February 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SEAN TALIAFERRO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2011
Before Judges Axelrad and J. N. Harris.
Defendant Sean Taliaferro appeals from the June 25, 2009 order of the Law Division denying his first petition for post-conviction relief (PCR) without an evidentiary hearing. He alleges ineffective assistance of trial, appellate, and PCR counsel in connection with the trial presentation of an unavailable witness's videographed testimony while clothed in prison garb. We affirm.
As a result of a two-day jury trial, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree eluding, N.J.S.A. 2C:29-2(b). The court imposed an aggregate twenty-two-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed the conviction, but remanded for reconsideration of the sentence in light of State v. Natale, 184 N.J. 458 (2002). See State v. Taliaferro, No. A-6012-05T4 (App. Div. Jan. 11, 2008). The Supreme Court denied certification. State v. Taliaferro, 195 N.J. 419 (2008). On remand, the Law Division re-imposed the same sentence.
Shortly thereafter, defendant filed a timely application for PCR. After the appointment of PCR counsel and the submission of additional briefs, the Law Division conducted oral argument on June 25, 2009. The court rendered an oral decision denying PCR that day, which was memorialized in the order that is the subject of this appeal.
We take our recitation of the facts from the direct appeal, as follows:
On July 23, 2005, at approximately 9:00 p.m., Tina Laspina was walking in Atlantic City when a man got out of an SUV, ran up to her and punched her in the face. The man, whom Laspina later identified as defendant, took her money, ran back to the vehicle, and drove away. Another individual was in the passenger seat. A few minutes later, Laspina gave Officer Dean Dooley a description of the person who robbed her and of the car he was driving. She described the man as a large black male with a bald head and beard wearing a white T-shirt. She described the car as a silver Lexus SUV.
Dooley radioed the description to police dispatch and then called for an ambulance for Laspina, who was visibly upset and bleeding from the mouth. She received medical attention on the scene, but refused to go the hospital. She was taken from the scene in Officer Paul Aristizabal's police cruiser.
Sergeant Rodney Ruark heard the police dispatch of the robbery suspect's description. Approximately twenty minutes later, he observed a silver Toyota 4Runner turning into a gas station on Route 30. He saw a bald, black male with a full beard wearing a white t-shirt in the driver's seat. Ruark called Aristizabal and asked him to confirm with Laspina whether there had been a passenger in the suspect's SUV and whether the suspect was bald. Laspina stated that the suspect was bald and she believed a passenger was in the SUV.
Ruark drove directly behind the SUV and turned on his overhead lights and side spotlight. The SUV did not stop. He then activated his siren and advised dispatch that the SUV was not stopping. Defendant stopped the vehicle approximately a mile later, and ran from the SUV to a nearby apartment complex where he was apprehended. He was placed in the back of Officer DePaul's police car.
Laspina was transferred to Dooley's car. Dooley and DePaul decided to perform a show-up in a nearby vacant lot. DePaul arrived first with defendant. When Dooley pulled into the lot with Laspina, DePaul placed defendant, in handcuffs, in front of Dooley's car headlights. Laspina, from inside Dooley's car, positively identified defendant as the man who had robbed her.
The identification took place approximately thirty minutes after the robbery.
[State v. Taliaferro, supra, (slip op. at 2-4).]
Prior to the commencement of trial, defendant moved to suppress
Laspina's identification. The Law Division conducted a Wade*fn1
hearing on February 1, 2006, at which Laspina testified in
prison garb; she was then incarcerated in the Atlantic County Jail
awaiting disposition of charges accusing her of possession of a
controlled dangerous substance. At the conclusion of the Wade hearing,
in a discussion about the impending trial, defense counsel stated,
"[Laspina's] not going anywhere. She's going to be in the County Jail.
It's not even as if we have to writ her. So there's -- there's
absolutely no reason why she wouldn't be available for trial. None."
That prediction was not to be. Laspina was released from custody a few days after the Wade hearing, and her unforeseen unavailability at the trial forms the core of defendant's contention that he was denied the effective assistance of trial counsel. We noted the following in the direct appeal:
Trial commenced on February 15, 2006, and concluded the next day. Laspina was subpoenaed to testify at trial, but did not appear. The State moved to admit her statements to Dooley immediately after the robbery and at the show-up as excited utterances. The testimony would include Dooley's observations of Laspina's demeanor, that she was bleeding and crying, and that she was speaking so rapidly that the officer could barely understand her and had to tell her to slow down. The court admitted the statements as excited utterances over defendant's objection, but limited its ruling to those statements made to Dooley during their initial contact.
The State also attempted to have the court admit Laspina's response to Aristizabal after Ruark called him to confirm with Laspina the description of the driver, and whether a passenger was in the vehicle. The court did not rule on that request; the judge said he would hear an objection "at the time [Ruark testified] if it's appropriate." When the State later elicited that testimony from Ruark, defense counsel did not object.
