August 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVON NICHOLS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-02-0156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Axelrad and Sapp-Peterson.
Defendant, Davon Nichols, appeals the denial of his motion for post-conviction relief (PCR) arising out of his conviction, along with his co-defendants, of the brutal rape, kidnapping, and robbery of K.M., and the brutal attack, kidnapping, and robbery of C.P. Defendant was also convicted of less serious offenses related to the two victims. The PCR judge rejected defendant's ineffective of assistance of counsel claims, which were based upon trial counsel's failure to move for a change of venue and counsel's failure to seek a Wade*fn1 hearing. We affirm substantially for the reasons expressed by Judge Richard J. Geiger in his comprehensive oral opinions of January 8 and February 1, 2010.
The State's proofs before the jury revealed that defendant and his co-defendants approached the victims while they were parked in a vehicle. They claimed they were police officers and pulled the female victim out of the car. Defendant, along with two other co-defendants, took turns raping her. Meanwhile, the male victim was forced out of the vehicle, assaulted, and forced to watch the rape of the female victim. He was struck with a baseball bat and stomped upon. The attack upon the female lasted approximately twenty-five minutes, after which she was taken to a secluded spot by a co-defendant and forced to perform oral sex. She pretended to be unconscious and her attackers eventually left. She returned to the area where she was first attacked and found the male victim hysterical and bleeding from the face. In addition to the rape and attacks, the perpetrators also took $31 from the male victim's wallet, $180 from the female victim's wallet, two compact disc players, and a cell phone.
The jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree robbery, N.J.S.A. 2C:15-1a; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and simple assault of both victims, N.J.S.A. 2C:12-1a. At sentencing, the court imposed an aggregate twenty-nine-year sentence with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, we affirmed. State v. Nichols, No. A-6700-03 (App. Div. December 6, 2005).
On August 6, 2007, defendant filed his PCR petition. After counsel was assigned and a brief filed on defendant's behalf, the PCR judge conducted oral argument. Defendant urged that he was denied effective assistance of counsel because his trial counsel failed to move for a change of venue and also failed to move for a Wade hearing.
First, addressing the failure to move for a change of venue, Judge Geiger discussed the need to distinguish between cases "in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel." The judge found that the publicity in connection with defendant's prosecution fell in the latter category. In that regard, the court found defendant failed to establish a prima facie case of ineffective assistance of counsel because had such a motion been filed, it would have been denied. The court also found defendant failed to show any prejudice, and prejudice could not be presumed because
[f]oremost, there is no evidence of extreme community hostility against this [d]efendant. In fact, during voir dire, only a handful of potential jurors had previously read about the crime, and those that had, only seemed to have a vague recollection of the underlying facts.
Furthermore, neither [d]efendant nor the victims were prominent members of the community. And at the time of the attack, both the [d]efendant and the victims were teenagers.
Contrary to [d]efendant's assertions, there was no extensive media coverage of [d]efendant's trial. Defendant had presented only a handful of articles published over an extended period of time.
In fact, of the [twenty-seven] articles presented by [d]efendant, [fourteen] were published either during or after [d]efendant's trial. And the jury was instructed not to read the media coverage of the case throughout the trial.
The vast majority of the potential jurors on the panels were previously unaware of this case. Only one juror was seated who had previously read about the trial, and he was unable to recall any details.
Although [d]efense counsel had several peremptory challenges remaining, in fact, [d]efense counsel had used only nine of the permitted [twenty] peremptory challenges in this matter. Defense counsel elected not to utilize them.
While a [d]efendant is not entitled to a jury completely ignorant of the facts, that appears to be exactly what [d]efendant received in the present case. There is no evidence that the jury was anything but fair and impartial. There was no realistic likelihood of prejudice resulting from the pretrial publicity.
Defendant is unable to demonstrate that he was prejudiced by pretrial publicity, and thus, this aspect of this PCR must fail.
