November 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAL WADE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-12-1781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012 -
Before Judges Messano and Kennedy.
Tried by a jury, defendant Jamal Wade was convicted of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The third count of the indictment, second-degree possession of a firearm by certain persons, N.J.S.A. 2C:39-7, was severed from the other counts, and the same jury subsequently convicted defendant of that charge. He was sentenced on October 21, 2005. The judge merged the second count into the first and sentenced defendant to a term of six years' imprisonment. On the certain persons conviction, the judge imposed a consecutive seven-year term with a five-year period of parole ineligibility.
Defendant appealed his conviction and sentence. We briefly recite the evidence adduced at trial as set forth in our opinion:
On July 21, 2004, at about 5 p.m. Detective Vaughn Patterson and Sergeant George Vazquez of the Paterson Police Department were riding in an unmarked police car in the area of 11th Avenue and East 22nd Street. . . . Suddenly they saw two individuals, later identified as defendant and Lawrence Moody, running at full speed in their direction on 11th Avenue. Both men were wearing bandanas covering much of their faces and necks. Vazquez and Patterson saw a "silver object" in the left hand of the defendant and a small safe in his right hand. The officers followed the two men on to East 22nd Street where they crossed in front of the police vehicle. Both Patterson and Vazquez recognized the silver object in defendant's left hand as a handgun, and saw him hand it to Moody . . . .
. . . Vazquez drove the car up next to the defendant and Moody and saw Moody throw the handgun into some hedges . . . . The two men then separated and ran in different directions despite being told to stop . . . . Defendant turned into a driveway on 11th Avenue and tried to stash some items under a parked car. Patterson then caught up to the defendant and handcuffed him. Looking under the parked car, Patterson found the safe. The silver handgun was later found in the area where Moody threw it.
The safe contained $1,999, in [mostly small] denominations . . . . The safe also contained numerous black rubber bands, two razor blades, two straight-edge razor blades, and a piece of paper with a toll-free number on it. The handgun was unloaded but later found to be operative. At police headquarters Patterson inquired whether there were any burglary or robbery reports that day and was told that there were none. Patterson was not surprised because the contents and number of small bills led him to believe that the safe had been stolen from a drug dealer.
The defense case consisted of the testimony of Moody, who had pled guilty to possessing a firearm for an unlawful purpose. . . . During his testimony Moody also admitted to convictions of other crimes including about eight drug offenses.
Testifying as to the events of July 21, 2004, Moody said that he purchased the gun from someone on the street and that the defendant was not involved in the purchase . . . . He claimed the defendant never possessed the firearm and never passed it to him . . . . He said that he saw the safe next to a garbage can . . . and denied that either he or defendant opened it. He added that defendant picked up the safe. They were walking away when they saw the unmarked police car and started running because he had the gun in his hand. When asked about his guilty plea in this case, Moody admitted telling the plea judge that defendant possessed the weapon and passed it to him just before they started running from the police. He explained in his testimony that he lied to take advantage of the generous plea offered by the State. [State v. Jamal Wade, A-3393-05T4 (App. Div. January 14, 2008) (slip op. at 3-6).]
We affirmed defendant's convictions and sentences on appeal. Id. (slip op. at 3). Defendant's petition for certification to the Supreme Court was denied. State v. Wade, 196 N.J. 85 (2008).
On August 8, 2008, defendant filed a pro se petition for post-conviction relief (PCR), along with a supporting brief. Defendant argued that he was denied the effective assistance of trial counsel in that his attorney failed to properly investigate the allegations and possible defenses, failed "to argue the obvious issues," and misinterpreted "the opening the door doctrine" leading the jury to infer that defendant was a drug dealer.
Counsel was appointed, and defendant filed a supplemental certification and brief. In his certification, defendant claimed trial counsel failed to investigate his co-defendant, Lawrence Moody, referred to Moody as a drug dealer, thereby implying to the jury defendant was also a drug dealer, and failed to investigate other potentially exculpatory witnesses. These included Shakia Townsend and Maurice Timmons, defendant's friends, who defendant claimed were present and would have testified that defendant never possessed the handgun.*fn1 Notably, neither Townsend nor Timmons supplied any affidavits or certifications corroborating defendant's version of their potential testimony.
After considering oral argument, Judge Donald J. Volkert, Jr., issued a written opinion. The judge briefly summarized the State's evidence at trial and reviewed the applicable case law regarding defendant's claim of ineffective assistance of trial counsel.
Turning to defendant's specific claims, the judge noted the lack of any certifications from Townsend or Timmons, and characterized defendant's claims regarding these witnesses as "vague, general and bald assertions." Citing the trial transcript, the judge noted that the decision to call Moody was "a strategy made -- and agreed to -- by both trial counsel and defendant." Judge Volkert quoted from the trial transcript in which counsel advised defendant regarding the possible pitfalls of calling Moody as a witness. The judge concluded that "defendant . . . failed to make out a prima facie claim showing that in the absence of the asserted deficiencies by trial . . . counsel the outcome of his trial . . . would have been different." The judge further concluded that trial counsel's performance was "conscientious and zealous." He denied the petition and this appeal followed.
Defendant raises the following point for our consideration:
THE COURT MISAPPLIED ITS DISCRETION WHEN IT DENIED THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10
We have considered this argument in light of the record and applicable legal standards. The argument lacks sufficient merit to warrant extensive discussion, and we affirm substantially for the reasons set forth in Judge Volkert's comprehensive opinion.
R. 2:11-3(e)(2). We add only the following.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
"[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citations omitted). Most importantly, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 436-37 (App. Div. 2008) (emphasis added). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Before us, defendant does not address the lack of any support from Townsend or Timmons regarding the claim that they would have supplied exculpatory evidence. Judge Volkert properly characterized defendant's contention in this regard as a "bald assertion." Cummings, supra, 321 N.J. Super. at 170.
Defendant also contends that while he agreed with the strategy of calling Moody as a witness, he did not know or consent to trial counsel's reference to Moody as "a drug dealer" during summation. The inescapable conclusion is that trial counsel, knowing full well that Moody's prior record was before the jury, decided to "lay the weight" on defendant's cohort, asking the jury to infer that Moody, not defendant, was more likely the one who possessed the firearm.
This was an entirely reasonable strategy and does not support defendant's claim that his attorney was deficient. Since there was no prima facie showing of ineffective assistance of trial counsel, there was no need to hold an evidentiary hearing.