November 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
TAIRAHAAN MALLARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Payne and Baxter.
Defendant Tairahaan Mallard appeals from an October 6, 2008 Law Division order that denied his petition for post-conviction relief (PCR). We affirm.
On August 2, 2000 Eddie Allison stopped with his two sons, Jermesse, age eighteen, and Mikel,*fn1 age fifteen, at Crown Pizza on Main Street in Orange to buy take-out food. Mr. Allison remained in his van fifteen feet from Crown Pizza. Mikel stood in the front doorway while Jermesse waited at the counter for their food. Suddenly, Jermesse heard a gunshot and heard his brother yell. Turning around, he saw Mikel fall backward as two more gunshots were fired. Jermesse pulled Mikel back into the restaurant. Mikel died from the gunshot wounds.
Because Jermesse was positioned only a few feet from the shooter, he was able to observe him closely. Jermesse described the shooter as 5'7" tall, with a low haircut, no facial hair and dressed in a white tee-shirt, dark-colored long shorts and Timberland boots. When shown a photo array, Jermesse selected a photograph not of defendant, but instead of a man named Algermane Thompson, alias Tyree*fn2 Maye, whom police included in the array because of information that Mikel had been in an altercation with Maye a few days before he was murdered.
Shortly after his brother's death Jermesse went to his uncle's home in Virginia, where representatives of the Essex County Prosecutor's Office came to see him and told him that "the guy that [he] picked out [in the photo array] was the wrong one." Apparently, a detective involved in the investigation knew Tyree Maye to be well over six feet tall and therefore, Maye could not have been the shooter, because both Jermesse and Mr. Allison described the shooter as being more than six inches shorter.
The investigators presented Jermesse with a different photo array. This time he selected defendant's photograph. He later identified defendant in court as the person who murdered his brother. The testimony at trial was in conflict on whether the investigators told Jermesse that the shooter's photograph was in that second array, and there was also disagreement on whether Jermesse had been told afterward that a female witness, Crystal Carter, had selected the same photograph.
Carter testified that defendant, whom she identified in court and whom she had known from the neighborhood for years as "T," had asked her for a ride in her Toyota a few days before the shooting of Mikel Allison. She saw him again on the evening of August 2 near the border of East Orange and Orange when, while she was stopped at a stop sign, he jumped into the front passenger seat of her car while holding a small, gray gun. The clothing he was wearing matched the clothing descriptions provided by Jermesse and Mr. Allison. Although a bandanna was covering the lower half of the man's face, Carter recognized the man as "T" by his eyes, the top of his head and his voice. According to Carter, "T" "was very aggressive" when he jumped in her car, ordering her to keep driving. Carter was frightened that she was "going to get robbed or something bad was going on," but because defendant had a gun she did as she was told and drove him to Main Street.
Carter remained in the driver's seat while "T" exited her car. She saw him approach somebody on the sidewalk in front of Crown Pizza and shoot him "right there on the sidewalk." "T" immediately "jumped back in the car and told [her] to drive." A few blocks later, he left.
Shortly after Carter arrived home, an East Orange police officer arrived. Immediately after her father opened the door, Carter "just broke down" and started telling the officer what had happened. She was shown several notebooks containing mug shots, but was unable to find a photograph of the shooter. She did tell police that she knew the person who entered her car by the name "T" and suggested the names "Tairahaan" and "Tyrie." When police checked their database for the name "Tyrie," they came up with the name Algermane Thompson, who was the same person that Jermesse had selected in the first photo array.
When a photo array containing Thompson's photograph was shown to Carter, she selected his photograph from the array. Upon being told that the name of the individual she identified was Algermane Thompson, alias Tyrie Maye, Carter told the officer she did not know anyone by that name.
Carter testified that after she selected Algermane's photograph from the array, and realized he was not the man she knew as "T," people in the neighborhood began to "giv[e] [her] bits and pieces of information," from which she was able to conclude that the shooter was defendant, Tairahaan Mallard. She wrote that name on a piece of paper and gave it to the detectives, who then prepared a new photo array that contained a photograph of defendant. Upon being shown the second array, Carter pointed to defendant as the person who forced himself into her car on August 2, 2000, jumped out and fired several gunshots.