In a separate oral opinion, the court also rejected defendant's claim of ineffective assistance based upon trial counsel's failure to request a Wade hearing. This finding was based upon a number of factors, including: (1) defendant's statement to police admitting he was at the scene at the time the offenses were committed and his specific admission that he had been standing next to the male victim; (2) defendant's palm prints were found on the vehicle in which the victims had been seated just before the attacks; (3) defendant was identified as being heavier than the other perpetrators by about fifty pounds;
(4) the male victim identified defendant outside of the police station inadvertently as the victim was arriving at the station around the same time defendant was being removed from the police vehicle; and (5) the attack took place over a period of minutes in an area where there was sufficient lighting from the moonlight, interior lights of the vehicle, the vehicle's headlights, and the street lighting. The present appeal followed.
In denying post-conviction relief and an evidentiary hearing to defendant in advance of reaching his decision, we are satisfied Judge Geiger applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel, namely, determining whether (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-89, 692, 104 S. Ct. 2052, 2064, 2067, 80 L. Ed. 2d 674, 693, 696 (1984); State v. Fritz, 105 N.J. 42, 52, 58 (1987) (adopting the Strickland test in New Jersey).
On a motion to change venue because of pre-trial publicity, a court must determine "[w]hether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused that they would not be qualified to sit as a jury to try the case." State v. Ravenell, 43 N.J. 171, 181 (1964) (quotation and citation omitted), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). Here, there was no evidence that the pretrial publicity was so pervasive that it corrupted the jury selection process such that prejudice was therefore presumed. State v. Nelson, 173 N.J. 417, 475 (2002). Where there is no presumed prejudice from pre-trial publicity, a court must determine whether there is actual prejudice. State v. Biegenwald, 106 N.J. 13, 33-36 (1987).
As Judge Geiger correctly stated, the ultimate question here is whether a fair and impartial jury was selected. Id. at 35-36. Defendant has failed to identify a sitting or deliberating juror who should have been excused because of an inability to be fair or impartial. As the judge noted, only one of the jurors seated actually had knowledge of the earlier trial, and that juror had no specific recollection of the alleged facts. Additionally, of the twenty-seven articles defendant presented as evidence of the pervasiveness of the publicity surrounding the trial, half of the articles were published during the course of defendant's trial, and the jurors were instructed not to read any articles related to the trial and not to otherwise discuss the trial. We presume the jurors followed the court's instructions. State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998). Notably, defendant did not utilize all of his peremptory challenges and, therefore, was not precluded from removing a juror he believed had been tainted by pre-trial publicity, even if the court, upon application for cause, had concluded otherwise. Thus, there was no basis on which to conclude counsel was ineffective in failing to seek a change in venue.
Turning to the failure to seek a Wade hearing, there were two separate identification events. The male victim testified that he was shown photographs before he gave his statement to police and told that these were the men who had been arrested in connection with the attacks. In addition, the male victim testified that he saw defendant later in the evening following the attack. After he had been treated and released from the hospital, the victim, accompanied by his parents, went to the police station. As they were pulling up in their vehicle, he saw police taking defendant, in handcuffs, into the building. The victim testified that defendant "was wearing the same exact shirt, and same jeans." He indicated he knew it was the person who had attacked him and he told his mother.
While the subsequent photo identification was impermissibly suggestive, Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968), the victim's first identification of defendant was inadvertent. Both the victim and defendant arrived at the police station at the same time, and the victim immediately recognized defendant as the "bigger gentleman with the chain and the shirt on[.]" There is no evidence that police timed defendant's arrival so as to force the encounter. Accidental encounters unarranged by the police are not unduly suggestive. State v. Mance, 300 N.J. Super. 37, 58-59 (App. Div. 1997).
Finally, as Judge Geiger observed, there was overwhelming evidence of defendant's culpability. Defendant admitted to being present at the time of the attacks, his palm prints were found on the vehicle from which the victims were dragged and attacked, and the male victim was confined by defendant and the other perpetrators for a considerable period of time, during which he was forced to watch the female victim being raped. Under these circumstances, Judge Geiger properly concluded defendant failed to satisfy either prong of the Strickland standard based upon trial counsel's failure to seek a Wade hearing.