January 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEWIS PALMER, A/K/A LOUIS PALMER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2041B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Sabatino and Ashrafi.
Defendant Lewis Palmer appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. He lists a series of alleged deficiencies in his trial attorney's performance but contends primarily that his attorney failed to present an effective alibi defense and failed to inform him of the heavy sentence he faced if convicted on charges including armed robbery and aggravated assault. We affirm denial of defendant's PCR petition.
Defendant and two co-defendants, Andrew Dennis and Abdus Samad Hamilton, were indicted for the robbery and shooting of an Atlantic City drug dealer named Christopher Tuten. At a joint trial in May 2001, the State presented evidence to prove that Dennis was a drug customer who believed Tuten had more than $40,000 hidden in his apartment. The three defendants forcibly entered the apartment at about 8:30 a.m. on August 14, 2000, and restrained two other persons who lived there. Only then did defendant Palmer realize that he and the two residents knew one another. The two residents were nevertheless threatened and confined in a bedroom.
When Tuten returned about one hour later that morning, the defendants beat him and threatened to shoot him if he did not reveal where he had hidden cash. Tuten denied he had cash, other than the few hundred dollars that defendants found on his person. Co-defendant Hamilton shot Tuten in each of his kneecaps in further effort to find hidden money. Ultimately, defendants were unsuccessful and fled.
Tuten did not know defendant and Hamilton, and those two had masked their faces during the robbery. Tuten could only identify Dennis. Defendant and Hamilton were identified through statements given to the police and identifications made by the two residents in the apartment. At the time of trial, however, both eyewitnesses recanted their statements and testified they could not identify the persons who committed the crimes. Their prior recorded statements and identifications were admitted in evidence at the trial.
The three defendants were found guilty on all fifteen counts of the indictment presented to the jury: first-degree armed robbery, N.J.S.A. 2C:15-1; second- through fourth-degree aggravated assaults, N.J.S.A. 2C:12-1b(1), (3), (4); second-degree burglary, N.J.S.A. 2C:18-2; third-degree criminal restraint, N.J.S.A. 2C:13-2; second- and third-degree firearms offenses, , N.J.S.A. 2C:39-4a, -5b; and various conspiracies to commit the charged offenses, N.J.S.A. 2C:5-2.
At defendant's sentencing in July 2001, the court merged counts and sentenced defendant as follows: for the first-degree convictions for armed robbery, twenty years in prison, with eighty-five percent of the term to be served before parole and a five-year term of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; for the convictions for second-degree aggravated assault in shooting Tuten, ten years in prison under NERA, to be served consecutively to the sentence for armed robbery; and for the convictions for second-degree burglary and third-degree criminal restraint, concurrent terms respectively of ten and five years in prison. Defendant's aggregate prison sentence was thirty years with twenty-five and a half years to be served before parole.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Palmer, No. A-422-01 (App. Div. June 29, 2004). The Supreme Court denied his petition for certification. State v. Palmer, 182 N.J. 428 (2005).
In May 2005, defendant filed a pro se PCR petition alleging ineffective assistance of counsel in violation of his Sixth Amendment and State constitutional rights. An attorney was appointed to represent defendant. On December 23, 2009, the judge who had presided over defendant's trial heard extensive argument of counsel and then denied the PCR petition in an oral decision.
On appeal, the brief filed by defendant's appellate attorney makes the following arguments:
I. THE PCR COURT ERRED IN FAILING TO VACATE DEFENDANT'S CONVICTION AND SENTENCE BASED ON DEFENDANT'S TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE.
II. THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON TRIAL COUNSEL'S FAILURES TO MEET WITH THE DEFENDANT PRIOR TO TRIAL, INVESTIGATE AND GIVE NOTICE OF DEFENDANT'S ALIBI DEFENSE AND CONSULT WITH DEFENDANT REGARDING HIS RIGHT TO TESTIFY IN HIS OWN DEFENSE AND THE OTHER ERRORS ALLEGED IN DEFENDANT'S PETITION.
Defendant has also filed a pro se supplemental brief in which he makes the following additional arguments:
THE POST-CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION FOR PCR ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING A CRITICAL PHASE OF PRETRIAL PROCEEDING IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
(a) The Record Presented to the PCR Court Clearly established a Prima Facie Case of Ineffective Assistance of Counsel During Plea Negotiations.
