July 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KEITH BLACK, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0790.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Graves and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm, substantially for the reasons set forth by Judge Joseph V. Isabella in his written decision.
Following a jury trial, defendant was convicted in August 2006, of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The sentencing court imposed an aggregate sentence of forty-five years subject to the No Early Release Act, N.J.S.A. 2C:43-7.
Defendant filed a direct appeal in which he argued that the trial judge erred in charging flight to the jury and in failing to hold a hearing after a juror began crying, and that his sentence was excessive. We affirmed his convictions and sentence in an unpublished opinion. State v. Black, No. A-2060-06 (App. Div. July 1, 2009). The Supreme Court denied his petition for certification, 200 N.J. 371 (2009).
The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
Defendant filed a pro se PCR petition in January 2010, in which he stated his claim was based upon ineffective assistance of counsel. A brief was submitted on behalf of defendant in November 2010, in which the following arguments were made:
THE INDICTMENT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.
EVIDENCE OF DEFENDANT'S ALLEGED BAD CHARACTER AND PRIOR BAD ACTS WERE IMPROPERLY PUT BEFORE THE JURY IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS.
THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY.
THE DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF.
THE SENTENCE IMPOSED BY THE TRIAL COURT WAS MANIFESTLY IMPROPER.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.
AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION.
In support of his petition, defendant provided a certification in which he stated the basis for his belief that he received ineffective assistance from his counsel. He stated he wanted to testify at trial and "profess [his] innocence" but was told by his attorney not to testify and did not know that he could choose to testify against her advice. He also stated his counsel failed to adequately prepare him to testify.
Judge Isabella denied defendant's petition by order dated January 28, 2011 and set forth his reasons in a written opinion. Judge Isabella concluded that defendant's challenge to his sentence was procedurally barred by Rule 3:22-5 because it had been raised and decided in his direct appeal. He also found that the arguments defendant raised in Points I, II, III, and IV of his PCR brief could have been raised in his direct appeal and did not fall within any of the exceptions to Rule 3:22-4(a). Accordingly, Judge Isabella found the arguments procedurally barred.
Judge Isabella addressed defendant's claims of ineffective assistance of trial and appellate counsel on the merits. He identified the claimed deficiencies of trial counsel's performance:
Specifically, Petitioner claims that his trial counsel erred by: (1) telling Petitioner not to testify resulting in him not testifying, although Petitioner wanted to, because he did not know, at that time, that he could go against his attorney's advice; (2) failing to properly and adequately prepare Petitioner for such testimony, although his trial attorney was aware of his deep desire to testify at trial on his own behalf; (3) failing to raise the issues in trial regarding the deficiency of the indictment and the grand jury proceedings; and (4) not seeking the appropriate limiting instructions regarding other crimes evidence.
As to defendant's contention that he was denied the opportunity to testify, Judge Isabella stated:
[T]he record is clear that Judge Vazquez informed Petitioner prior to the conclusion of the trial, and while still having an opportunity to do so, that "even though he should consider [his attorney's] advice, the decision of whether or not [to] testify" was his decision; Petitioner acknowledged that he understood. Thus, Petitioner should not now claim that he was unaware that he could overrule his attorney, or that her professional advice violated his right to testify in his defense. The record shows that Petitioner was apprised of his rights, and after acknowledging discussing the issue with his attorney, it appears that Petitioner freely chose to follow . . . his attorney's advice and not testify in his defense.
Judge Isabella found no deficiency in trial counsel's failure to file a motion to dismiss the indictment. He noted that "a grand jury may return an indictment based primarily, if not wholly, on hearsay, " citing State v. Ferrante, 111 N.J.Super. 299 (App. Div. 1970), and that the evidence presented to the grand jury appeared to establish the required prima facie case.
Regarding the use of prior acts evidence, Judge Isabella stated the record showed that trial counsel did object to such evidence and then used the evidence to impeach the State's witnesses when her objections were overruled. The judge also noted, "such testimony appears to have been necessary to establish the motive behind the initial altercation which resulted in the victim's death."
Judge Isabella concluded that defendant had failed to demonstrate a prima facie case of ineffective assistance of trial counsel and that, since the issues he raised were meritless, appellate counsel was not ineffective for failing to raise them.
Defendant presents the following issues for our consideration in his appeal:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL DEPRIVED DEFENDANT OF THE OPPORTUNITY TO TESTIFY.
B. TRIAL COUNSEL FAILED TO FILE A MOTION TO DISMISS THE INDICTMENT.
C. TRIAL COUNSEL FAILED TO OBJECT TO THE ADMISSION OF OTHER CRIME EVIDENCE AND FAILED TO SEEK A LIMITING INSTRUCTION REGARDING THE USE OF THAT EVIDENCE.
D. TRIAL COUNSEL'S CUMULATIVE ERRORS DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE SENTENCE WAS MANIFESTLY IMPROPER.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We are not persuaded by any of these arguments and affirm. We agree that defendant's arguments that his counsel was ineffective for depriving him of the opportunity to testify; failing to file a motion to dismiss the indictment; and failing to object to other crimes evidence are procedurally barred by Rule 3:22-4(a), and that his challenge to his sentence is procedurally barred by Rule 3:22-5. We find defendant's remaining arguments to lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following comments.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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 687, 694, l04 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698.
In Point IC, defendant argues that the State presented evidence that he "was a drug dealer, was selling drugs on the night in question, and that the argument which led up to the shootings stemmed from a dispute regarding where the defendant could sell drugs." He characterizes this as evidence of prior bad acts and that his counsel was ineffective in failing to object to the evidence and in failing to request a limiting instruction on the use of prior bad acts. As noted, trial counsel did object to the introduction of this evidence. There was, however, no request for an instruction on prior bad acts.
The State argues that the evidence so characterized was not, in fact, other crimes evidence within the meaning of Rule 404(b). The State contends that the two witnesses who provided this evidence gave testimony of the events on the night of the murder, explaining that the murder was the culmination of an argument over who could sell drugs at a particular location. Thus, as the State submits, this was not a case in which the jury had to be instructed on the limited purpose for which they could use conduct of defendant on a prior occasion to understand a material issue in this case. We are satisfied that the failure to request a limiting instruction on this evidence did not constitute deficient performance that would satisfy the first prong of the Strickland/Fritz test and, further, that the failure to give such an instruction did not create 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 687, 694, l04 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698.
As Judge Isabella concluded, our review of the record reflects that defendant failed to make a prima facie showing of ineffectiveness of trial counsel and appellate counsel within the Strickland-Fritz test. See State v. Preciose, 129 N.J. 452, 462-63 (1992). Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted.