August 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK KING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1251.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012
Before Judges Lihotz, Waugh, and St. John.
Defendant Frederick King appeals from the August 12, 2010 order of the Law Division dismissing his petition for post-conviction relief (PCR). We affirm in part, reverse in part, and remand to the Law Division for an evidentiary hearing.
We discern the following facts and procedural history from the record on appeal.
On the afternoon of April 19, 2007, Officers James Crecco and Eric Infantez of the Jersey City Police Department were conducting a surveillance on Tonnelle Avenue when Crecco spotted King, whom both Crecco and Infantez knew from previous encounters. King was looking inside the cars in a used car lot across the street from the officers. King left the lot as soon as he was approached by a salesperson.
The officers, with Crecco on foot and Infantez in the car, followed King. They observed him walk past the parking lot of an auto body shop, and then suddenly he "doubled back and ran right into the lot." He went directly to a gold Buick. King tried the Buick's door, which opened. He "climbed right into the car." Within seconds, King "ducked beneath the dashboard, and popped back up, started the car and put it into gear." Neither Crecco nor Infantez were able to get close enough to stop King, but they relayed the Buick's license plate and their observations to the police dispatcher.
The Buick was subsequently located on Orient Avenue, the street on which King resided. Sergeant Michael Kenny proceeded to King's home with other officers. When a woman opened the door, Kenny observed King inside the house, opening a back door. Kenny placed King under arrest. A set of keys to the Buick were found in King's pants pocket.
King was indicted and, following a jury trial in December 2007, convicted of theft by unlawful taking of an automobile, contrary to N.J.S.A. 2C:20-3, and burglary related to the theft, contrary to N.J.S.A. 2C:18-2. He was sentenced to an extended term of ten years on count one with five years of parole ineligibility, and five years on count two, with a two-and-one-half-years period of parole ineligibility, to run consecutive to the term on count one.
King raised three issues on direct appeal arguing that (1) the officers' testimony regarding their previous acquaintance with him left the jury with the inescapable conclusion that they followed him because he was a car thief, (2) the trial judge erroneously denied his request for an instruction on the lesser-included offense of joyriding, and (3) his sentence was excessive. We affirmed, State v. Frederick King, No. A-4654-07 (App. Div. Mar. 30, 2009), and the Supreme Court denied certification, 200 N.J. 477 (2009).
King filed his PCR petition in August 2010. He argued that his trial counsel was ineffective because he (1) failed to seek removal of a juror, who eventually became the jury foreman, after King had notified him that he knew the juror and they had had a dispute in the past, (2) failed to file a motion to suppress the car keys seized when he was arrested, (3) argued for a seven-year term based on his mistaken assumption that King's minimum possible term was five rather than three years, (4) failed to seek the criminal presiding judge's approval to proceed with plea negotiations when the prosecutor submitted a plea offer for the first time after the plea cut-off date, and (5) failed to interview the car lot's salesperson, whom King claimed could have supported his assertions that he was at the lot to attempt to trade in a car, and his wife, who would have said that she never consented to the search of their home, which would have supported the filing of the suppression motion.
On August 5, 2010, following oral argument the PCR judge, who had also been the trial judge, dismissed the PCR petition. The judge held that, because King had failed to establish a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. The judge held that King's claim of ineffectiveness based on his counsel's failure to seek dismissal of the juror was barred because the contention could have been raised on direct appeal. In addition, the judge described the claim as legally and factually deficient because King failed to "identify any instance in the transcript of the jury selection process where he raises such conflict" and he "does not attempt to name this juror, instead referring to him only by number and position." The judge noted that King "remained silent about this allegation during the three-day trial" and never mentioned the alleged dispute with the juror in a letter he subsequently wrote to his trial attorney questioning his trial strategies.
The judge rejected King's claim that trial counsel should have filed a motion to suppress the car keys. He concluded that the search was incident to a lawful arrest, noting that the police had obtained an arrest warrant before they arrived at King's home.
With respect to the sentencing issue, the judge held that King's claim was procedurally barred because it had been raised on direct appeal. In addition, the judge concluded that it lacked merit because King was unable to show a reasonable probability that the outcome would have been different if counsel had not erred, relying on our determination on direct appeal that the error was not clearly capable of producing an unjust result.
The judge rejected King's claim concerning the failure to seek approval from the presiding criminal judge for a plea bargain. Although the judge acknowledged that the State had not provided a plea offer prior to the cutoff date, he determined that the subsequent plea offer had been "taken off the table," and that he had not approved any plea agreement because he had found no change in circumstances.
The judge also rejected King's claim that his trial counsel had failed to investigate the case adequately. The judge rejected King's "bald assertion" that he was present at the lot to trade in his vehicle, which "greatly contradict[ed]" the police reports and the trial witnesses. The judge also rejected King's claim that his wife did not consent to a police search, noting that King's wife had testified at trial and the jury found the police witnesses to be more credible. Finally, the judge rejected King's cumulative error claim and his allegations regarding appellate counsel.
The trial judge entered an order of dismissal on August 12, 2010. This appeal followed.
