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State of New Jersey v. Brenston E. Ayers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRENSTON E. AYERS, A/K/A BARENSTON AYERS, BRENSTON AYERS, BERSTON AYERS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-02-0364.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 8, 2012

Before Judges Waugh and St. John.

Defendant Brenston Ayers appeals from an order entered on February 18, 2010, denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

On appeal, the record discloses the following facts and procedural history.

In 2002, defendant and co-defendant Emanuel Harrison were arrested in possession of a handgun when they were pulled over in Englewood Cliffs after the potential victim of a home invasion robbery called police. The victim stated that two men matching defendant and Harrison's descriptions were repeatedly circling her house and making pointing gestures toward her from their vehicle. Two other men, subsequently arrested and identified as defendant's co-conspirators, testified at defendant's trial that they recruited defendant to commit an armed robbery. Defendant maintained that he only agreed to participate in burglarizing the home but never agreed to be involved in an armed robbery. He also denied that he possessed the handgun.

After a jury trial, defendant was convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a Taurus nine-millimeter handgun without a permit, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have weapons (handgun), N.J.S.A. 2C:39-7(b). After merging the conviction for possession of a firearm for an unlawful purpose into the conviction for conspiracy to commit armed robbery, the judge imposed a seven-year term of imprisonment with 85% parole ineligibility; a concurrent four-year term of imprisonment for unlawful possession of a handgun; and a consecutive seven-year term of imprisonment with five years of parole ineligibility for certain persons not to have weapons.

Defendant appealed his conviction and, in an unpublished opinion dated February 28, 2007, we affirmed the conviction but remanded for reconsideration of the sentence on the "certain persons" conviction. State v. Ayers, No. A-0389-04 (App. Div. Feb. 28, 2007). The Supreme Court subsequently denied defendant's certification petition. State v. Ayers, 192 N.J. 295 (2007). On remand, the trial judge held a resentencing hearing and issued a written opinion affirming defendant's original sentence. Defendant appealed that sentence, and we affirmed. The Supreme Court denied defendant's petition for certification. State v. Ayers, 200 N.J. 206 (2009).

Defendant subsequently filed a petition for PCR, which was denied. This appeal ensued.

II.

Defendant raises the following arguments for our consideration on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPREPSENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.

B. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO NUMEROUS REMARKS MADE BY THE PROSECUTOR DURING HIS SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY IN SEVERAL DIFFERENT RESPECTS.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF HER FAILURE TO OBJECT TO VARIOUS INSTANCES OF IMPROPER CROSS-EXAMINATION OF HER CLIENT BY THE PROSECUTOR AS WELL AS BY CO-COUNSEL.

D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HER FAILURE TO FILE A TIMELY NOTICE REGARDING THE DEFENSE OF RENUNCIATION, THEREBY PREVENTING THE DEFENSE FROM BEING CHARGED TO THE JURY.

E. TRIAL COUNSEL MISLED THE DEFENDANT INTO PROCEEDING TO TRIAL AS A RESULT OF ERRONEOUSLY ADVISING HIM REGARDING HIS MAXIMUM SENTENCING EXPOSURE IF CONVICTED AT TRIAL.

F. SINCE THE DEFENDANT PRESENTD A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

POINT II

NETIHER RULE 3:22-4 NOR RULE 3:22-5 SERVED TO PRECLUDE THE TRIAL COURT FROM ADJUDICATING THE ISSUE RAISED IN THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON A SUBSTANTIVE BASIS.

POINT III

THE TRIAL COURT ERRED IN DENYING POST-CONVICTION RELIEF COUNSEL'S REQUEST FOR AN ADJOURNMENT TO OBTAIN MISSING DISCOVERY AND RELATED MATERIALS WHICH WERE NECESSARY TO SUBSTANTIATE THE DEFENDANT'S CONTENTIONS.

Before analyzing defendant's contentions, we note certain basic principles. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that "counsel's performance was deficient" and that this deficiency was so severe that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. New Jersey has adopted Strickland's two-prong measure. State v. Fritz, 105 N.J. 42, 52 (1987).

The PCR judge's review of trial counsel's performance is deferential. "'[J]udicial scrutiny of counsel's performance must be highly deferential. . . . [A court] must avoid second-guessing defense counsel's tactical decisions and viewing those decisions under the 'distorting effects of hindsight.'" Marshall, supra, 148 N.J. at 157 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694)). "There is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694)). In other words, a trial counsel's deficiency must undermine one's confidence in the jury's verdict. State v. Allegro, 193 N.J. 352, 367 (2008); State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).

A court reviewing a PCR petition should consider counsel's overall performance in the case as a whole, and avoid giving undue weight to isolated issues, mistakes, or miscalculations. Counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." [Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991) (citation omitted)).]

