April 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY DUDLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-04-0650.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 26, 2012
Before Judges Parrillo and Grall.
Defendant Anthony Dudley appeals from the denial of his
application for post-conviction relief (PCR). On appeal
I. DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
II. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE A CO-DEFENDANT'S TESTIFYING FOR THE STATE IN RESTRAINTS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
III. THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS. (Partially Raised Below).
We affirm substantially for the reasons stated in the thorough opinion Judge Kracov delivered on June 30, 2010. The judge presided over defendant's trial and the proceedings on his petition for PCR.
Following a trial of defendant and one of his two co-defendants that commenced on April 29, 2003, the jury found defendant guilty of first-degree armed robbery, N.J.S.A. 2C:15- 1; second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). His co-defendant was acquitted of all charges. The third co-defendant, Manuel Colon, testified for the State.
On August 6, 2003, the judge merged defendant's convictions for conspiracy to commit armed robbery and possession of a weapon with unlawful purpose with his conviction for first- degree robbery and imposed an aggregate fifty-year term of imprisonment with twenty-three years of parole ineligibility, which is the duration of the longest of the concurrent sentences imposed on the remaining counts - an extended term for first- degree robbery. This sentence is consecutive to a fifty-year term previously imposed for unrelated charges. The judgment of conviction was entered on August 7, 2003. Defendant's direct appeal was submitted to a panel of this court on January 10, 2007. In the unpublished opinion, we summarized the facts of the case:
Three men, later identified as Manuel Colon, defendant Anthony Dudley, and Derrick Williams, allegedly robbed a McDonald's Restaurant in Bayonne. Apparently, defendant had recruited Colon to commit the robbery to obtain sufficient money to bail his brother Johnny Dudley, nicknamed 'Supreme,' out of jail. Colon testified that to commit the robbery he carried a chrome BB gun, Dudley had a .25 automatic, and Williams pretended to carry a weapon. While acquitting Williams, a Hudson County jury relied on Colon's incriminating testimony to convict defendant . . . .
[State v. Dudley, No. A-1020-03 (App. Div. Feb. 5, 2007) (slip op. at 1-2).]
On that appeal defendant objected to: the State's witnesses' use of his brother's nickname; the judge's failure to instruct the jury on second-degree robbery and adequately explain accomplice liability; and the manifest excessiveness of his sentence. Id. at 2-3. Rejecting those arguments, we affirmed the convictions and sentence. Id. at 3-8. The Supreme Court denied certification on October 22, 2008. State v. Dudley, 196 N.J. 598 (2008).
Defendant filed his PCR petition on February 9, 2009. Only one of the several issues raised in the initial petition and supplemental briefs filed in the course of the PCR proceedings is at issue on this appeal - whether defendant is entitled to a new trial because the State's main witness, co-defendant Colon, was handcuffed and wearing shackles during his trial testimony. There is no dispute that Colon was wearing plain clothes and restraints when he testified for the State at defendant's trial. Based on their review of the video recording of the trial, the prosecutor and defendant's PCR counsel stipulated that Colon's hands and feet were shackled when he walked from the witness stand in the presence of the jurors. On entering that stipulation, the defense and prosecution agreed that an evidentiary hearing scheduled to determine the circumstances under which Colon testified was not necessary.
It is important to note that defendant's trial was completed over a month before the Supreme Court imposed limitations on witnesses for the defense testifying in shackles in State v. Artwell, 177 N.J. 526 (2003), and several years before this court extended those limitations to witnesses for the State in State v. Russell, 384 N.J. Super. 586, 595-96 (App. Div. 2006). Russell was decided while defendant's direct appeal was pending before this court. Years later, after defendant's petition for certification was denied, the Supreme Court approved this court's holding on restraining State's witnesses in State v. Kuchera, 198 N.J. 482, 496 (2009).
The judge delivered his decision on the record on June 30, 2010. Although the judge noted that defendant had not shown reasons excusing his filing of the petition for PCR more than five years after his conviction, the judge did not dismiss his petition as barred by Rule 3:22-4(a). The judge addressed the merits.
In rendering his decision, Judge Kracov reminded the parties of his familiarity with the trial proceedings he had conducted and advised that he had also "reviewed the entire transcript of the trial and other court proceedings connected to the case." The pertinent portions of Judge Kracov's decision are as follows:
Dudley and two others robbed four people at a McDonald's restaurant. Dudley put a loaded gun to the store manager's head and stole approximately $2000 from the restaurant. One of the other robbers, Colon, testified against Dudley and told the jury what led to the robbery and what happened during and after the robbery. The jury convicted Dudley of all charges against him and acquitted a co-defendant Williams . . . who the cooperating co-defendant Colon had met just before the robbery.
Dudley was represented by an experienced trial lawyer who conducted a spirited defense for Mr. Dudley. The defense did not work because the co-conspirator who testified was a very believable witness who was a long time friend of Dudley's. His testimony corroborated the other facts proven at trial and corroborated what the jury saw on the videotape showing some of the robbers in the McDonald's.
