September 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAL MUHAMMAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-10-2525.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012 -
Before Judges Payne, Simonelli and Hayden.
Defendant, Jamal Muhammad, was convicted by a jury of third-degree unlawful possession of a hand gun, N.J.S.A. 2C:39- 5b (count one); second-degree possession of a hand gun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count four); first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1) or (2) (count five); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count six). Following merger of the felony murder conviction into that for first-degree murder, defendant was sentenced to life imprisonment with a thirty-year parole disqualifier on the first-degree murder conviction. After further mergers, defendant was given lesser concurrent sentences on the remaining convictions.
Defendant appealed, and we affirmed in a published opinion. State v. Muhammad, 359 N.J. Super. 361 (App. Div.), certif. denied, 178 N.J. 36 (2003). Defendant then sought post-conviction relief (PCR), which was denied by the trial court.
On appeal, we remanded for a new hearing, determining that PCR counsel had violated Rule 3:22-6(d) by failing to present all of defendant's PCR petition claims and by filing a deficient brief. State v. Muhammad, No. A-3219-06 (App. Div. March 31, 2010) (slip op. at 5). The present appeal arises from the denial of PCR on remand.
On appeal, defendant raises the following issues through counsel:
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE DID NOT USE EVIDENCE WHICH WAS RELEVANT TO THE DEFENDANT'S DEFENSE THAT HE DID NOT PARTICIPATE IN THE ROLLINS HOMICIDE IN ANY WAY. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947)).
POINT TWO THE JURY COULD HAVE RATIONALLY BELIEVED THAT THE DEFENDANT CONSCIOUSLY DISREGARDED A KNOWN RISK WITH EITHER A PROBABILITY OR POSSIBILITY A DEATH WOULD FOLLOW WHERE HE PROVIDED A GUN TO SANTIAGO, BUT WAS NOT PRESENT WHEN THE CRIME OCCURRED, THEREBY WARRANTING A CHARGE OF THE LESSER INCLUDED OFFENSES OF AGGRAVATED OR RECKLESS MANSLAUGHTER.
POINT THREE THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE DID NOT RAISE ON THE DEFENDANT'S DIRECT APPEAL THE ARGUMENT THAT THE TRIAL COURT SHOULD HAVE CHARGED THE JURY WITH THE LESSER INCLUDED OFFENSES OF AGGRAVAT[ED] AND RECKLESS MANSLAUGHTER.
POINT FOUR THE PCR COURT ERRED WHERE IT DID NOT CONDUCT AN EVIDENTIARY HEARING BECAUSE IT FOUND THAT IT WAS PRECLUDED FROM SECOND GUESSING THE TRIAL STRATEGY OF THE DEFENDANT'S TRIAL ATTORNEY DESPITE THE FACT THAT THE DEFENDANT PRESENTED A PRIMA FACIE CASE.
In addition, defendant submitted a pro se supplemental brief, in which he argued:
POINT ONE THE PCR COURT ERRED BY DENYING THE WARRANTED RELIEF ON CLAIMS FOR WHICH DEFENDANT HAS MADE A PRIMA FACIE SHOWING THAT: (a) THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTERS; AND
(b) THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ACCEPTING THE TRIAL COURT'S OFFER FOR THE INSTRUCTIONS TO BE GIV[EN] ON THE LESSER-INCLUDED OFFENSES, THEREFORE THE DECISION OF THE PCR COURT SHOULD BE REVERSED AND THE MATTER SHOULD BE REMANDED FOR A NEW TRIAL.
POINT TWO BECAUSE THE PCR COURT DID NOT PROPERLY ADDRESS THE CERTIFICATIONS AND STIPULATIONS THE DEFENDANT OFFERED IN SUPPORT OF HIS PCR THE MATTER SHOULD BE REMANDED FOR THEIR CONSIDERATION AND A FULL EVIDENTIARY HEARING.
We set forth the facts of this matter, as presented at trial, in our published opinion. Muhammad, supra, 359 N.J. Super. at 370-71 and 373-74. We briefly summarize them here.
At some time before October 20, 1996, defendant, accompanied by Na'eem Santiago, approached Stephon Duggan, a person with a significant criminal record, seeking a gun because "he was having problems" and stating that he and Santiago intended to use the gun to rob people. On October 20, Duggan agreed, giving a loaded .38 caliber semi-automatic weapon to defendant, who turned it over to Santiago. The three then discussed potential robbery victims, and Vaughn Rollins was identified. However, Duggan told the other two not to rob Rollins because he was Duggan's cousin.
Shortly thereafter, Santiago and defendant robbed a passing bicyclist, Kenneth Howard, in Duggan's presence. Santiago cut Howard in the neck and leg with a butcher knife, and then he and defendant ordered Howard to remove all his clothes, with the exception of his shirt, underpants and socks, and to crawl under a parked truck. Defendant and Santiago then rode off on Howard's bicycle with Howard's clothing.
