August 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WARREN MCREE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant appeals from the April 27, 2009 order denying his petition for post-conviction relief (PCR). We affirm in part and reverse and remand in part.
Tried to a jury in May 2004, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5(b); third-degree attempted theft, N.J.S.A. 2C:5-1 and 20-3; and fourth-degree possession of a firearm with a defaced serial number, N.J.S.A. 2C:39-3(d).*fn1 He was acquitted of a carjacking charge. In August 2004, defendant was sentenced to an aggregate term of fifteen years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA); he was required to serve a five-year term of parole supervision upon release and appropriate statutory assessments were imposed.
Defendant appealed; counsel raised three claims of trial error and excessive sentence and, in a pro se supplemental brief, defendant claimed the verdict was against the weight of the evidence, as well as error in the jury charge on first- degree robbery. We affirmed. State v. McRee, No. A-1065-04 (App. Div. July 28, 2006) (slip op. at 16). In that opinion, we summarized the pertinent trial evidence as follows:
On December 28, 2002, at approximately 10:00 p.m., Richard Pitchford and his cousin Adrianne Brown left a family party at their aunt's home in Jersey City. Pitchford planned to give Brown a ride to her home.
They walked to his car which was parked in the street in front of a home a few doors away. Pitchford opened the door for Brown and walked to the driver's side of the car.
According to Pitchford, as he was swinging his leg into the car, he heard someone yell "Yo, give it up." He turned and saw a gun pointed at his head and chest. He grabbed the gun. He and the man holding it struggled in the street. He was punched twice and threw one punch. Pitchford managed to pin his assailant down. At that point, Pitchford was on top. They were face to face. The man was wearing what Pitchford described as a "dark, like a down coat, three-quarters, with a hood." Pitchford gained control of the man's gun.
The assailant yelled at Pitchford and demanded his gun back. Two other men approached, one of them also told Pitchford to give the gun back. Pitchford was not certain whether they were with defendant or not. His assailant then walked across the street and sat down on the steps of a home nearby. Pitchford went back to his aunt's home to make sure someone had called the police. They arrived within three to eight minutes. . . .
According to Brown, as soon as she got in the car and closed the door, she leaned over to unlock the other door for Pitchford. Before he opened the door, she heard a thump and turned to see him and another man struggling for a gun. She saw Pitchford punch the other man a couple of times. The gun was knocked to the street, and Pitchford picked it up. His assailant came back at him to get his gun. Two other men approached. One had a bottle in his hand, which he broke.
Although Brown had called the police from her cell phone and described the assailant as wearing a leather jacket, she was concerned that her cousin would be harmed. She went back to the porch of her aunt's home. She watched from the screen door and then went back outside. The assailant had crossed the street and sat on the steps. He did not get up from the steps and was still there when the police came.
[Id. at 3-4.]
The Supreme Court denied certification. State v. McRee, 189 N.J. 646 (2007).
On April 4, 2007, defendant filed his PCR petition, claiming ineffective assistance of trial and appellate counsel. Counsel was assigned and filed a supplemental brief, raising claims of ineffective assistance of counsel for failing to: (1) object to prejudicial comments by the prosecutor in summation; (2) argue that the jury charge improperly emphasized the State's evidence; (3) interview and subpoena defendant's girlfriend; and (4) "diligently" argue against the application of aggravating factors three and nine at sentencing, N.J.S.A. 2C:44-1(a)(3), (9); counsel also argued that defendant should be re-sentenced pursuant to State v. Natale, 184 N.J. 458 (2005).
At a hearing on October 2, 2008, however, defendant claimed that PCR counsel had merely "plagiarize[d]" the brief previously filed by appellate counsel and was, therefore, "reargu[ing] the same issues that had been adjudicated . . . ." Defendant stated that he wished to have a new attorney appointed to represent him on PCR. The judge thereupon adjourned proceedings to permit defendant to seek new counsel.
On February 8, 2009, newly appointed PCR counsel filed a supplemental brief raising the following claims of ineffective assistance of counsel: (1) failure to demand a probable cause hearing at which the victim could have been cross-examined; (2) failure to investigate alibi and fact witnesses; (3) appellate counsel's failure to supplement the record with the transcripts of defendant's first trial when certification was pending before the Supreme Court; and (4) prior PCR counsel's presentation of a brief that "mirrored" defendant's appellate brief.