THE TRIAL COURT (WHO IS ALSO THE JUDGE IN THIS MATTER) FAILED TO ADVISE THE DEFENDANT THAT HE WAS FACING CONSECUTIVE SENTENCING IF DEFENDANT LOST TRIAL IN VIOLATION OF R. 3:9-2 AND DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV: N.J. CONST. (1947) ART. I, PARS. 1, 5, 9 & 10.
We begin with a presumption that defendant received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. 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 assistance was a violation of defendant's constitutional rights. 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 the test, "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 test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 51-52 (1987). See also State v. Echols, 199 N.J. 344, 359 (2009) ("[T]he challenged error must be so serious as to undermine the court's confidence in defendant's conviction.").
In a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Here, defendant argues his trial attorney's performance was deficient for the following reasons:
(1) trial counsel failed to provide a timely notice of alibi, thus resulting in the trial court permitting defendant's alibi witness, Janie Burton, to be subjected to damaging cross-examination;
(2) counsel failed to locate a second alibi witness, Carla Sola;
(3) counsel should have advised defendant to testify in his own defense;
(4) counsel failed to visit the scene of the robbery and shooting;
(5) he failed to listen with defendant to tape recordings of the statements given to the police by the eyewitnesses and of the 911 call;
(6) he failed to make certain motions, including a motion for a mistrial after one of the eyewitnesses stated in the presence of the jury that he feared retaliation on the street;
(7) he failed to obtain a stolen gun report;
(8) he should have made a longer opening statement and a more effective closing argument;
(9) he failed to confer with defendant during trial about his strategy in cross-examining prosecution witnesses; and
(10) he erroneously advised defendant before trial that he faced a maximum sentence of twenty years in prison if convicted at trial.
Defendant also alleges in his pro se brief that the trial judge failed to advise him during pretrial proceedings that he could be sentenced to consecutive terms of imprisonment.
Neither defense counsel's appellate brief nor defendant's pro se brief discusses the arguments raised in numbers 2, 4, 5, 6, 7, 8, and 9 above. These allegations of deficient attorney performance are simply listed without factual support or other elaboration. In particular, the briefs do not state what favorable evidence or trial strategy was omitted from the trial because of defense counsel's alleged failures.
In the absence of at least a proffer of the evidence or information that defense counsel allegedly failed to gather and use at trial, defendant has not shown a prima facie case of ineffective assistance of his trial counsel. See State v. Jack, 144 N.J. 240, 254 (1996). In analogous circumstances, we have stated: "Where . . . the defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, 'supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Defendant has provided no such affidavits or certifications indicating what additional evidence or argument could have been presented at his trial that would have supported his defense.
With respect to the first listed point of attorney deficiency, defendant contends his trial attorney did not give the prosecution timely notice as required by Rule 3:12-2 of anticipated alibi testimony on his behalf by Janie Burton. As a result, when Burton testified, the prosecutor was permitted to cross-examine her about her delay in coming forward with an alibi statement. See State v. Silva, 131 N.J. 438, 447-48 (1993) (the prosecution may cross-examine an alibi witness regarding a delay in revealing the alibi information but only after laying a foundation that the witness knew about the charges and understood the significance of the alibi evidence, and that the witness had a motive and sufficient knowledge to reveal the exculpatory information to the authorities). Defendant contends that a timely notice of alibi would have limited the grounds for such damaging cross-examination about the witness's late appearance in the case. See id. at 450.
Burton's testimony was brief and general in scope, rather than a detailed accounting of defendant's whereabouts at the time the crimes were committed on August 14, 2000. On direct examination, she testified that she had been in a dating relationship with defendant for several months at that time. Defendant was with her through the night of August 13 and into the morning of August 14. She testified that she worked late hours as a cocktail server in an Atlantic City casino and that she usually woke up late in the day, at about noon. She remembered being with defendant on the relevant dates because she had spent his birthday, August 12, with him and he babysat for her when she went to work on the afternoon of August 14.
On cross-examination, the prosecutor challenged Burton with the timing of her alibi statement given one day before she appeared to testify. Also, Burton had no recollection of when her relationship had ended with defendant, although it was shortly after the August 14, 2000 date the crimes were committed. The prosecutor suggested that the lack of detail in Burton's recollections contrasted sharply with her testimony that she remembered the morning of August 14 when the robbery occurred. Furthermore, according to her own direct testimony, she would have been sleeping at the time the crimes were committed.
We find no error in the PCR judge's conclusion that failure to provide an earlier notice of alibi did not significantly affect the course of the trial. Defendant was not barred from presenting Burton as an alibi witness, and the witness lacked credibility for reasons besides the delay in reporting her information. Burton's prior relationship with defendant and the lack of detail and the selectiveness of her memory provided ground to challenge her credibility.
