July 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RODNEY WOOD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 99-01-0065.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent, (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
Before Judges Harris and Hoffman.
Defendant appeals from the May 10, 2011 Law Division order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. For the reasons that follow, we affirm.
The record reveals that, following a jury trial, defendant was convicted of reckless manslaughter, felony murder, second-degree robbery, and unlawful possession of a weapon, and was sentenced to a term of thirty years without parole. The charges stem from an attempted robbery of the door receipts collected at a fraternity party committed by defendant and his co-defendant, Willie Robinson. We set forth the factual background to defendant's conviction in an earlier opinion:
On the night of April 16, 1998, the eight residents of 717 West State Street, Trenton, all students at the College of New Jersey, had a party for new pledges of their fraternity. About 150 people attended, paying a $4 admission fee. The party ended about 3:50 a.m., when only about ten people remained, including Richard J. McDonald, one of the students who lived in the house; an older black male; and, Jamal Lane, the homicide victim, a young black male who lived in the neighborhood.
One of the departing guests told McDonald that there were people out back, and McDonald decided to investigate. According to McDonald (who by the time of trial had become a police officer), a voice in the dark ordered him not to move. A black male emerged from the bushes, aiming a rifle at McDonald. The gunman (later identified as co-defendant Robinson) ordered McDonald to give him the "door money." McDonald told him that it must be inside somewhere. With his gun, the gunman prodded McDonald toward the back door. Two guests, Lane and the older man, were on the back porch at the time.
Also, according to McDonald, Lane said, "Don't do this to these people, they're good people." The gunman replied, "This don't concern you, mind your own business." McDonald and the gunman continued into the house and entered the utility room, followed by Lane. Lane lunged at the gunman, and he and McDonald struggled to gain control of the rifle. Suddenly McDonald heard a second intruder, a tall black male with long dreadlocks (later identified as Wood), who said: "what do you guys think you're doing?" Defendant then jumped on McDonald and Lane trying to pull them both backwards. The gun went off, shooting toward the ceiling.
A struggle continued, and the gunman, Wood, and Lane were pushed out onto the back porch. The gunman had broken free of Lane's grasp, and Wood had Lane in a bear-hug, which Lane was resisting. Wood never tried to gain control of the rifle or the gunman, but it appeared from Wood's actions that he was trying to help the gunman. When McDonald saw that the gunman had regained full control of the rifle, he fled into the house and closed and locked the door. He heard more struggling, and then between six and ten gunshots. Lane died from a gunshot wound to his heart and lung.
On April 18, 1998, Wood surrendered to Trenton police. Detective Edward Kownacki took defendant's oral and written statements. Defendant said in his written statement that Robinson (known to him as "Chill Will, " or just "Chill") lived next door to the house where McDonald and his housemates held the party. He and Robinson discussed Robinson's plan to rob the partygoers. At first defendant was unwilling to join in Robinson's plan, but he later changed his mind.
According to Wood, he joined the fray when Lane and Robinson were fighting for the gun, and he told Robinson to let go of the gun. Wood grabbed the gun, put it at the bottom of the porch steps, and told Lane, who was choking Robinson, to let him go. When he did, Robinson snatched up the gun and starting shooting in Lane's direction.
In an addendum to his April 18 statement, recorded on April 19, 1998, Wood said he had seen the gun for the first time on the evening of the crimes, when Robinson brought it out of his house, showed it to him, and then hid it in Robinson's own yard. Defendant said the two had never done a "stickup" and never planned to go inside the party house that night. In a third statement taken on April 20, 1998, defendant added that he left Robinson's house after being shown the gun, went home to eat and get a hat, and took the gun with him. He took a practice shot into the water, then walked back to Robinson's house and put the gun back where Robinson had hidden it in the yard. Defendant continued: "Chill said, "what's up with sticking up some white boys coming from the party.' I told him I was down with it." Defendant said he prepared by burning holes (for his eyes) in his hat.
