June 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DUQUENE PIERRE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-07-0789.
Paul Casteleiro argued the cause for appellant.
Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).
Before Judges Fisher, Waugh and Leone.
This is now the fourth time this matter has come before us. Following the third appeal, we remanded for an additional evidentiary hearing regarding defendant's claim that he was denied the effective assistance of counsel because of counsel's failure to present evidence to support an alibi regarding defendant's whereabouts both shortly before and not long after the murder of Richard J. Myers in Elizabeth at 3:19 a.m. on March 20, 1994. We now affirm.
In 1996, defendant was tried and convicted of first-degree murder, first-degree felony murder, first-degree robbery, and other offenses, and sentenced to an aggregate sixty-year prison term subject to a thirty-five-year parole disqualifier. Defendant filed a direct appeal. We affirmed, State v. Pierre, No. A-6355-95 (App. Div. Aug. 19, 1999), and the Supreme Court denied defendant's petition for certification, 162 N.J. 488 (1999).
Defendant filed a post-conviction relief (PCR) petition in 2000. Following an evidentiary hearing, the PCR petition was denied. Defendant appealed and we affirmed. State v. Pierre, No. A-6519-03 (App. Div. July 18, 2006). The Supreme Court granted defendant's petition for certification and summarily remanded to the trial court "for an evidentiary hearing to permit defendant to present alibi-related witnesses." State v. Pierre, 189 N.J. 102 (2006). An evidentiary hearing took place on July 20, 2007, and relief was denied by order entered on July 23, 2007.
Defendant appealed again, and we remanded to allow defendant to further develop his alibi evidence. State v. Pierre, No. A-0410-07 (App. Div. June 19, 2009). Defendant presented additional alibi witnesses at the hearing that occurred on May 20 and 27, 2011. On October 4, 2011, the PCR judge issued a written opinion explaining the reasons for his denial of relief.
Defendant again appeals, arguing in a single point:
THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE PCR COURT ERRED IN DENYING HIS PETITION FOR POST CONVICTION RELIEF.
We reject defendant's argument.
In our last opinion, we described the facts and circumstances relating to the crime and underlying defendant's claim of ineffective assistance of counsel in the following way:
Defendant's conviction stemmed from the March 20, 1994 early morning shooting death of Richard J. Myers. The State's witnesses included Alison Johnson, who testified that defendant and his co-defendant Jean Dorval appeared at her apartment on the morning of March 20, following the shooting, to ask her about the authenticity of a $100 bill. A few days later, she overheard the co-defendant bragging to defendant about shooting someone.
At trial, defendant raised an alibi defense. His girlfriend, Yashonda Reid, testified that defendant spent March 18, 1994, with her and left on the morning of March 19 to drive with the co-defendant to Florida to spend two weeks visiting family. Reid produced a phone bill verifying that she received a collect call at 12:32 p.m. On March 20, just hours after the murder, from Hardeeville, South Carolina.
After his arrest, the police searched defendant's black Acura and found a speeding ticket issued on March 19, 1994, at 11:34 p.m. on Interstate 95 in Yemassee, South Carolina, three hours before the murder. The ticket identified the driver as "Pierre Duquene." When interviewed by police, defendant stated that he had been stopped "somewhere in South Carolina" by a "good-sized" police officer who had no southern accent. Defendant described the officer as approximately five feet, eleven inches in height, clean shaven, sporting short hair and possibly wearing a cowboy hat.
Captain Paul Barnett of the Yemassee Police Department testified for the State on rebuttal. He was six feet, two inches in height, weighed approximately 240 to 260 pounds, had shoulder-length hair, a long mustache, and spoke with a heavy southern accent. Barnett stated that he issued the ticket on the morning of March 19, 1994, to the driver of an Acura bearing New Jersey tags. He was shown a photo driver's license by the driver in the name of "Pierre Duquene" or "Duquene Pierre." Barnett remembered two African-American men seated in the Acura, but could not identify either defendant or the co-defendant. He also testified that he never wore a hat, and that on the date in question, his hair was shoulder-length and he wore a mustache and an earring. Consequently, the State argued to the jury that the ticket had been issued, not to defendant, but to someone else who used his automobile and his identification.
[Id., slip op. at 2-4]
In that opinion, we also recounted that, during the first PCR hearing, defendant's trial attorney testified he believed "the alibi defense would be more effective if the jury heard only about the speeding ticket, as opposed to hearing from a string of family members who would testify that defendant had been in Florida a day or two after the murder." Id. at 4. We also summarized counsel's testimony that even if the Florida witnesses were believed, "instead of furthering an alibi defense, the jury might conclude that defendant fled to another state after the shooting." Id. at 4-5. In addition, we observed that trial counsel testified "defendant agreed that it was best to focus on the issuance of the speeding ticket and forego presenting the testimony of his Florida relatives." Id. at 5. The PCR judge found trial counsel to be credible.