In addition, defendant stated in his PCR affidavit that he gave his trial attorney Burton's address in January 2001, about four months before the trial but also four months after his arrest and incarceration. Even if a prompt alibi notice had been served sometime after January 2001, the prosecutor would have been permitted under Silva, supra, 131 N.J. at 450, to question Burton's delay in disclosing her alibi information to the police before the date of the notice. Her boyfriend had been arrested and incarcerated in early September 2000, and she made no effort to contact any person in authority about her purported alibi information for more than four months before defendant provided her name and address to his attorney.
The two residents of the apartment who identified defendant knew him before the commission of the crimes, and they had identified him to the police in their recorded statements shortly after the crimes were committed. In contrast, an imprecise alibi by a former girlfriend, who was sleeping when the crimes occurred and who did not act promptly to help her boyfriend, was not likely to change the jury's view of the evidence. Cf. Echols, 199 N.J. at 362 (no reasonable probability that trial counsel's errors in failing to produce stronger alibi testimony would have changed the results of the trial).
Next, defendant argues that his trial attorney performed deficiently when he advised him not to testify, especially because defendant was a young man with minimal prior contacts as an adult with the criminal justice system. During the trial, however, the judge discussed with defendant on the record that he had to make a personal decision either to testify before the jury or to exercise his Fifth Amendment right not to testify. The judge's discourse was detailed, and defendant gave no hint in his responses to the judge that he had a desire to testify. Near the same time as his colloquy with defendant, the judge also explained the same rights to the two co-defendants, thus providing all three time to listen to the court's advice and to make personal decisions about whether to testify. All three defendants chose not to testify. The judge's explanation of defendant's Fifth Amendment rights was sufficient to cure any alleged deficiency in counsel's performance in that regard. See State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005).
Defendant argues in his pro se supplemental brief that his trial attorney and the judge failed to advise him he could be sentenced to consecutive terms aggregating to more than twenty years in prison. He claims he would have accepted the prosecution's pretrial plea offer of ten years imprisonment, with eight and a half years of parole ineligibility, if he had known his sentence after conviction at trial could exceed twenty years.
First, as to the allegation that the trial judge failed to inform him of his maximum exposure, that issue could have been raised on direct appeal. The relevant information would have been part of the existing record. Defendant's failure to raise the allegation on direct appeal bars its consideration in a PCR petition. R. 3:22-4. Moreover, defendant has not provided transcripts of all pretrial proceedings when such information about the potential sentence would have been discussed in the context of the status of the case and plea negotiations. See R. 2:5-3(b) (appellant's obligation to supply all pertinent transcripts).
Second, as to the allegation that defense counsel misinformed him about the maximum sentence that could be imposed, defendant will not be heard to claim he would have accepted a plea offer without at least a prima facie showing that he could have truthfully pleaded guilty. See State v. Taccetta, 200 N.J. 183, 195-96, 198-99 (2009). Here, the defense was always that defendant was not present in Tuten's apartment and had an alibi witness ready to support his claim of innocence. The nature of the defense did not allow a claim that defendant committed some lesser offense than the charges in the indictment.
In fact, defendant has never claimed he would have truthfully pleaded guilty to one or more of the charges because he was in fact guilty. See ibid. Without such a claim, and in the face of an alibi defense, defendant has not shown the second prong of the Strickland/Fritz test to set aside his conviction, namely, that he would have accepted the prosecution's plea offer and truthfully entered a plea of guilty that the trial court could accept.
Also, the prosecution's plea offer required either defendant's testimony against his co-defendants or simultaneous guilty pleas from all three defendants. Defendant has not shown either that he would have cooperated with the prosecution and testified truthfully against his co-defendants or that all three would have accepted the prosecution's joint plea offers.
The PCR petition did not set forth sufficient facts to show that correct advice from defendant's trial attorney about his maximum exposure would have affected his decision to stand trial and the result of that trial.
Finally, defendant argues that the PCR court should not have denied his petition without holding an evidentiary hearing. A hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined, see State v. Preciose, 129 N.J. 451, 462 (1992), but we review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review, 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). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." Id. at 158 (citing Preciose, supra, 129 N.J. at 462-64; State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); and State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971)).
Here, we find no abuse of discretion in the trial court's denial of defendant's PCR petition without holding an evidentiary hearing.
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