July 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KIMSI VAUGHN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-06-0887.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2011
Before Judges R. B. Coleman and Lihotz.
Defendant Kimsi Vaughn appeals from an August 19, 2009 order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing. On appeal, defendant presents a single point, arguing:
THE POST-CONVICTION RELIEF COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THAT AN EVIDENTIARY HEARING WAS NOT REQUIRED TO DETERMINE WHETHER THE VOIR DIRE CONDUCTED BY THE TRIAL COURT DEPRIVED DEFENDANT-APPELLANT OF HIS CONSTITUTIONALLY PROTECTED RIGHT TO A FAIR TRIAL BY A JURY OF HIS PEERS AND WHETHER HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL.
A jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS) and second-degree possession of a CDS with intent to distribute. After determining defendant was extended term eligible, N.J.S.A. 2C:43-6(f), the court merged the lesser charge and imposed the maximum sentence of twenty years imprisonment subject to a ten year period of parole ineligibility, along with applicable fines and assessments.
In an unpublished opinion, we affirmed defendant's conviction and sentence on direct appeal and certification was denied. State v. Vaughn, No. A-4985-06 (App. Div. August 27, 2008) (slip op. at 15), certif. denied, 197 N.J. 14 (2008). Defendant filed a pro se petition for PCR alleging ineffective assistance of counsel. Counsel was assigned and the PCR submission was supplemented. Defendant generally asserted counsel was negligent in not advancing legal challenges such as not filing an interlocutory appeal of voir dire lapses and alleged Miranda*fn1 violations. Additionally, counsel's ineffectiveness resulted in the denial of his motions for mistrial and judgment of acquittal.
Following oral argument, Judge James Den Uyl issued a bench opinion denying defendant's petition, without an evidentiary hearing, finding the claimed errors were raised and denied on direct appeal. R. 3:22-5.*fn2 This appeal followed.
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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). 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." Id. 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. PCR is not an opportunity to relitigate a case already decided on the merits. State v. Cerbo, 78 N.J. 595, 605 (1979); R. 3:22-5.
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 on 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 review defendant's arguments seeking reversal of Judge Den Uyl's denial of PCR. Defendant argues the failure of trial counsel to challenge the improper voir dire process warranted an evidentiary hearing, notwithstanding the discussion of the issue on appeal. More specifically, during the PCR hearing defendant redirected his challenge to counsel's failure to object to the lack of racial diversity of the jury pool, denying him a trial by "a jury of his peers." Defendant maintains the combination of ignoring the then applicable directive regarding jury voir dire coupled with the failure to object to the jury's complexion combined to deny him a fair trial.
Judge Den Uyl considered defendant's challenge as a failure to challenge the jury array, under the provisions of Rule 1:8-3(b), which provides, "Any party may challenge the array in writing on the ground that the jurors were not selected, drawn or summoned according to law. A challenge to the array shall be decided before any individual juror is examined." The court denied PCR because defendant provided nothing more than this assertion: he is African American and the jury pool was Caucasian. Absent proof of an irregularity in constituting the jury pool, the judge concluded relief was not warranted.
The right to a fair and impartial jury is a fundamental one, which must be zealously guarded by the courts. State v. Gilmore, 199 N.J. Super. 389, 398-99 (App Div. 1985), aff'd, 103 N.J. 508 (1986). A defendant is entitled to be assured the jury selection process is unbiased and free of any "taint of discriminatory purpose." State v. Ramseur, 106 N.J. 123, 215 (1987). See also U.S. Const. amend. VI. The trial judge "must see to it that the jury is as nearly impartial as the lot of humanity will admit." State v. Williams, 113 N.J. 393, 441 (1988) (internal quotations omitted). However, "a defendant has no right to a jury comprised of members of his own race." Ramseur, supra, 106 N.J. at 216. See also State v. Timmendequas, 161 N.J. 515, 561 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
To succeed on an equal protection challenge such as the one raised by defendant, he must identify "a constitutionally cognizable group, i.e., a group capable of being singled out for discriminatory treatment"; "show substantial under-representation over a significant period of time"; and a "discriminatory purpose, either by the strength of his statistical showing or by demonstrating the use of racially non-neutral selection procedures to support the inference of discrimination raised by substantial under-representation." Ramseur, supra, 106 N.J. at 215-16 (citations and internal quotations omitted). See also State v McClain 263 N.J. Super. 488, 496 (App. Div.), certif. denied, 134 N.J. 477 (1993).
Defendant's unsupported claim of alleged discriminatory treatment because no minorities were called for the jury pool when jury selection was conducted, does not mean discriminatory procedures were utilized to contact the jury candidates or that selection of a biased jury resulted. On direct appeal, we reviewed the jury voir dire process and found no irregularities. In his PCR petition, defendant submits no evidence even hinting that the process to call the jury selection pool was compromised.
Defendant must offer more than bald assertions to be granted a new trial. Cummings, supra, 321 N.J. Super. at 170; Allah, supra, 170 N.J. at 283. His burden requires the arguments for PCR be accompanied by a preliminary showing that unfairness occurred during the trial process. In the absence of such evidence, Judge Den Uyl properly denied his petition and correctly concluded no evidentiary hearing was necessary.