May 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRELL SANDERS A/K/A JAROD SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1951.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012 -
Before Judges Grall and Skillman.
Defendant Terrell Sanders appeals from the denial of his petition for post-conviction relief. We affirm.
A jury found defendant guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and second-degree possession of heroin with intent to distribute in a public park zone, N.J.S.A. 2C:35-7.1a. Defendant was subject to a mandatory extended term of imprisonment because of a prior conviction, pursuant to N.J.S.A. 2C:43-6f, and sentenced to a ten-year term with a five-year period of parole ineligibility. On direct appeal we affirmed defendant's convictions and sentence and remanded for correction of technical errors in the judgment, State v. Sanders, No. A-3377-07 (App. Div. July 22, 2009), and the Supreme Court denied his petition for certification. 200 N.J. 504 (2009).
Defendant filed a timely petition for post-conviction relief asserting that his trial counsel was ineffective for failure to obtain a fingerprint analysis, secure the testimony of a favorable witness and move for a judgment of acquittal. On this appeal, defendant challenges the court's denial of his claims based on counsel's failure to obtain the fingerprint analysis and secure the testimony of an "important" witness, Shareef Allen.
To prevail on either of these claims of ineffective assistance, defendant must show that reasonably competent counsel would have done what he faults his attorney for failing to do and that he was prejudiced by his attorney's omissions.
State v. Jack, 144 N.J. 240, 249 (1996); see Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). The range of professional competence is wide, and there is a "'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007) (omitting citations). Representation is not reasonably competent if counsel commits "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). There is prejudice only when there is a reasonable probability that the outcome would have been different but for counsel's serious error. 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).
A prima facie case of ineffective assistance is established where the evidence, viewed in the light most favorable to defendant, would permit findings of deficient performance and prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992). Claims based on failures related to the gathering and presentation of a defense require competent assertions of facts that could have been uncovered, "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Unsupported assertions are insufficient. Id. at 171.
We turn to consider the facts disclosed by the trial record and the evidential materials defendant submitted in support of his petition for post-conviction relief in light of the foregoing standards. We address his claim based on fingerprint analysis in Section A and his claim based on the missing witness in Section B.
On the evening of September 3, 2006, Sergeant Thomas McVicar of the Jersey City Police Department went to Bayside Park to investigate a report that a group gathered there might be involved in illegal activity. McVicar noticed a group of between fifteen and twenty persons. He was one of about twenty officers who came to investigate, and he watched the members of the group move away, some toward a stairway leading to a terrace. McVicar and the others approached the gang and gathered its members to speak to them. McVicar saw defendant remove something from his pocket and stick it on a post in a chain link fence.
While another officer detained defendant at McVicar's request, he went to the fence post and retrieved a magnetic keyholder with four bags of heroin inside. Consequently, defendant was placed under arrest. During a search of defendant incident to his arrest, $418 in cash was retrieved.
During his testimony at defendant's trial, McVicar stated that another member of the group, Robert Ross, was arrested because he was seen throwing drugs on the ground. He did not mention any other arrests, and the State did not present any fingerprint evidence.
Defense counsel questioned McVicar about the absence of fingerprint evidence. McVicar gave this response:
I observed [defendant] remove that magnetic key lock from his pocket and place it onto the fence. There was no question as to who had taken it or placed it on the fence, therefore, there was no reason for me to send it out for fingerprints to try to determine who had done it. I had observed [defendant] do it. There was no reason to send it out for fingerprints.
In her closing argument to the jury, defense counsel focused on the fact that the only evidence linking defendant to the magnetic keyholder and the heroin inside was McVicar's observation. The attorney reminded the jurors of McVicar's explanation for not checking the keyholder for fingerprints, and she suggested that his confidence in the accuracy of his observation was misplaced. Specifically, she pointed to the number of people present - group members and officers - and the circumstances - multiple officers speaking to multiple persons in a park and keeping an eye on the others. With that foundation, defense counsel submitted that there was not enough proof to establish that defendant was the person McVicar saw attach the keyholder to the fence.
