December 6, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-0414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010 - Decided
Before Judges R. B. Coleman and Lihotz.
Defendant, Christopher Hall, appeals from a January 23, 2009, order denying his petition for post-conviction relief (PCR). He argues his trial counsel and his appellate counsel provided ineffective assistance. Defendant also contends the PCR court should have convened an evidentiary hearing to explore trial counsel's decision not to include an alibi defense, not to present witnesses, not to confer with defendant and not to object to prejudicial remarks made by co-defendant Claven Anderson. For the reasons that follow, we affirm.
On August 26, 2001, around 12:30 a.m., Taha Ramadan, Tarek Ramadan, Maharan Ramadan, Said Ramadan, and Tara Rodriguez (the victims) were in Eastside Park "[h]anging out and convers[ing]" when defendant Christopher Hall emerged from a van and approached the victims to ask if anyone had marijuana. When the victims responded no, defendant Hall asked for a cigarette, and as he began to walk away "he turned around, brandished a weapon [a handgun] and . . . asked [the victims] to empty [their] pockets." By this time, Kenton Rodney had also emerged from the van, wielding a knife; he collected the group's jewelry, cash and cell phones. Defendant and Rodney then re-entered the van and drove away. The victims immediately notified the police and gave a partial license plate number and a description of the van.
At 1:10 a.m., Officer Joseph Ricciardi received a radio transmission regarding the robbery. Shortly thereafter, Officer Ricciardi observed the van, followed it briefly, then pulled it over with police unit backup. The three occupants, defendant, Rodney and Claven Anderson (the driver), were removed from the van and placed in the police cars. A fully loaded nine millimeter semiautomatic reduction Luger, a knife, and two cell phones were recovered from the van.
Approximately thirty minutes later the victims observed defendant, Rodney and Anderson in the back seat of the police car and identified defendant and Rodney as the two men who held them up at gun and knifepoint. The victims also observed that all three were wearing jewelry they had given to defendant and Rodney during the hold up.
A Passaic County Jury returned Indictment Number 02-04-0414, against defendant Hall, Rodney and Anderson. Defendant Hall was charged with first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and third and fourth degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d. In early February 2004, defendant was tried along with two co-defendants before Judge Garry S. Rothstadt and a jury, which found him guilty of first-degree robbery (counts four, seven, ten and thirteen); aggravated assault (counts six, nine, twelve and fifteen); possession of a weapon for unlawful purpose (count sixteen); and unlawful possession of a weapon (count seventeen).
At a sentencing hearing on April 20, 2004, the judge merged the aggravated assault convictions (counts six, nine, twelve and fifteen) and possession of a weapon for unlawful purpose (count sixteen) with the robbery convictions. The court sentenced defendant to four concurrent fifteen-year terms of imprisonment for counts four, seven, ten and thirteen, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a consecutive four-year term for the unlawful possession of a weapon charge (count seventeen).
Defendant appealed along with co-defendants Kenton Rodney and Claven Anderson, and the convictions were affirmed. State v. Hall, No. A-6298-03T4, (App. Div. Apr. 7, 2006) (slip op. at 15). Thereafter, the Supreme Court denied certification on March, 16, 2007. State v. Hall, 190 N.J. 255 (2007).
The defendant filed a pro se petition for PCR on March 7, 2008. On September 24, 2008, PCR defense counsel filed an amended verified petition for post-conviction relief. On January 23, 2009, Judge Rothstadt conducted a PCR hearing and entered the order from which defendant now appeals.
In his appeal, defendant raises the following points of argument:
POINT I: THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL.
DEFENDANT WAS DENIED A FAIR TRIAL CONTRARY TO HIS FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHT TO DUE PROCESS.
A. BASIC APPLICABLE COURT RULES AND LAW SUPPORT THE DEFENDANT'S APPEAL.
B. AN ALIBI DEFENSE WAS NEVER PROVIDED DESPITE THE DEFENDANT'S INSISTENCE THAT THIS STRATEGY WAS NECESSARY TO PROVE HIS INNOCENCE.
