March 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN COX, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-08-0854. Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges R. B. Coleman and Lihotz.
Defendant Benjamin Cox appeals from a August 25, 2008 order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing. On appeal defendant argues:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
1. Defendant established at least prima facie evidence of ineffective assistance of counsel.
A. Failure to sufficiently investigate witnesses and obtain exculpatory witnesses on defendant's behalf.
B. Failure to consult appropriate expert witnesses.
C. Failure to request jury charges.
D. Failure to move to strike unsolicited and prejudicial witness testimony.
E. Failure to move for a mistrial.
F. Failure to pursue Batson/Gilmore challenge.
2. At the very least, the trial court erred in rejecting defendant's ineffective assistance claim without conducting an evidentiary hearing.
Following our review, we conclude defendant's claims of ineffective assistance of trial counsel fail to meet either the performance or prejudice prong of the Strickland/Fritz test.*fn1
Also, we reject defendant's claims that the PCR judge erred in denying his request for an evidentiary hearing to review the assertions of ineffective assistance. We affirm.
Defendant is incarcerated serving a term of life imprisonment following his conviction for the murder and related weapons offenses in the shooting death of Reginald Coley. The State's evidence included the eyewitness testimony of the victim's cousin, a statement made by defendant while in custody, and an ammunition clip in the same caliber as the weapon that killed Coley. The defense challenged identification, arguing defendant was not the shooter.
Defendant's conviction was affirmed on direct appeal, however, pursuant to State v. Natale, 184 N.J. 458 (2005), we remanded for resentencing. State v. Cox, No. A-0699-04 (App. Div. June 21, 2007) (slip op. 13). On appeal defendant alleged ineffective assistance of counsel. We declined to rule on those issues allowing defendant to again raise them in a PCR petition. The Supreme Court denied certification. State v. Cox, 192 N.J. 479 (2007).
Defendant filed a petition for PCR, asserting he received ineffective assistance of trial counsel, generally alleging counsel failed to interview or call witnesses, exercise all preemptory challenges and properly prepare for trial. Additionally, defendant argued counsel should have obtained experts to challenge the cause of the victim's death, the ballistics evidence and defendant's competence as well as presented a diminished capacity defense. In a pro se supplemental submission, defendant had raised counsel's alleged failure to request a mistrial for which the court requested further clarification.
The facts of this last issue were that juror No. 10 was present in the elevator during an exchange between the prosecutor and the court's law clerk, who commented on the State's opening statement, which set forth a motive for the shooting. The PCR judge learned that the concern of the juror's interaction was immediately addressed by the trial court. Upon examination, juror No. 10 stated she was on her cell phone and did not hear the conversation.
The PCR judge considered each argument, determined no evidentiary hearing was warranted and denied PCR. An order was filed incorporating the court's determinations made on August 15 and 25, 2008. This appeal ensued.
The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted by our Supreme Court in Fritz, supra, 105 N.J. at 58. A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" 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); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
Counsel's efforts are measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53. Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. 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). Additionally, counsel may not be considered ineffective merely because the trial strategy failed. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).
In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); Allah, supra, 170 N.J. at 283. Defendant must prove to "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. This requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial[,]" undermining confidence in defendant's conviction. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Cummings, supra, 321 N.J. Super. at 170.
While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2011); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
Guided by these standards, we find no basis to reverse the PCR judge's denial of relief. Defendant's initial pro se PCR petition broadly stated counsel was ineffective for failing to
(1) investigate defendant's case; (2) interview the state's witnesses; (3) perform pre-trial investigation; and (4) conduct an investigation of defense witnesses. No specific factual assertions were provided and no corroborating documentation was attached.
The pleadings were supplemented by defense counsel's amended verified PCR petition. However, this too contained only generalized assertions of the broad categories previously listed along with a statement that the errors "were so numerous as to require a new trial." The accompanying brief elucidated the issues somewhat. We detail these because they are repeated on appeal.
Regarding the failure to interview or call witnesses, defendant asserted for example that fifteen-year-old Nyheem Perry, who allegedly described the shooter as "an old black man," should have been called because defendant was only forty-one at the time of the murder. Similarly, the brief also lists the experts that should have been retained, including one who would explain the effects of crack cocaine and acid upon defendant's state of mind, a firearms expert to ascertain whether the ammunition clip seized upon defendant's arrest could be excluded from the bullets killing the victim, and a medical expert to discuss whether the medical care provided to the victim after the shooting caused his death. Also, defendant includes the assertion that others reported to be present at the scene, identified only by slang names, should have been interviewed to find witnesses on defendant's behalf.
Each of these contentions suffer the same infirmity: they are speculative assertions, unaccompanied by evidential support. The jury was told what Perry said, that is "an old black man" was the shooter. Defendant does not cite any additional information that has come to light or offer a certification from Perry, stating defendant was not the "old black man" he saw. There is no basis to challenge counsel's decision. Counsel strategically determined Perry's statement was sufficient rather than risking the possibility of Perry making an in-court identification of defendant. Further, defendant has not established the witness would offer any favorable testimony. It is well-settled that allegations of "purely speculative deficiencies in representation are insufficient to justify reversal." Fritz, supra, 105 N.J. at 64.
