August 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IAN LEMONS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Wefing and Payne.
Defendant, Ian Lemons, was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); first-degree attempted murder, N.J.S.A. 2C:11-3a(1)(2) and N.J.S.A. 2C:5-1 (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count eight) and two counts of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7 (counts nine and ten). He was sentenced to an aggregate term of imprisonment of fifty-four years with parole ineligibility of forty-two years, three months and nineteen days.
On appeal, defendant challenged the judge's determination not to hold a Wade*fn1 hearing because there was no showing that the identification procedures that were utilized were suggestive.
He challenged the trial judge's ruling that he could not confront the victim with a photograph of a person who looked like defendant to challenge his identification, when there was no evidence of third-party guilt. He claimed that counsel was ineffective in failing to timely move for a Wade hearing, in failing to effectively challenge the victim's eye-witness identification and in failing to adequately prepare for trial. Additionally defendant challenged his sentence on several grounds. In a pro se supplemental brief, defendant contended that the police could not issue an arrest warrant by signing the jurat on the complaint. We affirmed in an unpublished opinion. State v. Lemons, No. 1886-05 (App. Div. July 13, 2007), and certification was denied. State v. Lemons, 192 N.J. 598 (2007).
Defendant then sought post-conviction relief (PCR), which was denied without an evidentiary hearing. This appeal followed.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
(1) Counsel was ineffective by failing to conduct adequate pre-trial preparation including adequate investigation of an alibi, denying defendant effective counsel.
(2) Trial counsel was ineffective by not requesting a continuance in the trial in a timely manner or by formal motion.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
C. DEFENSE COUNSEL'S FAILURE TO OBJECT TO TESTIMONY ABOUT INFORMATION RECEIVED CONCERNING MR. LEMONS AND HIS OWN INCOMPETENCE IN REINFORCING THAT TESTIMONY DURING CROSS EXAMINATION DENIED MR. LEMONS HIS RIGHT TO COMPETENT COUNSEL AND A FAIR TRIAL.
U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10.
D. DEFENSE COUNSEL FAILED TO ASK FOR A MISTRIAL AND/OR A RE-OPENING OF THE "WADE" HEARING AFTER TESTIMONY DURING THE TRIAL SHOWED A VIOLATION OF THE ATTORNEY GENERAL'S GUIDELINES, THEREBY DENYING DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL.
E. COUNSEL FAILED TO CONSULT OR CALL EXPERTS DENYING MR. LEMONS HIS RIGHT TO A FAIR TRIAL.
F. COUNSEL WAS INEFFECTIVE FOR FAILING TO ENTER ALL APPROPRIATE OBJECTIONS DURING THE TRIAL, DENYING DEFENDANT THE RIGHT TO A FAIR TRIAL.
(1) Trial counsel failed to object to hearsay testimony concerning Mr. Trotter's observations.
(2) Trial counsel failed to object to irrelevant and highly inflammatory testimony.
(3) Trial counsel failed to object to the State vouching for the credibility of the victim.
(4) Trial counsel failed to object to the prosecutor's remarks that denigrated the defense.
G. COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A CLAWANS CHARGE. H. APPELLATE COUNSEL WAS INEFFECTIVE.
I. CUMULATIVE ERROR.
The record in this matter establishes that the victim, nineteen-year-old Calvin Gunn, first encountered defendant when walking home from his job as a bellman at the Taj Mahal Casino in Atlantic City at 7:30 a.m. on August 14, 2004. At that time, Gunn went into a convenience store to purchase cigarettes for himself and his mother. Defendant, wearing a black and white NBA hat and with his hair in corn rows, was standing ahead of Gunn in line at the cashier. After approximately two minutes of standing together, defendant permitted Gunn to complete his purchase before defendant's business was completed. As Gunn continued to walk home, he again saw defendant, who pulled out a silver semi-automatic handgun and robbed Gunn in a nearby alley, taking his wallet, tips, paycheck and the cigarettes. Defendant then drove away in a silver Hyundai Elantra. Although Gunn notified the police, who responded to the scene, after driving around the neighborhood, they were unable to locate defendant.
