August 9, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
HASSAN BILAL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-0015.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/ Deputy Chief Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the trial court's denial of his post-conviction relief (PCR) petition following an evidentiary hearing. Defendant argues that his trial counsel was ineffective because he failed to conduct an adequate investigation and failed to call "exculpatory witnesses." Having considered this argument in light of the facts and applicable law, we affirm.
On May 27, 1999, the State Grand Jury returned a sixteen-count indictment charging defendant with second-degree conspiracy to commit racketeering, N.J.S.A. 2C:5-2, 2C:17-1, 2C:20-4, 2C:41-1c, 2C:41-1d, 2C:41-2c, and 2C:41-2d (count one); first-degree racketeering, N.J.S.A. 2C:41-1c, 2C:41-1d, 2C:41-2c, 2C:17-1, and 2C:20-4 (count two); second-degree leader of organized crime, N.J.S.A. 2C:41-1 and 2C:5-2g (count three); first-degree arson, N.J.S.A. 2C:2-6 and 2C:17-1d (counts five, eight, eleven, fourteen); second-degree aggravated arson, N.J.S.A. 2C:2-6 and 2C:17-1d (counts five, eight, eleven, fourteen; second-degree aggravated arson, N.J.S.A. 2C:2-6 and 2C:17-1a3 (count six, nine, twelve); second-degree attempted theft by deception, N.J.S.A. 2C:2-6, 2C:5-1 and 2C:20-4 (count seven, thirteen); second-degree theft by deception, N.J.S.A. 2C:2-6 and 2C:20-4 (count ten); third-degree tampering with a witness, N.J.S.A. 2C:28-5a (count fifteen); and third-degree attempted hindering apprehension or prosecution, N.J.S.A. 2C:29-3b3 (count sixteen). Also charged in the indictment was Kristal Dargon (counts four, five, six and seven). The indictment alleged that these crimes occurred on various dates between 1992 and 1998.
With trial scheduled to commence on May 1, 2001, defendant's counsel sought an adjournment of trial on April 30, 2001, because defendant that day had first provided him with the names of potential witnesses. Apparently, defendant provided forty or fifty names, but no contact information and no indication of the substance of their proposed testimony. Counsel asked defendant to give him a written list of the names, together with contact information and a statement of what information they could be expected to provide. The trial judge denied the application, explaining that defendant had almost two years to present the names of potential witnesses to counsel and had "no problems" with proceeding until the case was listed for trial.
A jury trial commenced on May 1, 2001, and concluded on June 4, 2001. The jury returned a verdict finding defendant guilty of second-degree conspiracy to commit racketeering, first-degree racketeering, second-degree leader of organized crime, three counts of first-degree arson, one count of second-degree arson, one count of second-degree aggravated arson, third-degree criminal attempt, and second-degree theft by deception. He was acquitted of one count of first-degree arson, one count of second-degree arson, second-degree criminal attempted theft by deception, third-degree witness tampering, and third-degree hindering prosecution.
Defendant was sentenced on July 23, 2001, to an aggregate term of seventy-two years in prison, with thirty-six years of parole ineligibility. Defendant appealed and we affirmed his conviction and sentence, although we remanded for a corrected judgment of conviction. State v. Bilal, No. A-406-01 (App. Div. April 19, 2004), certif. denied, 182 N.J. 629 (2005). Defendant had raised the following issues on direct appeal:
POINT I THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN DEFENSE COUNSEL'S REQUEST FOR AN ADJOURMENT TO LOCATE AND INTERVIEW WITNESSES WAS DENIED[.]
POINT II THE COURT IMPROPERLY ALLOWED STATE'S ARSON EXPERT TO RENDER AN OPINION ON THE ELECTRICAL DEVICE FOUND AT THE DEFENDANT'S RESIDENCE AFTER EXPERT ADMITTED NO TRAINING OR SPECIAL KNOWLEDGE OF ELECTRICITY OR EXPLOSIONS[.]
POINT III THE COURT IMPROPERLY ADMITTED A VIDEOTAPE OF A BURNING HOUSE - IT DID NOT ESTABLISH THE DEFENDANT'S GUILT IN ANY WAY AND WAS CLEARLY PREJUDICIAL AND INFLAMMATORY[.]
POINT IV THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE[.]