As examples of his claim that counsel failed to investigate witnesses, defendant asserted that he was bruised at the time of his arrest because the alleged victim, Pitchford, had been the aggressor and assaulted him, and counsel failed to pursue this. He also alleged that Brown's testimony that she called the police on her cell phone was false as evidenced by a search of the cell phone number she claimed she used, which showed that no such number was registered in her name; defendant submitted documentation to support the latter claim.
In support of defendant's claim of ineffective assistance of trial counsel, PCR counsel included in his appendiX correspondence defendant had sent to his assigned attorney, stating his version of the events on the night in question, drawing a map of the area and describing his injuries; he also included a copy of defendant's interview with his attorney's investigator.
On April 23, 2009, after hearing oral argument, the judge rendered a decision from the bench denying defendant's petition. The judge rejected defendant's arguments addressed to the sufficiency of the complaint and the lack of a probable cause hearing pursuant to Rule 3:4-3, noting that the "return of th[e] indictment moots such a procedural argument[,]" citing State v. Mitchell, 164 N.J. Super. 198, 201 (App. Div. 1978); the judge also cited the comment to Rule 3:4-3, which states that a probable cause hearing "is neither a constitutionally guaranteed stage nor an essential component of the prosecution, and may, in any case, be superseded by the grand jury's prior return of an indictment." Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:4-3 (2011).
Regarding the claim of ineffective assistance of appellate counsel, the judge found that defendant had "failed to demonstrate how the transcripts [of his first trial] were relevant on his direct appeal or how the failure to secure them prejudiced that direct appeal."
The judge rejected defendant's claim of ineffective assistance of his first PCR counsel. Because that attorney was replaced at defendant's request, the judge found no prejudice. With respect to trial counsel's failure to investigate and subpoena witnesses, the judge found:
First, [defendant] has not identified a single witness whose testimony may have been of assistance to him, and obviously, therefore, there is no competent evidence in support of this proposition that would even remotely satisfy either prong of the Strickland*fn2 test.
Second, the absence of the names of those alleged witnesses cannot be laid at the feet of [t]rial [c]counsel.
The first alleged witness mentioned by . . . [defendant] . . . was his own girlfriend. . . . If his girlfriend was in fact a witness who had relevant evidence, surely . . . [defendant] would be aware of her identity and could have supplied a certification in support of this [p]etition setting forth what her testimony would have been, and there is no such certification here.
Second, much of [c]counsel's argument on this point focuses on alleged witnesses who could attest to injuries claimed by . . . [d]efendant. The claimed relevance of those injuries is that they would affect the credibility of the arresting officers who testified that they did not observe any injuries at the time of the arrest.
In the first instance, the injuries claimed were minor, a bump on the head and swollen lip.
Second, the testimony at trial was that a struggle had taken place between the victim and . . . [d]efendant which clearly could have accounted for those injuries.
Third, it is entirely possible that those swelling injuries did not become evident until several hours after the incident as is common with such injuries. Under these circumstances, the impact of such testimony would have been minimal at best.
The judge then compared defendant's version of the facts in his trial testimony with his description of the events in his letter to his attorney. Those two versions differed markedly, leading the judge to observe: "If the lengthy written statement of facts is true, then . . . [d]efendant obviously perjured himself at the trial. If the trial testimony is true, then . . . [d]efendant lied to his lawyers and is lying on this [p]etition." The judge concluded that "[i]f there is anyone who's at fault on this issue, it is not [c]counsel, but rather . . . [d]efendant himself, who obviously has no regard for either the truth or his oath."
Finally, the judge rejected as wholly without merit defendant's claim of ineffective assistance in counsel's failure to move for dismissal of the robbery charge in light of his acquittal on the carjacking charge.
On appeal, defendant raises the following contentions for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective in failing to seek a probable cause hearing.
B. Trial counsel was ineffective in failing to challenge the complaint warrants.
C. Trial counsel was ineffective in failing to properly direct the investigation of alibi and fact witnesses.
D. Trial counsel was ineffective in failing to have defendant appear before the grand jury.
E. Trial counsel was ineffective in failing to consult with defendant in a meaningful manner.
F. Counsel's strategy was deficient and amounted to ineffective assistance of counsel.
G. Trial counsel was ineffective in failing to move to dismiss count five [attempted theft, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3] of the indictment.
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
In a supplemental pro se brief, defendant presents the following additional arguments:
Appellant presented a prima facie Case of Ineffective Assistance of Counsel and where that claim was based on various facts outside the trial record, the court sub judice should have granted an evidentiary hearing and thereby allowed appellant to develop those facts. Foreclosing Appellant From Doing So Negatively Affected his Fourth, Sixth and Fourteenth Amendment rights under the United States Constitution, and Under Article 1, para. 7 and 10 of the New Jersey Constitution (1947) (Not Raised Below).
