls, if you recall?
A: Maintenance and one of the calls was regarding the gentleman in 262 had a knife, pulled a knife out on him, to call the police.
Q: And he said that he . . . got into an incident?
A: He just called and said to me, call the police, the guy just pulled a knife out at me in 262A.
Captain Joseph Eisenhardt of the Barrington Police Department, the officer who apprehended defendant, testified as follows:
Q: What was the nature of the call?
A: There was a report that a -- one of the maintenance men at the Village of Haddonfield, has just been -- had a knife pulled on him by one of the residents.
Detective Sergeant Edward Katz, the officer who investigated the incident and also Compton's fiancé, testified as follows:
Q: Did you receive a call that day?
A: Yes, I did.
Q: About an incident in your town?
Q: What was the nature of the call?
A: That one of the residents from the Village of Haddonfield Apartments had pulled a knife out on one of the maintenance men.
He also testified that he walked the area looking for a "potential discarded knife as it was reported to me."
"For a hearsay error to mandate reversal, '[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Deluca, 325 N.J. Super. 376, 394 (App. Div. 1999) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)), aff'd as modified, 168 N.J. 626 (2001). We first note that defendant was tried before a judge rather than a jury, and we can presume that the judge was capable of hearing the proffered testimony without using it for an impermissible purpose. Judge Meloni's statement of findings further demonstrates that he did not use the above-quoted testimony to support his finding that defendant brandished a knife.
The trial court identified the determinative issue as credibility between the testimony of Lane and that of defendant. The court found that Lane "testified, I think, in somewhat of a matter of fact manner. He was clear and unambiguous in his response to the questions. His description of the knife was specific in size, appearance and type." The court found that Montesino's testimony, that defendant made a motion with his hand in which it appeared he was putting something into his pocket, was consistent with Lane's testimony. The court also noted that the testimony of the other three witnesses as to the course of events was consistent with when Lane alleged the incident occurred.
Even if trial counsel could or should have raised hearsay objections, his failure to do so did not prejudice defendant. Because defendant's PCR petition did not satisfy the second part of the Strickland test, it did not establish a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing or other relief.
Defendant also argues that counsel was ineffective at sentencing in failing to present certain mitigating factors to the court and failing to argue that aggravating factors were overvalued. We agree with Judge Snyder that defendant failed to show that counsel's performance was deficient or that defendant was prejudiced at the sentencing proceeding. As stated by Judge Snyder:
Not only did Judge Meloni find and apply, on his own initiative, mitigating factor 10, he found that the "mitigating factors do outweigh the aggravating factors." Despite petitioner's prior record, and the fact that there existed no presumption against incarceration, Judge Meloni sentenced Petitioner to three years non-custodial probation on each count, to run concurrently. Given that Petitioner was not sentenced to a custodial term, it is highly improbable that the outcome would have been different had sentencing counsel argued further mitigating factors or against overvaluation of applicable aggravating factors.
Defendant argues next that the PCR court failed to address the arguments defendant raised in his pro se brief, addressing only those arguments raised in counsel's letter-brief. Defendant argued in his pro se brief that his due process rights were violated because there was insufficient evidence to demonstrate that he brandished a knife and that counsel was ineffective for failing to object to hearsay testimony, failing to introduce exculpatory evidence of the State's failure to produce a weapon, failing to make a motion to acquit based on the State's failure to produce a weapon, and failing to argue that Lane testified falsely because no weapon was produced. He also argued that there was conflicting testimony about when the work was completed, and that defendant was not right-handed. Judge Snyder did not address these arguments in his December 11, 2008 written decision, but he had previously addressed them in his initial denial of PCR on October 11, 2007, stating that defendant's due process claim was an argument that could have been raised on direct appeal and that defendant's ineffective-assistance-of-counsel claim was unsupported by transcripts and documents and without merit. Defendant also argues in his pro se brief on appeal that counsel was ineffective in failing to argue self-defense but there was no evidence to support that defense.
The arguments raised in defendant's pro se briefs before us and in the trial court do not warrant more extensive discussion in a written opinion beyond what we have already stated. R. 2:11-3(e)(2). We add that this case rested on credibility and that credibility determinations are to be made by the factfinder. See Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003). The State's inability to produce a weapon is not grounds for a judgment of acquittal, nor does it demonstrate insufficient evidence, since the State produced witness testimony that defendant brandished a knife. The trial court correctly denied defendant's petition for PCR.