November 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT LIVINGSTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-12-1432.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Parrillo and Skillman.
Defendant Robert Livingston appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
A jury convicted defendant of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), as a lesser included offense of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2) (count I); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count II); first-degree robbery, N.J.S.A. 2C:15-1 (counts III and IV); third-degree possession of a weapon, a baseball bat, with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4d (count V); and fourth-degree unlawful possession of a weapon, a baseball bat, under circumstances not manifestly appropriate for its lawful uses, N.J.S.A. 2C:39-5d (count VI). The trial judge then merged counts V and VI into count II, and sentenced defendant on count II, felony murder, to life imprisonment, thirty years to be served without parole. He imposed concurrent sentences on the remaining counts.
The underlying criminal episode occurred around 3:30 a.m. on January 12, 1995, when Morris Lewis, A/K/A "Snoop," was beaten to death by defendant in the home where defendant was residing. Defendant struck Snoop, who was unarmed, numerous times in the head with a baseball bat, causing his death. Blood splatter analysis indicated the victim had been prostrate on the floor during the attack. The State's proofs indicated that defendant was familiar with Snoop, allowed him to spend the night at his residence where an argument and ultimately a violent confrontation ensued during which defendant robbed Snoop of money and eventually killed him.
At trial, defendant admitted killing the victim by repeatedly striking him on the head with a baseball bat, but attempted to justify the homicide as an act of self-defense. Although he admitted taking the victim's money, he claimed that he did so only as an afterthought. Although some elements of his account changed from his initial statements to the police, defendant testified basically that he allowed Snoop to stay at his residence the night before, but an argument ensued the next morning concerning what time Snoop was to leave the house, and defendant therefore refused Snoop's request to stay there another night.
Although they were seen together on the street later that night, at approximately 12:45 a.m., less than three hours before the fatal attack, defendant claimed the victim appeared at his door sometime later requesting to stay there and when denied, he made threats against defendant's property, prompting defendant to call 911. Defendant abandoned his attempt to call the police, however, and told the operator he had dialed mistakenly. Defendant claimed Snoop then left his residence and did not return until 3:30 a.m., when defendant was awakened by what he believed at first to be a burglar, jumped from where he was sleeping on the couch, and hit the individual with a bat. Defendant turned on the light and recognized the individual as Snoop, who then began fighting with defendant. Defendant claimed he hit Snoop until he fell onto the floor and then removed his clothes to see if he had any money, feeling that since Snoop came to rob him, it was fair for him to take money from Snoop. Defendant further claimed that after he took money from Snoop's underpants, he called 911 and dressed the victim before the police arrived.
On his direct appeal, defendant argued, among other things:
III. THE DEFENDANT'S FELONY MURDER CONVICTION MUST BE OVERTURNED BECAUSE THE COURT FAILED TO CHARGE THE JURY PROPERLY ON THE CAUSATION ELEMENT OF FELONY MURDER.
A. The Jury Charge Was Not Accurate.
B. The Jury Charge Was Confusing.
IV. THE DEFENDANT'S FELONY MURDER CONVICTION MUST BE OVERTURNED BECAUSE THE STATE FAILED TO PROVE THAT THE DEATH OCCURRED IN THE COURSE OF A FELONY.
A. The State Failed to Prove the Predicate Offense of Robbery Beyond a Reasonable Doubt.
B. The State Failed to Prove That the Killing Occurred in the Course of a Robbery.
We affirmed the felony murder conviction but remanded for correction of the judgment to reflect merger of the passion/provocation manslaughter and robbery convictions with the felony murder conviction. State v. Livingston, No. A-4886-97 (App. Div. Oct. 13, 2000) (slip op. at 26). As to the aforementioned issues, we stated:
Defendant contends under Point III that his felony murder conviction should be reversed because the trial judge failed to charge the jury "properly" on the causation element. The essence of his argument is that the judge failed to convey to the jury that it could not convict defendant of felony murder if, instead of being guilty of robbery, he was only guilty of theft. He also argues that the jury was confused because the felony murder charge was interrupted by a discussion of the elements of robbery and because the judge failed to relate the legal principles to the facts of the case.
