April 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIKAL MCCLAIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-03-1091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Wefing and Baxter.
A jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; resisting arrest, N.J.S.A. 2C:29-2a; and hindering apprehension, N.J.S.A. 2C:29-3b(4). The trial court sentenced defendant to an aggregate term of twenty years in prison, subject to the parole ineligibility provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Defendant appealed his convictions and sentence, and we affirmed his convictions but remanded for resentencing. State v. McClain, No. A-5805-03T4 (App. Div. June 26, 2006) (slip op. at 3). The Supreme Court denied defendant's petition for certification. State v. McClain, 189 N.J. 430 (2007).
Defendant filed a timely petition for post-conviction relief, and counsel was assigned to represent him. After considering the briefs submitted in support of the petition, and the oral argument presented, the trial court denied the petition. This appeal followed.
In our earlier opinion, we summarized the evidence presented at defendant's trial in the following manner:
Evidence introduced by the State established that the victim, George Haley, had traveled to a bar on Lyons Avenue in Irvington with two women to purchase beer, while a friend, George Gayles, accompanied them in a separate car. Both men parked their cars at a nearby Sunoco station. Gayles remained in his vehicle while the other three made their purchase. On their return, Gayles saw that Haley was being followed, but was unable to alert him to that fact. While Gayles watched, Haley was hit over the head with a gun by the assailant, who demanded money. Eventually, the assailant hit Haley in the head four times and took Haley's wallet, as well as the purses of the two women and jewelry. When, during the course of a struggle over the gun, it fired, Gayles took off and eventually summoned the police.
Upon the police's arrival, the assailant was found with his arm in a car that was later observed to contain the two purses, jewelry and a gun. After he was captured following a pursuit, he was found to have Haley's wallet on his person. Defendant was identified by Haley as the assailant.
Although defendant did not testify, he presented as an alibi witness Randy Harris, who testified that he and the defendant had been in the bar with two women. Eventually, they left, entering Harris's car to "talk." Defendant returned to the bar shortly before the police's arrival. Harris stated that he did not witness any robbery while he and defendant were together. [State v. McClain, supra (slip op. at 4-5).] Defendant submitted a pro se petition and brief in support of his position, as well as several additional pro se submissions, including one after the trial court heard oral argument on the petition, detailing the reasons why, in his view, he was deprived of the effective assistance of counsel at his trial. His counsel also prepared a brief on behalf of defendant, outlining reasons why the court should conclude that defendant's trial attorney should be deemed to have provided ineffective assistance.
In particular, defendant made the following contentions in connection with his petition. He raised the following claims in his first pro se brief:
POINT I: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. POINT II: PETITIONER RESERVES THE RIGHT TO BRIEF ADDITIONAL ISSUES AS THEY MAY APPEAR, AND UPON ASSIGNMENT OF COUNSEL.
Defendant submitted an additional pro se brief at oral argument, raising the following contentions:
POINT I: THE TRIAL COURT ERRED WHEN JUDGE, IN HER JURY INSTRUCTION, RENDERED VERDICT INSTEAD OF THE JURY IN VIOLATION OF THE SIX [SIC] AND FOURTEENTH AMENDMENT[S] OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. POINT II: TRIAL COURT FAILED TO INSTRUCT JURY, SUA SPONTE, OF THE CRIME IN ISSUE, CAUSING A SHIFT IN BURDEN OF PROOF, IN VIOLATION OF THE SIXTH (6) AND FOURTEENTH (14) AMENDMENT[S] OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH NINE (9) AND TEN (10) OF THE NEW JERSEY CONSTITUTION.
POINT III: PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
(A) PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
(B) PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
In his post-argument submission, he contended his trial attorney was ineffective for not tracking down additional alibi witnesses, in not objecting to a portion of the prosecutor's summation, in not requesting an alibi instruction and, generally, for not conducting a more vigorous investigation and representation at trial.
