April 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAKORE A. COLLINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 28, 2012
Before Judges Cuff and St. John.
Defendant Shakore A. Collins appeals from the denial of his petition for post-conviction relief (PCR). A jury found defendant guilty of second degree reckless manslaughter, N.J.S.A. 2C:11-4b(1); second degree robbery, N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon (a shotgun) without a permit, N.J.S.A. 2C:58-3, N.J.S.A. 2C:39-5c(1). After dismissing the possession of a weapon for an unlawful purpose conviction and merging the unlawful possession of a weapon without a permit with the reckless manslaughter conviction, the trial judge sentenced defendant to a nine-year term of imprisonment with an eighty-five percent NERA*fn1 parole ineligibility term for reckless manslaughter, and a consecutive eight-year term of imprisonment with an eighty-five percent NERA parole ineligibility term for the robbery conviction.
On appeal, we affirmed defendant's convictions but reversed and remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Collins, No. A-4677-03 (App. Div. Nov. 2, 2006), certif. denied, 191 N.J. 317 (2007). On remand, the trial judge resentenced defendant to the same terms. We affirmed that sentence on appeal. State v. Collins, No. A-2106-07 (App. Div. Apr. 30, 2009).
The charges arise from the shooting of a woman in her home. The facts are recited in our earlier opinion in which we affirmed defendant's conviction. Collins, supra, A-4677-03 (slip op. at 4-10). Briefly, co-defendants Shane Burns and Turi Reddick hatched a plan to gain access to the victim's house to steal money and/or drugs from the victim's son, who lived in the house. Id. at 5-6. Burns and Reddick picked up defendant and by the time they arrived at the victim's house defendant knew that his role was to knock on the front door of the house. Id. at 7-8. When someone opened the door, Riddick would rush the door. Id. at 8. Defendant also knew that Riddick had picked up a gun before they arrived at the house and armed himself with the gun before they approached the house. Ibid.
Defendant's petition for PCR focuses on two issues: the jury instruction at trial on accomplice liability, and the failure of trial counsel to object to the testimony that the victim's young grandchildren were in the nearby living room when their grandmother was shot. Defendant had challenged the accomplice instruction in his pro se brief on direct appeal, id. at 3, and we held this issue was without merit, id. at 20. In his petition, defendant highlighted a sheet of offense elements the trial judge provided to the jury. This summary included the elements of accomplice liability. Defendant argues this summary did not reflect his version of events in that it "had the capacity to influence or coerce a guilty finding on the reckless manslaughter charge, because it omitted [defendant's] defense to the charge, i.e., that he did not aid in the commission of the homicide, that he did not have a purpose to promote the crimes, and that he did not have the same state of mind as the co-defendants." Defense counsel consented to its submission. Appellate counsel did not raise this issue on direct appeal.
Judge Moynihan dismissed the petition without an evidentiary hearing. In his April 1, 2010 oral opinion, the judge reviewed the instructions provided to the jury by the trial judge noting that the trial judge forcefully instructed the jury that his oral instructions controlled the deliberations. He also held that the judge properly instructed the jury on accomplice liability in his oral charge and expressly summarized defendant's defense to the charges. Judge Moynihan concluded his review of the accomplice liability charge delivered at trial by finding that "[t]here is no doubt that the jury was apprised of defendant's theory of the case as it related to accomplice liability and the homicide charges."
The judge concluded that the failure to object to the summary of offenses and accomplice liability elements could not be considered ineffective assistance of trial or appellate counsel because "the jury charge was not objectionable" and "was accurate, fair and balanced. It did not lead to an inconsistent verdict. It did not foreclose an acquittal on the reckless homicide charge. It clearly explained the law relevant to all the charges the jury considered, allowing them to reach a fair and impartial verdict."
Addressing the failure to object to testimony of the presence of the grandchildren, Judge Moynihan held that the trial judge placed limits on the admission of this evidence to reduce the prejudice to defendant. He held that evidence was relevant and did not unduly prejudice defendant.
