The opinion of the court was delivered by: Pisano, District Judge
Petitioner Jayson Vreeland ("Petitioner"), a prisoner currently confined at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Greg Bartkowski, the Attorney General of New Jersey and the Sussex County Prosecutor's Office. For the reasons stated below, the Petition will be denied.
This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)*fn1 , will simply reproduce the recitation of facts as set forth by Superior Court of New Jersey, Appellate Division on direct appeal:
After burglarizing a sporting goods store and stealing firearms therefrom, Koskovich [Petitioner's separately-tried co-conspirator] gave a .40 caliber handgun to Michael Conklin, his co-conspirator in that burglary and theft, and told Conklin that he was planning to rob "some pizza men, holding them up.for the money." Conklin agreed to participate and continued to do so, even after Kosovich changed his plan to "hold up pizza men in Vernon, shoot them and take their money and their car." Subsequently, Koskovich met with Conklin and defendant, although the plan was not discussed at the time. Nevertheless, at some time thereafter, Koskovich told Conklin that defendant would participate in the crime. On cross-examination, Conklin testified that Koskovich "never indicated" that defendant agreed to be involved prior to its occurrence.
Nevertheless, before the crimes occurred, defendant participated with Koskovich in taking target practice with the stolen guns. Koskovich also spoke with defendant about his plan to rob and kill a pizza deliveryman. He explained that pizza men were "an easy target." According to defendant's subsequent recorded statement to the police, Koskovich indicated that he wanted to "kill someone.just for the thrill of killing someone."
On the morning of April 19, 1997, Koskovich went to Conklin's home and told Conklin that he was going to commit the murder that night. Conklin made himself unavailable to participate in the crime.
Defendant arrived at Koskovich's home between 6:30 and 7:00 that evening. They drove to Conklin's house in Koskovich's car, a light blue 1984 Chevrolet Cavalier. The car was "loud" and one headlight was not working. They returned to Koskovich's home after discovering that Conklin was not home.
While there, Koskovich's girlfriend, Kimberly Prestidge, saw defendant tear a list of pizza restaurants out of the telephone book, and saw either defendant or Koskovich copy telephone numbers onto a piece of paper. She also saw both defendant and Koskovich put guns in their belts or under their shirts.
On the evening of April 19, 1997, Scott Madden was working in the garage of his residence on Scott Road in Franklin Township when he heard a vehicle traveling by. Madden, an automobile parts employee for General Motors, observed a light blue Chevrolet Cavalier hatchback drive past his house and, twenty minutes later, return in the opposite direction. Due to its hatchback design, Madden was able to identify the vehicle as manufactured between 1984 and 1987. Madden further testified that he was able to easily hear the vehicle because "it had no muffler or [had] a hole in the muffler." Another Scott Road resident, Claudia Simet, confirmed Madden's report. She testified that she heard a "loud car" pass her house between 9:00 and 9:30 p.m. and observed that the vehicle had one burned out headlight. Both accounts buttressed defendant's statement in which he referred to an abandoned house on Scott Road as the place where he and Koskovich planned to have the pizzas delivered.
Defendant and Koskovich were observed at a Dunkin' Donuts in Franklin between 9:00 and 11:00 on the evening of April 19. Koskovich obtained a telephone book, and defendant began calling pizzerias to place an order. Defendant first called Tony's Pizzeria, but terminated the call after discovering Giordano -- a person who he knew and was once "pretty close" with -- was working that night. Defendant and Koskovich then took turns placing calls to other pizzerias. Ultimately, Tony's Pizzeria was called a second time. Defendant and Koskovich ordered two pizzas to be delivered to an abandoned house on Scott Road. Gallara, the owner of Tony's restaurant, took the call and accepted the order. The cook started to prepare pies at approximately 10:30. Giordano and Gallara left to deliver the order at about 10:45.
Between 10:00 and 11:00 p.m., Harriet Yonkers looked out the window of her home on Scott Road after hearing a car with a bad muffler, and saw a blue car with one burnt out headlight parked across the street from her home. She observed both the driver and passenger get out of the vehicle.
