July 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM WILCOX, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-12-1580.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2012
Before Judges Parrillo, Alvarez and Skillman.
Defendant Raheem Wilcox appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). The trial court merged the weapons offenses into the murder count, and sentenced defendant, on July 5, 2002, to forty years imprisonment subject to thirty years of parole ineligibility. On appeal, we affirmed the judgment of conviction. State v. Wilcox, No. A-6787-01 (App. Div. Oct. 10, 2003). The Supreme Court denied defendant's petition for certification. State v. Wilcox, 185 N.J. 389 (2005).
Defendant's convictions resulted from the stabbing death on April 13, 2000, at around 2:30 a.m., of his former girlfriend, Ernestine Williams. He and the victim worked at Federal Express. On the date of the murder, defendant brought three knives, including the murder weapon, to work. He ended his shift early and waited for Williams. They took the bus to the Federal Express parking lot and got into Williams' car. Defendant then removed a knife from his pocket, and after struggling with Williams, stabbed her in the back as she ran. While the confrontation was ongoing, two other Federal Express employees saw Williams being chased by a man, while crying out that they should "call the police." Both saw the victim lying on the ground bleeding after she was knifed.
At trial, a New Jersey Turnpike Authority employee testified that at approximately 3:15 a.m., defendant approached him and asked him to call an ambulance because he had just stabbed his girlfriend. When a state trooper arrived, defendant volunteered the same information.
Prior to trial, the court conducted a Miranda*fn1 hearing to assess the admissibility of defendant's formal statement, in which he reiterated that he had arranged to meet the victim while armed. In a subsequent statement, defendant admitted telling the victim's cousin that he intended to "hurt" the victim.
During oral argument on his PCR application, defendant presented seventeen points of ineffective assistance of counsel. The judge decided that only the claim of juror misconduct merited a plenary hearing. On the other points, the judge determined defendant had not established a prima facie case, and relief was denied outright.
After the plenary hearing, the judge assessed the credibility of witnesses and found defendant's testimony wanting. He testified on direct that he saw a particular juror making flirtatious eye contact on three separate occasions with a woman seated behind the prosecutor. He then altered this narrative to some extent, indicating it may have only been twice. Defendant also said that his attorney told him that he saw that same juror make an inappropriate gesture to Williams' family.
Defendant's trial attorney testified that after the jury returned to the courtroom to render its verdict, but before the verdict was actually delivered, defendant told him that he didn't like the way the juror came in and he thought that the juror had made some sort of eye contact with the victim's side, whoever they were, and/or had made some sort of like gestures that, I'm trying to think how to phrase this, these were his words but that he thought that the juror was telling the victim and their family that everything was okay, meaning everything was not okay for Mr. Wilcox, everything was okay for them, in fact, and I'm reading into this, but this is my recollection, that he thought that the juror was telling them that the jury had returned a verdict that would make them happy.
Those were not his words but that was the gist of his message.
According to trial counsel, defendant did not report any other observations regarding the behavior of the juror. The judge found the trial attorney credible.
Tammy Smart, the former wife of defendant's cousin, also testified. She said that while present in the courtroom after deliberations were completed and immediately before the jury announced its verdict, she saw a juror nodding his head and patting his chest while making eye contact with the victim's family.
Because the judge did not find the testimony established "clear, strong, substantial and incontrovertible evidence that a specific, non-speculative impropriety ha[d] occurred[,]" he did not order the voir dire of the juror. He opined that it was "mere speculation" that he was attempting to communicate anything to anyone by virtue of patting his chest while looking at one side of the courtroom. He therefore denied PCR relief on this final ground.
On this appeal, defendant argues:
THE DEFENDANT'S PCR ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE, ALTHOUGH RELYING ON THE ARGUMENT THAT THE DEFENDANT WAS MENTALLY UNABLE TO FORM THE INTENT TO COMMIT MURDER, HE FAILED TO INTRODUCE INTO EVIDENCE ANY EXPERT REPORT WITH RESPECT TO THE DEFENDANT'S MENTAL HEALTH.
POINT TWO AN EVIDENTIARY HEARING IS NECESSARY TO DETERMINE WHY THE DEFENDANT'S TRIAL ATTORNEY DID NOT USE THE MENTAL HEALTH EXPERT REPORTS DURING ANY PART OF THE DEFENDANT'S TRIAL, PARTICULARLY WHERE HE ATTEMPTED TO ARGUE TO THE TRIAL COURT THAT THE DEFENDANT'S MENTAL CONDITION AT THE TIME OF THE CRIME WAS DIMINISHED.
POINT THREE THE DEFENDANT'S TRIAL ATTORNEY'S STRATEGY TO NOT RELY ON THE MENTAL HEA[L]TH EXPERT REPORTS AT SENTENCING WAS CONSTITUTIONALLY INEFFECTIVE ESPECIALLY IN LIGHT OF THE TRIAL COURT'S IMPOSITION OF PENALTY AT THE LOWER END.
POINT FOUR THE PCR COURT ERRED BY FAILING TO ALLOW THE DEFENDANT TO CALL BACK A JUROR WHO APPEARS TO HAVE MADE AN UNFAVORABLE COMMUNICATION DURING TRIAL WITH A FAMILY MEMBER OF THE VICTIM.
