On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-12-2993.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 9, 2010 -- Decided:
Before Judges Payne, C.L. Miniman and Fasciale.
The opinion of the court was delivered by
Defendant Donny Reevey appeals from the denial of his application for post-conviction relief (PCR) in which he alleged ineffective assistance of trial counsel, who failed to secure defendant's presence in the courtroom during an allegedly critical stage of the proceedings when the judge conducted a hearing to determine whether a material witness intended to appear and testify. We affirm.
Defendant was convicted of first-degree use of a juvenile to commit a crime, contrary to N.J.S.A. 2C:24-9a; first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; second-degree armed burglary, contrary to N.J.S.A. 2C:18-2; third-degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12- 1b(5)(a); and third-degree resisting arrest by using or threat- ening to use physical force, contrary to N.J.S.A. 2C:29-2a(3).
Defendant was sentenced to a term of twenty years on the first-degree robbery conviction subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; fifteen concurrent years on the first-degree use of a juvenile conviction; ten concurrent years on the second-degree armed burglary conviction, of which five years would be without parole; eighteen concurrent months on the third-degree aggravated assault conviction, of which nine months would be without parole; and five concurrent years on the third- degree resisting arrest conviction, of which two and one-half years would be without parole.
Defendant appealed, and his counsel raised the following issues for our consideration:
POINT I - THE COURT SHOULD NOT HAVE CONSIDERED SHEMP'S TESTIMONY THAT HE SUFFERED BODILY INJURY IN DETERMINING WHETHER THE JUVENILE COMMITTED SIMPLE ASSAULT DUE TO THE STATE'S FAILURE TO PROVIDE THE INFORMATION THAT SHEMP SUFFERED BODILY INJURY TO THE DEFENSE IN DISCOVERY.
POINT II - THE VERDICT ON THE AGGRAVATED ASSAULT CHARGE WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
POINT III - CUMULATIVE ERRORS WARRANT A NEW TRIAL (NOT RAISED BELOW).
POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).
We affirmed defendant's conviction and sentence, and on September 11, 2007, our Supreme Court denied defendant's petition for certification. State v. Reevey, No. A-1597-05 (App. Div. July 2, 2007), certif. denied, 192 N.J. 480 (2007).
The facts relevant to defendant's PCR application and the material witness, Gregory Covington, are extracted from our opinion on direct appeal as follows:
The victim, Gregory Covington, gave the following testimony at trial. On July 24, 2004, at approximately 4:00 a.m., he heard a knock at the front door to his apartment in Keansburg. As he opened the door, he saw an individual wearing a ski mask. He immediately shut the door, locked the deadbolt, and went toward his bedroom. Before Covington could make his way into the bedroom, the apartment door was forced open and he was pushed onto his bed. Covington did not see who entered the apartment. While on his knees, with his hand and chest facing down on the bed and a cover over his head, Covington felt something on "the back of [his] head" and he was told by a "white guy" that "it was a 'GAT' which is interpreted as a gun." According to Covington, "the white guy asked for money and drugs" and proceeded to remove Covington's bracelet.
Meanwhile, a neighbor had called the Keansburg police and reported a break-in at Covington's apartment. . . .
Covington testified that after the police arrived at his apartment he removed the cover from over his head and saw the police "on top of" defendant in the living room while the "white guy" sat next to Covington on his bed and co-defendant Stevens stood by the dresser. . . . He had known defendant for about two or three months prior to the incident. On cross-examination, Covington admitted that he used to sell drugs from his apartment and that certain individuals whom he "would sell [drugs to] and get high with . . . would just come in."
Within an hour after the incident, Covington went to police headquarters where he submitted a handwritten complaint. He returned home but later went back to police headquarters and provided Detective Gary Kronenberger with a formal statement. According to Covington's statement, three individuals broke into his apartment and a person by the name of "World" (co-defendant Stevens) pushed him to the end of his bed while "Donny" (defendant) "went in [Covington's] pockets and took [his] money out." He noted in his statement that a "white guy" told him he "had a GAT to the back of [his] head." He also stated, "[t]hen I seen Donny going into the kitchen and World was in the same room looking in drawers, looking under the bed. Then all of a sudden I hear 'freeze, freeze,' then I look up and see Keansburg's finest."
In his statement, Covington mentioned that he had met World twice before, had known Donny for "about a month" and had met the "white guy . . . just one time for about 15 minutes." He told the detective that "World had the black stocking cap, the white guy had a blue do-rag over his face and I'm not sure what Donny had on his face." After completing his formal statement, Covington reviewed the statement, certified that it was truthful, and signed it.
Prior to the commencement of trial on June 21, 2005, the judge noted that defendants were not in the courtroom, although all three attorneys were present. The judge stated that he had an application from the prosecutor for two material-witness warrants, one for Gregory Covington and one for Helen Brown. The judge noted that this was a matter that could have been handled in chambers; it was not a critical stage of the proceedings; and defendants' presence was not required. The judge heard from the prosecutor and then asked defense counsel if they wished to be heard. Both defense attorneys said that they had no objection to issuance of material-witness warrants.
The judge granted the prosecutor's application and required that the warrants be served immediately and that the witnesses be brought before the court for questioning.
After a recess, defendants were brought to the courtroom at which time it was agreed that there were no pretrial motions that needed to be addressed, although certain issues were discussed. Before the jury was brought up, the judge addressed co-defendant Stevens, who had a toothache, and explained that the Sheriffs' Department could not issue any medication to him in the courtroom. If it was still bothering him at lunchtime, the sheriff's officers would take him back to the jail for medication and return him to the courtroom by 1:30 p.m. for the resumption of the trial. At that point, the judge began jury selection. When he was ready to recess for lunch, defendant's counsel indicated that his client also needed to take his antibiotics and pain medication, which he took with every meal. The judge also released defendant to the jail.
At five minutes to three, the judge returned to the bench and advised counsel that defendants had finally been returned from the jail. At that point, there were only thirteen jurors in the box, and both jury panels had been exhausted. After instructing counsel and the sheriff's officers to make certain that such delays not be repeated, the judge observed that both defendants were "downstairs, ready to be brought up. But we have another issue at this point."
Covington was in the courtroom, and the judge needed to address the material-witness warrant. The prosecutor explained that Covington had apparently not been served with the first subpoena, but after speaking with Covington, who wanted a lawyer, the prosecutor was not certain if he would appear the next day. As a result, the prosecutor asked the judge to determine whether Covington needed to be housed by the Prosecutor's Office. Defendant had not been brought to the courtroom.
The judge then placed Covington under oath and questioned him about the subpoena that had been served on him:
Q Mr. Covington, I issued a material witness complaint for you today based on representations made by the Prosecutor's Office of their inability to secure your attendance at this proceeding. In fact, they indicated they had served you with a subpoena to appear on June 20th, 2005, in Superior Court. That's yesterday. And that you were personally served with that subpoena on May 11, 2005, at 3:24 p.m. by Keansburg Det. Wayne Davis, Junior. Were you served with that subpoena?
A I can't remember being served with the subpoena.
Q Have you ever been served with a subpoena by a Keansburg detective?
A I can't recall being served no subpoena. I got served with one today after I was arrested.
Q You weren't arrested. Do you know Det. Wayne Davis?
A Yes, I know Det. Wayne Davis.
Q Did you see Det. Wayne Davis about a month ago at about 3:24 p.m. where he handed you a piece of paper?
A I can't really recall because I see Wayne Davis a lot and I see him and his partner.
Q Does he hand you pieces of paper a lot?
THE COURT: Det. Davis is here in the courtroom?
THE COURT: We will question him shortly.