Immediately after the court admitted Laspina's statements to Dooley, defense counsel moved for admission of the videotape of Laspina's Wade hearing testimony. The court did not immediately rule on its admissibility, stating that it would wait until after the State's case was completed to determine if Laspina was unavailable to testify. The next day, the issue was raised again and defense counsel asserted that he wanted to admit the tape because Laspina did not appear in court. Defense counsel stated that his cross-examination of her at the Wade hearing "suffice[s] with respect to its depth with respect to the . . . issues that are going to be before the jury." The court addressed defendant personally to confirm that he wanted the tape admitted, and defendant answered affirmatively. Prior to the tape being played for the jury, the court found that Laspina was unavailable to testify, and that defendant had a full and complete opportunity to cross-examine her during the Wade hearing. [State v. Taliaferro, supra, (slip op. at 5-7) (emphasis added).]
Defendant claims that on his direct appeal, appellate counsel neglected to raise an argument that is related to the issue presented in this appeal, to wit: that the presentation of Laspina's testimony through the videotape -- in which she was dressed in prison garb -- was unduly prejudicial to defendant. Thus, argues defendant, not only was his defense counsel deficient in permitting the videotape to be presented to the jury, appellate counsel was likewise ineffective for not asserting that circumstance as a basis for reversal of the conviction. Last but not least, defendant argues that PCR counsel was ineffective due to his failure to raise the issue of the ineffectiveness of appellate counsel, notwithstanding that defendant himself had raised the issue in the initial pro se application for PCR.
As noted, after considering the arguments presented, but without conducting an evidentiary hearing, the Law Division denied defendant's application for PCR. The court held that defendant suffered no deprivation of fundamental rights and was not the victim of ineffective assistance of counsel. It stated the following:
The Court very clearly ruled against the State when the State sought to admit the [Wade hearing videotape of Laspina's testimony] in its case in chief, conducted extensive hearings on the matter outside of the presence of the jury, and then rule[d] against the State not permitting the admission of the [video]tape.
Then, as a strategic decision by trial defense counsel, the matter was brought before the Court for the Court's consideration to admit the [video]tape in the defense's case in chief, so that it would be played for the jury, for the jury's consideration, which I agree with the State, was based largely on an attempt to paint the victim as somebody less worthy of protection under the law, that she was a drug user, that she was housed in the county facility, that she is someone who was in either prison garb or shackles or whatever, that she would readily be taken as somebody who was on the wrong side of the law, at least when she gave her testimony to the Court.
I conclude that counsel acted as counsel, efficiently and effectively. That the defendant was not deprived by the assistance of effective counsel at trial, by admitting the Wade testimony as a strategic decision . . ., I conclude that the defendant assented and consented to the Court receving that testimony and publishing it to the jury, and for those reasons set forth here on the record, the petition is denied.
This appeal followed.
"For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that '[defense] counsel's performance was deficient,' and that 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
"[T]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Echols, 199 N.J. 344, 358 (2007) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, a "challenged error must be so serious as to undermine the court's confidence in defendant's conviction." Id. at 359. It is defendant who bears the burden of proof to establish the grounds for PCR by a preponderance of the credible evidence. Id. at 357.
The Law Division should grant a defendant an evidentiary hearing on a claim of ineffective assistance of counsel whenever a prima facie case has been established by a defendant. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Preciose, supra, 129 N.J. at 462; State v. Moore, 273 N.J. Super. 118, 126-27 (App. Div.), certif. denied, 137 N.J. 311 (1994).
When evaluating whether a defendant has presented a prima facie case, the PCR judge "should view the facts in the light most favorable to a defendant." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If the PCR judge determines that the defendant could possibly be entitled to relief, the defendant is entitled to an evidentiary hearing unless "the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted).
From our review of the record, we are satisfied that none of defendant's attorneys was ineffective in his defense. In light of defense counsel's trial tactic to portray Laspina as an unreliable person -- a witness not to be believed -- his invocation and presentation of her Wade videotape for the jury was well within the spectrum of reasonableness. By highlighting Laspina's substance abuse problems in his direct remarks to the jury, defense counsel sought to effectively weave her appearance and testimony during the Wade proceeding into a persuasive argument that her identification of defendant was not worthy of belief.
In our review, we must "evaluate the conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight." State v. Buonadonna, 122 N.J. 22, 42 (1991). Defense counsel is not considered ineffective simply because trial strategy did not produce the desired effect. State v. Sheika, 337 N.J. Super. 228, 242-43 (App. Div.), certif. denied, 169 N.J. 609 (2001). Strategic miscalculations or trial mistakes by defense counsel are not sufficient to call for reversal except in those atypical instances where they are of such significance as to frustrate the fundamental guarantee of a fair trial. State v. Thomas, 245 N.J. Super. 428, 432 (App. Div. 1991), appeal dismissed, 130 N.J. 588 (1992).
Similarly, we do not detect any lack of diligence, completeness, or rationality in the representations provided by appellate and PCR counsel. Whether any of such attorneys' omissions were deficient within the meaning of Strickland is debatable. However, even if there were such shortcomings, none was so significant that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In light of our conclusion that defendant's defense attorney adequately represented him at trial, and that the subsequent attorneys assisting defendant were similarly adequate, it is clear to us that the PCR judge correctly determined that an evidentiary hearing was unnecessary, that defendant did not suffer the ineffective assistance of counsel, and that defendant was not entitled to post-conviction relief. All of defendant's other arguments, including those contained in the pro se supplemental brief, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).