. . . The record shows that Dudley's lawyer and the co-defendant's lawyer worked hard on behalf of their . . . clients. One succeeded in having his client, Mr. Williams, acquitted of all charges. The corroborating witness Colon did not know Williams very well, he met him just before the robbery.
On the other hand, Colon was close to Dudley and knew him at least a year before the robbery. The co-defendant's testimony was thorough and believable. He explained all the details of the robbery and Dudley's role in orchestrating and heading the operation. Although both counsel tried very hard to impeach him, and they did so effectively, Colon came across, despite numerous inconsistencies in his testimony, as a truthful witness. Colon was too stupid and simple to lie before the jury in my view. He - the defendant in this case was unfortunate enough to run into a witness who came across [as] very sincere and truthful even though he was fully cross-examined and good points were made to impeach him but the jury listened to him and decided he was truthful. Mr. Dudley received a fair trial in this case and services of competent counsel.
Colon had testified that Dudley organized the robbery to raise bail money to get his brother, Johnny, known as Supreme, out of jail. That was the motive for the robbery, something the State was entitled to prove by presenting corroborative evidence that Johnny Dudley in fact was in jail at the time of the robbery.
The last point that Dudley makes is that there was error because Colon at trial testified in restraints on his hands and feet, in handcuffs and shackles. Counsel's 36-page brief in this case does not even mention the shackling of a prosecution witness as grounds for post-conviction relief. It was only at the end of oral argument that the defendant himself claimed that the shackling of a prosecution witness violated his right to a fair jury trial. Counsel spoke to the defendant and said well, he was now making that point. It had not been briefed earlier.
For the sake of completeness and to cover every possible issue to be raised in this PCR petition, when I heard that counsel was not - was now raising at Dudley's insistence the shackling issue I gave both sides the right to brief the issue and I ordered a hearing if necessary to determine if he had been in shackles at the trial. On the return date both counsel agreed that a hearing wasn't necessary because they had viewed the video of the trial proceedings, this trial had been on video, and that the State's witness, Colon, they agreed testified before the jury with his hands and feet in restraints, cuffs and shackles. But they also agreed that he testified in civilian clothing, not in prison garb.
Now on this argument defense counsel relies on [State v. Artwell, 177 N.J. 526 (2003)] decided on July 2nd 2003 and relies on [State v. King, 390 N.J. Super. 344 (App. Div. 2007)] and [State v. Russell, 384 N.J. Super. 586 (App. Div. 2006)]. Counsel argues that these cases indicate that Dudley's rights were violated.
The [c]court finds that in this case the appearance of Colon in restraints before the jury was harmless error that did not deprive the defendant of a fair trial. I would like to emphasize that the trial in this case concluded on May 9th 2003. During the trial there was absolutely no objection to Colon testifying in restraints. Indeed, both sides brought out that Colon was in jail and that he faced a substantial sentence in two pending robbery cases. The Artwell . . . case was not decided until July 2nd 2003, two months after the Dudley trial concluded. Artwell refers to the shackling of the defense witnesses, not State witnesses.
Subsequent to Artwell, three years more passed until Russell was decided. Russell was the first case that disapproved of a prosecution witness appearing in shackles before a jury. Russell, unlike this case, the Dudley case, in Russell, unlike this case, the defense had objected to the prosecution's witness testifying in restraints. In this case there was absolutely no objection.
In 2009 the Supreme Court decided [State v. Kuchera, 198 N.J. 482 (2009)]. In Kuchera the Court considered whether Artwell should apply to prosecution's witnesses. It concluded that Artwell did apply to prosecution witnesses, however, since the defense had not objected at trial in Kuchera[,] the Court applied the plain error standard and concluded that there was no prejudice in the witness testifying in shackles. Kuchera, [198 N.J. at 497]. The Court pointed out that the defense, "embraced the notion that [the witness], as a convicted, incarcerated felon, was not credible." Kuchera, [198 N.J. at 490]. In Kuchera, [198 N.J. at 497] the Court defined the plain error standard of Rule 2:20-2 - "Any error or omission shall be disregard by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result."
The Court also cited to [State v.
Taffaro, 195 N.J. 442, 454 (2008)]:
"In order for plain error to qualify as reversible it must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. . . ."
In this case a review of the trial record shows that the defense counsel freely mentioned that the State's witness, Colon, was in jail before the trial and during the trial. From the opening statements on, it was apparent that the defense would attack Colon as a liar who was testifying to, "save his own hide" as Mr. Dudley's counsel put it in his opening statement. The defense strategy was to emphasize that Dudley would lie to get out of that - Colon, excuse me, would lie to get out of jail.
Through Colon's direct testimony, without any objection, the jury became aware that Colon had been arrested, been taken to Bayonne Police Station and was being housed in the Bergen County Jail during the trial. The jury was made aware of Colon's long history of criminal convictions and that he faced charges in the McDonald's robbery.