King raises the following arguments on appeal:
POINT I: BECAUSE APPELLATE COUNSEL IN THE DIRECT APPEAL FAILED TO BRIEF THE ISSUE REGARDING THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY WITH THE DEFENDANT'S ELECTION NOT TO TESTIFY CHARGE, DESPITE DEFENSE COUNSEL'S TIMELY AND PROPER REQUEST TO DO SO, THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS. (Not Raised Below).
POINT II: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS POST-CONVICTION RELIEF ("PCR") ATTORNEY IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
POINT III: BECAUSE PCR COUNSEL FAILED TO ADHERE TO THE REQUIRED INDEPENDENT STANDARD OF PROFESSIONAL CONDUCT, DEFENDANT IS ENTITLED TO A NEW PCR PROCEEDING.
POINT IV: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT RAISE THE ISSUE OF THE TRIAL COURT'S OMISSION OF THE NO ADVERSE INFERENCE CHARGE AT THE CONCLUSION OF THE JURY INSTRUCTIONS (Not Raised Below).
B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT CONDUCT A PROPER INVESTIGATION, WHICH WAS NECESSARY TO: (1) CHALLENGE THE STATE'S IDENTIFICATION THEORY; (2) ATTACK ALLEGATIONS THAT THE STOLEN CAR KEYS WERE FOUND IN THE DEFENDANT'S POSSESSION; AND (3) DEVELOP A THEORY OF THE DEFENSE AND STRATEGY FOR A SUPPRESSION MOTION.
C. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO SEEK THE PRESIDING CRIMINAL JUDGE'S APPROVAL FOR A PLEA AGREEMENT THAT WAS MADE AFTER THE PLEA CUT-OFF DATE.
D. TRIAL COUNSEL WAS INEFFECTIVE DURING JURY SELECTION BECAUSE HE FAILED TO REMOVE JUROR NUMBER ONE AFTER THE DEFENDANT TOLD HIM THAT HE KNEW THE PROSPECTIVE JUROR BECAUSE OF A PRIOR DISPUTE WITH HIM.
E. TRIAL COUNSEL WAS INEFFECTIVE AT SENTENCING BECAUSE HE MISTAKENLY ARGUED FOR A SEVEN YEAR SENTENCE BASED ON THE ASSUMPTION THAT THE MINIMUM SENTENCE FOR A THIRD-DEGREE CRIME SUBJECT TO EXTENDED-TERM SENTENCING WAS FIVE YEARS WHEN, IN FACT, IT WAS THREE YEARS.
POINT V: BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
POINT VI: BECAUSE THE SAME JUDGE WHO PRESIDED OVER THE DEFENDANT'S TRIAL AND SENTENCING, WHICH INCLUDED THE IMPOSITION OF THE MAXIMUM EXTENDED-TERM SENTENCE AND PERIOD OF PAROLE INELIGIBILITY FOR THE THEFT OFFENSE, ALSO OFFICIATED OVER THE PCR APPLICATION, THE DEFENDANT'S CASE SHOULD BE REMANDED FOR A NEW PCR PROCEEDING BECAUSE THE JUDGE'S ABILITY TO BE IMPARTIAL WAS COMPROMISED. (Not Raised Below).
POINT VII: REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS AND THE INEFFECTIVENESS OF COUNSEL.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
In addition to claims of ineffectiveness based on trial counsel's representation, a petitioner also may have a claim for ineffective assistance of appellate counsel when, as King claims here, errors existed at the trial level that could have been ascertained by appellate counsel's review of the record but were never raised as issues on appeal. See State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on ineffective assistance of appellate counsel, the petitioner must establish that counsel failed to raise an issue that would have constituted reversible error on direct appeal. See id. at 361. Appellate counsel will not be found ineffective if counsel's failure to appeal the issue could not have prejudiced the petitioner because the appellate court would have found, either, that no error had occurred or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); State v. Harris, 181 N.J. 391, 499 (2004), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
We turn first to King's argument that his trial attorney was constitutionally ineffective because he failed to excuse a juror whom King had identified as someone he knew and with whom he had had a dispute in part. King argues that his trial attorney was obligated to challenge this juror for cause or dismiss him peremptorily, that his failure to do so constituted ineffective assistance of counsel, and that the inclusion of this "tainted juror" prejudiced his right to a fair trial. He argues that he was entitled to an evidentiary hearing to develop testimony on the issue.
The right to due process encompasses a criminal defendant's right to a fair trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961); State v. Feaster, 156 N.J. 1, 50 (1998). The issue of juror bias from a juror who has prior knowledge of a defendant's bad reputation "goes to the very heart of the question of whether [a defendant] was fairly convicted." State v. Riley, 216 N.J. Super. 383, 387-91, 393 (App. Div. 1987). A juror's failure to disclose such information during voir dire "is presumed to have been prejudicial if it had the potential to be prejudicial." State v. Cooper, 151 N.J. 326, 349 (1997) (citations omitted), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000).
