August 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER STOKES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 02-11-2635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2010
Before Judges Parrillo and Lihotz.
Defendant Christopher Stokes appeals from the denial of his petition for post-conviction relief (PCR) without benefit of an evidentiary hearing. We affirm.
Following a jury trial,*fn1 defendant was convicted of armed robbery, N.J.S.A. 2C:15-1 (count one); carjacking, N.J.S.A. 2C:15-2 (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count eight).*fn2 The jury found defendant not guilty of impersonating a police officer, N.J.S.A. 2C:28-8(b) (count seven). After the merger of appropriate offenses, defendant was sentenced to an aggregate extended term of thirty years incarceration subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Stokes, Docket No. A-6021-04T4 (App. Div. Nov. 20, 2006) (slip op. at 9). We need not repeat the facts supporting defendant's conviction, noting they are extensively set forth in our unpublished opinion. Id. at 2-6. Certification was denied. State v. Stokes, 189 N.J. 647 (2007).
Defendant filed a pro se petition for PCR alleging ineffective assistance of trial counsel, including the failure to properly investigate various factual assertions regarding the alleged owner of the property and to assert equal protection arguments. Ineffective assistance of appellate counsel was asserted for the failure to present trial deficiencies. The trial judge reviewed the PCR petition and denied relief without the need of an evidentiary hearing.
On appeal, defendant presents the following points for our consideration:
THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF BASED ON TRIAL COUNSEL'S FAILURE TO FILE ANY PRETRIAL MOTIONS TO SUPPRESS THE EVIDENCE OR TO SUPPRESS THE OUT OF COURT IDENTIFICATIONS OF DEFENDANT AND TRIAL COUNSEL'S UNTIMELY MOTION TO SEVER THE DRUG COUNTS FOR TRIAL.
THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON TRIAL COUNSEL'S FAILURES TO FILE MOTIONS TO SUPPRESS EVIDENCE, FOR A WADE HEARING AND A TIMELY MOTION FOR SEVERANCE OF THE DRUG COUNTS.
Following our review of the arguments presented, in light of the record and applicable law, we conclude defendant failed to demonstrate a prima facie case for relief and his petition was properly dismissed without an evidentiary hearing.
The analytic framework that controls our review is well known. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Generally, to prevail on a claim of ineffective assistance of counsel, a defendant must prove counsel's performance was objectively deficient and that these deficiencies had a prejudicial effect on the ultimate judgment. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (quoting Strickland, supra, 446 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). A defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant must point to "specific errors" which rise above the level of general trial strategy. 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); Strickland, supra, 446 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. We measure counsel's efforts only by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53.
Second, a defendant must prove that he or she suffered prejudice due to counsel's deficient performance; that is, a defendant must demonstrate counsel's specific errors materially contributed to the outcome of the case. Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696; State v. Allah, 170 N.J. 269, 283-84 (2002); Fritz, supra, 105 N.J. at 58.
While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2010); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463.
Before considering the individual allegations, we briefly summarize the substantial evidence of defendant's guilt produced at trial to provide context for defendant's arguments raised in his petition.
On May 29, 2002, on behalf of their employer, Frederick Plaza and Charles Arazzo were in a van attempting to sell home theater speakers to the general public. William Gilliam, a passenger in a silver Daewoo driven by Henry Steed, agreed to buy a pair of speakers and requested Plaza and Arazzo follow him to another location to obtain the money.
Plaza and Arazzo followed the Daewoo to a residential neighborhood in Jersey City and parked the van directly behind the Daewoo on the right side of the street. Gilliam was talking on his cell phone outside the Daewoo when a man with dreadlocks, later identified as defendant, approached and appeared to ask Gilliam for directions. After defendant walked away, Gilliam went to the passenger side of the van, put his hands on Arazzo's neck, and ordered him out of the vehicle. Defendant pulled up next to the van driving a blue Mitsubishi Eclipse and parked it in the middle of the street. He exited the car and put a gun to Plaza's head, ordering him out of the van. Gilliam took about $100 and a cell phone from Arazzo's pocket. Steed drove off after seeing the gun.
