August 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-02-0079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2011
Before Judges Axelrad and R. B. Coleman.
Defendant Lawrence Brown appeals from a July 29, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
On June 10, 2004, a jury found defendant guilty of all counts on a five-count indictment that charged him with first- degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree unlawful possession of a weapon (a beer bottle), N.J.S.A. 2C:39-5(d) (count four); and third-degree possession of a weapon (a beer bottle) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). The court sentenced defendant on count one to ten years in prison with eighty-five percent of that term to be served without parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Concurrent terms of seven years and eighteen months were imposed on counts two and four, respectively, and counts three and five were merged into count two.
Defendant appealed, and we affirmed defendant's judgment of conviction in an unpublished opinion, State v. Brown, No. A-0889-04 (App. Div. December 19, 2005). The Supreme Court granted certification, State v. Brown, 187 N.J. 81 (2006), and on April 17, 2007, the Court affirmed our decision and held that "when there is no governmental compulsion involved, the State may fairly cross-examine the defendant concerning pre-arrest conduct or silence to challenge his self-defense testimony."
State v. Brown, 190 N.J. 144, 148 (2007). A detailed recitation of the facts leading to defendant's indictment and conviction can be found in our earlier unpublished opinion and in the opinion of the Supreme Court in Brown, supra, 190 N.J. at 147-48. For purposes of this appeal, it will suffice to note that defendant's convictions arose from an altercation between himself and a friend, Paul Russell. Defendant broke a beer bottle over Russell's head and slashed Russell's face with the broken bottle following a game of cards. Although we found the proofs supported the jury's obvious determination that defendant grabbed money from Russell's pocket before he fled the scene, defendant denied taking the money, and he claimed that he struck Russell with the beer bottle in self-defense after Russell came at him with a knife.
Defendant filed a petition for PCR, which was heard by Judge John H. Pursel on June 25, 2008. On July 29, 2008, Judge Pursel issued an order and written opinion denying defendant's PCR petition. This appeal followed.
On appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
POINT II: APPELLANT'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES ARE NOT BARRED BY R. 3:22 ET SEQ.
A. Application for post-conviction relief are subject to the requirements of New Jersey Court Rules 3:22-1 through 12.
B. Petitioner's ineffective-assistance of counsel claims warrant an evidentiary hearing.
POINT III: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL.
A. Trial counsel failed to object to highly inappropriate and inflammatory evidence and did not properly instruct petitioner as to the effect this evidence would have if he testified.
B. Trial counsel and PCR counsel were ineffective in not arguing that a 104 hearing was necessary and that a tightly drawn limiting was needed.
C. PCR counsel failed to raise petitioner's claim concerning the State's improper use of petitioner's silence.
Based on our review of the record, we are convinced that the PCR court appropriately concluded that defendant's arguments lack merit and that the arguments raised in the PCR petition were either raised and rejected on direct appeal, or they could have been raised. We affirm the court's ruling for substantially the reasons stated in Judge Pursel's comprehensive written opinion. We add the following brief comments.
Deference is typically given to a PCR court's factual findings when supported by adequate, substantial and credible evidence. State v. Harris, 181 N.J. 391, 415 (2004). However, no deference is given to the legal conclusions of the PCR court on appellate review. Ibid. For mixed questions of law and fact, deference is given to supported factual findings, but the court's application of legal principles to the factual findings is reviewed de novo. State v. Marshall, 148 N.J. 89, 185 (1997).
Here, the facts underlying the incident were determined by the jury at the conclusion of what the PCR judge determined was a fair trial at which defendant's "attorney performance was more than competent." Defendant argues, however, that he should have been granted an evidentiary hearing because he made a prima facie showing of ineffective assistance of counsel. In his petition for PCR, defendant asserts that trial counsel failed to adequately prepare him and defendant's mother for trial and also that trial counsel's performance was deficient for failing to pursue various defense claims: passion/provocation, diminished capacity and imperfect self-defense.
An evidentiary hearing for a PCR petition is not required; however, the trial court has discretion to conduct such a hearing if the defendant has established a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). "[I]n order to establish a prima facie claim, a petitioner must do more than make a bald assertion 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). Defendant must demonstrate a reasonable likelihood of success on the merits. Marshall, supra, 148 N.J. at 158.
We find Judge Pursel's opinion clearly articulated the reasons neither claim had any merit. Specifically, Judge Pursel found that counsel "was intimately familiar with the aspects of the case, and conducted the defense with sufficient poise and vigor to indicate thorough preparation." The court also found defendant's claim that counsel failed to investigate possible defenses to be without merit and, based on a review of the record, that trial counsel vehemently pursued a theory of self-defense, though that theory was rejected by the jury. "Defendants have a right to a reasonable strategy based on reasonable investigation; they may not claim ineffective assistance of counsel merely because the strategy did not produce the result counsel sought." Harris, supra, 181 N.J. at 488.
Also, to the extent defendant argues that trial counsel was ineffective for failing to object to the prosecution's questions concerning defendant's pre-trial failure to come forth and assert that he had acted to protect himself when he injured Russell, this argument was previously adjudicated and is procedurally barred. R. 3:22-5. The Supreme Court addressed this issue and determined that "when there is no governmental compulsion associated with defendant's pre-arrest conduct or silence, when the defendant testifies at trial, and when the objective circumstances demonstrate that a reasonable person in defendant's position would have acted differently, the State may attempt to impeach defendant on that pre-arrest conduct or silence." Brown, supra, 190 N.J. at 158-59.
Likewise, defendant's argument that PCR and trial counsel were ineffective for not raising or requesting a limiting instruction is without merit. The Supreme Court addressed the lack of a limiting instruction in defendant's case on direct appeal and determined that "the failure to give a charge that limited the jury's use of defendant's pre-arrest conduct or silence to assess defendant's credibility was not 'clearly capable of producing an unjust result.'" Brown, supra, 190 N.J. at 161. Defendant's argument is therefore procedurally barred under Rule 3:22-5. Nor was it prejudicial error, as argued by defendant, for PCR counsel not to have raised this same argument in his PCR petition. The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel. State v. Worlock, 117 N.J. 596, 625 (1990).
We note that defendant makes additional arguments on appeal, such as "the prosecutor . . . shifted the burden and suggested that [defendant] had a duty to come forward before trial with a defense," and a limiting instruction should have been given. We decline to address such assertions apart from our observation that they are subsumed in the broader argument that his pre-arrest conduct and silence were improperly put before the jury. To the extent that is not the import of defendant's arguments, the arguments are deemed waived as we are not obligated to consider errors not raised before the trial court unless such issues concern jurisdictions or matters of substantial public interest. R. 2:10-2; State v. Robinson, 200 N.J. 1, 20 (2009). These issues do not. The exception provided by Rule 2:10-2 is not intended to replace the defendant's basic duty to build a complete record by preserving issues for appeal. Robinson, supra, 200 N.J. at 20.
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