A juror's failure to disclose his or her prior relationship with a defendant may entitle the defendant to a new trial, but it can be waived depending upon the attendant circumstances. State v. Bianco, 391 N.J. Super. 509, 517-18 (App. Div.), certif. denied, 192 N.J. 74 (2007). In that case, the defendant raised the issue for the first time in a motion for a new trial following the jury's guilty verdict. Id. at 518. He alleged that he realized that he and a co-defendant knew one of the jurors from their past employment and that the juror had committed misconduct by failing to come forward with this information during jury selection or the trial. Id. at 512.
The trial judge conducted a hearing at which the juror testified that he did not realize until deliberations that he may have known the defendant, whose appearance had greatly changed, and that he did not realize the co-defendant was the same woman he knew by that name. Id. at 514. Defense counsel testified that defendant had said during voir dire that the juror looked familiar to him, but that they did not discuss the matter further and decided to wait and see what happened during jury selection. Id. at 515.
That testimony, along with evidence from the co-defendant and the defendant's daughter, convinced the judge that the defendant was aware during trial that he knew the juror. Id. at 516. The judge concluded that no new trial was warranted because the defendant had made a strategic decision not to challenge the juror based on a belief that the man's presence would be favorable and that, if convicted, it would allow him "a second bite of the apple," as a basis for a new trial. Id. at 516-17. We affirmed that decision.
In Riley, supra, 216 N.J. Super. at 385, the defendant's petition for PCR alleged that he was denied a fair trial because one of the jurors at his murder trial possessed damaging information about him that prejudiced the jury against him. The juror had informed the trial judge during jury selection "'that he may have been remotely acquainted'" with the defendant's mother as a result of his employment, but he was not positive of that fact. Id. at 386. Defense counsel decided not to remove the juror because of "'the limited extent of any potential relationship.'" Ibid.
The attorney testified at the hearing on the petition for PCR that, the summer following the trial, he had had a chance meeting with the juror in a bar. Id. at 386-87. In that meeting, the juror told the attorney that the juror had known of the defendant and his bad reputation prior to trial, including that he had beaten his mother and sexually attacked his sister. Id. at 387. The PCR judge incorrectly dismissed the petition on procedural grounds. We reversed and remanded for a determination on the merits, noting that jury bias "goes to the very heart of the question of whether [the defendant] was fairly convicted." Id. at 391-93 (citing State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976)).
In this case, the judge concluded that the issue of the juror was procedurally barred because it could have been raised on direct appeal. We disagree. In reviewing direct appeals, an appellate court generally confines itself to the trial record. State v. Harvey, 151 N.J. 117, 201-02 (1997). The issue of the juror was not reflected in the record on the direct appeal. That is why ineffective assistance of counsel claims, which typically involve allegations and evidence that lie outside the trial record, are particularly suited for consideration on post-conviction review. State v. Nunez-Valdez, 200 N.J. 129, 138 (2009); Preciose, supra, 129 N.J. at 460. In this case, factual support for King's claim regarding the juror lies outside the trial record, as a consequence it could not have been raised on direct appeal.
The decision whether to hold an evidentiary hearing on a post-conviction relief petition is within the discretion of the trial judge. Preciose, supra, 129 N.J. at 462 (citing State v. Odom, 113 N.J. Super. 186 (App. Div. 1971)). In determining whether a defendant has established a prima facie claim of ineffective assistance of counsel, the trial judge must "view the facts in the light most favorable to [the] defendant." Id. at 462-63.
We also disagree with the judge's conclusion that King "offer[ed] nothing to show that he informed his attorney of the problem with this juror." King provided a certification to that effect. Whether that assertion is credible can only be determined after a plenary hearing. The fact that he did not provide the juror's name in the certification did not render the identification improper or the allegation incredible, inasmuch as he clearly identified the juror by number and position (foreman).
We conclude that the issue warranted an evidentiary hearing. Viewing "the facts in the light most favorable to [the] defendant," Preciose, supra, 129 N.J. at 462-63, King presented a prima facie case of ineffective assistance with respect to the juror. If the evidence establishes that King informed trial counsel of his prior relationship with the juror, the trial judge will have to consider whether the attorney made a strategic decision not to pursue the juror's dismissal. Strategic and tactical decisions by trial counsel made after a proper investigation of the law and facts "are virtually unassailable on ineffective assistance of counsel grounds." State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). If there was no such strategic decision, the judge will have to determine whether the relief sought by King is appropriate under the circumstances. Without an evidentiary hearing, it is not possible to make those determinations.
Having reviewed King's remaining arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons expressed by the trial judge in his oral decision on those issues.
We note only that there was overwhelming evidence of guilt and that none of the other issues raised by King "go to the very heart of the question of whether [the defendant] was fairly convicted," as does the issue related to the juror. Riley, supra, 216 N.J. Super. at 387-91, 393.
In summary, we reverse the order on appeal to the extent it dismissed King's claims with respect to the juror and remand for an evidentiary hearing consistent with this opinion. We affirm the order as to the remaining issues.
We see no basis for requiring that the remand hearing be held before another judge, as requested by King. Our reversal is based on an issue of law. The trial judge has not made credibility determinations that would warrant such relief. State v. Miller, 382 N.J. Super. 494, 504 (App. Div. 2006).
Affirmed in part, reversed in part, and remanded.
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