According to defendant's statement, when the pizza delivery was made to the abandoned house on Scott Road, Koskovich "just started shooting" through the open passenger window of the victims' car. Koskovich shot the driver in the head causing what defendant described as a "huge hole." According to defendant's statement, Koskovich also fired at the passenger and defendant picked up his gun from the grass where it had been placed and began to fire at the dashboard of the car because he "just wanted.to prove that.[he] was a friend of Koskovich." He said he "didn't want to kill anybody" and had "pretty much more or less [shot] towards the dashboard." However, in his prior oral statement to the police, defendant said he pulled out his gun and began firing at the same time that Koskovich did. Defendant fired four shots. Thereafter, Koskovich pulled Gallara from the car, and defendant realized that Giordano was the driver of the delivery vehicle. At about 11:30 p.m., Ms. Yonkers heard noises and observed the loud vehicle drive away from the scene at a fast rate of speed.
Defendant and Koskovich returned to Koskovich's home and changed from their bloody clothes. Ms. Prestidge testified that the two returned between 11:15 and 11:20 and looked "pretty wrecked." According to defendant's statement, Koskovich made phone calls to his friends asking "have you ever talk[ed] to someone that just murdered someone."
On April 20, 1997, Madden observed the car he had seen on Scott Road the day before and called the police with identification. Koskovich was arrested by the State Police and on April 21, 1997, a search was conducted of his residence pursuant to a warrant issued by a judicial officer. Among the items retrieved were firearms, Gallara's wallet, and a gym bag containing blood stained clothes. Defendant was subsequently arrested pursuant to a separate warrant. Because defendant was a juvenile his parents were invited to be present during an interview, and defendant's parents agreed to do so because they wanted him to cooperate and tell the truth. After being advised that defendant did not have to answer questions and that his parents had the right to be present, defendant told the police "he had no problem with talking to.[them] but he wanted to be interviewed. He was read his Miranda rights, and defendant and his parents both signed a Miranda waiver form. Defendant's parents also signed a form granting the police permission to interview defendant and opting to be present during the interview. In his oral statement, defendant acknowledged that "we both shot into the car."
After the oral statement was complete, the police asked for the opportunity to tape the statement, and defendant and his parents once again agreed. The Miranda warnings were administered a second time. In the recorded statement defendant stated, among other things, that he had placed his gun in the grass and had to retrieve it after Koskovich began shooting. As already noted, in the taped statement defendant said he shot at the dashboard.
Subsequent to his arrest and the statements, defendant was placed in the Sussex County Juvenile Detention Center. There he told another detainee, Charles Varella, that he never thought that the events would occur or that Koskovich would go through with the plan, which included making the telephone calls from Dunkin' Donuts and shooting the delivery person or persons at an abandoned house. Defendant told Varella that he fired a .22 caliber shotgun into the dashboard of the delivery vehicle. He also told Varella that he and Koskovich wanted to see "[w]hat it was like to kill somebody."
The DNA analysis revealed that Giordano's blood matched the blood stains on the pants found inside a bag which was retrieved outside of Koskovich's home during the search. The State Police expert testified that Giordano was shot by a .45 caliber pistol but could not conclusively indicate whether bullets that killed Gallara came from the .22 caliber firearm. No damage was found on the passenger side dashboard of the delivery car.