Three days later, Gunn saw defendant sitting on a porch with other men. When defendant started to approach Gunn and appeared to be pulling out a gun, Gunn fled into a nearby apartment building where a friend, Anthony, lived. Thereafter, Gunn went to his girlfriend's house, where he was contacted by another friend, Richard Trotter, who asked him to return to Anthony's apartment building to play a newly-released X-Box game.
As Trotter and Gunn walked toward Anthony's apartment, Gunn was again accosted by defendant, who shot him five times in the wrist and abdomen. Gunn subsequently identified defendant in a photo array, consisting of three sets of six photographs, as the person who had robbed and shot him. Prior to trial, defendant offered an alibi that he was at a baby shower at the time of the shooting and he named twelve witnesses who could attest to that fact. However, the prosecutor determined, approximately two weeks before trial, that the shower was on the day after the shooting incident.
Defendant testified on his own behalf at trial, but with his alibi gone, he had little to say in his own defense. Because he testified, the fact that, at the time of the shooting, he had been charged with third-degree eluding and a warrant had been issued for his arrest was presented to the jury.
Additionally, the jury was informed that defendant was then serving a four and one-half year sentence on the eluding charge, and that he had previously been convicted of a drug offense and had absconded from parole. On cross-examination, the prosecutor brought out the fact that defendant had initially presented an alibi defense that was found, on investigation, to be false.
Trotter, Gunn's companion at the time of the shooting, refused to cooperate with the police during its investigation and did not testify at trial, despite issuance of a subpoena and a bench warrant.
On appeal, defendant sets forth multiple claims of ineffective assistance of counsel. To prevail on those claims, defendant must demonstrate both that his counsel's performance was deficient, and also that counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, defendant was required to demonstrate that there was 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. We recognize a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).
Although we must defer to the trial judge's factual findings that underpinned his determination not to grant PCR, we owe no deference to the determination itself. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial judge's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.
Defendant claims that he has offered prima facie evidence that his trial and appellate counsel were ineffective under the standards that we have just set forth, and that he was entitled, at least, to an evidentiary hearing on the issue pursuant to State v. Preciose, 129 N.J. 451 (1992), if not to a new trial. Defendant first faults trial counsel for not investigating the factual basis for his alibi defense and determining its falsity before the State recognized that fact and used it against him during the course of cross-examination. However, we regard this argument as an attempt by defendant to lay his own wrongdoing at his counsel's feet. Defendant was clearly in the best position to know that his sworn statement of alibi was untrue. Moreover, the fact that he made an untrue statement under oath would not have been presented to the jury if defendant had not insisted on testifying on his own behalf.
Defendant also claims that trial counsel was ineffective because he did not request a continuance in order to better prepare for trial. However, defendant fails to offer any evidence as to what further preparation would have gained. Defendant was required to do more than present "bald assertions" in order to establish an entitlement to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As defendant's testimony at trial revealed, with the exception of potential misidentification, he lacked any cognizable defense.
Defendant next argues that trial counsel was ineffective in calling Atlantic City Police Detective Fauntleroy as a witness and eliciting testimony from him as to why defendant's photograph had been included by Detective Rauch, the person leading the investigation in the Gunn matter, in one of the three photo arrays shown to Gunn. According to Fauntleroy, who was employed in the police's Intelligence Unit, when going through robbery cases, he found two cases that were similar, one being the robbery of Gunn. Thereafter, he received information from the Communications Bureau that a source had called to identify defendant as the perpetrator in Gunn's case. Fauntleroy therefore forwarded to Detective Rauch a report containing the identifying information and the fact that defendant might be the gunman in the second robbery case.