Our review of the charge reveals that these arguments are meritless. The judge's explanation of the law was correct in all respects. Contrary to defendant's suggestion, the judge clearly told the jury that "if you find that theft occurred, that is not adequate for a felony murder. A theft is not a predicate offense for . . . purposes of the felony murder statute." The charge accorded with the applicable model jury charge and fully incorporated the principles of causation set forth in State v. Martin, 119 N.J. 2 (1990). In this case, a detailed reference to the facts was unnecessary. The issue was not complex. Either defendant took the victim's money as an afterthought, in which case there would have been no basis for felony murder, or he formed the intent to steal before or while he was beating the victim to death, in which case felony murder would have been established. Since there was no objection to the judge's supposed failure to discuss the facts in more detail, and since the legal principles were accurately conveyed to the jury, the point does not warrant consideration on appeal as plain error. State v. Morton, 155 N.J. 383, 421 (1998) [cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)].
Defendant contends under Point IV that the State failed to prove the death occurred in the course of a felony. The trial judge rejected this argument in his written decision of March 11, 1998, and we affirm substantially for the reasons expressed therein. Defendant's argument appears to be that since he testified that the theft was an afterthought unconnected with the beating, a contrary verdict is unsupportable. But given his own testimony that immediately after the victim had been rendered helpless and lay dying, the first thing he did was to search the victim and take his money, coupled with his attempts to [cover up] his crime by rearranging the scene and thereafter lying to the police, the jury was fully justified in finding that he had formed the intent to steal before or during the beating that resulted in the victim's death. State v. Reyes, 50 N.J. 454, 459 (1967). [Id. at 18-20.]
The Supreme Court denied defendant's petition for certification. State v. Livingston, 167 N.J. 634 (2001).
Defendant thereafter filed a timely PCR petition arguing, among other issues, ineffective assistance of trial and appellate counsel; insufficiency of evidence of the predicate felony - robbery - upon which the felony murder charge was based; and error in the court's robbery instruction because it inaccurately characterized the intent required to commit that offense. In support of the latter two issues, at oral argument PCR counsel cited State v. Lopez, 187 N.J. 91 (2006), for the proposition that the intent to steal must be the motivating force behind the violent or intimidating act by the defendant and the theft involved must not be an "afterthought" to violence motivated by an unrelated factor.
The PCR court rejected all of defendant's arguments, finding that both trial and appellate counsel "performed competently[;]" that the sufficiency of the robbery proofs and the adequacy of the court's felony murder charge were issues raised and resolved on direct appeal, citing Rule 3:22-5; and that Lopez did not instruct the trial court to apply its holding retroactively. Consequently, the court denied defendant's PCR petition.
On appeal, defendant, through counsel, raises the following issues:
I. THE FELONY MURDER CONVICTION AND THE ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT INADEQUATELY CHARGED THE JURY AS TO FELONY MURDER AND ROBBERY.
II. THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed to Investigate And/Or To Consult Adequately With Defendant.
B. Trial Counsel Failed To Explain To Defendant The Consequences Of Rejecting The State's Plea Offer.
In addition, defendant pro se raises these supplemental issues:
I. THE FAILURE OF TRIAL COUNSEL TO PROPERLY ADVISE THE DEFENDANT OF HIS MAXIMUM SENTENCE EXPOSURE, AND CONSEQUENCES THAT A GUILTY VERDICT ON THE ROBBERY COUNT WOULD RESULT IN A FELONY MURDER CONVICTION WHICH WOULD NEGATE ANY SENTENCE ON A POTENTIAL CONVICTION FOR A LESSER-INCLUDED OFFENSE OF 1st DEGREE MURDER CONSTITUTED INEFFECTIVE ASSISTANCE IN VIOLATION OF THE SIXTH AMENDMENT.
II. THE PCR COURT ERRED BY HOLDING THAT THE DEFENDANT'S CLAIM THAT HE WAS CONVICTED OF AN
"AFTERTHOUGHT" ROBBERY DEPRIVED HIM OF A FAIR TRIAL BASED ON STATE V. LOPEZ, 187 N.J. 91 (2006), BECAUSE LOPEZ WAS NOT MADE RETROACTIVE, IGNORES THE FACT THAT LOPEZ DID NOT SET FORTH A NEW LAW, THEREFORE, RETROACTIVITY WAS NOT AN ISSUE AND RELIEF SHOULD HAVE BEEN GRANTED.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test.