Dr. Paula Bortnichak, a psychologist, testified that defendant became dependent upon Koskovich and had a submissive relationship. Defendant viewed Koskovich as "charismatic" and a "powerful leader." Defendant told her that while they were at Dunkin' Donuts, Koskovich devised the plan that they would call pizza restaurants, have pizza delivered and hold up the delivery person. Defendant indicated that Koskovich never discussed the plan to shoot the delivery person. The doctor was also told that after Koskovich began shooting, he yelled to defendant "you got to do this with me," and that he decided to shoot at the dashboard. He also indicated that Koskovich gave him two blue Fioricet pills after the shooting. Dr. Bornichak concluded that defendant's cognitive ability at the time of the shooting was "reduced somewhat so that he could not have the full capacity to participate in.[a] knowing and purposeful way." This was a result of his psychological dependence on Koskovich, his barbiturate intoxication and the impairment of his cognitive capacity caused by his witnessing of Koskovich's shooting. However, Dr. Bortnichak also indicated that defendant had the capacity to know that the "holdup would take place" and that he was "able, in a purposeful or knowing way to accept the gun from" Koskovich. Moreover, she recognized that there were discrepancies between defendant's statements and the version he told her and that she relied upon the latter. An expert called by the state concluded that defendant acted purposefully and knowingly.
State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005).
After a jury trial, Petitioner was found guilty of purposeful or knowing murder of Gallara, felony murder of Gallara, aggravated manslaughter of Giordano, first degree robbery, second degree burglary, conspiracy, possession of a firearm for an unlawful purpose, and possession of the firearm without a permit. State v. Vreeland, 2010 WL 2990937, at *1 (N.J. Super. Ct. App. Div. July 26, 2010). Petitioner was acquitted of the purposeful or knowing murder of Giordano and of hindering apprehension. Id. Petitioner was sentenced to life imprisonment with thirty years to be served before parole eligibility for the purposeful or knowing murder of Gallara, a consecutive sentence of twenty years, with ten years to be served before eligibility, for the aggravated manslaughter, and consecutive sentences for the armed robbery, burglary and permit convictions aggregating life imprisonment plus forty-six years with fifty-one years to be served before parole eligibility. Id. Petitioner appealed and the Appellate Division affirmed the convictions, and the consecutive sentences for the two homicides and armed robbery, but ordered the remaining terms to be served concurrently. State v. Vreeland, A-1219-00T4 (N.J. Super. Ct. App. Div. Jan. 21, 2005). On May 3, 2005, the New Jersey Supreme Court denied certification. State v. Vreeland, 874 A.2d 1104 (N.J. 2005).
Petitioner filed a petition for post-conviction relief ("PCR"), which was denied by the trial court and then by the Appellate Division. State v. Vreeland, 2010 WL 2990937, at *1 (N.J. Super. Ct. App. Div. July 26, 2010). The New Jersey Supreme Court denied certification. State v. Vreeland, 12 A.3d 209 (N.J. 2011). On May 27, 2011, Petitioner filed the instant petition. (ECF No. 1.) He alleges a claim of ineffective assistance of counsel, based on the following grounds:
(1) trial counsel failed to protect Petitioner's right to testify at the jurisdictional waiver hearing; (2) trial counsel failed to protect Petitioner's right to be present in court during the jury charge conference; (3) trial counsel failed to call witnesses to impeach Charles Varella's credibility; (4) trial counsel failed to object to the trial court's instructions on motive; and (5) appellate counsel failed to raise the issue of the trial court's improper denial of Petitioner's change of venue motion. Petitioner also alleges that his due process rights were violated by the following: (1) his co-conspirator's statements were improperly admitted in violation of the Sixth Amendment confrontation clause; (2) Petitioner was improperly absent from the charge conference in violation of his Sixth Amendment rights; (3) the trial court failed to properly charge the jury regarding Petitioner's out-of-court statements and the testimony of Varella and Conklin; (4) Petitioner's cross-examination of the medical examiner was improperly limited; (5) the trial court improperly allowed the jury to have a tape player to listen to Petitioner's taped statement; (6) the prosecutor made improper comments during the summation; and (7) the conviction for burglary should have merged into the robbery conviction and the sentences imposed were excessive.*fn2 Id.
Respondents filed an answer, arguing that Petitioner is not entitled to habeas relief. (ECF Nos. 15-18.) Petitioner did not file a reply.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. ...
