August 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK VANDEVER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-03-0407.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2011
Before Judges Ashrafi and Nugent.
Defendant Frank Vandever appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other violations of his right to a fair trial. We affirm.
In March 1992, defendant was indicted by a Bergen County grand jury on five counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and two counts of fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. The charges arose from a spree of robberies of 7-Eleven stores and a jewelry store in Bergen County in January 1992. The facts relevant to the crimes were recited in our opinion on defendant's direct appeal, State v. Vandever, No. A-1075-98 (App. Div. January 22, 2003) (slip op. at 2-6), and will not be repeated here.
In a nutshell, defendant had been serving a life sentence in Connecticut for murder. He and a co-defendant, Ronald Rutan, had escaped from the Connecticut prison and were hiding at a motel in Rockford County, New York. They committed the armed robberies to obtain cash while in hiding. Rutan was arrested at the motel on January 16, 1992, and defendant was arrested at a mall parking lot in Paramus two days later. A few hours after his arrest, defendant confessed to committing the robberies with Rutan. Parts of his confession were secretly recorded by a police detective.
Defendant was returned to Connecticut. He was not tried for the New Jersey robberies until 1998. The jury convicted him on all counts, and he was sentenced on August 7, 1998, to an aggregate term of fifty years in prison, with twenty years to be served before parole eligibility, the sentence to be served consecutively to his Connecticut sentence.
After we affirmed defendant's conviction and sentence on direct appeal, defendant attempted to file a PCR petition on August 7, 2003, exactly five years from the date of his sentencing. The petition was subsequently dismissed without prejudice and then reinstated in 2006. The trial court heard argument on the petition in May 2009 and denied it by written opinion and order dated May 29, 2009.
On appeal from denial of his PCR petition, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO ELICIT TESTIMONY FROM HIS CLIENT DURING THE MIRANDA HEARING WHICH WOULD HAVE DEMONSTRATED THE STATEMENT OBTAINED BY THE POLICE FROM THE DEFENDANT WAS INVOLUNTARY IN NATURE, WARRANTING ITS SUPPRESSION AT TRIAL.
C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT TRIAL BY VIRTUE OF TRIAL COUNSEL'S DECISION TO ENTER INTO A STIPULA- TION WITH THE STATE WHICH ADVERSELY IMPACTED UPON THE DEFENSE WHILE SERVING ONLY TO BENEFIT THE PROSECUTION.
D. THE DEFENDANT'S CONTENTIONS REGARDING TRIAL COUNSEL'S INADEQUATE REPRESENTATION ARE NOT PROCEDURALLY BARRED PURSUANT TO RULE 3:22-4.
E. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE TRIAL COURT ERRED BY DENYING HIS PETITION WITHOUT AT LEAST AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AS A RESULT OF THE STATE'S FAILURE TO COMPLY WITH ALL ASPECTS OF THE INTERSTATE AGREEMENT ON DETAINERS AT THE TRIAL LEVEL.
A. SINCE THE STATE FAILED TO COMPLY WITH CERTAIN ASPECTS OF THE INTERSTATE AGREEMENT ON DETAINERS, THE TRIAL COURT ERRED IN DENYING THE TRIAL COUNSEL'S MOTION TO DISMISS THE INDICTMENT AS A RESULT THEREOF.
B. THE TRIAL COURT ERRED IN DENYING THE PRESENT CONTENTION ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4. POINT III RULE 3:22-12 DID NOT OPERATE AS A PROCEDURAL BAR PRECLUDING THE TRIAL COURT FROM ADJUDICATING THE DEFENDANT'S PETITION ON ITS SUBSTANTIVE MERITS.
In considering a claim of ineffective assistance of counsel, we begin with a presumption that defendant received the representation that is mandated by the Sixth Amendment of the United States Constitution and article I, paragraph 10, of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's performance was ineffective under constitutional standards. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
To satisfy the second part of this test, "[t]he defendant must show that there is 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. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Initially, we reject Point II of defendant's arguments on appeal without extensive discussion. We agree with the trial court that defendant's contentions regarding the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, could have been raised on direct appeal and are thus barred from a petition for PCR by Rule 3:22-4. See State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), modified on other grounds, 162 N.J. 240 (2000).
Furthermore, we reject defendant's argument that his appellate counsel was ineffective for failing to raise an issue on direct appeal pertaining to the State's violation of the IAD.
Appellate counsel has no duty to raise every non-frivolous argument available to a defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983). Appellate counsel must "examine the record with a view to selecting the most promising issues for review." Id. at 752, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. We agree with the trial court that any deviation from the requirements of the IAD in procuring defendant's attendance at trial in New Jersey was a technical, clerical error that did not affect defendant's right to a fair trial. Consequently, the IAD contention did not have the prospect of success on appeal.