While on patrol, Officers King and Tedesco of the Jersey City Police Department happened on the scene. Observing the Eclipse parked in the middle of the street, they stopped to issue a ticket. As they were writing the ticket, defendant got into the Eclipse and drove off following Gilliam, who had driven away in the van. King gave chase in his cruiser and stopped defendant a short distance away.
As the officers approached the Eclipse, Plaza and Arazzo ran up to them saying, "he had a gun, he robbed us." King drew his service weapon and ordered the defendant out of the car. Plaza and Arazzo identified defendant as the armed assailant. Defendant was arrested, and the police confiscated $175 found in his pocket. The police searched the Eclipse for the weapon, discovering instead five vials of cocaine in the center console.
Plaza and Arazzo identified defendant a second time as he sat alone in a holding cell and a third time at trial.
In a signed written statement, Steed identified defendant as the gunman and Gilliam as the other man involved in the carjacking. Steed repudiated his statement at trial; however, the prosecution read the statement to the jury as a prior inconsistent statement.
In this matter, defendant's substantive challenge is limited to allegations that trial counsel (1) failed to timely file a motion to sever the CDS count, (2) failed to file pre-trial motions to suppress the drugs and money found in the vehicle upon defendant's arrest; and (3) failed to request a Wade*fn3 hearing to challenge the out of court identifications. We conclude these arguments are unpersuasive.
On direct appeal, we considered and rejected defendant's argument regarding the severing of those counts of the indictment regarding drug possession and distribution. Further review is barred. See State v. McQuiad, 147 N.J. 464, 483 (1997) (stating a prior adjudication upon the merits of any ground for relief is conclusive); see also Rule 3:22-5 (same).
Defendant contends that had counsel moved to suppress the evidence found in the automobile search incident to his arrest such motion would have been granted because police lacked "exigent circumstances," as mandated in State v. Peña-Flores, 198 N.J. 6, 28 (2009). However, Peña-Flores was decided long after defendant's trial. To be effective, counsel is not charged with being prescient.
At the time of defendant's trial, the law allowed a warrantless search of a motor vehicle incident to arrest to ensure police safety or to avoid the destruction of evidence. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969); see State v. Welsh, 84 N.J. 346, 355 (1980) (affirming "[t]he relevant facts, then, appear to be those which disclose what places the person under arrest presently could reach at the time the arrest is undertaken and how likely it is that he would attempt resistance or escape or destruction of evidence"); State v. Pierce, 136 N.J. 184, 211 (1994) (affirming the "the rationale of Chimel," but rejecting an automatic application "to authorize vehicular searches following all arrests for motor-vehicle offenses").
Here, defendant was arrested after attempting to flee detention in connection with a carjacking and robbery. An automobile chase ensued. More important, defendant was alleged to be armed.
In accordance with the precedents then in effect, and under the circumstances of this case, the search for the weapon incident to arrest was valid. Had counsel made a pre-trial motion to suppress alleging an illegal warrantless search, it would not have been successful in excluding the seized evidence. Defendant cannot sustain his burden to satisfy the second prong of the Strickland/Fritz test.
Turning to the out-of-court identifications, as noted by the PCR judge, "the first identification of  defendant took place at the scene, within moments of the commission of the offense, and did not involve any police conduct." There was nothing suggestive about this identification as it resulted not from any police procedure but from the victims' positive spontaneous and voluntary statements. As correctly determined by the trial judge, "there was little to no likelihood of misidentification under these circumstances." Similarly, the second one-on-one identification, made by the same victims while defendant was in a holding cell, was not shown to be unreliable based upon its proximity to the event and the victims' prior spontaneous identification.
Consequently, the absence of impermissible suggestibility or the likelihood of misidentification obviated the need for a Wade hearing. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Defendant fails to satisfy the first prong of the Strickland/Fritz test, as counsel's decision not to challenge the victims' identifications was not improper.
Accordingly, as defendant failed to establish a prima facie showing of ineffective assistance of counsel, he was properly denied an evidentiary hearing. Preciose, supra, 129 N.J. at 462; Cummings, supra, 321 N.J. Super. at 170.