August 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-09-3524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 9, 2010
Before Judges Cuff and Fasciale.
Defendant, Andre Williams, appeals from an order denying his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.
Defendant was found guilty of second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); second-degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Three); first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3) (Count Four); second-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4 (Count Five); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (Count Six).*fn1
Following merger of Counts One and Three with Count Four, defendant was sentenced to an extended term of life in prison with thirty-five years of parole ineligibility. On Count Five, the judge imposed a concurrent term of thirty years in prison subject to eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On Count Six, defendant was sentenced to a concurrent term of eighteen months. The appropriate assessments and penalties were also imposed.
We affirmed the convictions but held that the aggravated manslaughter conviction (Count Five) merged with the felony murder conviction (Count Four). State v. Williams, No. A-2331-03 (App. Div. February 21, 2006) (slip op. at 23). We reversed and remanded for resentencing. Ibid. The Supreme Court denied certification on May 11, 2006. State v. Williams, 187 N.J. 80 (2006).
The facts giving rise to defendant's convictions are set forth in our unreported opinion. Williams, supra, slip op. at 1-5. On June 23, 2001, defendant and his friend robbed an elderly woman between 6:45 a.m. and 7:30 a.m. Defendant drove up to the curb where the victim was walking, exited the car, and took her purse, knocking her to the ground. He ran back to the car, sat behind the wheel, and started to drive away. From a distance, an armed security guard, Dwayne Santos, observed the incident. When defendant saw Santos, he put the car in reverse, ran over the victim, and crushed her to death. Defendant confessed to the robbery but denied knowing that he struck the victim with the car.
In his PCR petition, defendant argued that his counsel was ineffective because: (1) he had conflicts with counsel about how to try the case that made it difficult to communicate; (2) his counsel refused to call defendant's girlfriend as an alibi witness; (3) his counsel failed to request a Wade*fn2 hearing; and (4) his counsel failed to adequately cross-examine Santos.
On March 7, 2008, the PCR judge denied the PCR, and on March 18, 2008, he issued a written opinion providing his reasons.
The PCR judge found that any conflicts between defendant and counsel did not amount to ineffective assistance of counsel. Citing State v. Fritz, 105 N.J. 42, 52 (1987), the judge explained that defendant did not show that his counsel was "disloyal or uncommitted to the case." The judge found that defendant did "not cite one important decision or development in the case about which [defense counsel] failed to consult him." Defendant also failed to show "that but for the attorney's complained[-]of actions, the outcome of the trial would have been different."
The PCR judge found no affidavit was provided to support the contention that the alibi witness was with defendant, in violation of Rule 1:6-6. Therefore, the judge rejected this point.
The PCR judge found that defendant was procedurally barred since he previously raised the failure to seek a Wade hearing on direct appeal. The judge also noted that neither defense counsel nor the assistant prosecutor anticipated the testimony from Santos about the photo identification.
Finally, the PCR judge found that defense counsel's cross-examination of Santos on an alleged inconsistency did not amount to ineffective assistance of counsel. The judge explained that defendant did not identify the alleged inconsistent statement and that defendant failed to show how "the result of the trial would have been different had trial counsel cross[-]examined the witness on this one specific point."
On appeal, defendant raises the following points:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN 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.
In a pro se supplemental brief dated March 17, 2008, defendant makes the following argument, which we have renumbered to run consecutively to the points in the counseled brief:
DEFENDANT WAS CONSTITUTIONALLY DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF PCR COUNSEL WHICH PREVENTED A FAIR PRESENTATION OF SOME VIABLE CONSTITUTIONAL CLAIMS[;] THEREFORE[,] THE ORDER DENYING DEFENDANT'S PCR SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW PCR HEARING ON THOSE CLAIMS.
In his pro se brief, defendant argues that his PCR counsel was ineffective because counsel did not argue that trial counsel failed to: (1) move for suppression of defendant's confession; (2) seek a mistrial after Santos testified; (3) seek leave to appeal the order denying a request to dismiss the robbery count; and (4) include a Cromedy*fn3 charge.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 691-92 (1984). Whether "retained or appointed," counsel must "ensure that the trial is fair;" therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, § 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
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 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:
If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted. [Ibid. (citations omitted).]
With the exception of the alibi witness issue and defendant's argument regarding trial counsel's failure to properly cross-examine Santos, defendant's remaining arguments were addressed on direct appeal,*fn4 and therefore, are procedurally barred. R. 3:22-4 and -5. For example, we rejected defendant's contention that it was difficult to communicate with counsel because they disagreed about how to try the case and that his motion to suppress should have been granted. Williams, supra, slip op. at 21-22. We determined that those arguments were without sufficient merit to warrant discussion in a written opinion. Ibid. (citing R. 2:11-3(e)(2)). Defendant's argument that PCR counsel was ineffective because he failed to file leave to appeal after the trial judge denied his motion to dismiss the robbery charge is moot because we affirmed the denial of that motion on direct appeal. Id. at 21. We, also, specifically found that a Wade hearing and a Cromedy charge were not necessary because Santos did not identify defendant and defendant provided an inculpatory statement to the police and his cousin Mark. Id. at 16-17.