Defendant claims that his counsel was ineffective because he solicited this information from Fauntleroy. However, we disagree. When the State called Detective Rauch, the same information was placed on the record. Defense counsel's apparent purpose in calling Fauntleroy was to elicit testimony that defendant had never been charged in the second robbery, to raise the inference that he was guilty of neither, and to cast doubt on the identification of defendant that had been received by the Communications Bureau. The fact that Fauntleroy was called as a witness out of order, during the course of the State's case, made his testimony appear damaging to defendant because it preceded that of Detective Rauch. If he had appeared after Detective Rauch had testified, counsel's strategy would have been more apparent. However, because Fauntleroy was retiring and moving to Florida on the following day, it was necessary for his testimony to be scheduled when it occurred. In the circumstances, we find no fault with counsel's strategic decision and no error in his determination to obtain Detective Fauntleroy's testimony while he remained available. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Defendant argues additionally that counsel was ineffective when he failed to request an additional Wade hearing when it became apparent that the Attorney General's Guidelines for photo identifications had been violated, because Gunn was permitted to do a side-by-side comparison of the photographs. Testimony at trial indicated that two photo arrays were prepared that included photographs of persons that Gunn had been told could be the perpetrators. He identified none of the persons depicted in those photographs as the shooter. He was then shown a third array, and when the fourth picture was displayed, he identified that person as the person who had attempted to kill him. He was then shown the two remaining pictures, but Gunn remained steadfast in his identification.
During the photo array process, Detective Kane, who was conducting the array, showed the pictures to Gunn one at a time as required by the Attorney General's guidelines. However, he permitted the prior pictures to remain before Gunn, which constituted a violation of those guidelines, which provide that the photo array administrator should "[p]resent each photo to the witness separately, in a previously determined order, removing those previously shown."
Although Detective Kane's presentation of the array was improper, we are satisfied that, if the matter had been brought to the attention of the trial judge, he would have determined that the photo array procedure was not impermissibly suggestive, since Gunn's identification was immediate and there is no evidence that the detective steered him to the photograph in any fashion. Further, we are satisfied that, even if the procedure were determined to have been impermissibly suggestive, that fact did not lead to an irreparable misidentification under standards set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) and followed as a state law standard in State v. Madison, 109 N.J. 223, 232-33 (1988).
In reaching this conclusion, we distinguish State v. Henderson, 397 N.J. Super. 398 (App. Div.), certif. granted, 195 N.J. 521 (2008), remanded, 2009 N.J. LEXIS 45 (Feb. 26, 2009). In that case, the witness testified that the person conducting the array was "nudging" him toward selecting the defendant. 397 N.J. Super. at 406-07. No such testimony was elicited from Gunn, despite a lengthy and exhaustive exploration of the identification procedure by defense counsel. Given the strength of Gunn's identification, together with his clear description of his attacker and his four opportunities to view him, we are satisfied that the identification was properly admitted in evidence. As a consequence, defendant has not met the second prong of Strickland, having failed to show that, but for counsel's alleged error, the result would have been different.
Defendant next contends that counsel was ineffective in failing to retain an expert "for advice on how to cross-examine the police officers involved in this case." In particular, defendant argues that if counsel had hired a fingerprint expert, he could have more effectively cross-examined the State's fingerprint expert, Detective Jerry String, who testified that a print could not have been lifted from a shell casing found at the scene. Defendant also argues that the expert could have given rebuttal testimony that a partial print can be utilized to exclude a particular person, while being insufficient to permit a match. In support of these positions, defendant offers the expert opinion of Michael J. Sinke who stated that he had been successful in processing and identifying latent prints from shell casings and, even if a full print were not available, it would be "possible to perform elimination work." However, the expert does not state that he examined the casing in this case, or that he could have obtained useful information from it. Further, we note that Detective String testified that, when examining the casing he "didn't even see any smudges or any things on there at all." As a consequence, we find no grounds for concluding that hiring Sinke or any other expert would have been of benefit to the defense.
Defendant also argues that expert testimony regarding witness identification would have been "beneficial." He supports that proposition with the expert report of Solomon M. Fulero, Ph.D, J.D. who states that an expert could inform the jury "how incorrect identifications come about, particularly where witness accounts and identifications change over time, and where there are multiple procedures." However, in this case Gunn's description of defendant did not change over time, and he was subjected only to one photo identification procedure.