We also reject defendant's argument that his trial attorney was ineffective because he agreed to a stipulation at his trial concerning defendant's connection to a stolen Jeep. From the Jeep, the police had recovered a knife, a toy gun, and a torn page of the telephone book containing addresses of 7-Eleven stores in Bergen County, some of them marked with the word "done." The evidence recovered from the Jeep was not available at defendant's trial because Connecticut authorities had not preserved the exhibits for the New Jersey prosecution.
The State and defense counsel entered into a stipulation as a means of avoiding evidence at defendant's trial that he was seen driving a Jeep that had been stolen from a couple in Connecticut shortly after he escaped from prison. The State proffered that it would present the testimony of the husband and wife victims that they had been tied up and robbed at knife point, the robbers stealing their Jeep. The State also proffered evidence that the Jeep was seen at the motel where defendant had registered under a false name. To avoid evidence that would have shown defendant had committed other serious crimes, defense counsel agreed to the stipulation. Such strategic decisions of defense counsel are not the same as deficient performance. See State v. Arthur, 184 N.J. 307, 320-21 (2005).
Similarly, counsel was not ineffective for failing to challenge more vigorously the loss of evidence by Connecticut authorities. Defendant has not shown a reasonable probability that raising the issue of the lost evidence before the jury would have changed the result of the trial.
Furthermore, defendant cannot challenge on appeal the fact that the trial transcript was corrected to read the stipulation as defendant having been seen driving the Jeep, rather than Rutan. The correction occurred on temporary remand by this court during the direct appeal. That issue was presented at and decided on the direct appeal, and cannot be raised again in a PCR petition. See R. 3:22-5.
Defendant's primary contention is that his trial attorney performed deficiently at a pretrial hearing to determine the admissibility of his confession. He alleges that he wanted to testify at the hearing, but his attorney failed to call him as a witness. If he had testified, defendant would have said that the police mistreated him for thirty hours, without food and refreshment and without bathroom breaks, while they interrogated him after his arrest. Most significantly, the police kept him handcuffed uncomfortably during the entire time, completely naked, because he was an escaped convicted murderer. He alleges he was forced to urinate on himself because of the police mistreatment. Defendant claims his testimony would have persuaded the trial court that he did not voluntarily confess to the robberies.
While we consider these allegations to present a closer issue on the need for an evidentiary hearing, our review of the pretrial record convinces us that the trial court did not abuse its discretion in rejecting defendant's contentions without first holding an evidentiary hearing.
Piecing together the testimony of the police officers at the pretrial hearing, defendant was arrested at about 4:20 p.m. on January 18, 1992. He was processed at Paramus Police headquarters at about 5:20 p.m., and advised of his Miranda rights*fn1 at 5:45 p.m. He waived those rights and agreed to answer questions from the police. According to the police witnesses, he was "cooperative" and "talkative." His demeanor was "casual, almost boastful." He was questioned by New Jersey and New York police authorities from 5:45 until about 9:00 p.m., and during that time, he confessed to the 7-Eleven robberies, parts of the confession being recorded by the police. Then, from about 9:00 to 10:30 p.m., defendant was questioned by Connecticut authorities on matters other than the New Jersey crimes. At approximately 11:00 p.m., the United States Marshall's Service took custody of defendant as an escaped fugitive. Thus, contrary to defendant's contention, the questioning relevant to the New Jersey charges occurred early after his arrest and not some twenty hours after he was deprived of food, drink, and other necessary comforts.
In addition, the transcript made from the partial recording of defendant's questioning reveals unmistakably that he was not speaking under duress and against his will. He cavalierly admitted the robberies, indicating that the details were not important to him and excusing the crimes because he and Rutan needed to survive. At times, he challenged the police questioning, expressing arrogance and defiance, and accusing the police of a tendency to escalate the crimes into more serious matters than they were. The confession as recorded did not reflect the words of a man in distress whose will had been overborne.
The trial court also heard testimony from the police witnesses that defendant's clothes were removed and he was handcuffed during the interrogation because of the risk of escape and the seriousness of the crimes for which he had been convicted in Connecticut. The trial court had much of the information that defendant sought to convey by his own testimony and made factual findings based on all the evidence that defendant's will was not overborne when he confessed to the New Jersey robberies.
Given the record that contradicted defendant's contentions in his PCR petition, we conclude that the trial court did not abuse its discretion in deciding the matter without holding an evidentiary hearing. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10.