Carter testified that after "T" got back in her car on the evening of the shooting she "thought" or "believed" that the bandanna had slipped down so that it lay around his neck, but Carter acknowledged she never told police that she had seen defendant's entire face in the moments after the shooting.
The State also presented the testimony of Todd Townsend, who was driving near Crown Pizza on August 2, 2000 when he saw a black male, whom he described as 5'8" or 5'9" with a short haircut, shoot another male with a silver gun and then enter a waiting car. Townsend lost sight of the car, but returned to the scene to tell police what he had observed. The State also presented the testimony of Frank Raciopti, an expert in fingerprint identification, who testified that the fingerprints in Carter's vehicle matched defendant's.
Defendant testified, acknowledging that he had asked Carter for a ride in the early part of August 2000. He denied that he had ever entered her car with a bandanna on his face or forced her to drive to the location of the shooting. He likewise denied that he was the person who shot Mikel Allison. He also claimed that he left New Jersey for West Virginia shortly after Allison was murdered because he had employment there and returned at the end of November for Thanksgiving, at which time he was arrested. He maintained he did not know police were looking for him.
Over defendant's objection, the judge permitted the prosecutor on cross-examination to ask defendant if he had signed a statement prior to trial that he was in West Virginia at the time Allison was murdered.*fn3 Defense counsel objected to any effort by the prosecutor to cross-examine defendant about the alibi notice because defendant had withdrawn it prior to trial. Nonetheless, viewing the alibi as a statement by defendant, the judge permitted the prosecutor to cross-examine defendant on that subject. When the prosecutor asked defendant if he had brought with him to trial his employment records to demonstrate that he was in West Virginia on the day of the murder, defendant explained he did not know he would need his employment records, and thus, had never asked anyone to obtain them. At sidebar, defense counsel told the judge that to further explain defendant's failure to provide his employment records, he intended to ask defendant whether he was incarcerated prior to trial and therefore had been unable to obtain the records. When asked, defendant stated he had indeed been incarcerated. The judge issued a curative instruction to the jurors that defendant was incarcerated only because he was unable to post bail, and they were prohibited from inferring guilt from defendant's incarceration.
Despite defendant's objection, the State was also permitted to question defendant about the tattoos on his neck. During a sidebar conference, the judge ruled that the tattoos, which were very distinctive, were relevant because they were likely the reason defendant kept the bandanna around his neck while in Carter's car.
In an unpublished decision, we affirmed defendant's conviction. State v. Mallard, No. A-0573-02 (App. Div. June 18, 2004). We held that: the court did not err in admitting evidence of the out-of-court identification of defendant by Jermesse Allison or the later in-court identification; the judge's failure to instruct the jury to apply special scrutiny to the testimony of Crystal Carter did not require reversal; and Carter's testimony that she had obtained information from people in the neighborhood about the identity of the shooter did not violate defendant's Sixth Amendment right of confrontation. The Supreme Court denied defendant's petition for certification. State v. Mallard, 183 N.J. 256 (2005).
On October 16, 2007, defendant filed the PCR petition that is the subject of this appeal. Judge Goldman heard oral argument on that petition in September 2008, and in a written opinion and order issued on October 6, 2008, the judge rejected defendant's argument that trial counsel and appellate counsel had rendered ineffective assistance, and he denied defendant's PCR petition.
Judge Goldman's written opinion begins by addressing defendant's claim that although the judge had sustained trial counsel's objection to Carter's "investigation" testimony, trial counsel then cross-examined Carter about her "investigation," thereby "unwittingly aid[ing] the State's case in a crucial way with no balancing rationale." Defendant claimed that the "consensus of the neighborhood" that defendant was the shooter had been presented to the jury by trial counsel because his cross-examination was inept. Judge Goldman, who was also the trial judge, noted that although at trial he had prohibited the State from eliciting testimony from Carter that people in the neighborhood had told her that "T" was defendant, he had permitted Carter to testify that she gave police a piece of paper with defendant's name written on it.
The judge rejected defendant's claim that trial counsel's handling of Carter's testimony constituted ineffective assistance, reasoning:
... Getting around Carter's identification was not easy, but [trial counsel] used the incredible story that Carter told as to how she never knew [defendant's] name while knowing him for five years, how she allegedly obtained his name after the incident, but how she failed to tell the police about his name until after they told her she had identified the wrong person, to full advantage.... She was originally brought to the police station as an accomplice and was regarded as a victim only when she identified the carjacker as "T." When her initial photo identification failed to prove out [sic], she gave them the name of someone she had known. This saved her from being regarded as an accomplice again.