Fulero next speaks about the "detrimental effects of stress, fear and arousal" on the accuracy of identifications. However, in this case, Gunn was subject to none of those emotions when he was standing behind defendant at the cashier in the convenience store. Similarly, the confounding factor of "weapons focus" did not exist then or during the initial confrontation between Gunn and defendant on the day he was shot. Further, Gunn gave a physical description of defendant to the police immediately after he was robbed, and again within an hour of having been shot. Thus, the "forgetting curve" of which Fulero speaks is unlikely to have had a major effect in this case. And Gunn was offered no post-event information that could have affected his ability to identify his attacker. As we have noted, the identification procedure utilized in this case was improper. However, as we have also noted, Gunn's identification of defendant was instantaneous. As a consequence, we find little in Fulero's report that would have benefited defendant, if in fact, he had been called as a witness at defendant's trial.
"It is not enough for the defendant to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697 (internal citation omitted). We regard defendant's arguments here as establishing nothing more than that. Accordingly, we defer to counsel's decision not to seek the assistance of experts in this case and find nothing fatally deficient in that regard. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
In his next argument, defendant contends that counsel was ineffective because he failed to object to Detective Rauch's testimony regarding his interview with Trotter, Gunn's companion who refused to testify at trial. However, the detective's testimony was limited to the fact that Trotter failed to cooperate with the police, that he had never seen the shooter's face, and that he ran around the corner when the shooting started, and did not return until the shooter had left the scene. Although that testimony was undoubtedly hearsay, defendant does not indicate how it affected the result in his case, and we find no grounds to conclude that it did.
In a further argument, defendant notes what he characterizes as "irrelevant and highly inflammatory testimony" to which counsel should have objected and failed to do so. In that regard, defendant notes testimony by Gunn that following the shooting he was unable to work, and as a result he and his mother, lacking rent money, lost their home. Defendant also complains of comments by the prosecutor in closing that, after being hit with five bullets, Gunn should be dead and that when he first spoke to the police he did not know whether he would survive the shooting. Additionally, he objects to the prosecutor's argument that defendant cared nothing about Gunn's life. Defendant objects, as well, to the prosecutor's speculation as to the amount of time that the victim looked at defendant's face,*fn2 and to his comment that the more frequently one sees a person, the more likely one is going to be able to recognize that person.
Defendant also points to the fact that, in closing, the prosecutor referred to Gunn as a "hardworking," "responsible" and "honest" person - characterizations that defendant claims constituted vouching. He argues further that the prosecutor denigrated the defense by stating that if someone had walked into the courtroom and heard defense counsel's closing, he would have wondered who was on trial and his further statement that "Calvin Gunn is not on trial, the Atlantic City police are not on trial; the only person on trial in this courtroom is Ian Lemons, who you heard from in this trial. He had some interesting things to say."
We decline to address these arguments, which are barred by Rule 3:22-4 because they could have been raised on direct appeal. We state only our conclusion that these comments, whether taken either singly or in combination, are insufficient to warrant a new trial on grounds of prosecutorial misconduct. As a consequence, any failure by defense counsel to object to them is inconsequential under Strickland's standards.
In his final argument regarding trial counsel, defendant argues that counsel was ineffective because, upon the non-appearance of Trotter, he should have requested a missing-witness charge pursuant to State v. Clawans, 38 N.J. 162 (1962).
In Clawans, the Court held that failure of a party to produce a witness at trial whose testimony would serve to elucidate facts in issue "raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. However, "[f]or an inference to be drawn from the non-production of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171. The record in this case demonstrates that, although Trotter was under the power of a subpoena and a warrant had been issued for his arrest as a material witness, the State was unable to compel his presence at the trial. Further, in his prior statement to Detective Rauch, Trotter denied ever seeing the shooter's face. As a consequence, neither of the conditions that would have justified a Clawans charge were met in this case.
Defendant argues that appellate counsel was ineffective in failing to raise on appeal those aspects of defense counsel's performance that we have just discussed and determined insufficient to warrant either a Preciose hearing or a new trial. Our conclusion in that regard compels the similar conclusion that appellate counsel was not ineffective in raising the arguments that we have rejected.
Similarly, we reject defendant's claim of cumulative error, and affirm the trial judge's determination to deny PCR as legally and factually supported.