July 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN TURNER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-11-3715.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2011
Before Judges Sapp-Peterson and Simonelli.
Following a jury trial, defendant Juan Turner was convicted of murder, N.J.S.A. 2C:11-3a(1)-(2); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2:39-4a. Judge Petrolle sentenced defendant to a term of life imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6c.
Defendant's conviction stems from the fatal shooting of Dickens Baptiste, a/k/a "Little Bloody", in the early morning hours of July 16, 2003. Defendant was riding in a van driven by Jihad Glover. Jazaar Redding, Eugene Woodson, and possibly one other person, were also in the van. Defendant and Glover were affiliated with the Crips street gang. Glover testified at trial that defendant became very upset that evening when Glover reported there had been a shooting, which report led defendant to believe his cousin, Rasheed Brown, had been shot.
Glover then drove the van to a gas station, where Baptiste, who had arrived there on a bicycle, approached Redding. Redding knew Baptiste from the neighborhood and that the red headband Baptiste wore signified that he was a member of the rival Bloods street gang. After the men exchanged some words, Redding reentered the van as Baptiste rode away on his bicycle. Defendant saw Baptiste, and when Redding returned to the van, defendant asked, "[W]hy we let 'em go?" He also stated, "I wanna push 'em." Glover testified this was street slang meaning, "I'm gonna kill him."
As the van prepared to leave the gas station, defendant exited it and ran in the direction that Baptiste rode away. Defendant came upon Baptiste who was stopped, trying to fix the chain on his bicycle which had come off. Defendant fired a single shot at close range into Baptiste's chest, got back into the van and told the others, "[d]on't nobody say nothing about this." Glover dropped off one of his passengers, who received a ride home from someone else, and then drove everyone else home. Baptiste died from his wound.
Subsequently, the police reviewed a videotape from a surveillance camera at the gas station with footage from the night of the incident and were able to identify the van, which either Glover or someone in his family owned. Eventually, the police identified Glover, Redding and Woodson in their investigation. Ostensibly based on interviews with these individuals and the statements they provided, the police arrested and charged defendant with the homicide of Baptiste.
The State's case ultimately rested on the testimony of Glover, Redding and Woodson, all of whom testified that they saw defendant shoot Baptiste. No weapon was ever recovered and no forensic evidence linked defendant to the crime. Defendant did not testify, but produced Kason Miles, who testified that Glover told him that a person known as "Little D" shot a person named "Little Bloody". Glover denied ever relating to anyone this version of what happened and denied knowing Miles.
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Turner, No. A-2998-04 (App. Div. Sept. 14, 2007) (slip op. at 14), certif. denied, 193 N.J. 223 (2007).
Defendant thereafter timely filed a petition for post- conviction relief (PCR). In support thereof, defendant submitted a certification raising twenty-one claims*fn1 of trial counsel's deficiencies, including counsel's failure to call exculpatory witnesses and an alibi witness. Defendant claimed that Rasheed Brown would have provided rebuttal testimony to the State's theory that defendant murdered the victim in retaliation for the shooting of Brown. However, Brown's purported certification, which defendant submitted with his PCR petition, does not adequately support defendant's claim.*fn2
Defendant also submitted purported certifications from Glory Gonzalez, who said she and defendant were together at the time of the murder and that she was prepared to testify at trial but was never contacted,*fn3 and Fatimah Turner,*fn4 defendant's sister, who said that defendant "came home every night . . . ." Defendant submitted no supporting certifications from the other alleged exculpatory witnesses: Altariq Highsmith, who ostensibly would testify that he was on his way to "Little D's" house and could clarify who "Little D" was; Wanda Crawford, who allegedly would testify about the suspect's clothing at the time of the homicide; Mehmet Zor, the gas station clerk, who allegedly would testify about how the surveillance videotape worked; and Jessica Lyons, who allegedly would testify that a Crips gang member named "Al-Taleef" shot the victim and bragged about it to her.
Defendant also contended that trial counsel failed to investigate and only consulted defendant once before trial, and "failed to call a 'gang intelligence' expert to testify as to whether defendant was a member of [the Crips gang]." Defendant further contended that appellate counsel was ineffective because she failed to sufficiently consult with him and failed to raise the issue of the trial judge's abuse of discretion in instructing the court reporter to read back witness testimony.
Judge Petrolle denied the petition without a hearing. In an oral opinion, the judge complimented counsel on their briefs and complimented defendant who the judge found "ha[d] made a thorough presentation himself." The judge then made findings on each of defendant's claims of trial and appellate counsels' alleged deficiencies, and referred to the trial record. The judge also concluded that one of the issues defendant raised is procedurally barred because it was addressed in defendant's direct appeal. This appeal followed.
On appeal, defendant's counsel raises the following arguments:
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
A. Trial Counsel Failed To Produce Exculpatory Witnesses, Including An Alibi Witness
B. Trial Counsel Failed To Investigate And/Or To Consult Adequately With Defendant
Defendant raises the following arguments in his pro se supplemental brief:
POINT I [PCR] COUNSEL FAILED TO ADVANCE AND THE [PCR] COURT FAILED TO ADDRESS ALL THE ISSUES RAISED IN DEFENDANT'S PETITION DEPRIVING DEFENDANT OF A FULL AND FAIR HEARING
POINT II DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV[;] N.J. CONST. ART. I, ¶ 10. (Partially Raised Below)
POINT III THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING
We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Petrolle in his oral opinion rendered on August 6, 2009. However, we make the following additional comments.
Claims of ineffective assistance of counsel are well suited for post-conviction review. State v. Preciose, 129 N.J. 451, 459-60 (1992); see also R. 3:22-4(a)(1). The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Ibid. "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. He must allege and articulate facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. That is, defendant must show (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 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 Strickland's two-pronged analysis in New Jersey).
We are satisfied that defendant did not establish a prima facie claim of ineffective assistance of counsel. Defendant did not say in his certification that he provided the names and addresses of the aforementioned alleged exculpatory and alibi witnesses to trial counsel prior to trial; Brown's purported certification does not adequately support defendant's claim that Brown would provide exculpatory rebuttal testimony; there are no certifications from Highsmith, Crawford, Zor or Lyons indicating they would provide exculpatory or alibi evidence; and Turner is not a true alibi witness -- rather, she merely would have provided testimony about defendant's daily routine.