C. TRIAL COUNSEL FAILED TO CONDUCT ADEQUATE PRETRIAL INVESTIGATION.
D. FAILURE TO REQUEST CAUTIONARY INSTRUCTIONS OR MOVE FOR A MISTRIAL BASED ON IMPROPER AND DAMAGING REMARKS BY CO-DEFENDANT ANDERSON DENIED THE DEFENDANT HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE REPRESENTATION AND A FAIR TRIAL (not raised below).
POINT II: THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL.
POINT III: AN EVIDENTIARY HEARING IS WARRANTED.
PCR provides a means for defendants to challenge their convictions on grounds "which could not have been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 482 (1997); State v. Cummings, 321 N.J. Super. 154, 164 (1999); R. 3:22-4(a)(1). However, an application for PCR will only be granted if the applicant establishes, by a preponderance of credible evidence, one of the cognizable grounds for relief: "(a) substantial denial in the conviction proceedings of a defendant's rights under the federal constitution, state constitution or state law; (b) lack of jurisdiction by the court imposing sentence; (c) imposition of an improper sentence; and (d) any other habeas corpus, common-law or statutory grounds for a collateral attack." McQuaid, supra, 147 N.J. at 482 (citing R. 3:22-2).
First, we address defendant's argument that he received ineffective assistance of trial counsel because counsel failed to utilize the alibi defense despite defendant's insistence. Specifically, defendant asserts that he urged trial counsel to investigate his girlfriend, Dawn Smith, and his mother, Deon Hall, as potential alibi witnesses and counsel never followed through.
To maintain a claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987). First, defendant must establish that counsel's performance was, in fact, deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
This requires showing that the errors made by counsel were of such magnitude that counsel was not functioning as "counsel" as afforded a defendant by the guarantees in the Sixth Amendment. Ibid. Second, the defendant must "show that the deficient performance prejudiced the defense." Ibid. This requires defendant to show that counsel's deficiencies were so egregious that they "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Ibid. "Unless both parts of the [Strickland] test are established, defendant's claim must fail." State v. Echols, 199 N.J. 344, 358 (2009).
When evaluating an ineffective assistance claim, "'[j]udicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, 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 690, 104 S. Ct. at 695, 80 L. Ed. 2d at 2066. Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61.
The Supreme Court has held that where a party claims that counsel was ineffective for failing to call witnesses, that party's claim will be dismissed if the "witnesses have never been identified and their potential testimony has never been described. Purely speculative deficiencies in representation are insufficient to justify reversal." Fritz, supra, 105 N.J. at 64.
"Trial counsel may not be considered ineffective merely because his trial strategy failed." State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001) (citing State v. Davis, 116 N.J. 341, 357 (1989)). Strategic miscalculations or trial mistakes by counsel are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial. State v. Thomas, 245 N.J. Super. 428, 432 (App. Div. 1991).
According to defendant, his girlfriend and mother would have testified that he was attending his daughter's birthday party at his girlfriend's home at the time of the robberies. The PCR judge carefully considered defendant's contention that trial counsel's performance was deficient for his failure to call as witnesses his mother and girlfriend. The court found, and the record supports its finding that, "it would be hard to [employ an alibi defense] when . . . you have  co-defendant[,] [Anderson] testifying, I was there, he was there, he was there and this is what happened." The judge thus determined defendant's potential witnesses would have been extremely limited in light of the considerable evidence of his presence at the scene of the crime.
Based upon our analysis of the record, we are satisfied that there is substantial and credible support for this conclusion. Apart from the obvious concern that defendant's mother and girlfriend would likely be seen as biased witnesses, the victims' allegations that defendant was one of the three individuals involved in the robbery were substantially corroborated. For example, the cell phones and jewelry found in the getaway van belonged to the victims. Defendant, who was apprehended in the getaway van, matched the physical description provided by the victims. Most damning, the co-defendant Anderson's testimony directly implicated defendant.
