January 22, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FUQUAN MORGAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2012
Before Judges Fisher, Alvarez and St. John.
We remanded defendant Fuquan Morgan's petition for post-conviction relief (PCR) for an evidentiary hearing, having concluded that he had established a prima facie case of ineffective assistance of counsel. See State v. Morgan (Morgan II), No. A-0858-07 (App. Div. Nov. 2, 2009). On September 13, 2010, upon completing the remand evidentiary hearing, the Law Division judge again denied PCR. He reasoned that defendant's trial counsel had adequately explained her strategy regarding jury selection, and furthermore, that given the State's overwhelming proofs, the outcome would not have been different even if she had not employed the challenged strategy. We disagree and now reverse.
Defendant was tried in absentia and convicted of all the charges contained in Indictment No. 03-04-1526. Those charges were properly merged and defendant sentenced as a mandatory extended-term offender, N.J.S.A. 2C:43-6(f), and as a persistent offender, N.J.S.A. 2C:44-3(a), to twenty years imprisonment, subject to ten years of parole ineligibility, for second-degree possession of a controlled dangerous substance with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.*fn1
We affirmed the conviction, and defendant's petition for certification was denied by the Supreme Court. State v. Morgan (Morgan I), No. A-4864-03 (App. Div. June 1, 2006), 188 N.J. 491 (2006). His PCR petition followed on November 20, 2006, and was denied on June 25, 2007. Thereafter, he appealed, and we remanded the matter in an unpublished opinion. Morgan II, supra, slip op. at 16.
The circumstances which resulted in the indictment are as follows: undercover officers witnessed defendant engaging in a drug transaction on March 16, 2003. When immediately arrested following the observation, he had $95 in cash on his person. Envelopes containing heroin were found at the location from which he was seen removing an object immediately prior to the sale.
At trial, the State principally relied upon the testimony of an eyewitness, one of the undercover officers who observed the transaction. He was a person with whom a prospective juror was well-acquainted. That juror was a detective with the Essex County Prosecutor's Office, the entity prosecuting the indictment.
When the detective's name was called, both counsel immediately raised the issue of the prospective juror's status as a prosecutor's employee. The following day, the prosecutor requested he be excused. The prosecutor reiterated that the detective worked for her office, likely worked for the trial judge when the judge was employed by the prosecutor's office, and "knows the arresting officer in this case very well."
The remand hearing was designed to develop a record regarding the detective's inclusion in the deliberating jury and defense counsel's strategy explaining her objection to the detective's excusal. At the hearing, trial counsel, an experienced attorney, explained that she believed the detective when he said he could be fair and impartial. She also testified that she had previously allowed law enforcement personnel to remain on deliberating juries. Trial counsel said that she did not anticipate "a negative repercussion" from the detective's participation, even though she acknowledged that she was not privy to jury deliberations and had not kept records of jury verdicts in those cases where she did not excuse law enforcement employees from the jury. She also agreed that the detective was not the sole remaining potential juror.
Trial counsel added that her adversary "was thrown for a loop that I left a prosecutor's investigator on the jury." She claimed that was one of the factors that caused her to insist he remain on the panel. She expressed her firm belief in the efficacy of the jury system and the fairness of police officers who "may, in fact, question the credibility of fellow officers as much as the general public."
Furthermore, trial counsel asserted, by allowing the detective to remain on the panel she was communicating to other prospective jurors "how routine the events that led to Mr. Morgan's arrest were and how, I'm going to use the word sloppy and routine and easy and matter of fact this type of event occurs, and that this was not the type of important case that jurors should have their time wasted on." In other words, by allowing him to remain, she was hoping to convey the concept of jury nullification. She wanted the jury to "consider how a 15-bag of heroin case got to trial."
On appeal, defendant raises the singular issue:
THE FAILURE OF TRIAL COUNSEL TO EXERCISE A PREEMPTORY CHALLENGE TO EXCUSE A JUROR WHO WAS A CAPTAIN IN THE SAME PROSECUTOR'S OFFICE PROSECUTING HER CLIENT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
PCR "is New Jersey's analogue to the federal writ of habeas corpus." State v. Milne, 178 N.J. 486, 491 (2004). The petitioner's burden is to "establish the right to [post-conviction] relief by a preponderance of the credible evidence." State v. Echols, 199 N.J. 344, 357 (2009).
In order for defendant to obtain relief on ineffective assistance grounds, he must show not only the particular manner in which trial counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard in New Jersey).
Courts should review counsel's performance under the Strickland/Fritz test with extreme deference. State v. Fisher, 156 N.J. 494, 500 (1998). New Jersey courts have adopted a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Judicial deference in examining counsel's strategy is necessary because it is "all too tempting" for a defendant to second-guess decisions that appeared reasonable during trial, but ultimately proved unsuccessful. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Even in a case such as this one, however, where the charge is a possessory offense and the State's proofs are overwhelming, we must still have "confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also Fritz, supra, 105 N.J. at 52. As we previously said: a defendant is not required to show with mathematical precision that he would have been acquitted instead of convicted but for trial counsel's mistakes, but instead is required to show only that his attorney's errors and omissions were of such significance as to undermine confidence in the outcome. In examining the parties' contentions, we must remain mindful that "[p]ost-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system."
State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). [Morgan II, supra, slip op. at 11.]
In our view, trial counsel's testimony did not establish an actual strategy justifying an employee of the Essex County Prosecutor's Office, the prosecuting entity, remaining on the jury panel.*fn2 Had counsel objected to his presence, the court would no doubt have promptly removed him. See State v. Jackson, 43 N.J. 148, 160-61 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965).
We are not second-guessing a strategy that only in hindsight appears of doubtful merit. We are unable to conclude that the reasons trial counsel expressed can be characterized as "strategy." Trial strategy must consist of more than belief in the soundness of the jury system, the presumed benefits of puzzling one's adversary, and the hope of communicating the concept of jury nullification to jurors.
Hence trial counsel's failure to exclude an employee of the Prosecutor's Office from the jury trying the matter against her client, an employee who was very familiar with the main witness, did not fall within the range of "legitimate decisions regarding how best to represent a criminal defendant." Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Castagna, 187 N.J. 293, 314 (2006). This is one of those rare instances where the decision made by counsel was "'of such magnitude as to thwart the fundamental guarantee of a fair trial.'" Castagna, supra, 187 N.J. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). It fell outside the range of "reasonable professional assistance." See Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. It undermines our confidence in the outcome. See id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Thus the order denying PCR is reversed and the matter is remanded for a new trial.
Reversed and remanded.