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the
facts in light of the evidence presented in the State court
28 U.S.C. § 2254. "As amended by AEDPA, 28 U.S.C. § 2254 sets several
limits on the power of a federal
court to grant an application for a writ of habeas corpus on behalf of
a state prisoner." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Section 2254(a) permits a court to entertain only claims alleging that
a person is in state custody "in violation of the Constitution or laws
or treaties of the United States." Id. A federal court's authority to
grant habeas relief is further limited when a state court has
adjudicated petitioner's federal claim on the merits.*fn3
See 28 U.S.C. § 2254(d). If a claim has been adjudicated on
the merits in state court proceedings, this Court "has no authority to
issue the writ of habeas corpus unless the [state court's] decision
'was contrary to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of the
United States,' or 'was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'" Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012) (quoting
28 U.S.C. § 2254(d)). However, when "the state court has not reached
the merits of a claim thereafter presented to a federal habeas court,
the deferential standards provided by AEDPA ... do not apply." Lewis,
581 F.3d at 100 (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir.
A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "[C]circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court,' [and] therefore cannot form the basis for habeas relief under AEDPA." Parker, 132 S.Ct. at 2155 (quoting 28 U.S.C. § 2254(d)(1)).
A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different result.]" Williams, 529 U.S. at 405--06. Under the "'unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. However, under § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 131 S.Ct. at 785 (quoting Williams at 410). As the Supreme Court explained,
A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.... Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court. Harrington, 131 S.Ct. at 786 (citations and internal quotation marks omitted).
"This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen, 131 S.Ct. at 1398 (citations and internal quotation marks omitted). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Id.
1. Ground Two: Due Process
a. Co-Conspirator's Statements
Petitioner argues that his due process rights and Sixth Amendment right to confrontation were violated when the trial court improperly permitted the admission of Conklin's testimony regarding Koskovich's statements to him that Petitioner would participate in a plan to rob and shoot pizza delivery men. In his direct appeal, Petitioner argued that the admission of that testimony under the co-conspirator hearsay exception was improper since the court failed to determine whether a conspiracy actually existed before permitting the testimony.
The Appellate Division rejected this claim on direct appeal, stating:
Defendant argues that he was denied his right of confrontation and that evidence was unlawfully admitted against him under the co-conspirator exception to the hearsay rule. Over objection, the trial judge permitted Conklin to testify that Koskovich told him defendant would participate in the plan to rob and shoot the pizza deliveryman. However, defendant contends that "the record does not show that Koskovich's alleged statement to Conklin implicating the defendant in a conspiracy to rob and shoot the pizza deliverymen occurred prior to the crime." Therefore, defendant asserts that the statements were not made "in furtherance of and during the course of the conspiracy." Defendant further argues that the admission of this hearsay testimony cannot be deemed "harmless because it was offered to undercut his defense based upon the inability to form the necessary culpability to sustain a purposeful or knowing murder conviction."
On his direct testimony, Conklin indicated that Koskovich told him that he and defendant "wanted to hold up pizza men and shoot them and then take their money and their car." On cross-examination, however, Conklin also testified that Koskovich "never indicated to [him anything about] Mr. Vreeland being involved" "prior to the commitment of this crime .."
In order to be admissible under N.J.R.E. 803(b)(5): (1) "the statement must have been made in furtherance of a conspiracy"; (2) "it must have been made during the course of the conspiracy"; (3) "there must be evidence, independent of the hearsay, of not only the conspiracy but also defendant's relationship to it." The State bears the burden of proving that these prerequisites to admissibility have been met by a "fair preponderance of the evidence." [State v. James, 346 N.J. Super. 441, 457-59 (App. Div.), certif. denied, 174 N.J. 193 (2002) (citing State v. Phelps, 96 N.J. 500, 509-10, 517-19 (1984)).]
However, "a statement is considered to have been made in the course of a conspiracy even when the crimes have been completed as long as all of the conspiracy's objectives and goals have not yet been met." State v. Soto, 340 N.J. Super. 47, 62 (App. Div.), certif. denied, 170 N.J. 209 (2001). See also State v. Hunt, 115 N.J. 330, 367-68 (1989).