One of the alleged deficiencies was counsel's failure to consult with defendant and to investigate, which supposedly may have led to the discovery of witnesses, who may have testified to the victim's violent tendencies, which in turn may have caused the jury to credit his defense of self-defense. In support of this claim, defendant submitted reports dated August 2008 from two investigators identifying two individuals who allegedly knew of the victim's violent reputation. Defendant, however, has offered no basis whatsoever to find that counsel knew or should have known the identity of these persons at time of trial or that these possible witnesses would be willing to testify to the information supposedly related to defense investigators over ten years after defendant's conviction and contained in an unverified report. Moreover, there is no reason to assume that the jury would have returned a different result based on what defendant now speculates their testimony would have been.
The other counsel deficiency claimed by defendant is the failure to explain the consequences of rejecting the State's plea offer and to advise of his maximum sentencing exposure on felony murder. Here again, defendant offers no more than a blanket conclusion, unsupported by the record. As the PCR properly found, defendant failed to allege any specific facts concerning trial counsel's explanation of the plea offer or the possible consequences of its rejection and proceeding to trial. Given the lack of any evidence, much less prima facie proof, defendant is not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel.
Relying on Lopez, supra, which held that the robbery statute, N.J.S.A. 2C:15-1, does not encompass so-called "afterthought" robbery in which a defendant does not formulate the intent to steal until after force is used, defendant also argues that the court's charge on felony murder and robbery, bereft of the Lopez holding, was in error. However, even though Lopez had not yet been decided, defendant raised this very issue on direct appeal,*fn1 which we considered and rejected, consistent with the Court's later decision in Lopez. Having been previously adjudicated and resolved against defendant, the issue is procedurally barred from consideration now. R. 3:22-5.
It is also substantively without merit. Lopez simply clarified the elements of robbery under N.J.S.A. 2C:15-1 by explaining that "[o]bviously, if the intimidating or assaultive conduct that elevates theft to robbery must occur during the theft or attempted theft . . . it follows that intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery." 187 N.J. at 98 (internal quotations omitted). In concluding that the intent to steal must precede or be coterminous with the use of force, the Court stated:
[t]hat is why a person who has stolen goods and thereafter uses violence in flight is guilty of robbery -- the intention to commit the theft generated the violence. That model simply does not work where a violent fracas occurs for reasons other than theft, and the perpetrator later happens to take property from the victim. In the former example, the theft is the reason for the violence and a robbery has occurred. In the latter, the violence and the theft are unconnected, and the perpetrator is guilty of assault and theft but not robbery. [Id. at 101.]
Lopez was decided in the context of a jury charge that expressly suggested otherwise, namely, that "afterthought" robbery satisfied the elements of N.J.S.A. 2C:15-1,*fn2 and therefore required reversal of the defendant's robbery conviction in that case. Id. at 101.
Here, in marked contrast, the trial court instructed the jury in conformance with the model jury charge for robbery in place at that time.*fn3 Unlike Lopez, where the trial judge charged contrary to the law, even as it existed then, in this case the court's robbery instructions were correct in all respects. And although the model jury charges have since been amended to make more clear that "afterthought robbery" is not encompassed within the robbery statute,*fn4 the court's instructions at issue here actually anticipated the Lopez holding and properly informed the jury that it could not convict defendant of felony murder if instead of being guilty of robbery, defendant was only guilty of theft. While the judge may not have specifically mentioned "afterthought robbery," nothing in the court's robbery instructions suggested that the intent to steal may be formed after the use of force and still constitute the offense of robbery. On the contrary, the court's charge clearly differentiated between theft and robbery and emphasized that if the jury "find[s] that theft occurred, that is not adequate for a felony murder. A theft is not a predicate offense for . . . purposes of the felony murder statute." It was therefore evident from the definitional distinctions between these two crimes that to be convicted of robbery, the intent to steal must either precede or be coterminous with the use of force, as we noted on direct appeal. Therefore, we need not decide today the retroactivity of Lopez because we conclude that the court's jury instructions on robbery and felony murder did not violate any principle enunciated therein.
We have reviewed defendant's remaining contentions and find none of them is of sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).