In the end, [trial counsel's] tactics were so effective that even the State admitted during summation that [counsel's] cross-examination of Carter had been very effective, so effective, in fact, that the State invited the jury to disbelieve her and acquit [defendant] of the charges involving her as a victim. And, in fact, the jury did so. [Defendant] was acquitted of all charges involving Carter. These acquittals were not meaningless. If [defendant] had been convicted of carjacking, he would likely have received a consecutive sentence and carjacking carries a potential sentence of thirty (30) years with substantial parole ineligibility.
... [Defendant] has presented no evidence, such as any admission of mistake by [trial counsel] or by any expert witness that [trial counsel's] strategy was faulty.
The fact that [his] strategy only worked partially by securing acquittals only to the charges involving Carter is no proof that [trial counsel] was ineffective in the constitutional sense. The first prong of the Strickland-Cronic-Fritz test has not been met.
Judge Goldman also observed that trial counsel's cross-examination of Carter's "identification" testimony had not elicited testimony that people in the neighborhood said "T" was the shooter. Instead, Carter merely testified that when she asked people in the neighborhood what "T"'s name was, she had been told it was Tairahaan Mallard.
Next, Judge Goldman addressed defendant's argument that trial counsel rendered ineffective assistance because he failed to request that: the prior misidentifications by Jermesse and by Carter be mentioned in the jury charge on identification; the law of prior inconsistent statements be incorporated into the identification charge; and the general caution on the weakness of eyewitness identification also be included in that charge. The judge rejected that claim as without merit. He observed that the jurors were instructed they were entitled to consider the fact that at a prior time some of the State's witnesses "may have said something or may have failed to say something which may be inconsistent with the witnesses' testimony [at] the trial," and that such inconsistency "may be considered... as substantive evidence or proof of the truth of the prior contradictory statement or omitted statement." The judge also noted the jury had been given the "false in one, false in all" instruction, which permitted the jury to disregard all of a witness's testimony if it believed the witness had deliberately lied about any significant fact.
The judge concluded that a "false in one, false in all" theory was a substantial portion of trial counsel's cross-examination of Carter. The judge held that if, as defendant maintained in his PCR petition, trial counsel had insisted on the judge "marshal[ing] the evidence," and had demanded the judge discuss the evidence in his jury charge, the court would have been required to do so evenhandedly and "an evenhanded marshaling of evidence would probably have benefited the State more than [defendant]."
The judge also reasoned, relying on State v. Robinson, 165 N.J. 32, 43 (2000), that a judge is not required to comment on weaknesses in the State's identification testimony. The judge also reasoned that State v. Romero, 191 N.J. 59, 75-76 (2007), (holding that judges should caution a jury that eyewitness identification may be flawed) should not be applied to defendant, because he was convicted nearly five years before Romero was decided, and the Court had given Romero only prospective application. For those reasons, Judge Goldman rejected defendant's claim that trial counsel rendered ineffective assistance in connection with the jury charge on identification.
Next, the judge addressed defendant's claim that appellate counsel rendered ineffective assistance because she failed to challenge on direct appeal the trial judge's order requiring defendant to show his tattoos to the jury. Defendant conceded in the PCR proceeding that the bandanna was relevant for the reason specified by the judge at trial. Defendant nonetheless maintained that the tattoo was more prejudicial*fn4 than it was probative, and therefore appellate counsel was deficient when she failed to argue on appeal that evidence of the tattoo should have been excluded pursuant to N.J.R.E. 403.
Judge Goldman concluded that even if appellate counsel were to be deemed ineffective for failing to raise the issue on direct appeal, any such ineffectiveness likely had no impact on the outcome of the appeal because it was a relatively "minor issue." Moreover, raising the issue on direct appeal would likely have been unsuccessful because the jury had been given an instruction that it should not allow the content or images of the tattoos to affect the presumption of innocence to which defendant was entitled. The judge concluded that the second prong of the Strickland test, which requires a showing that counsel's errors prejudiced the defense, had not been met. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984).
