On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-03-0211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2011
Before Judges Fuentes and Gilroy.
Defendant Christopher Clemons appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
Defendant was tried before a jury and convicted of first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). After merging various counts, the court sentenced defendant to an aggregate term of thirty years, with fifteen years of parole ineligibility.
We affirmed the convictions and sentences on direct appeal, State v. Clemmons, No. A-5983-02 (App. Div. May 17, 2004),*fn1 and the Supreme Court denied certification, 182 N.J. 148 (2004).
Defendant filed this PCR petition*fn2 alleging ineffective assistance of trial counsel based on (1) a denial of his right of confrontation stemming from defense counsel's failure to object to the State's decision to proceed without the testimony of the victim, who testified before the grand jury; (2) trial counsel's decision to permit a recorded statement of a witness in lieu of live testimony before the jury; and (3) trial counsel's decision to permit a police officer to testify about statements made by the victim's brother identifying defendant as the shooter. Defendant also argued appellate counsel was ineffective in failing to raise these issues on direct appeal.
The court heard the petition on May 9, 2008. After considering the arguments of counsel, the court denied the relief requested without an evidentiary hearing. The court explained its reasoning in a letter-opinion dated May 12, 2008. After setting forth the appropriate standard of review, the court rejected defendant's right of confrontation argument, noting that the State was not obligated to call the victim of the shooting in order to meet its burden of proof.
The court also rejected defendant's claim that he was denied his right to cross-examine Timothy Platt when the court permitted the jury to hear a prerecorded statement given by Platt in lieu of his live testimony. The court found that defendant "personally agreed to this procedure" because defense counsel noted that "the tape recording was exculpatory and important to [defendant's] defense." The PCR judge emphasized that [t]he statement contained inculpatory and exculpatory material. Mr. Platt stated that on November 3, 1996, defendant gave him a bag containing a 45 caliber handgun, 22 caliber handgun and bullets. [Platt] indicated that on the following day he heard that defendant shot a person with one of the guns he was holding. Mr. Platt also stated he was later arrested and while in jail wrote a letter to another inmate indicating he killed a person with a 45 caliber gun.
He denied ever killing anyone later on in the statement and stated that he wrote the letter to show he was a "big guy" because other inmates had gun related charges.
The PCR judge also characterized the State's case against defendant as "very powerful," and viewed defense counsel's decision to permit the recorded statement as reasonable trial strategy. The judge thus concluded that defendant had not shown any deficiency in trial counsel's performance.
Finally, the court addressed a statement made by the victim's brother to a police officer immediately after the shooting, identifying defendant as the shooter. The PCR court found the statement admissible as an excited utterance.*fn3 The court rejected defendant's argument based on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because:
The statement of [the victim's brother] was not given in response to formal police questioning. It was given to assist the police in the apprehension of the shooter. His brother was the victim and it was made while he observed him lying on a sidewalk near a pool of blood with a hole in his head. It was a startling event. [The victim's brother] identified the shooter under the stress of the excitement. ...