Throughout his direct and cross-examination Colon's being in custody in Hudson County and Bergen County was mentioned numerous time by all three counsel.
That Colon was in one jail or another was mentioned by my count going through the record at least 12 times during the testimony by counsel on both sides. Indeed a defense witness Robbins, . . . a[n] investigator, testified that he visited Colon in the Bergen County Jail to take a statement from Colon. . . . Robbins also testified [about] going back to the jail to see Colon.
In the defense summations the defense argued Colon faced life in prison on the McDonald's robbery and another robbery case. He was facing two life terms they said, his credibility was attacked as someone who would say anything to get out of jail. The fact that Colon was in jail was clear to everyone in the courtroom. The defense strategy embraced his being in jail because it showed why he would lie and say anything to get out of jail. There was no objection because counsel wanted Colon in shackles to show how desperate he was to get out of shackles and jail by lying about and implicating the defendants.
The [c]court finds that there was no error in allowing Colon to testify in restraints because his counsel used that as a point in the defense's favor. Colon's jail status and the fact that he faced life sentences was clear. His appearing in restraints was not clearly capable of producing an unjust result in this case. There was no error that would have led a jury to reach a result it would otherwise might not have reached. Counsel wanted to have the jury see Colon in restraints because it fit in with the defense; Colon was desperate to get out of jail. There was no objection to Colon in restraints because that reinforced the defense argument that he was desperate to get out of prison.
Counsel did not violate the first prong of Strickland by not objecting to Colon testifying in restraints. The [c]court should not second guess a sound tactical trial decision by experienced defense counsel. It should be noted that at the time of the trial, counsel had no reason to anticipate that two months after the trial concluded Artwell would be decided and that three years later Russell would apply Artwell to a prosecution witness. When this case was tried there was no legal precedent that counsel could have cited to the [c]court in objecting to Colon testifying in restraints. Competent counsel is not required to be clairvoyant nor is the [c]court when no objection is made and when the law at the time did not preclude a prosecution witness from testifying in restraints.
Counsel need only cite the law that exists when the case was tried and no one objected at the trial to Colon in restraints. His appeals of his conviction did not cite the restraints as a basis for reversal of the verdict. Even post-conviction counsel in this case did not deem the issue significant enough to be a point in the post-conviction brief that counsel filed. Only Mr. Dudley pro se argues that his right was violated by the shackling of Colon.
The [c]court finds that Colon in restraints was not objected to for tactical reasons. There was no error, much less plain error in having him testifying in restraints. . . .
The jury's verdict in this case was based on the jury deciding that Colon was credible and his testimony was corroborated by some of the testimony of the victims and the videotape of a portion of the robbers during the robbery.
The defense did a very good job of pointing out inconsistencies in Colon's testimony and prior inconsistent statements by him and the significant criminal record he had and the life sentence he faced. The jury heard it all and decided they believed Colon because he was a simple, unsophisticated person who was telling the truth and his testimony made sense. That is what juries do, they ultimately decide if witnesses are credible. The fact that Colon testified in restraints had nothing to do with the jury ultimately deciding that Colon was a credible witness.
We see no reason to elaborate on what the judge has stated so well based on his feel of the case and careful review of a record that amply supports his determinations. We add the following comments regarding defendant's claim that he was denied effective assistance of appellate counsel. As noted above, Artwell and Russell were decided before this court addressed defendant's direct appeal.
To prevail on this claim, defendant must show reasonably competent appellate counsel would have raised the issue and that defendant was prejudiced by his appellate attorney's failure to do so. State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). The showing of prejudice must be made "by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid.
We conclude that defendant cannot make the showing of prejudice essential to his claim of ineffective assistance of appellate counsel. Even when appellate counsel raises a claim of constitutional error, an appellate court will not reverse unless the error raises a reasonable doubt about the outcome of the trial. State v. W.B., 205 N.J. 588, 614 n.12 (2011). Substantially for the reasons stated by Judge Kracov, we have no doubt that they would have reached the same verdict if Colon had not been handcuffed and shackled. The jurors' return of different verdicts for the co-defendants demonstrates that they focused on the content of Colon's testimony and the other evidence and did not return a verdict influenced by their reaction to Colon's restraints. Because we have no reasonable doubt about the impact of the restraints, defendant has not demonstrated a reasonable probability that he would have prevailed on appeal if appellate counsel had raised this issue in reliance on Russell.
Because our decision on the ineffective assistance of defendant's attorney on direct appeal rests on the absence of prejudice, we have no reason to consider whether the limitations on restraining a State's witnesses would be applied on direct appeal to a case fully tried prior to Russell and Kuchera. See State v. Dock, 205 N.J. 237, 258-59 (2011) (holding that Artwell and Kuchera are "to have prospective effect" but leaving the question of "pipeline retroactivity" open).
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