The record reveals no clear finding that Koskovich's statement to Conklin about defendant's role was made before the shootings occurred. However, it is illogical for Koskovich to have sought Conklin's participation in the conspiracy after the shootings had already occurred. Furthermore, it is inconceivable that the conspiracy ended the moment the shootings, burglary and robbery were completed, and before Koskovich was arrested because the defendants remained together after the shooting and mutually engaged in activity to hinder apprehension. Accordingly, there is support for admission of the testimony regardless of the judge's determination of the timing of the statement. Nevertheless, no instruction was given to the jury, as required, with respect to its obligation to find independent evidence of a conspiracy before it could consider that testimony substantively. See State v. Phelps, supra, 96 N.J. at 520.
We need not determine whether Conklin's testimony was admissible as a statement in furtherance of a conspiracy, however, because we are more than satisfied that, even if a hearsay violation occurred, it was harmless beyond a reasonable doubt. The case against the defendant was extraordinarily strong and included defendant's oral and taped statement to the police, as well as a statement to Varella, in which defendant confessed to his actual participation in the crimes and shootings themselves. There was also strong corroborative evidence by virtue of the observations of Ms. Prestidge, who saw the defendant tear a list of pizza restaurants from a telephone book on the night in question and who observed defendant and Koskovich place firearms in their belts before leaving the home, and Koskovich's car with one headlight missing and a loud muffler was observed at the crime scene on Scott Road. Moreover, before the crime occurred, defendant and Koskovich were observed at the Dunkin' Donuts where they obtained a telephone book from the manager and took turns calling various pizzerias. Furthermore, defendant expressly acknowledged at trial, and at the argument before us, that he was at the scene of the killings and fired a gun. In light of all of this testimony, the introduction of any inadmissible hearsay statement must be deemed harmless beyond a reasonable doubt.
We recognize that defendant's principal argument relates to the proofs concerning his purposeful or knowing state of mind or culpability required to commit a murder and that Conklin's testimony undermines the defense that he had no intention or plan to kill anyone as well as defendant's claim that he fired only at the dashboard. But independent of the fact that he was convicted of the aggravated manslaughter of Giordano and the felony murder of Gallara -- neither of which need a purposeful or knowing intent to kill or cause serious bodily injury resulting in death -- the evidence including defendant's statements to Varella and the police were more than sufficient to sustain purposeful or knowing murder conviction as well as the other convictions. In that connection, we emphasize that the proofs did not have to show that defendant actually fired a fatal bullet. The judge charged the jury on accomplice liability, and the proofs were overwhelming with respect to defendant's purpose to aid Koskovich. Significantly, in her instructions to the jury, the trial judge stated, without objection and without objection before us:
The indictment charges that Jayson Vreeland is legally responsible for the criminal conduct of Thomas Koskovich in violation of the law which reads in pertinent part as follows: A person is guilty of an offense if it is committed by his own conduct or the conduct of another person for which he is legally accountable or both.
A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of an offense. A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he aids or agrees or attempts to aid such other person in planning or committing it. ..
In this case, the State alleges that the defendant is equally guilty of the murders committed by Thomas Koskovich because this defendant acted as Mr. Koskovich's accomplice with the purpose that the specific crimes charged be committed.
In order to find Jayson Vreeland guilty as an accomplice of Thomas Koskovich, the State must prove beyond a reasonable doubt each of the following elements: First, that Thomas Koskovich committed the crime of murder of Jeremy Giordano; and second, that this defendant did aid or agree or attempt to aid Thomas Koskovich in planning or committing this offense; and third, that this defendant's purpose was to promote or facilitate the commission of this offense; and fourth, that this defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.
Remember that one acts purposely with respect to his conduct or as a result thereof if it is his conscious object to engage in conduct of that nature, or to cause such a result.
Aid means to assist, support or supplement the efforts of another. Agree to aid means to encourage by promise of assistance of support. Attempt to aid means that a person takes substantial steps in the course of conduct designed or planned to lend support or assistance in ...