On appeal, defendant raises the following arguments:
POINT I THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE SUPPLEMENTAL WRITTEN INSTRUCTIONS RESULTED IN A DEFICIENT PERFORMANCE AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE APPELLATE COUNSEL'S FAILURE TO RAISE AS ISSUES ON DIRECT APPEAL THE TRIAL COURT'S SUPPLEMENTAL WRITTEN INSTRUCTIONS AND THE TRIAL COURT'S RULING PERMITTING TESTIMONY THAT THE VICTIM'S GRANDCHILDREN WERE PRESENT AT THE SCENE, RESULTED IN A DEFICIENT APPEAL AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF  APPELLATE COUNSEL.
POINT III THE COURT'S RULING DENYING POST- CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES
RAISED IN POST-CONVICTION RELIEF. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to R. 3:21-10(b)(5).
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
In a petition for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64; Cummings, supra, 321 N.J. Super. at 170. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Preciose, supra, 129 N.J. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, the defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, the defendant must demonstrate "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 State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).
There is a strong presumption that counsel "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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
Measured by this standard, defendant has not established that he is entitled to PCR. We affirm substantially for the reasons expressed in Judge Moynihan's thorough oral opinion. In the course of this opinion, he thoroughly reviewed the jury instructions in the context of the evidence presented at trial. He carefully considered the ruling on admission of evidence of the presence of the grandchildren. The judge also examined the reasons expressed by the trial judge to present a summary of the elements of the various charges, and emphasized the limitations the trial judge placed on the use of the summary and his repeated admonition that the summary elements sheet did not override his extensive oral instructions. We add only the following brief comments.
Rule 1:8-8(a) permits a judge to submit a copy of all or part of the instructions to the jury for their use during deliberations. The rule provides the decision to do so is vested in the discretion of the trial judge. The trial judge in this case submitted the summary of elements of each offense in accordance with this rule.
The summary of elements submitted to the jury, referred to as C-1, on accomplice liability provided as follows:
1. that Reddick/Burns committed the crimes;
2. that this defendant did aid or agree or attempt to aid them in planning or committing the crimes;
3. that this defendant's purpose was to promote or facilitate the commission of the crimes;
4. that this defendant possessed the same criminal state of mind that is required for the specific crime allegedly committed by Reddick/Burns.
This summary does not contain the detailed instruction required by State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993), that permits a defendant to be convicted of a lesser included offense based on his state of mind. However, the judge provided the complete Bielkiewicz instruction in his comprehensive oral instructions and repeatedly informed the jury that his oral instructions governed their deliberations.
In State v. O'Brien, 200 N.J. 520, 541 (2009), the Court asked the Civil and Criminal Practice Committees to consider developing standards to guide judges in the exercise of their discretion to provide written instructions to the jury. The Criminal Practice Committee has recommended an amendment to Rule 1:8-8(a) to require the trial judge to provide the jury with two or more copies of the entire final charge in all criminal cases, unless it would cause undue delay. Report of the Supreme Court Criminal Practice Committee on Distribution of Written Instructions to the Jury, State v. O'Brien, 200 N.J. 520 (2009) at 23. In the course of its report, the Committee noted submission of parts of a charge may mislead the jury or "create issues on appeal or on motions for a new trial regarding the absence of parts of the charge in writing for the jury's use during deliberations." Id. at 27. This prediction has proved accurate in the context of this petition; however, our review of the trial record does not permit a court to conclude that the jury was misled or that defendant suffered any prejudice.
In his direct appeal, defendant argued that the verdict of reckless manslaughter was against the weight of the evidence. We summarized in our opinion the evidence against defendant on this charge, ultimately concluding that defendant was not entitled to a new trial. We said:
Defendant's formal statement to the police acknowledged his awareness of the plan to commit a robbery and his participation in the events leading to [the victim's] death. The jury heard evidence that though defendant was aware that Reddick had a gun, he still agreed to participate. He also knew that "the person . . . with the money" lived at the house. The testimony of Hay, Favor, and Phipps corroborated much of defendant's statement to the police.
[Collins, supra, A-4677-03, slip op. at 20.]
In addition, in discussing defendant's argument on direct appeal that his acquittal of felony murder was inconsistent with his conviction of reckless manslaughter, we held that "the record contains adequate evidence to support the guilty verdict of reckless manslaughter." Id. at 16.
Just as the evidence adduced at trial did not support a new trial, the same evidence demonstrates that the summary sheet, even if it could have been more comprehensive, could not have caused any prejudice to defendant. We, therefore, affirm the April 6, 2010 order denying defendant's PCR petition.