POINT FIVE AN EVIDENTIARY HEARING IS NECESSARY TO DETERMINE WHETHER THE DEFENDANT'S TRIAL ATTORNEY FAILED TO REMOVE A BIASED VENIREMAN REGARDLESS OF INSTRUCTIONS FROM THE DEFENDANT.
Defendant raises the following points in his pro se brief:
PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY CROSS-EXAMINE DEFENDANT[']S TRIAL ATTORNEY TO ASCERTAIN THE IDENTITY OF DEFENDANT'S FAMILY MEMBER WHO ADVISED HIM OF A JUROR'S UNFAVORABLE COMMUNICATION DURING TRIAL WITH A FAMILY MEMBER OF THE VICTIM AND TO QUESTION HIM ABOUT HIS FAILURE TO ADDRESS THE IMPROPRIETY AND INATTENTION OF OTHER POTENTIAL WITNESSES.
POINT II THE DEFENDANT'S APPELLATE ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE DID NOT RAISE ON APPEAL THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED DETECTIVE FOLEY TO TESTIFY TO INADMISSIBLE HEARSAY MATERIAL THAT DENIED DEFENDANT'S RIGHT TO CONFRONTATION PURSUANT TO CRAWFORD v. WASHINGTON[, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)] IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHTS. (Partially Raised Below)
POINT III DEFENDANT[']S PCR PETITION SHOULD BE GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION In order for defendant to obtain PCR relief on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The alleged deficiencies here clearly failed to meet either the performance or prejudice prong of the Strickland test.
In support of his argument that his PCR attorney was ineffective, defendant's appendix included mental health evaluations completed prior to his trial, which were not provided to the Law Division judge on PCR. Although the reports themselves were not admitted as evidence, they were discussed in the course of oral argument.
The claim is now being made that had those reports been admitted into evidence, the judge would have had a basis for ordering an evidentiary hearing regarding ineffective assistance of counsel, as they allegedly established defendant's diminished capacity at the time of the murder. The argument lacks merit, however, because although not in evidence, the contents were discussed to a sufficient extent that the judge had the information necessary to reach a decision on the merits of the claim. And his basis for denying PCR on this issue in any event was unrelated to the contents of the report. The judge found that trial counsel's decision to pursue a passion/provocation defense, as opposed to diminished capacity, was one of trial strategy. Challenges to trial strategy are generally not a basis for ineffective assistance of counsel. See State v. Chew, 179 N.J. 186, 212-13 (2004) (declining to "second-guess counsels' trial strategy" in selecting "between two weak defenses[.]").
Furthermore, the State asserted at oral argument that it had a report as to defendant's mental status, prepared before trial, in which the expert concluded that defendant had the mental capacity to engage in purposeful and knowing conduct. By not introducing his own reports at trial, sentencing, or during the course of his PCR presentation, defendant was able to argue diminished capacity without running the risk of the State offering evidence to the contrary.
In fact, even without expert testimony, trial counsel argued in summation that at the time of the crime defendant was laboring under diminished capacity:
I told you in my opening that this case would be about what his state of mind was on the night in question. . . . [H]e snapped. He let his emotions get the better of him. . . .
This is not murder, ladies and gentlemen. This is at worse aggravated manslaughter, and I want you to consider as jurors you are the conscience of the community. You determine the facts. You determine . . . [defendant's] state of mind[.]
Therefore, without opening the door to the admission of the State's proofs, defendant nonetheless argued diminished capacity to the jury, without objection, once the judge refused to give the jury a passion/provocation instruction.
Hence the failure to present the reports, at trial or during PCR, did not establish ineffective assistance of counsel. At trial, the decision was a matter of strategy. On PCR, the judge denied relief on the point because it was a matter of strategy. PCR counsel was therefore not ineffective for failing to introduce the reports where they could not have been a basis for relief.
Defendant also contends that trial counsel should have provided the evaluations at least to the sentencing judge, and that the failure to do so was ineffective assistance of counsel. Again, this claim does not take into account the weight the court might have given to the State's evidence of defendant's mental status when the crime was committed. The decision to forego presentation of the reports even at sentencing was also one of strategy. Even in the absence of reports, trial counsel was so effective in his sentencing presentation that despite the presence of aggravating factor one, "[t]he nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), defendant was sentenced in the lower end of the range.
Defendant also asserts that the PCR judge erred in failing to call into court and voir dire the juror alleged to have communicated with someone in the audience immediately prior to the verdict. In light of the judge's determination that trial counsel's testimony was credible, and was corroborated by Smart, and his conclusion that defendant was not credible, the judge certainly had no record upon which to require voir dire of the juror. Defendant made no showing at all, much less a "strong showing" of such a need. See State v. Koedatich, 112 N.J. 225, 288 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989) (quoting State v. Athorn, 46 N.J. 247, 250, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966)).
Defendant's last point in his counseled brief is that it was ineffective assistance of counsel for defendant's trial attorney to have failed to remove a biased juror. No facts are even asserted supporting this claim. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (stating that the "rules clearly impose upon the attorneys for the parties to the appeal the absolute duty to make unnecessary an independent examination of the record by the court[.]"). It does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
We briefly touch upon defendant's pro se points, only to the extent we note that none raise issues worthy of discussion in a written opinion. R. 2:11-3(e)(2).