The attorney who represented defendant in connection with this petition submitted a brief in which he presented the following arguments:
POINT ONE: DEFENDANT FAILED TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND THE NEW JERSEY CONSTITUTION, ARTICLE ONE. POINT TWO: THE RETRIEVAL OF THE WALLET FROM THE CAR CONSTITUTED AN UNLAWFUL SEARCH IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION. POINT THREE: A JUROR SHOULD HAVE BEEN EXCLUDED BECAUSE HE FAILED TO UNDERSTAND THE PROCEEDINGS, THUS DEPRIVING HIM OF A JURY SELECTED IN ACCORDANCE WITH CONSTITUTIONAL MANDATES FOR A JURY TRIAL.
POINT FOUR: DEFENDANT WAS DEPRIVED OF A TRIAL IN ACCORDANCE WITH DUE PROCESS OF LAW BECAUSE THE TWO FEMALES PRESENT AT THE CRIME SCENE WERE NOT CALLED TO TESTIFY.
POINT FIVE: DEFENDANT'S SENTENCE WAS EXCESSIVE.
POINT SIX: THE TOTALITY OF THE ERRORS REQUIRES REVERSAL OF DEFENDANT'S CONVICTION.
The standards by which we must measure a claim that a defendant has been denied the effective assistance are well-known. We note them briefly.
To prevail upon a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but a defendant must also establish that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A showing that the error complained of had some conceivable impact on the outcome of the trial is insufficient. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. New Jersey has explicitly adopted this two-prong measure. State v. Fritz, 105 N.J. 42, 58 (1987).
On appeal, defendant raises the following contentions for our consideration:
POINT I SINCE THE DEFENDANT MADE A PRIMA
FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED BY THE COURTS IN STRICKLAND V.
WASHINGTON, STATE V. PRECIOSE, AND STATE V.
CUMMINGS, UNDER R. 3:22 CRITERIA THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF
The judge who heard defendant's petition for post-conviction relief was not the judge who had presided at defendant's trial, that judge having retired in the interim. It is apparent that the post-conviction relief judge conducted a painstaking review of the record in this matter, and she issued a thorough written opinion, outlining each of defendant's contentions in detail and setting forth her reasons for concluding that none of the asserted grounds entitled defendant to relief. With respect to those contentions, we affirm, substantially for the reasons stated by Judge Patricia Costello in her letter opinion of March 25, 2009.
Defendant raises on this appeal certain additional arguments that were not directly presented in support of his petition. While we would be justified in refusing to consider arguments not presented below, State v. Robinson, 200 N.J. 1, 20 (2009), we are mindful of our obligation to see that defendant was not unfairly convicted. We thus have reviewed these arguments and are satisfied they provide no basis to grant defendant's petition.
At the time of this incident, there was an outstanding warrant for defendant's arrest on a charge of escape. Defendant argues that his trial attorney was ineffective for not securing the admission of this warrant into evidence as it would have provided an explanation for his flight from the scene when the police arrived. Matters of trial strategy, however, generally cannot be second-guessed on a petition for post-conviction relief. State v. Savage, 120 N.J. 594, 617 (1990). Further, defendant has not demonstrated how his trial attorney could have secured the admission of this warrant in the face of the trial court's ruling that the warrant was not admissible unless defendant testified that he was aware of its existence. Defendant elected not to testify at his trial.
Defendant also argues for the first time that his trial attorney was ineffective for not conducting a more vigorous cross-examination of George Gayles. This argument, addressed to the strategic decision with respect to the manner of cross- examining a hostile witness, is unavailing for the reasons we have just outlined.
Defendant also contends that his trial attorney was ineffective for not objecting at trial to the court's charge on identification. There is no merit to this contention. On direct appeal, defendant argued that the trial court's charge on identification was wrong; we rejected that assertion, and said the court's charge "adequately encompassed evidence presented at trial and was detailed in its presentation of the factors requiring consideration by the jury with respect to this issue." (slip op at 7) (citing State v. Walker, 322 N.J. Super. 535, 546-53 (App. Div.), certif. denied, 162 N.J. 487 (1999)). In light of the charge's adequacy, trial counsel cannot be found to have been ineffective for failing to object to its provisions.
Defendant also presents an argument along the lines of cumulative error, State v. Orecchio, 16 N.J. 125, 129 (1954), contending that the totality of the issues he has raised entitle him to relief. Since none warrant relief, the sum can rise no higher.
The order under review is affirmed.
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