January 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY DIGGS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-01-0266 and 01-02-0487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 18, 2011
Before Judges A.A. Rodriguez, Grall and C.L. Miniman.
Defendant Anthony Diggs appeals the denial of his applica- tion for post-conviction relief (PCR) based on a claim that he was denied a fair trial because one of the jurors was acquainted with either the victim or one of defendant's family members and because his trial counsel was ineffective. He asserts that an evidentiary hearing was required with respect to these two claims. We conclude that defendant has failed to establish a prima facie case and affirm.
On January 19, 2001, the Essex County Grand Jury returned an indictment charging defendant and his co-defendant, Thoeoke Jackson, with second-degree conspiracy to commit murder, con- trary to N.J.S.A. 2C:5-2 and 2C:11-3 (count one); first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a (count two); third-degree unlawful possession of a handgun, con- trary to N.J.S.A. 2C:39-5b (count three); and second-degree pos- session of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four). Defendant was also charged in a second indictment with second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7b.
After the first trial resulted in a hung jury, defendant and Jackson were tried commencing April 29, 2003, before a judge and jury. The jury returned its verdict on May 9, 2003, acquit- ting defendant on counts one, two, and four. The jury convicted defendant of the lesser-included offense of second-degree pas- sion/provocation manslaughter, contrary to N.J.S.A. 2C:11-4b(2).
He was also convicted on count three. Following the jury ver- dict, defendant waived his right to a jury trial on the second indictment, and the judge convicted him of certain persons not to have weapons.*fn1
Defendant moved for a new trial. His motion was denied on July 1, 2003. The judge granted the State's motion to sentence defendant as a persistent offender and imposed concurrent terms aggregating eighteen years subject to the parole disqualifier of the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's convictions, remanding for resentencing in light of State v. Pierce, 188 N.J. 155 (2006), and State v. Thomas, 188 N.J. 137 (2006), and the Supreme Court denied certification on the State's petition and defendant's cross-petition. State v. Jackson, Nos. A-4082-03 and A-4688-03 (App. Div. Mar. 12, 2007), certif. denied, 192 N.J. 74 & 292 (2007). As of August 19, 2008, defendant had not yet been resentenced.
Because the facts establishing defendant's guilt beyond a reasonable doubt are not relevant to the issues presented on appeal, we need not discuss the evidence presented at trial and incorporate our earlier discussion of the proofs at trial by reference herein. Jackson, supra, slip op. at 3-9. Suffice it to say that defendant and Jackson became involved in a confrontation with the victim, which escalated to gun violence resulting in the victim's death. Further, because the issues raised on this appeal could not have been raised earlier, we need not discuss the issues presented for our resolution on direct appeal. See id. at 20-28.
On February 19, 2008, defendant filed a timely pro se PCR petition. He asserted that he had been denied a fair trial and the effective assistance of counsel. His entire certification follows:
1. I am the defendant in this matter.
2. Following my conviction[,] during a telephone conversation with one of my cousins[,] I learned that one of the jurors, [K.K.], was acquainted with the victim and/or his family members.
3. I also learned that [K.K.] attended my cousin's baby shower as she appeared on the videotape.
4. My grandmother took the videotape to my trial attorney[,] John McMahon, Esq.
The State filed a brief in opposition to defendant's PCR petition. The judge heard oral argument on the petition on August 19, 2008, and denied PCR without an evidentiary hearing. With respect to the issues raised in this appeal, the judge placed the following decision on the record:
The [defendant] set forth several grounds: First that counsel refused to allow him to testify before the [c]court despite his desire to do so[,] which subjected him to severe prejudice as well as deprived him of his basic constitutional right.
In this case, the [defendant] alleges that his defense would have been stronger had he testified. The Strickland Court*fn2 is very clear and admonishes the [c]court to avoid second[-]guessing defense counsel's tactical decisions.