We now turn to defendant's argument that defense counsel was ineffective for refusing to call defendant's girlfriend, Lakiesha Morgan, as an alibi witness. We are satisfied that defendant established a prima facie case of ineffective assistance of counsel sufficient to warrant an evidentiary hearing on this point.
The PCR judge rejected defendant's argument because he did not provide an "affidavit to support the contention that she was with the defendant as is required by [Rule] 1:6-6." Rule 1:6-6 provides in pertinent part that "[i]f a motion is based on facts not appearing of record,... the court may hear it on affidavits made on personal knowledge...."
On August 20, 2002, defense counsel wrote the assistant prosecutor notifying him about Morgan. He explained that Morgan was interviewed by his investigator and that Morgan and defendant "were together all night, and... [t]hey were together throughout the next morning...." Then, defense counsel stated:
Please be advised that for several reasons (only some of which are obvious to you) it is not my intention to call her as a witness. This lack of intention on my part may not withstand constitutional scrutiny.
It therefore seems prudent to pass this information on to you so that, in the event that foolish impulses override professional judgment and tactical planning, you will not be caught unprepared.
In seeking PCR, however, defendant argued that his trial counsel simply refused to call Morgan as a witness. The PCR judge, quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), concluded that defendant must "assert the facts that would have been revealed, 'supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'"
In Cummings, supra, the defendant argued that he was not present at the crime scene when the crime was committed, but rather at someone's apartment. 321 N.J. Super. at 170. We concluded "that this bare assertion of an alibi at this late date, without more, is insufficient to support a prima facie case of ineffectiveness." Id. at 171 (emphasis omitted). Here, five weeks after defendant was indicted, his counsel notified the assistant prosecutor that Morgan was with defendant at the time of the incident.
The PCR judge also relied on State v. Seemann, No. A-0035-04 (App. Div. January 11, 2006), certif. denied, 186 N.J. 258 (2006), and State v. Flores, No. A-0025-04 (App. Div. February 9, 2006), certif. denied, 188 N.J. 220 (2006). Both cases, however, are distinguishable.
In Seemann, the defendant filed a PCR petition arguing, among other things, that six people were not called by his counsel as favorable witnesses. Seemann, supra, slip op. at 2-3. Investigation reports of interviews supported what two of the six witnesses would say, but the defendant failed to show how testimony from any of the witnesses would help. Id. at 4. In Seemann, the judge found that four of the six witnesses "technically must fail based on the absence of affidavits alone." Ibid. We affirmed the denial of PCR, holding that the defendant failed to present a prima facie case of ineffective assistance of counsel. Id. at 10.
In Flores, the defendant argued that his counsel failed to investigate witnesses. Flores, supra, slip op. at 2. The judge rejected the defendant's arguments as they were "bald assertions," and found that "all of the alleged (but not proven) testimony would most likely not have affected the outcome of the trial." Id. at 10.
Here, we are satisfied that defendant presented a prima facie case of ineffective assistance of counsel sufficient to warrant an evidentiary hearing to explore why Morgan was not called as a witness. The following must be determined: (1) whether counsel refused to call Morgan as a witness, as defendant asserts; (2) were there strategic reasons for not calling Morgan, as referred to in the August 20, 2002, letter from defense counsel; and (3) if so, what were those reasons? Only then can the PCR court decide whether there is a basis for the claim of ineffective assistance of counsel.
Lastly, defendant argues that trial counsel failed to cross-examine Santos about drawing his gun. "Mere improvident strategy, bad tactics[,] or mistake do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975) (citing United States v. Cariola, 211 F. Supp. 423, 427 (D.N.J. 1962), aff'd, 323 F.2d 180 (3d Cir. 1963); State v. Bentley, 46 N.J. Super. 193, 203 (App. Div. 1957)). Santos was a security guard licensed to carry a handgun. He was dressed in his uniform shirt and jeans and was wearing a badge and holstered gun. He noticed an elderly woman pushing a cart and observed a man, later identified as defendant, jump out of a car and snatch her purse. Santos saw the woman fall to the ground and, as Santos stepped out to the curb to get a better look, defendant put the car in reverse, fatally striking the victim. Defense counsel's decision to not cross-examine Santos about allegedly drawing his gun did not amount to ineffective assistance of counsel because, taken as a whole, the trial was not a mockery of justice.
Reversed and remanded. We do not retain jurisdiction.