POINT V UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL[.]
POINT VI THE SENTENCE WAS MANIFESTLY EXCESSIVE[.]
The ineffective assistance of counsel claim was based on the argument that trial counsel failed to object to certain testimony and evidence at trial. We rejected that argument.
As to the claim that defendant was denied a fair trial because the trial court denied his request for an adjournment to "locate and interview witnesses, " we found no abuse of discretion by the court and stated, in pertinent part:
Defendant asserts that the failure of the trial judge to grant an adjournment, requested at the outset of trial, "essentially prevented the defense from putting forth any defense whatsoever to these charges" because his counsel could not interview the forty or so defense witnesses named by defendant on the eve of trial. . . . In denying on April 30, 2001, a further adjournment of the scheduled trial date, the trial judge suggested defendant was trying to "manipulate" the system, because he had almost two years to present the names of potential witnesses to his counsel, he had three prior attorneys, and he had "no problems" until the case was listed and "ready for trial."
[Slip op. at 3.]
In our opinion on direct appeal, we reviewed the trial evidence, stating:
Defendant was charged with conspiracy to burn buildings located at 202 Camden Avenue, Newark, on December 29, 1992; 51 Naden Avenue, Irvington, on July 8, 1993; 557 Hawthorne Avenue, Newark, on July 29, 1993; 727 Monroe Place, Plainfield, on February 10, 1994; 132 Hudson Street, Newark, on November 11, 1994; 22 First Street, Newark, on March 24, 1995; 83 Second Street, Newark, on October 3, 1997; and 73 Columbia Avenue, Newark, on May 28, 1998. He was charged with arson and related crimes in connection with the Hudson Street, First Street, Second Street and Columbia Avenue fires. Glen Hunter and Ronald Johnson testified that they worked with defendant in burning the buildings for money. The buildings included structures referred to in the conspiracy count, as well as in the substantive charges.
Hunter received $50, 000 in insurance proceeds for damage to his Hawthorne Avenue building, and he gave defendant $15, 000. Thereafter they worked together on the Camden Street fire, for which Hunter gave defendant approximately $3, 500 to prepare for the fire, purchase items to enhance the amount of the insurance settlement, and pay the adjuster. The apartment's owner received $20, 000 in insurance proceeds, and Hunter received between $5, 000 and $7, 500 of that amount. Hunter did not actually participate in the fire at Johnson's building in Irvington, but he advanced money for insurance and some furnishings to give the appearance of occupancy, for which he received $500 after the fire.
Johnson confirmed Hunter's story about the Irvington fire and testified that defendant furnished the two apartments and thereafter set the fire. Defendant subsequently introduced Johnson to "Jerry, " the insurance adjuster, and Johnson split the "up front" money received from Jerry with defendant.
After being approached by defendant about setting a fire in Plainfield, Johnson solicited Beck to assist. As already noted, Beck leased an apartment at the location and was at the scene when the blaze occurred.
Johnson also gave testimony with respect to the fires at 132 Hudson Street and 73 Columbia Avenue, both of which were subjects of the conviction. No claim was submitted on the former because confederate Mussa lost his life, and an investigation was expected. Although recruited, Johnson did not participate in setting the fires at 22 First Street and 83 North Second Street as a result of the death of Mussa. Defendant told Johnson that he set the former fire. He also admitted to Beck setting that fire and the Hawthorne Avenue fire.
Johnson was wired and worked with the State Police in videotaping and recording conversations with defendant about the Columbia Avenue fire. Audiotapes of
conversations on May 19, 1998, and May 28, 1998, and a videotape of a meeting at 73 Columbia Avenue on May 19, 1998, were admitted into evidence.
Finally, fire adjuster Gerald Strauss testified that he received a fee for adjusting fires for which defendant introduced him to the property owner, and defendant would receive a percentage of Strauss' fee.
There was no need to prove that defendant actually set the fires or was at the scene when they were set. The testimony of co-conspirators Hunter, Beck and Johnson, the taped discussions with co-conspirator Johnson, the defendant's discussion with property owners, and the taking of the property owner "victims" to adjuster Strauss, who paid defendant a commission independent of his split of the insurance proceeds received, provided far more than enough evidence on which to convict defendant.
[Slip op. at 5-8.]
