May 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANDRE WILLIAMS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-09-3524.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Haas.
Defendant Andre Williams appeals from a July 21, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); second-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count five); and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count six).
Following merger of counts one and three with count four, defendant was sentenced to an extended term of life in prison, with thirty-five years of parole ineligibility. On count five, the judge imposed a concurrent term of thirty years in prison, subject to eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count six, defendant was sentenced to a concurrent term of eighteen months. The appropriate assessments and penalties were imposed.
On direct appeal, we affirmed the convictions, but held that the aggravated manslaughter conviction (count five) should also have been merged with the felony murder conviction (count four). State v. Williams, No. A-2331-03 (App. Div. February 21, 2006) (Slip op. at 22-23). We reversed and remanded for resentencing. Id. at 23. The Supreme Court denied certification. 187 N.J. 80 (2006).
The facts giving rise to defendant's convictions are set forth in our unpublished opinion. Williams, supra, (slip op. at 2-5). On June 23, 2001, defendant and his friend robbed an elderly woman between 6:45 a.m. and 7:30 a.m. Id. at 2-3. Defendant drove up to the curb where the victim was walking, exited the car, and took her purse, knocking her to the ground. Id. at 3. He ran back to the car, sat behind the wheel, and started to drive away. Ibid. From a distance, an armed security guard, Dwayne Santos, observed the incident. Ibid. When defendant saw Santos, he put the car in reverse, ran over the victim, and crushed her to death. Id. at 3-4. Defendant confessed to the robbery, but denied knowing that he struck the victim with the car. Id. at 4.
Defendant filed a petition for PCR. In his petition, defendant argued that his counsel was ineffective because he: (1) had conflicts with counsel about how to try the case that made it difficult to communicate; (2) his counsel refused to call defendant's girlfriend, Lakiesha Morgan, as an alibi witness; (3) his counsel fail to request a Wade hearing; and (4) his counsel failed to adequately cross-examine Santos. The PCR judge rejected all of defendant's contentions without conducting an evidentiary hearing.
Defendant appealed this decision and we reversed and remanded for an evidentiary hearing limited to the issue of whether defense counsel was ineffective because he did not call Morgan as an alibi witness. State v. Williams, A-0052-08 (App. Div. August 2, 2010) (Slip op. at 12). We found defendant's other arguments lacked merit. Id. at 8, 12-13.
Defendant asserted he told his attorney, Jerry Soffer, Esq., that Morgan would provide an alibi for him if she were called to testify. Id. at 9. On August 20, 2002, Soffer sent a letter to the assistant prosecutor notifying him about Morgan. Id. at 10. The letter stated:
On June 24, 2002, my investigator, Mike Petrillo, interviewed Ms. Lakiesha Morgan[.] The substance of the interview was as follows:
Ms. Morgan stated that on the night of June 22, 2001, she and the defendant, Andre Williams, were together all night, and were physically intimate. They were together throughout the next morning (June 23, 2001) and were physically intimate again that morning.
Please be advised that for several reasons (only some of which are obvious to you) it is not my intention to call her as a witness. This lack of intention on my part may not withstand constitutional scrutiny. It therefore seems prudent to pass this information on to you so that, in the event that foolish impulses override professional judgment and tactical planning, you will not be caught unprepared.
In his appeal of the denial of his PCR petition, defendant argued that Soffer "simply refused to call Morgan as a witness." Ibid. The PCR judge, who had also presided at the trial, found defendant had not submitted sufficient facts to support his allegation. Ibid.
Based upon Soffer's letter and defendant's allegation, however, we concluded the judge should have conducted an evidentiary hearing "to explore why Morgan was not called as a witness." Id. at 12. We stated:
The following must be determined: (1) whether counsel refused to call Morgan as a witness, as defendant asserts; (2) were there strategic reasons for not calling Morgan, as referred to in the August 20, 2002, letter from defense counsel; and (3) if so, what were those reasons? Only then can the PCR court decide whether there is a basis for the claim of ineffective assistance of counsel.
Therefore, we reversed the denial of defendant's petition and remanded the matter to the trial court for a hearing limited to the issue of Soffer's decision not to call Morgan as a witness.
At the hearing on remand, the State called Soffer to explain why Morgan was not used as a witness at defendant's trial. When Soffer first received the file to begin his representation of defendant, he found that defendant had already been interviewed by an intern at the Public Defender's office. Defendant told the intern he was only a passenger in the vehicle that crushed the victim and he had not been the driver.
Defendant had also given a contradictory statement to the police in which he admitted he was the driver, but claimed he was not aware he had struck the victim with the car. In addition, defendant's cousin, Mark Williams, told the police that defendant admitted to him that he was involved in the incident, he and his friend had only wanted to take the victim's purse, and "it had gone wrong[.]" The State also had a statement from Santos, who "said a [b]lack male got out of the driver's seat and snatched the - - the purse from the old woman and she fell."
