July 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD E. BOYD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-02-0191.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Payne and Reisner.
Defendant, Donald Boyd, was convicted by a jury of second-degree eluding, N.J.S.A. 2C:29-2b, and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a(1). He was sentenced in 2005 to ten years of imprisonment with five years of parole ineligibility on the eluding conviction, and to a concurrent six-month term for resisting arrest. On appeal, we affirmed defendant's conviction, but remanded the matter for reconsideration of defendant's sentence pursuant to State v. Natale, 184 N.J. 458, 494 (2005). State v. Boyd, No. A-5562-04 (App. Div. Oct. 10, 2006) (slip op. at 11). On remand, the same sentence was imposed. Defendant's petition for certification by the Supreme Court was denied. State v. Boyd, 189 N.J. 649 (2007).
Following exhaustion of his right of appeal, defendant filed a petition for post-conviction relief (PCR), which was heard by the court on November 5, 2009 and denied without an evidentiary hearing. This appeal followed.
On appeal, defendant raises the following issues for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Obtain Photographs Which Would Have Exculpated Defendant Of Second-Degree Eluding.
B. Trial Counsel Failed To Prepare Defendant To Testify.
C. The Cumulative Errors Mandate That Defendant Be Afforded An Evidentiary Hearing.
THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT FAILED TO ADDRESS ONE OF DEFENDANT'S CLAIMS IN HIS MEMORANDUM OF LAW WHICH WAS INCORPORATED IN PCR COUNSEL'S BRIEF. (Not Raised Below.)
THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT FAILED TO ADDRESS DEFENDANT'S CLAIM THAT HIS BROTHER HAD SUBMITTED AN AFFIDAVIT INCULPATING HIMSELF AND EXCULPATING DEFENDANT. (Not Raised Below.)
The facts of this matter are recited at length in our opinion on defendant's direct appeal. See State v. Boyd, supra, slip op. at 2-4. Therefore, for purposes of this appeal, we note only that, on September 10, 2003, Officer Louis Velez observed defendant run a red light. The Officer stopped defendant and, when he requested his credentials, defendant sped away at a high rate of speed. A lengthy chase then ensued along Tonelle Avenue and Routes 1 and 9, culminating at Route 3, where defendant attempted to enter that roadway by passing vehicles waiting at a red light, but he struck a vehicle that had lawfully entered the intersection. At that point, defendant left his car and commenced to run. After some time, he was apprehended by other officers, utilizing the description of defendant provided by Officer Velez.
Against the advice of his attorney, defendant testified on his own behalf at trial, claiming that he was at his mother's home at the time of the incident, and that the eluder was his brother, Frank Boyd. Defendant explained his presence at the scene by testifying that he had been called by his brother who was seeking assistance after having been involved in a car accident, that he took a bus to the scene and, once in the area, that he "got bum-rushed from every different direction" by the police. When shown a temporary motor vehicle tag bearing his name that listed the purchaser of the vehicle as "Donald M.
Boyd," defendant denied that he ever signed his name thus, and he testified that the signature on the document was not his. Defendant also denied that he had run from the police, testifying that he had shattered his heel and ankle in thirty-nine pieces, had undergone surgery the scars of which he showed to the jury, and that as a consequence he was unable to run.
The jury did not accept defendant's version of events and convicted him, as we previously indicated. When his appeals were unsuccessful, defendant sought PCR, which was denied. This appeal followed.
On appeal defendant claims the ineffectiveness of trial and appellate counsel. To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
To show prejudice, the defendant must demonstrate that there is 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Employing these standards, we are satisfied that defendant has failed to offer prima facie evidence in support of his claim.
Defendant first argues that counsel was ineffective in failing to obtain New Jersey Department of Transportation photographs of road construction on Routes 1 and 9 that would have impeached testimony by Officer Velez at trial that defendant drove onto the shoulder and curb while traveling along that route, thereby eliminating the basis for the second-degree charge of eluding and reducing the charge to one of the third degree.
We note that this issue was the subject of a motion in support of a new trial, at which time the trial court held that the photographs were not "of the sort that would probably change the jury's verdict[.]" A new trial was therefore denied. The issue was again addressed on direct appeal, at which time we found defendant's arguments not to require reversal. Boyd, supra, slip op. at 8. As a consequence, defendant's arguments in connection with his motion for PCR and this appeal are barred. R. 3:22-5.