On October 22, 1996, defendant and Santiago spent much of the day together in the Venice Park section of Atlantic City. At approximately 7:45 p.m., fifteen to thirty young people were congregated on two porches on Missouri Avenue. Rollins drove up with Anthony Jones, whose girlfriend lived on that street. Jones exited the car to briefly visit his girlfriend, while Rollins remained in the vehicle, counting his money. As he did so, a masked man approached, demanded the money, and when Rollins failed to comply, the masked man shot him in the chest.
Rollins was taken to the Atlantic City Medical Center, but he died while in surgery.
The masked man fled the scene, without taking the money, followed by defendant. However, shortly thereafter, defendant returned to retrieve his jacket, and then again left in the direction taken by the masked man.
When he learned of the shooting, Duggan went to the hospital, where he informed Rollins' father, after confronting Santiago and hearing that he had shot Rollins by accident, that he, Duggan, had supplied the gun to defendant, and that Santiago had killed Rollins. Santiago was also implicated by another person with a significant criminal record, Aaron McCoy, who testified at trial that, after the shooting, Santiago went to McCoy's apartment seeking advice and stating that he had killed Rollins. McCoy called a cab for Santiago and advised him to throw the gun over a bridge and to leave town - advice that was apparently taken.
Santiago was apprehended in Jacksonville, Florida on May 1, 1998, and defendant turned himself in to the police a few days later.
In the interim, a police investigation had been undertaken, although the majority of the witness statements were not obtained until approximately eight months after the shooting.
According to the testimony of Dennis McKelvey, a Sergeant in the Atlantic County Prosecutor's Office, after that eight-month interlude, a fifteen-year-old witness, Joel Townsel, identified Santiago's picture as that of the person he had seen leaving the area that night. However, Townsel repudiated the identification at trial. Townsel's cousin, Brian Townsel, testified at trial that he knew Santiago and had seen him earlier in the day. He stated additionally that the shooter's clothes were the same as those that he had earlier seen on Santiago. An additional identification was made by witness Kiana Grant.
At the joint trial of Santiago and defendant, defense counsel took the position that Santiago, who was not well known in Venice Park, had been misidentified by the Townsels and Grant, whose identifications, counsel claimed, were based on street talk, not accurate observation. Defense counsel sought to undercut the testimony of Duggan and McCoy by emphasizing their criminal histories and suggesting that their testimony lacked credibility. With respect to Duggan, counsel emphasized that he was incarcerated at the time that he gave his initial statement and sought to benefit from its utterance. In fact, he was never charged with supplying defendant with the gun used in the shooting. Because no witness testified that defendant was the shooter, his liability could be based only on theories of conspiracy and aiding and abetting. Thus, if the jury determined that Santiago was not the shooter, then no liability could be imposed on either defendant. Counsels' strategy, although reasonable, was not successful, and both men were convicted of murder, felony murder, and the other charges we have set forth.
In his petition for PCR, defendant argued that trial counsel was ineffective under standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), because she chose to defend defendant as she did, instead of offering evidence of a love triangle between Rollins, Santiago and a woman named Gia Smith, and suggesting that Santiago's motive for killing Rollins was jealousy or revenge, not armed robbery, thereby exculpating defendant. In support of this position, defendant offered a 2009 stipulation between the prosecutor and Santiago's defense attorney, drafted in connection with Santiago's petition for PCR, which stated:
Dennis McKelvey worked as an investigator with reference to the above matter. On or about June 9, 1997, he interviewed Aaron McCoy. During this interview, Mr. McCoy indicated that it was his belief that the shooting of Vaughn Rollins occurred due to Mr. Rollins "fooling around" with the defendant's girlfriend.
This was memorialized in a report dated June 20, 1997. On June 18, 1997, Dennis McKelvey interviewed George Rex, the father of Vaughn Rollins. During this interview, he was advised that Mr. Rollins may have had a girlfriend named Gia at the time.
Investigator McKelvey determined that "Gia" was Gia Smith and that she was the girlfriend of the Defendant at the time of the shooting. This was memorialized in a report dated June 20, 1997.
Additionally, defendant offered a statement given by Rollins's passenger, Byron Jones, on November 10, 2010, almost ten years after the trial, in which he stated that, a couple days prior to the shooting, Rollins had told him that he was having "some type of issues" with Santiago over a girl by the name of Gia, and that Rollins was probably going to have to do something to Santiago. However, Jones stated that he had not mentioned this fact when he met with the prosecutors in the presence of Jones's attorney. Jones, who was on the way to prison, refused to testify at trial.
