March 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-0043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2011
Before Judges Messano and Espinosa.
We remanded defendant Michael Brown's petition for post-conviction relief (PCR) for an evidentiary hearing in our prior opinion. State v. Brown, No. A-1700-07 (App. Div. June 30, 2009) (slip op. at 2) [Brown I]. Judge Robert B. Reed conducted the evidentiary hearing at which three witnesses testified:
Tawanda Wilfong, defendant's long-term girlfriend; Michael Brown, Jr., defendant's son; and Neill Hamilton, defendant's trial counsel. After considering all the evidence, Judge Reed dismissed defendant's PCR petition and this appeal followed.
Defendant presents the following argument for our consideration:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. He must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698) (internal quotation marks omitted).
We provide some background. Defendant was convicted at trial of second-degree robbery, N.J.S.A. 2C:15-1; two counts of aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a). He was sentenced to an aggregate term of seven years imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. His conviction was affirmed on appeal, State v. Brown, No. A-0869-03 (App. Div. Oct. 8, 2004), and his petition for certification was denied. State v. Brown, 182 N.J. 427 (2005). He subsequently filed this PCR petition.
Defendant's PCR petition was supported by his and Wilfong's detailed certifications. In relevant part, defendant claimed that trial counsel provided ineffective assistance by failing to obtain defendant's medical records, which would have detailed injuries he suffered in an automobile accident fourteen months before the crime. Brown I, supra, (slip op. at 5). More importantly, defendant claimed trial counsel never adequately investigated the possible testimony of Wilfong and his son, neither of whom testified at trial, and both of whom were present when defendant fled from the scene of the theft, was apprehended by two police officers after a struggle, and subsequently arrested in the middle of Route 22. Id. (slip op. at 5-7). Defendant argued "that Wilfong's testimony was significant in undermining the officers' testimony as to what occurred on the highway, the only evidence that converted the theft [which defendant conceded occurred] into second-degree robbery." Id. (slip op. at 8).
The first PCR judge denied defendant's petition without an evidentiary hearing. Ibid. In reversing that decision, we held:
In short, based upon defendant's certifications . . . , he established that trial counsel never spoke to Wilfong at all, yet nevertheless concluded she was not credible because of her relationship to defendant. Having never contacted Wilfong, and absent some other explanation, that conclusion was not the product of reasonable decision-making[,] . . . and therefore defendant established the first prong of the Strickland/Fritz test. [Id. (slip op. at 11-12).]
We further concluded that defendant met the second prong of the Strickland/Fritz test, noting "it was the events that took place on the highway that were critical to determining whether defendant was indeed legally culpable of robbery, and it [was] those events to which Wilfong's testimony was significant." Id. (slip op. at 12). Because "[a] judgment as to Wilfong's ultimate credibility, and its potential for having led the jury to a different result, [was] something that [could] only be assessed after an evidentiary hearing[,]" we remanded the matter to the PCR court. Id. (slip op. at 15).
In his written opinion that followed the hearing on remand, Judge Reed first noted that defendant abandoned the position that "Wilfong would testify about [his] . . . medical/mental condition" at the time of the robbery. We quote at length from Judge Reed's opinion regarding the testimony at the evidentiary hearing:
Defendant's sole argument at the PCR hearing was that Michael Brown, Jr., who was eleven years of age at the time of the robbery, and . . . Wilfong, witnessed the entire robbery, and although . . . trial counsel was aware of their potential testimony, he never spoke to them. Both individuals testified that they never spoke to . . . Hamilton. They further testified that they saw Defendant steal money from the . . . register; that they saw Defendant leave the [store]; that they saw Defendant run from the [store] to the highway; that Defendant stopped in the middle of the highway; that the police did not tell Defendant to stop before he reached the "jersey" barrier; and that Defendant immediately surrendered to police without any resistance or struggle.