As they watched the party-goers leaving the house, Wood was surprised when Robinson did not try to rob a "white guy" and a white girl going to their car in front of the house. He heard rumbling in the back, and saw a "white guy, " Lane, and Robinson struggling for the gun. "After I put the gun down, I broke up Jamal [Lane] and Chill. Me and Chill walked down the porch. I picked the gun up handing it to Chill . . . I ran as soon as I heard the first shot."
Defendant testified on his own behalf, repeating many of the facts he had given in his statements to police. He claimed, however, that he told Robinson from the beginning that he would not use the gun to rob anyone, and Robinson assured him they didn't have to use it. "If I knew he was going to use the gun, God as my witness, I would never participated in that, never." Defendant saw Robinson retrieve the gun from his yard. Later, when he heard the struggling, he was surprised to hear Lane say, "let the gun go." He did not expect Robinson to be using a gun. When he entered the fray, he was acting as a referee. He claimed he had taken the gun and put it up against the side of the house to prevent Robinson from shooting anyone.
Defendant testified at trial that his admission to Kownacki, that he had agreed to participate in an armed-robbery and that he had seen Robinson with a gun, were false. He had actually agreed to participate in an unarmed robbery. He only admitted to joining in the plan for an armed robbery because Kownacki told him that he had spoken with the prosecutor by telephone, and that defendant would only face five years, two without any chance of parole, for attempted robbery, if he cooperated by placing himself "more in the crime" so that he could testify against Robinson more effectively. Kownacki told him that Robinson would try to pin the crime on him. Kownacki was nice to him and gained his trust.
[State v. Wood, No. A-5209-01 (App. Div. June 24, 2004) (slip op. at 2-7).]
Following defendant's conviction, he appealed and we affirmed. Id. at 12. Subsequently, defendant filed the subject PCR petition, wherein he argued, among other things, that trial counsel was ineffective because the shooting occurred after the attempted robbery had transpired, and that counsel failed to effectively apprise the jury of these facts. He further argued that the trial court's jury instructions failed to adequately address this issue.
On May 10, 2011, Judge Edward M. Neafsey heard oral argument on defendant's PCR application and denied it, without conducting an evidentiary hearing, concluding that defendant "failed to demonstrate a prima facie case of ineffective assistance." In his oral decision denying relief, Judge Neafsey noted that "even where the procedural bar applied, this court considered all of the defendant's arguments" and rejected them on the merits:
In the case at bar, the defendant and codefendant planned to rob the fraternity party. Defendant knew that co-defendant possessed the weapon, because they practiced with the weapon before the robbery. Defendant was a short distance away when the co-defendant used the weapon to force McDonald inside the house to retrieve the money. Defendant jumped into the fray to help co-defendant regain the possession of the weapon. Defendant continued to fight as the party spilled out onto the porch. Lastly, defendant was in the immediate vicinity when the co-defendant shot and killed Lane, that is, it occurred before they both fled. I find the jury was properly instructed, and they reasonably concluded the defendant . . . is guilty as an accomplice to the robbery and felony murder.
On appeal, defendant raises the following issues:
THE PCR COURT'S DENIAL OF PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING WAS ERRONEOUS.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED HIM BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
Based upon our review of the record and applicable law, we are satisfied that defendant's appellate contentions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant has not established a prima facie case of ineffective assistance of counsel, as he has failed to show his attorney's performance was deficient or resulted in prejudice. We affirm substantially for the reasons expressed in Judge Neafsey's cogent oral opinion of May 10, 2011. We add the following comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.
The determination on whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013).
The basis of defendant's claim of ineffective assistance of counsel rests upon the premise that there were separate crimes committed here; he contends that the robbery and shooting were divorced from one another because the robbery ended when most of the victims escaped. According to defendant, the shooting occurred because of hard feelings engendered during the scuffle. Defendant claims that his defense attorney failed to exploit the chronology of events to suggest a separation in crimes and culpability.
This argument lacks merit. Not only was counsel not ineffective, but defendant's argument lacks logical and factual support. The trial record strongly supports Judge Neafsey's conclusion that the robbery and the shooting were "all part of the same event." Because the ineffective assistance of counsel claim also extends to a claimed deficient jury charge regarding the supposed separateness of the events, the entire appeal is without merit.