Appellant presented a prima facie Case of Ineffective Assistance of Counsel. The court sub judice erred when it denied appellant's request for an evidentiary hearing, thereby affecting his Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution and those rights afforded under Article 1, para. 10 and 11 of the New Jersey Constitution (1947). (Not Raised Below).
Appellant presented a prima facie Case of Ineffective Assistance of appellate counsel's ineffective assistance sufficient to require an evidentiary h[e]aring. The PCR court's ruling was contrary to established law and denied appellant's fundamental rights under the Sixth and Fourteenth Amendments, United States Constitution and those rights afforded under Article 1, para. 10 of the New Jersey Constitution (1947). (Not Raised Below).
Appellant was provided Ineffective Assistance of Counsel during the Post-Conviction stage, egregious enough to have violated his rights under the Sixth Amendment, United States Constitution, those protections afforded under Art. 1, para 10, New Jersey Constitution (1947), and those privileges provided through the Attorney-Client Doctrine (N.J.R.E. 504). (Not Raised Below).
In Point Four above, defendant contends that he did not authorize PCR counsel to include in his supplemental brief defendant's statement to the investigator from the Office of the Public Defender or the letter he wrote to his attorney stating his version of what occurred on the date in question. In fact, defendant asserts, he instructed PCR counsel not to include these documents.
The State contends that "the only reason these letters were included in . . . [PCR] counsel's brief was because they provided evidence of [defendant's] allegations that he received ineffective assistance of counsel." The State also asserts that defendant waived his right to raise this claim because he approved PCR counsel's brief before it was filed.
The record does not support the State's contentions.
Therefore, it appears that documents protected by the attorney- client privilege were improperly made part of the PCR record, and considering the direct impact those documents had upon the judge's assessment of defendant's credibility and, in turn, his disposition of this claim, we are compelled to remand for further proceedings on this claim only. See N.J.R.E. 504(1), which provides that "communications between [a] lawyer and his client in the course of that relationship . . . are privileged" and the client "has a privilege to refuse to disclose any such communication, and . . . to prevent his lawyer . . . and any other witness from disclosing such communication . . . ."
Because the "privilege belongs to the client, rather than the attorney," Fellerman v. Bradley, 99 N.J. 493, 498 (1985), the client exclusively controls the decision whether or not the privilege should be voluntarily waived. State v. Schubert, 235 N.J. Super. 212, 220 (App. Div. 1989), certif. denied, 121 N.J. 597, cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990). An attorney may exercise the power to waive the privilege "only [when] acting with a client's authority." State v. Davis, 116 N.J. 341, 362 (1989).
As noted, defendant submitted specific examples of ineffective assistance of trial counsel, namely the failure to follow up on the fact that he had bruises at the time of his arrest, and the challenge to the credibility of Brown's testimony that she called the police on her cell phone. We make no assessment of the merits of these claims. We conclude nonetheless that a remand is necessary to permit the PCR judge to consider them without regard to information protected by the attorney-client privilege.
Furthermore, because this judge made specific negative findings with respect to defendant's credibility, we direct that this matter be heard by a different judge on remand. See R.L. v Voytac, 199 N.J. 285, 306 (2009) ("[b]ecause the trial court previously made credibility findings, we deem it appropriate that the matter be assigned to a different trial court"). See also R. 1:12-1(d) (a judge "shall not sit in any matter, if the judge . . . has given an opinion upon a matter in question in the action").
We do, however, affirm the judge's decision on the remainder of defendant's claims, which were not based upon credibility assessments. The judge correctly determined that defendant's complaints of pre-indictment ineffective assistance were rendered moot when the grand jury returned its indictment. "It is . . . abundantly clear that the failure to conduct a preliminary hearing does not deprive a defendant of any constitutional right, nor does it affect the validity of an indictment." Mitchell, supra, 164 N.J. Super. at 201. Defendant does not even address, let alone attempt to distinguish, this binding precedent.
With respect to ineffective assistance of appellate counsel, we concur with the judge that defendant failed to make any showing of how he was prejudiced by counsel's failure to submit the transcripts of his first trial. Insofar as defendant asserts ineffective assistance of his first PCR counsel, we find no prejudice. As the judge noted, new counsel was appointed at defendant's request. The remainder of defendant's claims lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part; reversed and remanded in part for proceedings in conformity with this opinion. We do not retain jurisdiction.