Judge Reed noted that based upon her testimony, Wilfong "established herself at the scene as either Defendant's [getaway] driver, or an observer of . . . Defendant's theft."
The judge further noted that Wilfong "had multiple prior indictable convictions," including "theft by deception," "heroin distribution," "credit card theft," "forgery," and "conspiracy to possess cocaine," "[a]ll of which would have exposed her to cross-examination . . . at trial."
Judge Reed continued:
The sole purpose for the testimonial hearing -- namely that defense counsel failed to conduct a proper investigation by neglecting to talk to . . . Wilfong -- was directly contradicted by the testimony of . . . Hamilton . . . . Hamilton's testimony was that he did speak to . . . Wilfong before the trial. . . . He testified that he deliberately chose not to produce . . . Wilfong at trial because . . . Wilfong did not tell him anything that he deemed helpful.
Hamilton testified that Wilfong told him defendant had a motor vehicle accident and she believed he "was not acting like himself during the time of the robbery." Nonetheless, Judge Reed noted that Hamilton viewed "the video of the incident," and testified that defendant "had a specific recollection of events that was inconsistent with a viable mental defect defense." As the judge further observed, "Hamilton specifically testified that he believed . . . Wilfong's testimony would not be helpful at trial, and that not calling . . . Wilfong as a witness was a choice, not an error or oversight."
Most importantly, Hamilton testified that "there was nothing in . . . Wilfong's phone call to indicate that she had witnessed anything." Judge Reed noted that in response to his direct question, "Hamilton said . . . he did not believe that [Wilfong] saw anything," and "if . . . Wilfong offered specifics that negated the robbery element or contradicted the officers' versions, he would have recalled such information." Hamilton also testified that nothing in Wilfong's call indicated that defendant's son "saw anything." Lastly, Judge Reed noted that Hamilton testified his decision not to call Wilfong as a witness was "a deliberate choice on [his] part[,]" something he conveyed directly to defendant.
Judge Reed found Hamilton's testimony "credible." Concluding he "must decide who[m] to believe," the judge decided "Hamilton did speak to [Wilfong], and that his choice not to have . . . Wilfong testify, was a consequence of his informed, deliberate trial strategy."
Judge Reed further concluded that "Wilfong's testimony was simply not worth[y] of belief." Her "testimony, even if admissible at trial, would have had no capacity to alter the result, nor does its omission even suggest . . . any deficiency on the part of trial counsel." The judge determined that Hamilton's decision to call neither Wilfong nor defendant's son was "entitled to deference, and not subject to second guessing in retrospect." He entered the order denying defendant's PCR petition.
Defendant contends that Hamilton's "decision not to call [Wilfong or] Brown was made without the benefit of any preparation or investigation, and thus not entitled to any deference." The argument lacks sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Reed in his written opinion. We add only the following brief comments.
It is axiomatic that trial counsel "is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchalleng[e]able.'" State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
But strategy decisions made after less than complete investigation are subject to closer scrutiny. Indeed, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. A failure to do so will render the lawyer's performance deficient. [Id. at 617-18 (citation and quotation marks omitted).]
Judge Reed's factual findings, in particular his assessment of Wilfong's and Hamilton's credibility, must be accepted on appeal because they are supported by substantial, credible evidence. State v. Locurto, 157 N.J. 463, 474 (1999). He concluded that Hamilton's version of the phone conversation with Wilfong was accurate, and that Wilfong never indicated that she or defendant's son "saw anything." Judge Reed further concluded that Wilfong's testimony was not worthy of belief. Based upon those findings, Judge Reed's conclusion, that Hamilton's decision was based upon sound trial strategy informed by adequate investigation, is unassailable. So, too, is the conclusion that Hamilton's performance was not deficient.
Additionally, Judge Reed noted that given Wilfong's prior criminal record and overall lack of credibility, even if she were called, her testimony would not have altered the trial's result. That conclusion is amply supported by the factual findings Judge Reed made, including the overall strength of the State's case.
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