In this case the defense counsel's advi[c]e to [defendant] not to testify was part of sound trial strategy and should not be second[-]guessed. There are myriads of reasons why defense counsel did not want [defendant] to testify in this matter. One of the most damaging [is defendant's] prior convictions and his original statement to the police placing him at the scene of the crime and in a physical scuffle with the victim.
The self[-]defense argument had already been set up through the defendant's statement[,] which was read to the jury. Whether or not the defense counsel's decision may have later turned out to be disadvantageous is not grounds to find ineffective assistance. While it was defense counsel's duty to advise the defendant as to the consequences, it was the defendant's choice and decision.
At the close of the defense case the [c]court asked the defendant if he would like to testify in this matter. The defendant clearly stated "no" on the record. The defendant had the election not to testify read to the jury[,] and had the defendant truly desired to exercise his right to testify, he could have clearly stated so to the [c]court regardless of the advi[c]e of his attorney and the jury would have heard his testimony regardless of defense counsel's wishes or advi[c]e.
It must be noted that even if [defendant] did satisfy the first prong of Strickland, he would most likely fail the second prong. That second part asks whether there was a reasonable probability that but for counsel's unprofessional error the result would have been different.
There were two [eyewitnesses] to the shooting[,] and[,] as noted before[,] [defendant] gave a statement to the police in which he fully admitted shooting the victim. Self[-]defense claim was already in by virtue of the statement so [defendant's] argument fails the Strickland test.
[Defendant's f]inal contention is that a juror failed to disclose acquaintance with the victim prior to trial.
[Defendant] contends that one of the jurors sworn in on this case knew the victim Hardaway.
[Defendant] asserts that in a blanket allegation but did not submit any evidence to substantiate his claim that one of the jury knew Hardaway.
[Defendant] did not say which juror knew Hardaway*fn3 or how the juror knew Hardaway. The [defendant] was informed of the fact that one of the jury knew Hardaway or how long the juror knew Hardaway through a video tape that does not exist. Where is it? What does it show? How come--how can it be authenticated?
After all this time this is just a blanket allegation and nothing but an assertion based upon mere speculation unsubstantiated by the [defendant].
According to the Marshall Court,*fn4 if
the [c]court perceives th[at] holding an evidentiary hearing will not aid the [c]court in analyzing whether the defendant is entitled to [PCR] or that the defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing, . . . an evidentiary hearing need not be granted, see Marshall.
Based upon the above the [c]court denies the defendant's petition and will not have an evidentiary hearing in this matter as a prim[a] facie case has not been made out.
Defendant raises the following issues for our consideration:
POINT I -- THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE THAT HE WAS DENIED A FAIR TRIAL DUE TO ONE OF THE JURORS BEING ACQUAINTED WITH THE VICTIM AND/OR HIS FAMILY MEMBERS.
POINT II -- THIS MATTER MUST BE REMANDED FOR AN EVIDENITARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE AS TO TRIAL COUNSEL'S INEFFECTIVENESS BY INDUCING HIM NOT TO TESTIFY.
We review the legal conclusions of a PCR judge de novo.
State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord deference to credibility determinations, id. at 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)).
However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. De novo review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.
Bare allegations without supporting certifications or evi- dence of record cannot support PCR. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) ("Petitioner must initially allege specific facts which, if believed, would demonstrate the likeli- hood of injustice by a preponderance of the evidence." (citation omitted)), certif. denied, 162 N.J. 199 (1999). Here, defendant has not set forth in the certification precisely what he and his attorney discussed with respect to his testimony at trial. As such, his claim that trial counsel was ineffective in advising him not to testify is no more than a bare allegation without supporting certifications. Additionally, the evidence of record has no support for PCR because the defendant testified at the time of trial that he was freely and voluntarily electing not to testify on his own behalf. Thus, we find no merit to defendant's claim that his trial counsel was ineffective in advising him not to testify.
After carefully reviewing the record in light of the writ- ten arguments advanced by the parties, we conclude that defen- dant's argument that he was denied a fair trial because [K.K.] was acquainted with the victim or his family or defendant's family is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his oral opinion delivered on August 19, 2008.