March 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NA'EEM SANTIAGO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-10-2525.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011 -
Before Judges Wefing and Koblitz.
Defendant Na'eem Santiago appeals from the denial of his petition for post-conviction relief (PCR), without an evidentiary hearing on October 23, 2009. After reviewing the record in light of the contentions advanced on appeal, we affirm.
After a jury trial, defendant was convicted of: third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); second-degree possession of firearms with an unlawful purpose, N.J.S.A. 2C:39-4a (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); murder, N.J.S.A. 2C:11-3a(1)(2) (count five); and conspiracy, N.J.S.A. 2C:5-2 (count six). The trial court merged his conviction on count four into count five and his conviction on count two into counts three and six. We affirmed the convictions. State v. Santiago, No. A-4881-99 (App. Div. July 9, 2001), certif. denied, 170 N.J. 210 (2001).
Defendant was convicted of murdering Vaughn Rollins on the evening of October 22, 1996, when defendant was sixteen years old. Defendant obtained the murder weapon from Rollins' cousin, Stephon Duggan, who testified that he specifically told defendant and his co-defendant not to harm Rollins when defendant said he was going to "rob a couple of people." Duggan testified that after the murder, he spoke with defendant who told him the killing was an accident.
Rollins was sitting in his car counting money when he was shot in the chest at close range by a man in a ski mask.
Fifteen-year-old Joel Townsel, who was sitting on a porch in front of Rollins' car, testified he saw a man put on a ski mask, demand money from Rollins and shoot Rollins when he refused to turn it over. Townsel testified that, although he did not get a good look at the shooter, he picked out defendant's photograph from a photo array at the urging of the police. He did not identify defendant in court.
After the murder, defendant visited Aaron McCoy, an older man with extensive experience in the criminal justice system. McCoy testified that he told defendant to take a cab and throw the gun off a bridge into the river. McCoy said he called a cab for defendant.
Three days after the murder, defendant told two young women in Philadelphia not to mention that they had seen him because the police "were trying to put a body on him." Defendant was arrested a year and a half later.
Defendant, who is serving a forty-year-to-life sentence, filed a pro se PCR petition on December 16, 2004.*fn1 He raises the following issues in his PCR appeal,
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO SPECIFICALLY REQUEST A WADE HEARING WHICH WOULD HAVE PREVENTED THE JURY FROM HEARING TESTIMONY REGARDING THE ONLY IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR.
C. RULE 3:22-5 DOES NOT PRECLUDE WHETHER TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO REQUEST A WADE HEARING FROM BEING ADJUDICATED ON ITS SUBSTANTIVE MERITS.
D. THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION AT TRIAL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO REQUEST THAT THE COURT INSTRUCT THE JURY WITH RESPECT TO AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER AS LESSER INCLUDED OFFENSES OF PURPOSEFUL/KNOWING MURDER.
E. TRIAL COUNSEL FAILED TO PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO REQUEST THE TRIAL COURT INSTRUCT THE JURY PURSUANT TO STATE V. KOCIOLEK.
F. SINCE THE DEFENDANT PRESENTED A PRIMA FACIA [sic] CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION WITHOUT AT LEAST AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION OF COUNSEL.
PCR counsel argues that trial counsel was ineffective in not seeking a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), to exclude the out-of-court identification of the eye-witness, Joel Townsel; failing to request that the court charge the lesser-included crimes of aggravated manslaughter and reckless manslaughter; and failing to request the court to instruct the jury to consider the evidence of defendant's purported statements to various witnesses "with caution" pursuant to State v. Kociolek, 23 N.J. 400 (1957).
We considered defendant's claim that "the identification made by Joel Townsel was unnecessarily suggestive and should have been excluded" on direct appeal, and therefore he may not raise the issue again. R. 3:22-5; State v. Harris, 181 N.J. 391, 494 (2004); State v. McQuaid, 147 N.J. 464, 484 (1997). We found on appeal that defense counsel did not cross-examine Townsel at all, which was "hardly surprising in light of the fact that the testimony certainly challenged the validity of the photo identification. Indeed, the testimony could be viewed as substantially benefitting [defendant]." State v. Santiago, supra, slip op. at 11.
Defendant's defense at trial was that he did not shoot Rollins. Defendant concedes that he agreed with trial counsel not to request a lesser charge because trial counsel told him it would be inconsistent with his defense of innocence. Defendant indicates that he was misled by trial counsel into believing that even if convicted of murder, "the court could only impose a sentence consistent with aggravated or reckless manslaughter." Defendant now asserts that his statements to Duggan, characterizing the shooting as an accident, could have led the jury to find him guilty of a lesser-included offense such as aggravated manslaughter or reckless manslaughter, and had he not been misled by trial counsel he would have requested that the jury be charged on the less serious crimes.
Defendant was convicted of felony murder, however, and "manslaughter is not a lesser included offense of felony murder." State v. Pennington, 273 N.J. Super. 289, 298-99 (App. Div.), certif. denied, 137 N.J. 313 (1994). N.J.S.A. 2C:11-3(a)(3) provides that felony murder occurs when a death is caused in the course of committing or attempting to commit "robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism . . . ." A defendant who recklessly kills someone during the course of committing an enumerated crime is guilty of felony murder. Pennington, supra, 273 N.J. Super. at 299. Even if the jury thought defendant recklessly killed Rollins during the course of the robbery, defendant would still be guilty of felony murder. Therefore, even if the trial court had charged aggravated or reckless manslaughter, and even if the jury had found defendant guilty of one of these lesser crimes instead of murder in count five of the indictment, defendant would still have been convicted of felony murder in count four.
Finally, defendant claims that his trial counsel should have sought a cautionary charge under State v. Kociolek, supra, concerning the weight to give the oral statements made by the shooter to the victim as well as the statements defendant made to Duggan, McCoy and the two young women in Philadelphia three days after the murder. Specifically, defendant argues that his trial counsel should have requested the charge stating the jury should "receive, weigh and consider such evidence with caution" due to "the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by defendant." Model Jury Charge (Criminal), "Statement of Defendant" (1996). At trial, defendant admitted making the statements to the women in Philadelphia and did not dispute that the shooter made the statements demanding money from the victim. He argued at trial that the testimony of Duggan and McCoy concerning conversations with defendant was fabricated, not misunderstood or misremembered. Kociolek cautions were not needed because the ability of the witnesses to remember or understand defendant's statements was never in question. See State v. Jordan, 147 N.J. 409, 425-28 (1997); see also State v. Harris, 156 N.J. 122, 183 (1998).
In order for defendant to have prevailed on his petition for PCR premised upon inadequate assistance of trial counsel, he must have made the two-part showing set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), namely, that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and that counsel's deficient performance prejudiced the defense.
An evidentiary hearing is not necessary in every PCR matter where a defendant alleges ineffective assistance of counsel. R. 3:22-1. Rather, Rule 3:22-1 grants trial courts discretion as to whether or not to hold one. "Trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). Defendant has not offered such evidence, and as a consequence, we conclude that his petition for PCR was properly denied without an evidentiary hearing.