Defendant continued to maintain this version of events, acknowledging he was present in the car, but denying he intended to harm the victim, for the next eight to nine months. Suddenly, on April 10, 2002, defendant told Soffer that Morgan, his girlfriend, would say "I wasn't there and she can testify to that." Soffer was skeptical of this alibi, but he sent his investigator, Mike Petrillo, a "former Newark cop" with over twenty years of experience, to meet with Morgan. Soffer instructed Petrillo not to tell Morgan what defendant had said her testimony might be, at least at first. Soffer wanted to see if she would remember the day of the offense on her own and whether she could explain why she had a memory of that day.
After he met with Morgan, Petrillo reported to Soffer that the interview "was about as bad as expected." Petrillo asked Morgan if she remembered the day and, if so, what happened. Morgan did not answer. Instead, she asked Petrillo "what did [defendant] say happened[?]" Petrillo, "finally told her what [defendant] said." Morgan then "more or less repeated what [defendant] said, which was that they had spent the night together, they made love, they made love again the next morning." Petrillo asked Morgan to tell him "specifically what was it that caused her to remember that date and this is why I remember that date, it will always stick in my memory." Morgan was unable to provide a specific answer and, instead, just kept repeating what defendant had said.
After speaking to Petrillo, Soffer saw no need to personally interview Morgan. Petrillo was an experienced investigator, who Soffer trusted.
Soffer explained he was very concerned about Morgan's potential testimony. First, it was completely contrary to what defendant had told him and, just as importantly, it was contrary to what defendant and his cousin had already admitted to the police. Second, Morgan was merely parroting what Petrillo had told her defendant claimed happened that day. Third, Morgan was not an independent witness; she was defendant's girlfriend. Therefore, Soffer felt a jury would perceive her as a biased witness. Finally, Soffer knew that the prosecutor assigned to the case was very experienced and would easily be able to "destroy" such a "weak alibi defense."
In terms of trial strategy, Soffer concluded it would be unwise to call Morgan as a witness. He believed it would be better to attack the weaknesses in the State's case, without introducing a "weak defense, " which would divert the jury's attention from evaluating the State's proofs as to guilt beyond a reasonable doubt. Soffer's concern was that a weak alibi defense would simply create fodder for the prosecutor to attack the defense, rather than have to defend the weaknesses in the State's own case.
Defendant became angry when Soffer told him his professional opinion that Morgan should not be called as a witness. However, Soffer never refused to use Morgan in the case. After further discussions with defendant, the defense decided to wait until defendant made a decision as to whether he was going to testify at trial. If defendant testified and claimed he had an alibi, Morgan would then be called as a witness to attempt to support that claim. Soffer testified he sent the prosecutor the August 20, 2002 letter referring to Morgan as a possible witness to keep the door open to the possibility she might be called.
After the State rested its case, Soffer strongly recommended to defendant that he not testify. Soffer told defendant "he would not make a good witness on his own behalf" because he had done poorly on the stand in a prior Mirandahearing and because he had a prior criminal record that would be used by the State. Defendant decided not to testify. With regard to the possibility of calling Morgan as a witness, Soffer testified:
Once - - the way I remember it is this. And this is a number of years ago, like eight years ago. Once he - - we had been talking all along about a number of things, Ms. Morgan being one of them. As I remember it, when he said he would not take the stand[, ] he's sitting to my right because we're in the other courtroom, he sits down and I say to him in effect there are certain weaknesses in their case and I named them. I forget what they all were now. I don't think she is going to do any good. I don't want to call her.
And he said - - he nodded, he said okay, something like that. There was some sort of affirmative response. And that was it. And I think that I then - - to the best of my recollection - - said we rest.
Based upon the testimony presented, the PCR judge rendered an oral opinion denying defendant's petition. The judge found Soffer was an extremely credible witness, whose testimony was "reasonable and logical."
In addressing the first of the three questions posed in our August 2, 2010 opinion, the judge found that Soffer had not refused to call Morgan as a witness as defendant claimed. Instead, Soffer strongly recommended that Morgan not be used and he thoroughly explained his reasons to defendant for this advice. Nevertheless, the judge found Soffer kept the door open to the possibility of Morgan testifying, particularly if defendant decided to take the stand. After defendant decided not to testify, the judge found defendant "agreed not to call Ms. Morgan."
In response to our second and third questions, the judge found there were many strategic reasons for not calling Morgan as a witness and he discussed them at length in his decision. Soffer believed the alibi defense was weak and that offering it would "be worse than no defense at all." As a matter of trial stratgegy, he did not want to give the prosecutor anything to attack because this would distract the jury from focusing on the weaknesses of the State's case. The judge also found that Soffer was properly concerned with the proffered alibi, especially in view of the fact it was contradictory to everything defendant had told him and the police about his involvement in the incident.