So too, the charge that counsel was deficient for not employing experts fails because there are no expert reports provided to substantiate the evidential assertions. However, to demonstrate ineffective assistance, defendant must show "that trial counsel's actions did not equate to 'sound trial strategy.'" State v. Castagna, 187 N.J. 293, 314 (2006).
Addressing the specific contentions, we affirmed the admission of the nine-millimeter ammunition clip on direct appeal, noting Coley was killed by nine-millimeter bullets. State v. Cox, supra, slip op. at 13. Defendant does not even identify a possible expert let alone substantiate his claims that his clip "did not match." As to the alleged failure "to retain an expert to explore defendant's mental state" and his "competency to stand trial[,]" defendant provides only that he was an illegal drug user. We conclude the assertion is without merit. R. 2:11-3(e)(2).
Finally, there are no witnesses identified from those in the crowd who averred defendant was not the shooter. Unlike United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989), cited as support by defendant, the only named alibi or other witness provided was Perry, and he offered no corroboration that his statement excluded defendant. Absent such evidence, the trial court had no obligation to conduct further proceedings. Preciose, supra, 129 N.J. at 462; R. 3:22-10.
The second category of claims attacks counsel's failure to request certain jury charges regarding causation, diminished capacity and a Kociolek*fn2 charge. To support these assertions, defendant offers a legal argument in his merits brief regarding counsel's ineffectiveness because of the failure to request jury charges on lesser included offenses, a claim rejected on direct appeal. State v. Cox, supra, slip op. at 6.
The PCR judge determined no possible issue regarding causation could have been presented. After Coley was shot he was rushed to the hospital but died in surgery. Defendant never placed his competence at issue because he denied he was present and asserted mistaken identity as a defense. Finally, the trial court had instructed the jury regarding statements attributed to defendant, telling the jurors they must determine whether any statement was actually made by defendant. The judge explained the jury must receive, weigh and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant. [B]ecause the presence or absence or the change of a single word may substantially change the true meaning of even the shortest sentence.
The trial judge continued to detail the jury's need for a deliberate consideration of any of this testimony, amply complying with the dictates of Kociolek. We agree with the court's analysis of each of these claims.
Defendant next raises a claim previously addressed on appeal, which cannot again be raised on PCR. Rule 3:22-5. In point 1(D), he suggests counsel was deficient when he failed to request the court to strike the State's eyewitness's accusatory outburst uttered at the conclusion of cross-examination. Counsel requested a mistrial, which was denied. That determination was affirmed on appeal, as we concluded "defendant suffered no prejudice" by King's outburst. State v. Cox, supra, slip op. at 9. Additionally, we concluded no error resulted when this testimony was reread at the jury's request. Id. at 9.
We also reject defendant's next assertion that a mistrial should have been requested following the elevator incident involving juror No. 10. The prosecutor immediately reported the interaction and the court reacted without delay to examine juror No. 10 in chambers. There was nothing to the claim of prejudice because the juror candidly acknowledged she heard nothing.
Defendant's assertion is without merit. The availability of PCR relief is not meant to second guess every choice an attorney makes. Relief is reserved only for those circumstances when an attorney's conduct clearly demonstrates deficiency. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983).
In a twist on State v. Gilmore, 103 N.J. 508, 538 (1986), which prohibits the State from exercising peremptory challenges to remove a prospective juror's solely based on race, see also Batson v. Kentucky, 476 U.S. 79, 96 S. Ct. 1712, 90 L. Ed. 2d. 69 (1986), defendant suggests the defense should have used all of its peremptory challenges to remove the white jurors to enhance the minority complexion of the jury. Defendant asserts he was denied a fair trial because trial counsel failed to exercise available peremptory challenges and accepted a jury that should have been challenged on Batson/Gilmore grounds. Counsel used only 10 of 20 available challenges, yet only 5 of 75 pool members were black and, on the jury panel, there were no deliberating black jurors.
Defendant believes the rejection of his claim without a plenary hearing was error. We disagree.
In the exercise of peremptory challenges, removal based on discrimination, in any form, is prohibited. Striking a jury must be based on "genuine and reasonable grounds for believing . . . [a juror may] have situational-specific based biases that would make excusing them reasonable and desirable, given the aim of empanelling a fair and impartial petit jury[.]" Gilmore, supra, 103 N.J. at 537-38. Defendant recites no factual basis to support the theory that counsel had not made correct decisions in his use of peremptory strikes, including the failure to remove the jurors chosen to sit. The mere suggestion that counsel was ineffective based on his failure to strike more jurors is absolutely untenable.
Based on our determination after consideration of the arguments, in light of the record and the applicable law, we conclude the PCR judge properly denied defendant's PCR petition. Prejudice has not been proven and will not be presumed. Fritz, supra, 105 N.J. at 52. There is no evidence establishing the two prongs of the Strickland/Fritz test entitling defendant to PCR. Preciose, supra, 129 N.J. at 459. Accordingly, defendant is not entitled to an evidentiary hearing. Id. at 462 (citing R. 3:22-1).
Finally, in a pro se submission, defendant asserts PCR counsel was ineffective because she "merely summarized the issues" and did not make an "independent review" of the trial record. We are not persuaded by defendant's arguments. Counsel presented all arguments advanced by defendant on appeal and in his pro se PCR petition. R. 3:22-6. She articulated the numerous arguments explaining their basis. Each of these was again raised before us and rejected as without merit. Nothing contained in the supplemental submission modifies this conclusion.