As a final matter, defendant offered an unsworn statement from Rollins's father, George Rex, dated December 10, 2010, in which he stated that, on the evening of Rollins's death,
Stephon Dugan [sic] informed me that the Gun used to commit the crime in fact, belonged to him. He also said that he had given the weapon to Naim [sic] Santiago and Jamal Muhammad. I asked him repeatedly why he would give someone, anyone a Gun to commit a crime against his own relative and he stated that he did not know they were going to rob Vaughn. After further probing and during the trial, Stephon informed me that he did know that Naim had intentions of Robbing Vaughn but at the time, he did not know that Naim had a personal grudge against him that stemmed from a girl they were both seeing and who Naim felt had disrespected him.
This information was not presented at trial and had it been, I am quite certain the outcome would have been different.
Following oral argument at the PCR hearing in this matter, the PCR judge determined that trial counsel was not ineffective under Strickland's standards in failing to adopt a love triangle defense instead of an unknown assailant strategy. The judge suggested that, given Duggan's testimony that defendant and Santiago contemplated armed robbery and even accomplished it in his presence, two days before the murder, a jury was not likely to accept a love triangle defense as a means for exculpating defendant. Further, the trial judge would not have granted severance of the trials of the two defendants, given the charges of conspiracy and aiding and abetting, and the State's theory that defendant was vicariously liable for the murder and the felony murder. To say that counsel's strategy, given the proofs, was ineffective, would be to engage in impermissible second-guessing. Further, the judge noted that counsel had not established how the love triangle theory would have been less problematic than the unknown assailant theory when one took Duggan's testimony into account. The judge continued:
So counsel may have said, you know what, you know, this lover theory, you know, that means I got to put them there at the scene because there was an axe to grind. I'm better off going with the unknown assailant theory because then maybe the jury believes that, you know, my people, you know, my client, they weren't even around . . . .
We agree with the PCR judge's evaluation.
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there was 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Significantly, the Strickland Court held:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (citations omitted).]
On appeal, defendant argues that, when counsel's ineffectiveness is asserted, strategic decisions made after less than a complete investigation of the facts are subject to greater scrutiny than would otherwise be the case, citing State v. Savage, 120 N.J. 594, 617-18 (1990). However, the fact of a potential love triangle had been disclosed in discovery.
Counsel simply declined to use this evidence, because it would place Santiago at the murder scene and thus undercut her unidentified assailant defense - a defense that we find, in the circumstances, had a rational factual basis. As a consequence, we are satisfied that defendant has failed to meet the first of Strickland's prongs, rendering analysis of the second prong unnecessary and relief unwarranted.
At a charge conference held in the matter, the trial judge stated to counsel:
Probably, if tortured, there is a potential in light of the testimony of one of the state's witnesses with respect to a statement attributed to the defendant, Na'eem Santiago, with respect to accident for lesser included homicide charges of either aggravated manslaughter or reckless manslaughter, and I'm also mindful of counsel's and the defense's strategy with respect to the trial of this matter.
So I'm at counsel's pleasure and obviously, we need to deal with the respective defendants as appropriate with respect to any lesser included homicide charge.
After consulting with their clients, both defense counsel determined not to request a manslaughter charge - a position that was accepted by the prosecutor.
In his PCR petition, defendant claimed that it was error not to charge the lesser-included manslaughter offenses, and that appellate counsel was ineffective in failing to raise this argument on direct appeal. The PCR judge rejected that position, adopting the reasoning of State v. Perry, 124 N.J. 128 (1991), a decision in which the Court distinguished between (1) situations in which the defendant is concerned that, by offering the option of a conviction for manslaughter, a jury that might not have found the defendant guilty of murder finds him guilty of the lesser offense and (2) situations in which the issuance of a manslaughter charge will, because of the evidence that charge will engender, assure a conviction for murder. Id. at 163 (quoting State v. Choice, 98 N.J. 295, 301 (1985)). Whereas a charge on manslaughter should be given sua sponte in the first instance, in the second, the charge probably should not be given. Ibid. The Court observed:
[D]espite the arguable appropriateness of the . . . charge, such a charge would have been directly contrary to defendant's position at trial, could have prejudiced his chances of being acquitted of knowing murder by emphasizing his presence at the murder scene, and would have forced counsel to have forsaken or altered his chosen strategy. In a close case, forcing counsel to incorporate defenses that pre-suppose the existence of the very fact his main method of defense contests destroys the credibility and coherence of the defense entirely. Our analysis of the duties of a trial judge must be "seasoned by a degree of deference to defense counsel's strategic decisions." [Ibid. (quoting State v. Marshall, 123 N.J. 1, 92 (1991)).]
Moreover, the PCR judge noted that manslaughter was not a lesser-included offense of felony murder.*fn1
We agree with the PCR judge's reasoning and reject defendant's arguments.
Because we find that defendant has failed to present a prima facie showing that either trial or appellate counsel was ineffective, we reject the claim that an evidentiary hearing should have been held in this matter. State v. Preciose, 129 N.J. 451, 462 (1992).