In 2005, defendant filed a pro se PCR petition in which he alleged that his trial counsel was ineffective. Counsel was subsequently appointed to represent defendant on the PCR petition and submitted an amended petition and supporting brief, claiming, among other things, that trial counsel "failed to adequately investigate the case or explore possible defenses."
In support of the petition, defendant presented an affidavit from Terrence Farward who stated that defendant hired him to move furniture a month prior to defendant's arrest, but did not pay him because defendant had not been paid for the furniture; a statement from Jamil Reed who indicated that at an unspecified time, defendant had been given some "surplus used furniture" that Reed could not otherwise sell; a statement from Harold Breedon, who claimed he had been indicted "based upon the lies" of Glen Hunter; an affidavit of Muhammed Shabazz stating he had experienced a fire loss at his "Premier Barbershop" and received $11, 000, and that he never gave any money to defendant and defendant never said anything to him about "a fire[;]" and an affidavit of Sharon Doyle, a notary and former employee of Fire Adjusters Inc., who had notarized a 1994 fire loss claim form for property on Monroe Avenue in Plainfield purportedly signed by Harry S. Oliver II. She said she knew defendant and "would not have notarized" the fire loss claim form if Oliver's signature had been made by defendant.
The trial judge granted defendant's application for an evidentiary hearing which was held on April 26, 2011. The only witness called by defendant was trial counsel. Counsel stated he was the fourth attorney assigned to the case and had received the file, containing three boxes of discovery, in January 2001. He stated he read and absorbed all the discovery materials, as well as prior defense counsel's investigation materials, and went to the alleged arson sites, but had a "difficult time" getting defendant to meet with him.
On the day prior to trial, defendant told counsel he "had witnesses" but counsel does not recall receiving an actual list of potential witnesses. At some point mid-trial, however, counsel and defendant concluded that defendant's potential witnesses "would not offer any useful information to the jury and would [amount] to nothing more than character witnesses. Which would open the door to the bad character evidence coming in." Further, counsel stated that defendant himself elected not to testify at trial and "[t]hat was his decision."
Following argument, the trial judge denied defendant's PCR petition finding that counsel's representation of defendant was not deficient under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial judge opined, in pertinent part:
The trial was scheduled to start on April 30th, and on that day [trial counsel] came to Court and asked for an adjournment. And he asked for an adjournment basing it in part upon his meetings with Mr. Bilal but the inability to get information from Mr. Bilal. And this was before the trial even started. He indicated that with respect to the meeting with Mr. Bilal, "The last time I saw Mr. Bilal was when we were in Court when the trial date was scheduled. I made numerous attempts via the mail, and telephone to contact Mr. Bilal and set up a discussion so that we could go over and review some of the items in Discovery, which he could help me understand. I understand this is a complex matter. The Court may not be aware of it but this is a 16 count indictment." He then went on that when he spoke to Mr. Bilal in Court that day, that Mr. Bilal indicated him -- to him that there were roughly 40 to 50 witnesses that Mr. Bilal would like him to call on his behalf." . . .
I was the Judge on April 30th, I did not grant the adjournment, [notwithstanding trial counsel's] best efforts to get the case adjourned. I felt then that after three years to come up with the name of 40 to 50 witnesses on the eve of trial was an attempt to manipulate the Court. [Trial counsel] clearly disagreed with me. As did Appellate counsel who argued before the Appellate Division that it was an abuse of discretion.
So here's [trial counsel], on the eve of trial he's given the names of 40 to 50 witnesses and now it's alleges that [trial counsel] provided ineffective assistance of counsel because he didn't get any of those witnesses, didn't go through any of those witnesses and didn't produce any of them at trial. And that if he had picked and chosen correctly that he could have found some of these witnesses who would have been helpful. If in fact there were 40 to 50 potential witnesses and the client doesn't produce those names until just before trial, when in fact -- the attorney is going to be on trial. It's not ineffective assistance not to interview those 40 or 50 people. It's impossible to do.
So I don't find that his standard of behavior as an attorney fell below the standards. In addition there is no proof before me that any of these people, had they been brought as witnesses would have changed a result of this trial.