Moreover, the trial strategy employed by counsel was entirely reasonable in light of the ample evidence pointing to defendant as one of the perpetrators of the crimes charged. The transcripts reveal that trial counsel's approach was to attempt to discredit the identification witnesses. Counsel pointed out inconsistencies where victims' testimony conflicted and emphasized an inconsistency as to how much money the victims testified were stolen. Counsel pointed out that one police officer testified that all three defendants were placed in one car while another police officer testified that the defendants were in two different cars. He highlighted the fact that one of the alleged victims stated that he was positive the incident happened at 1:00 in the afternoon when it was very light out, but in reality the robbery occurred only a short time after midnight. Trial counsel also addressed instances when one of the victim's trial testimony conflicted with the police statements as to the precise items stolen. Thus, it appears that trial counsel had few defenses from which to choose, but the defenses he did advance showed a familiarity with the record and reasonable investigative efforts.
Defendant's argument that the identification defense employed by counsel was inadequate is wholly unsupported in his brief since he failed to provide certifications, affidavits or any evidence to support or demonstrate these assertions. In addition, we reject all of the contentions that trial counsel did not confer with him regularly, conduct an adequate pretrial investigation, or attempt to find witnesses to affirm his innocence. While counsel must conduct a reasonable investigation, a reasonable investigation will be presumed absent evidence to the contrary. See State v. Loftin, 191 N.J. 172, 198 (2007). A party claiming ineffective assistance must demonstrate that an asserted failure to investigate was, in fact, a failure to investigate and not a reasoned decision that made an investigation unnecessary.
Giving requisite deference to trial counsel's judgment and "in light of the State's evidence of guilt," trial counsel's decision to utilize an identification defense on summation did not fall "outside the wide range of professionally competent assistance." Echols, supra, 199 N.J. at 358; Strickland, supra, 466 U.S. at 690, 104 S. Ct. 695, 80 L. Ed. 2d at 2066. The trial court, therefore, properly concluded that defendant failed to demonstrate that counsel's performance was deficient and that such deficient performance prejudiced the defense. Fritz, supra, 105 N.J. at 52.
Defendant next asserts that trial counsel was ineffective because he did not request a curative instruction or move for a mistrial when co-defendant Anderson made disparaging remarks at trial about Rodney and defendant. He referred to Rodney as inhuman, crazy and the devil, and he referred to defendant as a follower. This issue was not raised by defendant in the PCR proceeding, and typically we will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available[.]" State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). We nonetheless make the following brief comments.
The State points out that a related argument was raised on direct appeal by co-defendant Rodney. Rodney contended that Anderson's comments were sufficiently prejudicial to have warranted a severance. Rejecting that argument, the panel considering Rodney's appeal observed that "[w]hile Anderson's multiple remarks did not cast Rodney in a positive light, they are not demonstrative of an 'extreme' level of antagonism that served to prejudice Rodney's defense." Accordingly, the lower court's decision to deny a motion for severance was affirmed. Anderson's comment that defendant is a follower is far less prejudicial than his comments regarding Rodney. Thus, we do not accept that trial counsel's failure to object or to seek a mistrial for Anderson's assessment of his confederates was so deficient that it prejudiced the defense.
Moreover, we are convinced that counsel's failure to object or to request a curative instruction was a rational strategic decision not to draw more attention to [these] isolated, fleeting comments. "We owe some degree of deference to counsel's strategic or tactical decisions and should carefully refrain from undermining or preempting them." State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999) (citations omitted). The trial judge called a recess sua sponte and out of the presence of the jury, he warned Anderson about volunteering information beyond the scope of the cross-examiner's questions. Neither Rodney's nor defendant's trial counsel objected to the allegedly improper comments as they were being made and Rodney's counsel indicated that, for strategic purposes, he did not want a cautionary instruction. The following exchange took place between the court and Rodney's attorney:
THE COURT: Now, you -- are you asking me to instruct the jury, Mr. --[RODNEY'S COUNSEL]: No.
THE COURT: -- [Counsel], at all as to the comment made about Mr. Rodney? [RODNEY'S COUNSEL]: No, Judge, I'm going to -- in the whole context of Mr. Anderson's testimony, I think I -- we're better off just leaving -- leaving it be.
THE COURT: All right. So for the moment I won't. [RODNEY'S COUNSEL]: Yes, sir.
THE COURT: If you decide when this is all over that you want it, just ask me again.
[RODNEY'S COUNSEL]: Right. Right. Certainly, Judge.
