March 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRENCE RAMSEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2011
Before Judges Reisner and abatino.
This is an appeal of the denial of post-conviction relief ("PCR"). After a jury trial, defendant Terrence Ramsey was convicted of possession of heroin with intent to distribute it in a school zone, N.J.S.A. 2C:35-7, and other related offenses. He was sentenced to an extended prison term of ten years, with a five-year period of parole ineligibility. On direct appeal, we sustained defendant's convictions but remanded for reconsideration of the sentence pursuant to State v. Thomas, 188 N.J. 137 (2006). See State v. Ramsey, No. A-4237-06 (App. Div. July 14, 2008). After defendant was resentenced by the trial court, the Supreme Court denied certification. State v. Ramsey, 196 N.J. 597 (2008).
The State's proofs at trial showed that, on the night in question, two police officers, Lugo and Gillen, were on patrol in Jersey City near the parking lot of a Kentucky Fried Chicken. The area was known to be one with a high volume of narcotics activity. Officer Lugo saw defendant and another male walking through an open lot. He observed defendant give a glassine bag to the other man in exchange for money. Officer Lugo then got out of his squad car and approached the men. At that point, Officer Lugo noticed two glassine bundles in defendant's hand and saw defendant put the money into his sock. When defendant saw Officer Lugo, he threw the bundles to the ground and ran away. He was apprehended five blocks from the area. The tossed bundles contained ten glassine bags of heroin. At trial, the State called a narcotics expert, who opined that the circumstances were consistent with an intent to distribute.
During his examination at trial, Officer Lugo referred briefly to a written report of the incident that had been prepared by Sergeant Gillen. Police Officer Burgess, one of the officers who arrested defendant, also testified. He too referred briefly to Sergeant Gillen's written report. Gillen, however, did not testify. He was not called by the State, and defense counsel, who had issued a subpoena to Gillen, chose not to call him either. During deliberations, the jury requested to see a copy of the police report, but the trial court properly denied that request because the report was not in evidence.
In his defense, defendant called as a witness at trial Taisha Taylor, a woman with whom he went to high school. Coincidently, on the night in question, Taylor had been at an auto repair shop across from the scene of the crime. According to her testimony, there were three men, not two men, in the area and the bundle was thrown on the ground not by defendant but by one of the other men. Defendant did not take the stand himself.
In seeking PCR, defendant alleges that both his trial attorney and his attorney on direct appeal were constitutionally ineffective. He specifically contends that: (1) he was coerced by his trial attorney to refrain from testifying in his own defense; (2) his trial attorney should have called Sergeant Gillen as a defense witness; (3) his trial counsel was ineffective for not objecting to an alleged Brady*fn1 violation, with respect to a document consulted by Officer Burgess during his testimony; (4) his counsel on direct appeal should have argued that the evidence was insufficient to sustain his conviction; and (5) cumulative errors.
Judge Sheila Venable, who was the same judge who presided over defendant's trial, denied the PCR application in an oral opinion dated May 7, 2009. In the course of her decision, the judge determined that an evidentiary hearing was unnecessary.
On the present appeal, defendant reiterates his claims of ineffective assistance of counsel. Substantially for the reasons articulated by Judge Venable in her cogent oral opinion, we reject those claims and consequently affirm the dismissal of his PCR application. We add only the following.
A person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id., 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
"[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams,
39 N.J. 471, 489 (1963), cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), certif. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Castagna, supra, 187 N.J. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
Judge Venable correctly applied these well-established constitutional standards. Defendant has failed to demonstrate either a deviation from professional standards, or any actual prejudice, as to any of his assorted criticisms of his former counsel.
Defendant's claim that his trial counsel coerced him to refrain from testifying is belied by the trial transcript, in which he clearly waived his right to testify after being thoroughly questioned on the subject by the judge. Moreover, even if defendant had testified, he was likely subject to impeachment under N.J.R.E. 609 because of his multiple prior convictions.
Trial counsel's decision not to call Sergeant Gillen as a witness was an entirely reasonable strategic choice. There is nothing in this record to support defendant's speculative claim that Sergeant Gillen's testimony would have substantially differed from that of the other officers in an exculpatory manner that was not otherwise brought out by defense counsel on cross-examination. Additionally, as Judge Venable noted, if Sergeant Gillen had testified for the defense, the State would have sought to ask him leading questions on cross-examination, which would have been a tactical disadvantage to defendant. See N.J.R.E. 611(c).
Defendant's claim of a Brady violation is illusory. It appears to be based on his unsubstantiated belief that a document referred to by Officer Burgess at one point in his testimony was not, in fact, the report of Sergeant Gillen but instead some undisclosed document. There is no proof that the document consulted by Burgess contained any exculpatory information. No Brady violation has been shown, nor any ineffectiveness by defendant's trial counsel.
We are equally unpersuaded by defendant's claim that his counsel should have argued on direct appeal that the guilty verdict was against the weight of the evidence. The jury was entitled to disbelieve the narrative of defendant's former classmate, Taylor, and instead find Officer Lugo's account of what transpired at the crime scene to be credible. The high bar to obtain a new trial because of a miscarriage of justice, see Rule 2:10-1, clearly was not and realistically could not have been surmounted.
The balance of defendant's arguments, including his claim of cumulative error, lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).