Addressing the merits, nonetheless, we disagree with defendant's position that production of the photographs would have had any effect on the jury's verdict, noting that the photographs bear a date more than a month after the incident at issue, and there is no evidence to suggest that they accurately reflect the scene as it existed on September 10, 2003.
Moreover, eluding, by knowingly fleeing an officer in a motor vehicle, after having received a signal to stop, is a crime of the third degree, "except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person." N.J.S.A. 2C:29-2b. At trial, it was established that Officer Velez's pursuit of defendant's car ended when defendant hit another vehicle. As a result, independent evidence existed in support of the second-degree charge.
Defendant next claims that trial counsel was aware of defendant's intention to testify on his own behalf before trial commenced, but that he failed to prepare him to give such testimony. According to defendant, "the deleterious consequences of trial counsel's failure were manifested by defendant's incredulous testimony," which the prosecutor was able to exploit to the State's advantage in his closing argument. However, prior to giving his testimony, defendant swore that he would be giving a truthful version of what had taken place. While the prosecutor portrayed that version as "incredulous," we fail to see how counsel could ethically have changed the facts. Further, defendant points to no specific instances in which his "lack of preparation" led him to testify in a manner other than he otherwise would have, as he was required to do in order to prevail. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We therefore reject defendant's argument.
Having found neither of defendant's first arguments to be persuasive, we find no cumulative error.
Defendant next argues that the matter must be remanded because the PCR court failed to address his argument that trial counsel failed to investigate the temporary license plates found by the police at the time of defendant's arrest - an investigation that allegedly would have disclosed that the owner of the vehicle was his brother. Defendant claims:
On the original police report, the officer identified two (2) temporary registration tags in the vehicle. One tag [d]ated July 30, 2003, indicated that the vehicle was purchased, registered to and owned by Frank
M. Boyd, defendant's brother. The other temporary registration [d]ated August 26, 2003, indicated the name of Donald M. Boyd, as the owner. The defendant's name is Donald E. Boyd. The only Bill of Sale in the car was a receipt from Victoria Pre-Owned Auto's showing that Frank M. Boyd purchased the vehicle.
However, defendant offers no proof that evidence in support of these allegations could have been obtained or that it existed. Cummings, supra, 321 N.J. Super. at 170. Additionally, ownership of the car that defendant was driving was not an element of defendant's crime of eluding. For that reason, we cannot conclude that further investigation by defendant's trial counsel would have affected the outcome of defendant's trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. If the car had somehow been demonstrated to have been owned by Frank Boyd, as defendant contended and his counsel argued at trial, nothing would have prevented the jury from concluding that it was borrowed by defendant.
As a final matter, defendant claims that the matter must be remanded because the court did not address the proffer of an affidavit allegedly by defendant's brother, produced shortly before the PCR motion was heard, stating it was he who committed the crime, and it did not address defendant's claim that defense counsel was aware, at the time of trial, of the willingness of Frank Boyd to testify on his brother's behalf.
Defendant offers no evidence in support of his statement that counsel was aware of his brother's willingness to testify, and our review of the trial record suggests that such was not the case. Immediately before defendant's trial testimony, counsel informed the court that he had just learned that, in his proposed trial testimony, defendant would be implicating his brother. If counsel had known of the brother's willingness to testify, surely he would have mentioned that fact at the time, but he did not. Significantly, the document offered by defendant in support of his argument does not indicate a willingness to testify on the part of defendant's brother. Defendant's statement that he would do so is thus unsupported.
Moreover, our examination of the document that defendant now proffers reveals that its unexecuted jurat bears the date 2009, a date five years after defendant's trial. Thus, the document offers no contemporaneous evidence in support of defendant's version of events. Further, the document purportedly signed by Frank Boyd is neither an affidavit, because it is not notarized, nor a certification, because it lacks any attestation that it is true and any acknowledgement of knowledge that if the statements contained in the document are willfully false, the signatory is subject to punishment. R. 1:4-4(b). As a consequence, the document does not provide competent proof of third-party guilt, and the trial court did not err in ignoring it. Moreover, we note that the person arrested by the officers was dressed identically to the one described to them by Officer Velez, thereby factually undercutting the credibility of the statements contained in the document produced by defendant.
We thus conclude that defendant has failed, in each of his arguments, to offer evidence of attorney incompetence that would meet Strickland's prongs. For that reason, we find no basis for concluding that appellate counsel was ineffective in failing to address the conduct of defense counsel on appeal. We therefore affirm the denial of PCR.
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