The jurors had a question about fingerprints during deliberations. They asked the court if a police officer is required to gather fingerprint evidence if he is an eyewitness and asked for an explanation of "the law or procedure" on "fingerprinting evidence." The judge explained that while fingerprinting is an investigative tool available to officers, there is no law that requires them to use it.
On his petition for post-conviction relief, defendant did not present any evidence as to whether there were any fingerprints on the keyholder. He simply asserted that testing may have exonerated him and contended that he was denied effective representation because of his counsel's failure to retain an expert.
The judge who considered defendant's petition also presided over defendant's trial. He determined that defendant's counsel had not "made any error" by failing to secure a fingerprint expert, and he recognized that defendant's suggestion that a print left by someone else would have been found was supported by nothing other than speculation. We find no reason to disturb those determinations.
In this case, the attorney's sound trial strategy is apparent. Through her cross-examination of McVicar, defendant's lawyer established that the officer had not even considered testing for fingerprints because of his confidence in what he observed, and during her summation, she skillfully linked McVicar's failure to have the keyholder checked for prints with circumstances calling into question his ability to make an accurate observation. The defendant's bare assertion that fingerprint analysis may have exculpated him is insufficient to overcome the presumption of competent representation and sound strategy, both of which were evident in this case. The customary deference courts give counsel's strategic decisions is warranted here. State v. Arthur, 184 N.J. 307, 320--21 (2005).
There is little information in the trial record about defendant's missing witness, Shareef Allen. As noted in the preceding discussion of the trial record, the evidence indicated that only one other person, Robert Ross, was arrested that night. Allen's name was not mentioned at trial.
After summations and just prior to the judge's final instruction to the jurors, defense counsel asked the court to permit her to call another witness for the defense, whom she did not identify by name. Defense counsel advised that a witness on the defense's list, previously unavailable, had just become available. Defense counsel explained that she had made an "attempt to subpoena" the witness and that defendant had since made contact with him. Defendant also addressed the judge, and he represented that the witness had come to the courthouse on a prior occasion and was told that defendant was not there. Based on the timing, the judge denied the request, and on appeal, we determined that the judge did not err. Sanders, supra, slip op. at 16-18.
Although Allen's name was not mentioned on the record at trial, defendant named Allen in his pro se brief in support of post-conviction relief. Neither defendant nor the attorney representing him on the petition presented any competent information about Allen's whereabouts at that time or at the time of trial. They submitted a letter purportedly written by Allen months before trial.
The letter bears a signature, Shareef Allen. Allen did not sign the letter under oath or include a certification in lieu of oath, as required by Rule 1:4-4. Nor did defendant submit an affidavit or certification explaining how he came to have the letter or asserting that his trial attorney had a copy. The letter has the stamp of a notary public, Patricia A. Jackson, but the first letter in the signature below that stamp is an "M" and the surname includes a "T."
The letter states:
To Whom It May Concern:
On September 3, 2006, Terrell Sanders a.k.a. Jarod Smith #183987 did not have any type of drugs in its possessing [sic]. When gang unit ran down on us they locked Terrell Sanders up for using a false name. When we got to the precinct after about two or three hours. They put some of the drugs that I had in my possession on Terrell Sanders for some reason 8 Erie remembered him "Terrell" from prior arrests but couldn't find out his real name. So the police put four bag[s] of heroin that I had in my possession on Terrell Sanders. Nobody [is] forcing me to [say] this statement, I just don't think [it] is right for somebody to go down for something that was in my possession.
This letter does not indicate how Allen knew anything about defendant's arrest, the reason for it or whether or not defendant had drugs that night, as required by Rule 1:6-6. And the record does not include any information suggesting that Allen had personal knowledge of the facts he asserted in his letter. Even if the evidential problems posed by Allen's apparent lack of personal knowledge of these facts and his failure to swear or certify to their veracity are overlooked, there is nothing in this record to support a finding that defense counsel knew Allen could provide competent exculpatory evidence or how to contact him. Moreover, assuming that the witness who appeared too late to testify was Allen, the trial transcript indicates that the attorney could not reach him but defendant could.
Because the record does not support a finding that defense counsel knew Allen could provide competent, favorable testimony and could have but neglected to contact him, defendant failed to establish a prima facie case of deficient performance or resulting prejudice. Consequently, the judge properly rejected this claim.
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