On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-03-0404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Koblitz.
Defendant Sylvester Livingston appeals from an order entered by the Law Division on May 7, 2009, denying his petition for post-conviction relief (PCR). We affirm.
On January 17, 1999, a jury convicted defendant of first- degree carjacking, N.J.S.A. 2C:15-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree theft, N.J.S.A. 2C:20-3(a) (count three); fourth-degree unlawful taking of a motor vehicle, N.J.S.A. 2C:20-10(b) (count four); first- degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1 (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count six); fourth-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(4) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b) (count nine). After appropriate mergers, the court sentenced defendant to an aggregate term of life imprisonment, with twenty-seven-and-one-half years of parole ineligibility. On his direct appeal, defendant challenged the in-court and out-of-court identifications made by the victim, Rodney Jenkins. Defendant also claimed the trial court had improperly restricted his right to cross-examine Marcus Payton, a co-defendant, who testified on behalf of the State. In a published opinion, we affirmed defendant's convictions and his sentence. State v. Livingston, 340 N.J. Super. 133 (App. Div.), certif. denied, 170 N.J. 206 (2001).
Defendant subsequently filed a PCR petition alleging, among other things, that he did not receive a fair trial because the victim's photograph identification of him prior to trial was unreliable. In addition, defendant claimed his trial attorney was ineffective for failing to present any evidence at trial that defendant's photograph had been published in a newspaper "months before the victim selected his photograph from a photograph array." In an amended petition filed by assigned counsel, defendant also alleged the trial court erred when, despite his objection, the victim's trauma surgeon, Dr. Thomas Evans, was allowed to testify about his experience with trauma patients and recovered memory following a traumatic event. Following a non-evidentiary hearing on May 1, 2009, the PCR court denied defendant's petition. The court found that the testimony by Dr. Evans regarding memory loss should not have been admitted. Nevertheless, given the strength of the State's case, the court also determined that appellate counsel was not ineffective for failing to raise the issue on direct appeal: So there was a problem there, I think, with the admissibility of Evans' testimony. [Defense counsel] objected, he preserved the objection. The appellate counsel did not use it. So it was appellate counsel's failure in effect, and had appellate counsel raised the issue, would the appellate court have ruled differently? And that is where I'm stuck, and it seems to me that certainly Evans' testimony was helpful to the [S]tate.
If it weren't helpful, the [S]tate wouldn't have put it on. But it seems to me that the jury still had a lot else to go with, and to some extent, I think what Evans told the jury . . . had the patina and all the authority of a surgeon. Whether he wore his white coat or not, he was a physician.
But the jury heard from Rodney Jenkins. He said he remembered Mr. Livingston. And I think . . . jurors probably in their own experience probably have familiarity with people who forget things and then remember them. And that is just in their common experience.
And they had the testimony of Mr. Payton. And I do think the Jenkins' testimony and Payton's testimony mutually support each other, but [whether] . . . it rises to the level of ineffective assistance to have failed to raise it to the Appellate Court. That is a closer issue.
Though it seems to me, [defense counsel] made a big stink about it in the trial court, why not include it in the brief to the appellate court along with the other issues that have been raised. I think it was an error. The question is, I'm supposed to be deferential to the appellate lawyer. Was it error so egregious that it results in a failure of the right to counsel?
Now, there is also a theory in appellate work . . . which is, you don't throw the kitchen sink at the judge, at the Court. You have to take some shots. Pick your best shots, think what your winners are. Because if you throw too many issues out there, you'll lose the court, and your losers will draw attention and power away from your winners.
I work with lawyers who believe in the kitchen sink, and they filed 90-page briefs with eleven points of error. And then there are other lawyers who say, keep it simple . . . . [J]ust pick your best shots, that is what you're there for, make ...