The third issue raised in defendant's PCR petition was his claim that appellate counsel was ineffective because she failed to challenge on direct appeal the order permitting the State to cross-examine defendant on the content of his alibi statement, which defendant had withdrawn prior to trial. Relying principally on the Court's opinion in State v. Muhammad, 182 N.J. 551, 566 (2005), Judge Goldman observed that the State is permitted to show the jury the "stark contrast" between a defendant's initial account of the incident and the way he described it at trial. For that reason, according to the judge, even if appellate counsel had advanced such a claim on direct appeal, it would have been rejected. Therefore, assuming for the sake of discussion that the failure to raise the issue constituted ineffective assistance, Judge Goldman held it did not prejudice the outcome and therefore defendant's claim of appellate counsel's ineffective assistance should be rejected.
Judge Goldman also held that "trial counsel's errors" concerning defendant's notice of alibi had not enabled the prosecutor to impermissibly "shift the burden" to defendant to produce proof he was in West Virginia working during the fall of 2000. The judge noted that trial counsel did object to the prosecutor's cross-examination on the withdrawn alibi notice, although his objection was overruled. The judge also held that asking defendant if he had any employment records to back up his claim was not an instance of impermissible burden-shifting, but was instead a legitimate attack on a claim defendant himself had made, and consequently appellate counsel did not render ineffective assistance by failing to raise the issue on direct appeal. At the conclusion of his opinion, Judge Goldman determined there was "no evidence of ineffective assistance of either trial or appellate counsel."
On appeal, assigned counsel raises the following claims:
I. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO RAISE ON DIRECT APPEAL THAT [DEFENDANT] WAS PREJUDICIALLY AND IMPROPERLY IMPEACHED WITH A PRIOR STATEMENT, [HIS ALIBI NOTICE,] THAT WAS NOT INCONSISTENT AND THAT SHIFTED THE BURDEN OF PROOF ONTO THE DEFENSE.
II. TRIAL COUNSEL'S ERRORS CONCERNING [DEFENDANT'S] NOTICE OF ALIBI CAUSED BURDEN SHIFTING AND THE PREJUDICIAL DISCLOSURE THAT [DEFENDANT] WAS INCARCERATED, STRIP[P]ING HIS PRESUMPTION OF INNOCENCE, THEREBY RENDERING INEFFECTIVE ASSISTANCE OF COUNSEL.
III. TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT AT TRIAL OR RAISE ON DIRECT APPEAL THE ERROR IN THE TRIAL COURT'S FAULTY AND PREJUDICIAL JURY CHARGE ON IDENTIFICATION.
IV. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY ELICITING CRYSTAL CARTER'S TESTIMONY THAT SHE HAD OBTAINED INFORMATION FROM PEOPLE IN THE NEIGHBORHOOD THAT DEFENDANT WAS THE SHOOTER AFTER THE COURT PROHIBITED SUCH TESTIMONY AS VIOLATING STATE V. BANKSTON, 63 N.J. 263 (1973).
V. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO RAISE THE ISSUE OF THE PREJUDICIAL EFFECT OF THE JURY VIEWING [DEFENDANT'S] TATTOOS.
In a supplemental pro se brief, defendant raises an additional claim:
I. [DEFENDANT'S] CLAIMS ARE NEITHER TIME BARRED NOR PROCEDURALLY BARRED.
We have carefully considered defendant's arguments in light of the record and applicable law. We affirm substantially for the reasons expressed by Judge Goldman in his comprehensive and well-reasoned written opinion of October 6, 2008. R. 2:11-3(e)(2). The remaining issues raised by assigned counsel, and by defendant in his pro se supplemental brief, lack sufficient merit to warrant discussion in a written opinion. Ibid. We add the following additional comments. Contrary to the claim defendant advances in his pro se supplemental brief, Judge Goldman did not conclude that any of defendant's claims were time-barred.
As to defendant's claim that trial counsel's performance was deficient because he needlessly elicited prejudicial testimony that defendant had been incarcerated prior to trial, we note that the judge instructed the jury that defendant was incarcerated only because he had been unable to post bail and he directed the jurors not to infer guilt from his incarceration. A jury is presumed to follow the judge's instructions. State v. Feaster, 156 N.J. 1, 65 (1998). Thus, even if counsel's performance on this issue were to be deemed deficient, in light of the judge's clear and prompt curative instruction, we conclude that counsel's performance had no real capacity to prejudice the outcome.