In the later evidentiary hearing, compelled by our 2009 remand, the PCR judge "permitted defendant's three Florida family members to testify, but refused to allow defendant to present the testimony of his sister, Astrid Pierre, and his brother, Kirby Pierre, both of whom resided in New Jersey at the time of the murder[, ] [or] defendant's girlfriend, [Yashonda] Reid." Id. at 5. Defendant argued that the testimony of "the Pierre siblings was intended to establish that Kirby at least was not using defendant's vehicle when the ticket issued[, ] [and] Reid would have testified as to additional calls she purportedly received from defendant while he was in Florida." Ibid. In our last remand, we concluded that the PCR judge took too limited a view of the scope of the mandate, and directed the PCR judge to allow the development of this additional evidence in light of defendant's "redefined . . . alibi as including not only the issuance of the speeding ticket in South Carolina, but also his presence in Florida." Id. at 6.
Having heard all the evidence defendant had to offer with regard to the South Carolina and Florida aspects of his alibi, the PCR judge again denied relief for reasons set forth in his October 11, 2011 written opinion, which incorporated the findings he expressed in oral opinions delivered on May 28, 2004, and July 20, 2007.
When a defendant bases a PCR petition on the ineffectiveness of counsel, the court must consider whether there has been an actual or constructive denial of the Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 683, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674, 690 (1984); State v. Fritz, 105 N.J. 42, 51 (1987). The Strickland/Fritz test requires that defendant pass a two-pronged test by showing that: (1) counsel's performance "fell below an objective standard of reasonableness, " and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. See also State v. Nash, 212 N.J. 518, 542 (2013); State v. Loftin, 191 N.J. 172, 197 (2007); State v. Castagna, 187 N.J. 293, 313-14 (2006).
Ineffectiveness may be based on counsel's inadequate preparation or cursory pretrial investigation, State v. Savage, 120 N.J. 594, 617-22 (1990), and our Supreme Court has recognized that even a seemingly adequate performance of counsel at trial "is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their [attendance], " Fritz, supra, 105 N.J. at 63-64 (quoting Moore v. United States, 432 F.2d 730, 739 (3d Cir. 1970) (en banc)). Because "[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), we have repeatedly remanded this matter to the trial court for a full exposition of the evidence in order for the alibi defense that actually was presented at trial to be compared to the alibi defense that may have been presented but for what defendant claims was the inadequate performance of his trial attorney.
Part of defendant's ineffectiveness claim is based on trial counsel's alleged failure to investigate and eventually follow through on the Florida aspects of the alibi theory proposed in the PCR proceedings. Defendant claims the Florida relatives would have, if called to testify at trial, demonstrated that defendant was in Florida on March 20, 1994. The PCR judge, however, heard the testimony of the three Florida relatives and found they were not credible. That is, the judge expressed his "great reservations about [the Florida witnesses'] credibility, " because they were uncertain about the date they claimed defendant was present in Florida, and their testimony "seemed very orchestrated." The judge further found these witnesses were not credible because he was suspicious of their affidavits, which declared in similar language that defendant arrived for a visit in Florida on the afternoon of March 20, 1994:
First of all, they all sign[ed] affidavits, which either they didn't read or were inaccurate. They really have no good recollection of – of dates ranging from – it could be, you know, the 20th or 21st, or the 19th, or sometime in March. And . . . I don't think there's any really good explanation for why [they contended defendant was in Florida on] the 19th, 20th or 21st, as opposed to the 22nd, 23rd or 24th.
He also found it peculiar that one of the few details the witnesses' remembered was that defendant drove an Acura.
The judge first concluded that defendant's trial counsel made "an adequate attempt to investigate" these circumstances, a finding that defendant forcefully criticizes in this appeal because that investigation admittedly consisted of a single telephone call by counsel to one of the Florida relatives. We need not decide whether that was a sufficient investigation within the meaning of the first prong of the Strickland/Fritz test because implicit in the judge's findings is his conclusion that even if counsel's performance was deficient, it did not prejudice the defense because the witnesses that were not called to testify at trial were not credible.
