July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SEAN MALCOLM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-10-2257.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 10, 2012
Before Judges Sabatino and Kennedy.
This is an appeal of the trial court's denial of post-conviction relief ("PCR"). Following a jury trial in 2003, defendant Sean Malcolm was convicted of felony murder, aggravated assault, and related offenses arising from the shooting death of Carlos Phillips on May 7, 2002, in Jersey City.
The murder was not directly observed by any third party. The decedent's body had been found in his basement apartment. Defendant lived in the same building. A few days before the homicide, defendant had complained to the landlord, Ernest Florio, that someone had broken into his own apartment and had stolen various items. Florio told defendant that he could look for the stolen items in the other apartments and the basement. Phillips and his girlfriend were in the basement when Florio, defendant, and Warren Braxton, defendant's companion, arrived to complete the search. Florio recalled that Braxton had a gun.
Two nights later, Florio was awakened by gun shots and banging on the door. At that point, Florio ran downstairs and saw defendant get into his car and drive away. Braxton and a third male were with defendant.
Defendant did not testify at trial. Although his trial attorney served an alibi notice on the State, she ultimately elected not to call any alibi witnesses. Defendant did call a toxicology expert, who found cocaine and morphine in the victim's blood.
Following the jury verdict, the trial judge*fn1 sentenced defendant to an aggregate custodial term of fifty years, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In May 2007, we affirmed defendant's convictions on direct appeal. State v. Malcolm, No. A-3186-04 (App. Div. May 22, 2007). We only remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). The aggregate sentence was thereafter reduced by the trial court to thirty years. The Supreme Court denied certification. State v. Malcolm, 192 N.J. 481 (2007).
In October 2007, defendant filed a PCR petition, asserting that he had been deprived of the effective assistance of trial and appellate counsel. The judge assigned to consider the petition determined that the only issue that warranted an evidentiary hearing was defendant's claim that his trial attorney should have called the proposed alibi witnesses: defendant's friend, Melissa Wright, and his nephew, Tiquan Gwyn.
Having set aside the alibi witness issues, the PCR judge denied various other arguments of ineffectiveness raised by defendant. In particular, she rejected his claim that the jury charge on accomplice liability was flawed. She also rejected his claim that a jury charge on cross-racial identification was required as to the decedent's girlfriend who had seen defendant and the other man approach the victim with a gun before she ran for help. In this respect, the PCR judge relied on language in our 2007 opinion validating the jury charge and rejecting defendant's pro se claims that it had been flawed. The PCR judge further rejected defendant's claim that his sentence was excessive and that his appellate attorney was ineffective.
The PCR judge held hearings over the course of several days from April through July 2009. Several witnesses testified at the hearing, including Wright, Gwyn, defendant, and his prior trial counsel.
According to trial counsel's testimony at the PCR hearing, which the judge found credible, she did not call either of the supposed alibi witnesses because she did not think they would be helpful. In particular, the attorney testified that Wright was not believable, and it appeared that her statement may well have been scripted or suggested by defendant himself. Likewise, the attorney did not think that Gwyn was credible because his testimony was vague. Consequently, as the PCR judge aptly put it in her oral opinion, trial counsel decided that "no alibi is better than a bad alibi."
In his own testimony at the PCR hearing, defendant complained that his trial counsel and appellate counsel both had let him down in various respects. The PCR judge found his testimony "to not be particularly credible."
The PCR judge found that the alibi witnesses did not conclusively show that defendant was at his mother's house at the time of the victim's shooting. Given the weaknesses in their testimony, the PCR judge concluded that trial counsel had made a reasonable "strategic decision" not to call the two proposed alibi witnesses.
Through his counsel on the present appeal, defendant now argues:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
1. Defendant established ineffective assistance of trial counsel.
2. At the very least, remand for further consideration and additional evidentiary hearing is warranted.
In addition, defendant presents the following points in a pro se supplemental brief:
THE PURPOSE OF A PETITION FOR POST-CONVICTION RELIEF.
PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS.
A. TRIAL COUNSEL FAILURE TO CONDUCT A PRE-TRIAL INVESTIGATION AND SUBMITTING FRAUDULENT DOCUMENTS CLAIMING TO HAVE DONE SO, COUPLED WITH SETTLING APPELLANT'S CIVIL SUIT WITHOUT AUTHORIZATION, VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT TO ADEQUATE EFFECTIVE ASSISTANCE OF COUNSEL.
With one minor exception, we affirm the dismissal of defendant's petition, substantially for the reasons set forth in Judge Camille Kenny's initial oral opinion on November 3, 2008 and her post-hearing oral opinion on August 13, 2009. Only a few comments are in order.
The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense 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. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
A defense lawyer's decision regarding whether to call a proposed defense witness is a classic example of such a strategic choice. The defense attorney's judgment call assessing a potential trial witness's credibility should not be readily second-guessed. See, e.g., State v. Arthur, 184 N.J. 307, 320-21 (2005) (noting that a court's review of a defense attorney's decision as to whether to call a witness should be very deferential). As the Court in Arthur observed:
Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. [Id. at 320-21.]
Here, defendant's trial counsel forthrightly explained why she thought summoning either Wright or Gwyn to the stand would have caused defendant more harm than good. Both proposed alibi witnesses could have been readily impeached because of their familial or personal relationship with defendant. Counsel had legitimate concerns that defendant had coached or influenced them to provide alibis on his behalf. We have no warrant to interfere, in hindsight, with that strategic assessment. We are also bound by the PCR judge's credibility findings. State v. Locurto, 157 N.J. 463, 472-74 (1999).
The balance of defendant's arguments that were addressed by the PCR judge lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(2). Similarly, the arguments in defendant's pro se supplemental brief about the PCR judge's rulings are likewise meritless. We need not address the pro se brief's contentions about trial counsel's alleged ethical violations, which were not raised below and therefore were not preserved for appellate review. See State v. Robinson, 200 N.J. 1, 18-19 (2009).
There is only one loose end to consider. Defendant has argued that during the trial, one of the jurors was improperly influenced to vote for his conviction. In that vein, the record contains an affidavit from a man who worked at a building where one of the empaneled jurors also worked. According to that co-worker, he overheard the juror talking about the case with another person, who said, "did [you] hang him?" This alleged episode raised in the PCR application was not explored specifically by the PCR judge and should be examined further. We therefore remand this matter for that limited purpose.
The trial court's order denying PCR relief is affirmed. The matter is remanded solely to address defendant's allegation concerning the juror's conversation. We do not retain jurisdiction.