THE COURT: Okay? [RODNEY'S COUNSEL]: Thank you.
THE COURT: Anybody have anything else they want to place on the record. [PROSECUTOR]: No. [DEFENDANT'S COUNSEL]: No.
THE COURT: Anderson's Counsel? [ANDERSON'S COUNSEL]: No.
THE COURT: Anderson's Counsel, you disagree with anything I've just said to your client? [ANDERSON'S COUNSEL]: No. No.
Though defendant was not as vocal about his thought processes, we are satisfied that his choice not to bring additional attention to Anderson's statements was an acceptable trial strategy that did not deprive defendant of effective assistance of counsel.
Finally, even if counsel was deficient in failing to request a mistrial or curative instructions, defendant cannot show that he was prejudiced by Anderson's statements under the second prong of the Strickland/Fritz test. 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). The evidence in the record strongly supported the verdict that defendant committed the robbery. The jurors heard the testimony of seven witnesses, and with the exception of minor inconsistencies, the testimony of those witnesses placed defendant in Eastside Park, holding up the victims at gunpoint. He was in the van when it was stopped by the police. Therefore, in light of the strong evidence of guilt in this case, the comments were not sufficiently prejudicial to have the capacity to unduly influence the jury. State v. Winter, 96 N.J. 640, 649 (1984).
Defendant next argues that he received ineffective assistance of counsel in connection with his direct appeal because appellate counsel failed to raise several meritorious issues on appeal. We reject these arguments.
Courts apply the Strickland test to claims of ineffective assistance of appellate counsel in the same manner as the test is applied to trial counsel. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987). Defendant first asserts that appellate counsel was deficient for failing to raise ineffective assistance of trial counsel. In light of our view, expressed above, that trial counsel's performance was not deficient or prejudicial, we find the charge of ineffective assistance of appellate counsel is so lacking in merit that it does not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also contends that appellate counsel failed to seek a sentencing remand under State v. Natale, 184 N.J. 458, 466 (2005), through "pipeline retroactivity." In Natale, the New Jersey Supreme Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Ibid. The Court, thus, instructed that "[w]ithout presumptive terms, 'the statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Id. at 487. Judges are still empowered to identify and assess both the applicable mitigating and aggravating factors, but are simply not constrained by the "fixed point of a statutory presumptive" term. Id. at 488. Nevertheless, Natale is inapplicable to the case at bar.
Defendant received four concurrent fifteen-year terms on the first-degree armed robbery convictions, which included counts four, seven, ten and thirteen. He was given an eighty-five percent period of NERA parole ineligibility with this sentence. Defendant was also sentenced to a four-year term of imprisonment for unlawful possession of a weapon which was to run concurrently with the fifteen-year sentence for the first-degree armed robbery. For the first-degree crime of robbery, the then presumptive term in New Jersey was fifteen years, and the judge, considering all the aggravating and mitigating factors, sentenced defendant to four terms of fifteen years to be served concurrently. See Natale, supra, 184 N.J. at 483. Likewise, for the third-degree possession of an unlawful weapon offense, the then presumptive term in New Jersey was four years, the same sentence defendant received. Ibid. The sentencing range for first-degree crimes is between ten and twenty years. N.J.S.A. 2C:43-6(a)(1). The range for third-degree crimes is between three and five years. N.J.S.A. 2C:43-6(a)(3). Therefore, for both the robbery and the weapon possession convictions, defendant was sentenced at the prior presumptive term, and not above (emphasis added). Thus, no constitutional violation occurred. Natale, supra, 184 N.J. 466. See also State v. Adams, 194 N.J. 186, 209 (2008).
Given that defendant's sentence was not above the presumptive term and Natale is inapplicable, appellate counsel's assistance was neither deficient nor prejudicial under Strickland.
Finally, defendant contends an evidentiary hearing was warranted to investigate trial counsel's effectiveness. Rule 3:22-10 states that a defendant "shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief." Because defendant utterly failed to substantiate his claims with facts found within or outside the record and otherwise failed to present a reasonable likelihood of succeeding under the Strickland/Fritz test, defendant's request for an evidentiary hearing was appropriately denied.
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