Defendant argues on appeal that trial counsel was deficient because the State "predicated its case upon [testimony] that defendant and Harry Oliver were the same person" and that Doyle's testimony would have "establish[ed] that they were not the same person." He also argues that Doyle's name had been provided in discovery and that calling her at trial, as well as other potential witnesses, would likely have altered the verdict.
Initially, the State argues that defendant's PCR petition is procedurally barred because defendant raised ineffective assistance of trial counsel in his initial appeal. Rule 3:22-5 bars a petitioner from asserting as a ground for PCR, any claim previously adjudicated on the merits. State v. McQuaid, 147 N.J. 464, 484 (1997) (stating Rule 3:22-5 bars PCR claims that are "identical or substantially equivalent" to claims raised on direct appeal). New Jersey's public policy aims "'to promote finality in judicial proceedings, '" and, therefore, requires enforcement of the various procedural bars to PCR petitions. State v. Hess, 207 N.J. 123, 171 (2011) (Rivera-Soto, J., dissenting) (quoting State v. Echols, 199 N.J. 344, 357 (2009)).
The claim of ineffective assistance of trial counsel raised on direct appeal concerned counsel's failure to object to the introduction of certain testimony or evidence at trial. Here, however, the claim is based upon a failure to undertake an adequate investigation or to call exculpatory witnesses. Accordingly, the issues are not substantially equivalent and we therefore reject the State's procedural argument.
The legal principles that govern our analysis of a defendant's claim that he was deprived of the effect assistance of trial counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 5.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Preciose, supra, 129 N.J. at 463 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Relief should only be granted where a defendant demonstrates that the counsel's error is "so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698 The two). part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed.2d 657, 668 n.26 (1984).
Informed strategic choices, moreover, "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. State v. Petrozelli, 351 N.J.Super. 14, 22 (App. Div. 2002). Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J.Super. 273, 321, (App. Div.), certif. denied, 94 N.J. 531 (1983). A reviewing court must grant substantial deference to the discretion of counsel in determining which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322-23.
In Arthur, supra, the Court addressed trial counsel's decision not to call a witness. There, the defendant was charged with selling drugs to a buyer. Id. at 313. At trial, the buyer testified that another man had sold her the drugs. Id. at 315. While the man implicated as the dealer had initially told the defense attorney that he was the one who had sold the drugs to the buyer, he changed his story upon learning that he would be prosecuted. Id. at 316-17. The defense attorney did not call the individual as a witness, and the defendant was convicted. Ibid.
On petition for post-conviction relief, the defendant claimed that the failure to call the witness was ineffective assistance of counsel. Id. at 312. In affirming the Appellate Division decision upholding the trial court ruling denying the defendant's post-conviction relief petition, the Court noted, "because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95). That is, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. It went on to find that the decision not to call the dealer was a reasonable strategy, given the fact that the dealer was likely to testify that he had not sold the drugs. Id. at 320.
Employing these standards, we reject defendant's argument that trial counsel was ineffective. As noted, the hearing judge was the trial judge. He had the opportunity to observe and hear the witnesses who testified at trial as well as consider the testimony of trial counsel at the evidentiary hearing. See Carrino v. Novotny, 78 N.J. 355, 360 (1979); Petrozelli, supra, 351 N.J.Super. at 23. Giving proper deference to the findings of the PCR judge and based on the record, we concur that defendant did not establish a prima facie case of ineffective assistance of trial counsel.
Moreover, we determine that trial counsel was not deficient simply because he did not uncover the names of Farward, Reed, Breedon or Shabazz and present their testimony at trial. Assuming their names were given to trial counsel a day prior to trial, among forty or so other names, it is fatuous to suggest that counsel would have had a reasonable opportunity to interview them and prepare them for trial, even if the trial judge had granted him an adjournment for this purpose. The fact that the trial judge denied the adjournment application further underscores how meritless this claim is. Further, their proposed testimony, based upon the statements obtained by PCR counsel, is at best equivocal. There is utterly no showing here that defendant's purported witnesses, had they appeared, would have made the slightest difference in the outcome of the trial.
Defendant's reliance upon Doyle's affidavit is similarly unavailing. Her testimony that Bilal did not sign the fire loss claim form in her presence is, at best, equivocal, and simply establishes that someone else pretended to be the signatory. Given the overwhelming evidence against defendant, however, such testimony creates no likelihood of a different verdict.