Defendant also argues that trial counsel was ineffective with regard to the evidence offered about the South Carolina speeding ticket issued at 11:34 p.m. on March 19, 2004, approximately four hours before the murder in Elizabeth. At trial, defendant relied on the ticket itself, which police had recovered from a search of defendant's Acura after defendant's arrest in April. At trial, the jury also heard testimony from defendant's girlfriend, Yashonda Reid, that defendant left New Jersey the morning of March 19 to drive to Florida to spend two weeks with family members, and she produced a telephone bill that reflected she received a collect call from Hardeeville, South Carolina, at 12:32 a.m. on March 20. She testified that the collect call was from defendant.
Defendant argues that trial counsel should have done more to show defendant was in the vehicle in South Carolina at the time it was stopped for speeding, particularly in light of the State's rebuttal at trial when the State produced the South Carolina police officer who issued the ticket. The officer did not match the description given by defendant to police in describing the South Carolina police officer who he claimed gave him the speeding ticket. With regard to defendant's claim that more could have been provided to support the contention that defendant received the speeding ticket, the PCR judge heard the testimony of defendant's siblings, Kirby and Astrid, and also Yashonda Reid.
To argue that trial counsel could have done more to challenge the State's suggestion at trial that someone other than defendant -- perhaps Kirby, who bears a resemblance to his brother – was driving the Acura in South Carolina a few hours before the murder, defendant called Kirby to testify at the last of the PCR hearings. Kirby denied he was the driver of the Acura in Yemassee, South Carolina on March 19; instead, he claimed he was in Elizabeth between March 19 and 29, 1994, did not possess a driver's license, did not know how to drive a vehicle, and never drove his brother's vehicle. Astrid corroborated Kirby's testimony that Kirby did not leave New Jersey in that time frame and that Kirby did not know how to drive.
The PCR judge found that this testimony, if offered at trial, would have been unavailing in light of the "overwhelming evidence that defendant was not the recipient of the ticket, " namely, defendant's inaccurate description of the South Carolina police officer and the other testimony that defendant was seen in Elizabeth shortly after the murder. In addition, the PCR judge found that Kirby was "a problematic witness" not only because he was defendant's brother but also because he had been convicted prior to defendant's trial of a CDS offense that "resulted in a license suspension, " which "could have caused the jury to question his credibility and [which] provided a motive as to why he would need to use his brother's license." The PCR judge also found that, during his testimony, Kirby "was at times evasive" and his testimony was "inconsistent with the affidavit he submitted in support of the PCR [petition]."
Yashonda Reid testified at the last of the PCR hearings about collect telephone calls she received from Florida on March 21, 23, 25, 26 and 29, 1994; she claimed these calls were made by defendant. As noted earlier, defendant's counsel only elicited from her at trial the fact that she received a collect call from South Carolina a few hours before the murder, and that defendant was the caller. The PCR judge recognized that the jury obviously did not credit Reid's testimony that defendant made the collect call from South Carolina and, therefore, concluded "[t]here is no reason to believe that if [defendant's trial counsel's] performance was deficient in not having Ms. Reid testify about these other [later] phone calls [from Florida] that this alleged failure would have materially contributed to his conviction." These factual conclusions represent a principled view of the evidence adduced during the PCR hearing and are entitled to our deference. State v. Robinson, 200 N.J. 1, 15 (2009).
Lastly, it has been well-established that "[i]n matters of trial strategy, we accord great deference to the decisions of counsel." State v. Biegenwald, 126 N.J. 1, 56 (1991). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. See also State v. Cooper, 410 N.J.Super. 43, 57-58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). We may assume that a single telephone call to one of defendant's relatives regarding the Florida aspects of the alleged alibi may have been less than what professional norms required. But, now that the content of what a thorough investigation would have produced has been revealed through the PCR hearings, defendant's ineffectiveness claim must be found wanting on the prejudice prong because the Florida alibi evidence would not likely have produced a different result at trial. Defendant's trial attorney, whom the PCR judge found credible, testified that the better strategy was to limit the alibi to the South Carolina circumstances because the Florida evidence, if credited, still would not necessarily preclude a finding that defendant could have committed the murder in Elizabeth and fled to Florida, a factual circumstance that would have done defendant no good and much harm by further creating doubt about the veracity of the South Carolina aspects of the alibi defense presented.
In deferring to the PCR judge's findings of fact and in "avoid[ing] second-guessing defense counsel's tactical decisions under the 'distorting effects of hindsight, '" State v. Marshall, 148 N.J. 89, 157 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694), we conclude that the trial judge properly denied the PCR petition Because the alibi testimony elicited during the PCR proceedings would have been no stronger and certainly would have been more problematic than the alibi evidence presented at trial defendant was unable to demonstrate prejudice on his ineffectiveness claim
We find insufficient merit in any of defendant's other contentions to warrant discussion in a written opinion R 2:11-3(e)(2)