While the court must view trial counsel's performance deferentially, it must also favorably view the facts alleged by petitioner in deciding whether a prima facie claim has been established. Preciose, supra, 129 N.J. at 463 (stating that courts "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim"). On the other hand, mere "bald assertions" will not suffice to establish a prima facie claim of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

A.

In his first point, defendant asserts that his trial counsel should have objected to various questions, statements, and summation remarks of the prosecutor, and that failure to do so should have resulted in an evidentiary hearing on defendants petition for PCR.

We note that an evidentiary hearing will be granted on a PCR petition if defendant has presented a prima facie case of ineffective assistance of counsel to support his petition. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). To establish a prima facie claim, a defendant must demonstrate a reasonable likelihood that he will succeed on the merits. Ibid.

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . then an evidentiary hearing need not be granted. [Ibid. (citations omitted).]

We address each of defendant's arguments in turn.

i.

Defendant's first specific contention is that trial counsel's failure to object to certain remarks made by the prosecutor during his summation, which defendant asserts exceeded the bounds of propriety, resulted in ineffective assistance.

By way of background, we addressed in defendant's appeal of his conviction his argument that the following remarks by the prosecutor required a reversal of his conviction pursuant to State v. Daniels, 182 N.J. 80 (2004):

[Defendant has] had almost two years to think about his defense. He's had all of the discovery and all of the reports. One thing he had most importantly was the entire testimony from the beginning to end and then he tells this story so perfectly fitted with all of the facts. He remembers all of the things that help him, anything that hurts him he can't recall, don't remember. [Ayers, supra, No. A-0389-04 (slip op. at

29) (emphasis in original).]

Defense counsel did not object to the remarks, and we reviewed for plain error, determining the error was not sufficient to raise a reasonable doubt as to whether it led the jury to reach a result it otherwise might not have. We noted that in contrast to Daniels, "the evidence of defendant's guilt was overwhelming." Id. at 32. We also noted that "the objectionable remarks were not the focus of the summation, but were one or two lines in a very long closing argument that spanned nearly sixty pages of transcript." Id. at 31.

Here, defendant contends the prosecutor impermissibly expressed his own personal opinions and beliefs to the jury when he addressed defendant's testimony during his summation. Defendant asserts the following statements were objectionable:

What were they doing - there is the question, ladies and gentlemen, that I don't believe you got a full answer from the defendant.

I do not have to prove at all that that's what happened. What I have to prove is that they conspired for that crime to take place and I believe that we have proven that beyond a reasonable doubt.

Because the State called these witnesses, ladies and gentlemen, does not mean in any way we liked them, it doesn't mean in any way we have any particular favoritisms towards them. There is nothing likeable about that fact . . . think about the case without them. Mind you, it is still a very strong case . . . I got a great case without having to call them . . .

Defendant argues these statements impacted his credibility and bolstered the credibility of the co-defendants who formed the most important part of the State's case. Additionally, in discussing the testimony of a police officer who testified on behalf of the State, the prosecutor stated:

He's got how many years on the Englewood Cliffs Police Department? He may have more years in law enforcement than any other officer in this county, twenty-three years or more, probably upwards or higher than that I believe.

There was no evidence in the record to support the officer's years of experience.

Defendant also argues another of the prosecutor's statements during summation was objectionable, when he commented:

Was there a break in the case around August 1? Of course not, are your kidding me. I had to wait until Halloween to get a break in this case. You heard all of that testimony, this defendant lied I submit to you when he said he gave up co-defendants and gave us information.

Defendant contends that the information as to when the prosecutor received a break in the case was not supported by testimony.

Finally, defendant directs our attention to the prosecutor's statement in summation, "Now, we have Mr. Ayers, Silky, Slim, Silk, I don't know, but its his friend and Mr. Slim refers to Mr. Harrison as my big brother." Defendant did not refer to Harrison as his big brother, rather Harrison referred to Ayers as his little brother.

It is well-settled that prosecutors are "expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in that endeavor." State v. Jenewicz, 193 N.J. 440, 471 (2008). To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (internal quotations omitted)).

The comments made by the prosecutor here were not inflammatory, highly emotional, or likely to distract the jury from a fair consideration of the evidence of guilt. See Marshall, supra, 123 N.J. at 161 (holding that even when a prosecutor's remarks travel beyond the boundaries of permissibly forceful advocacy, they will not result in a reversal so long as "their focus [is] on a distinctly collateral aspect of the trial, [and] not on a critical and contested issue of fact"). Therefore, we decline to find defense counsel's failure to object to the prosecutor's comments as amounting to ineffective assistance.