Thus, the judge found no basis for defendant's claim that Soffer had been ineffective by refusing to call Morgan as an alibi witness and he denied defendant's petition for PCR. This appeal followed.
On appeal, defendant raises the following arguments:
THE COURT ERRED IN DENYING THE PETITION FOR POST[-]CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS EVIDENTIARY HEARING.
THE DEFENDANT'S POST[-]CONVICTION RELIEF COUNSEL FAILED TO ADVANCE GROUNDS SOUGHT BY DEFENDANT.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
Our review of the record convinces us that the judge acted properly in denying defendant's petition for PCR.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness, " such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment, " and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984)).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95). "[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. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We remanded this matter for an explanation of (1) whether Soffer refused to call Morgan as an alibi witness; (2) whether there were strategic reasons for not calling her; and, if so, (3) what those reasons were. Soffer provided this explanation in great detail at the evidentiary hearing. We perceive no basis to disturb the judge's findings on the issue of Morgan's testimony.
Soffer did not refuse to call Morgan. Based on his professional judgment, he strongly recommended that Morgan not be used and that defendant, himself, not testify in an attempt to provide an alibi. However, Soffer did not close the door on the possibility of calling Morgan and he and defendant decided to wait until the State had rested to make a final determination. Therefore, Soffer provided the State with notice that an alibi witness might be called. After the State completed its case, Soffer and defendant discussed the issue and defendant agreed with Soffer's advice that he not testify and that Morgan not be called. Thus, there is sufficient credible evidence in the record to support the judge's conclusion that Soffer did not refuse to call Morgan.
There were also sound strategic reasons for not using an alibi defense in this case and the judge enumerated them in his opinion. Defendant had claimed for the first eight to nine months of Soffer's representation that he had been at the scene, but was not the driver of the car. This conflicted with his statement to the police, where he admitted he was the driver. Defendant also told his cousin he was present at the scene that morning and that he just wanted to rob the victim, but things had gone awry. Morgan was also unable to tell Petrillo anything about the day in question until after she was told what defendant said happened. Even then, she provided no details other than what Petrillo told her defendant had said.
Under those circumstances, Soffer concluded the alibi was extremely weak and would easily be dismantled by the experienced prosecutor. As a result, the jury would focus on the weakness of the defense's claim, rather than on the weaknesses of the State's overall case. Again, there is ample evidence in the record to support the judge's conclusion that Soffer was not ineffective for recommending that Morgan not be used as a witness.
A trial attorney's determination as to the witnesses who will be presented to the jury is afforded great deference. The Supreme Court has stated that
[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art, " and a court's review of such a decision should be "highly deferential."
[State v. Arthur, 184 N.J. 307, 320-21 (2004) (internal citations omitted).]
Judged against this standard, and based upon the evidence produced at the remand hearing, which fully explained the basis for Morgan not being called as a witness, we agree with the PCR judge that Soffer did not provide ineffective counsel to defendant on this issue.
Defendant's claim that Soffer improperly failed to personally speak to Morgan lacks merit. Soffer sent an experienced investigator to interview the potential witness. Based upon the information received, he concluded there was no need to talk to Morgan further at that time. "The investigative course selected by an attorney in order to prepare a proper defense for his client frequently entails a high order of discretion." State v. Williams, 80 N.J. 472, 479 (1979). We perceive no basis to second-guess Soffer's decision on how to conduct his investigation.
Defendant complains that, Craig Leeds, Esq., the attorney who represented him at the remand hearing failed to call Morgan as a witness. This argument also lacks merit. The evidentiary hearing was ordered for a limited purpose - - to determine why Morgan was not called as a witness at trial. Defendant does not explain how Morgan's testimony at the PCR hearing would factor into that analysis. In addition, Leeds conducted a thorough and searching cross-examination of Soffer and advanced defendant's argument that Soffer was ineffective in a professional and effective manner.
Finally, defendant improperly argues for the first time on appeal that the attorney who handled his original petition for PCR was ineffective and that his sentence was excessive. These claims are not properly before us. As the Supreme Court has explained:
Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. Although "[o]ur rules do not perpetuate mere ritual[, ]" we have insisted that in opposing the admission of evidence, a litigant "must make known his position to the end that the trial court may consciously rule upon it." State v. Abbott, 36 N.J. 63, 76 (1961). This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" Id. at 68. In short, the points of divergence developed in the proceedings before a trial court define the metes and bounds of appellate review.
[State v. Robinson, 200 N.J. 1, 19 (2009).]
As noted, neither of defendant's present contentions were a basis for our decision to remand for an evidentiary hearing. Consequently, these issues was never ruled upon by the PCR judge. Moreover, we already considered, and rejected, defendant's contention that his sentence was excessive in our February 21, 2006 opinion. (Slip op. at 22-23). Therefore, we decline to consider these contentions.