The PCR judge determined defendant did not demonstrate counsel's performance was deficient and that if there was any deficiency it was not so severe that defendant was deprived of a fair trial. We see no reason to disagree with this conclusion. Assuming the statements of the prosecutor were objectionable, we do not believe that objections by counsel followed by curative instructions would have materially affected the verdict. Thus, even if defendant could meet the first prong of the Strickland/Fritz test by showing inadequacy of representation, he could not meet the "prejudice" prong.

ii.

Defendant further faults his trial counsel for not objecting during his cross-examination by Harrison's counsel concerning whether he was taking medication, had health problems, was on SSI, and had been in a psychiatric hospital, to which he affirmatively responded.

However, defendant overlooks that the prosecutor objected and the judge promptly issued a curative instruction, telling the jury to disregard the testimony. Here, we "must assume that jurors can and do obey the court's restrictive admonition" to disregard certain statements and evidence. State v. Obstein, 52 N.J. 516, 527 n.1 (1968); see also State v. Winder, 200 N.J. 231, 256 (2009).

iii.

Defendant also argues that trial counsel was deficient by not filing a timely notice regarding the defense of renunciation. However, the trial judge declined to give the renunciation charge because the evidence adduced at trial did not support it.

We agree with the PCR judge that trial counsel was not deficient because there is no reasonable probability that, had counsel timely filed the notice, the result of the proceeding would have been different.

iv.

Defendant makes the bald assertion that trial counsel was ineffective because she told him, even if he lost at trial, he would only receive a seven-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Relevant to this point, defendant's appendix on appeal includes only a copy of his petition for PCR, dated September 16, 2009, in which he initially asserted that trial counsel "misled" him in refusing to negotiate a plea deal and instead insisted that he proceed to trial. Defendant did not submit a certification from trial counsel or a copy of the pretrial memorandum, R. 3:9-1(e), in support of his contention; therefore, we conclude his argument is without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2) v. In determining whether defendant's trial counsel was ineffective, we can clearly ascertain from the trial record that based on his assertions, defendant was not denied effective assistance. Holding an evidentiary hearing would not have aided the PCR judge's analysis of defendant's entitlement to PCR. We see no reason to disturb the PCR judge's decision to not conduct an evidentiary hearing.

B.

Defendant argues in Point II that not only was trial counsel ineffective, but appellate counsel was also ineffective for not asserting on appeal the issues raised in defendant's PCR. The PCR judge determined that appellate counsel was not ineffective. Given our opinion as to the merits of defendant's PCR petition assertions, we agree with the PCR judge's decision.

C.

In Point III, defendant argues the PCR judge should have granted counsel's request for an extension of time to file a brief in support of his PCR petition. Defendant contends that documents were missing from the files and that the matter should be remanded to obtain the necessary documents.

As part of its responsibility, the trial court has the power to tightly control its calendar to assure the efficient administration of the criminal justice system. State v. Ruffin, 371 N.J. Super. 371, 388 (App. Div. 2004). Rulings on requests to adjourn a trial are discretionary and do not amount to reversible error unless the reviewing court finds that the trial court abused its discretion. State v. Garcia, 195 N.J. 192, 196 (2008).

Given the lack of specificity as to the missing documents, as well as the failure to assert any prejudice to defendant, there was no abuse of discretion by the PCR judge in denying the request.

D.

In a pro se supplemental brief, defendant raises two additional points.

He contends his trial started more than 180 days after he complied with the requirements of N.J.S.A. 2A:159A-3, having delivered the requisite Interstate Agreement on Detainers (IAD) documents to the prosecutor and the trial court.*fn1 The State contends there was no IAD violation because the delay of the trial was precipitated by a good cause continuance, N.J.S.A. 2A:159A-3, and adjournment requests by defendant. The PCR judge denied relief primarily based on his findings of the adjournment requests by defendant.

In State v. Millett, 272 N.J. Super. 68, 107 (App. Div. 1994), we affirmed a trial court order denying the defendant's motion to dismiss a murder indictment for failure to bring the defendant to trial within the required time period. We found the time was tolled pursuant to N.J.S.A. 2A:159A-6(a), relying on State v. Lippolis, 55 N.J. 354 (1970), rev'g on dissent, 107 N.J. Super. 137 (App. Div. 1969), for the proposition that "the focus of the inquiry . . . is the conduct and intent of the prosecutor: did the prosecutor cause the delay due to an error or misunderstanding, or by his inaction, or did he otherwise evidence an intention not to diligently pursue the case?" Millett, supra, 272 N.J. Super. at 105.

Applying that standard, we see no reason to disturb the PCR judge's decision.

Finally, defendant argues the cumulative alleged errors by counsel deprived him of a fair trial and an effective appeal. We find defendant's remaining contentions to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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