October 29, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JAMAR COCKREN, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-01-0034, 06-02-0267, 06-01-0037.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Hayden.
Defendant appeals from the January 28, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we reverse and remand to the Law Division for an evidentiary hearing.
The record reveals that, on January 10, 2006, a grand jury issued an indictment charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-7.
On the same day, the grand jury issued another indictment, for a separate incident, charging defendant with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-7.
On February 21, 2006, a grand jury issued a third indictment that charged defendant with second-degree burglary, N.J.S.A. 2C:18-2; nine counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and a disorderly persons offense for possession of drug paraphernalia, N.J.S.A. 2C:36-2.
The indictments were based on three separate events. First, on July 19, 2005, defendant allegedly sold cocaine to an undercover police officer within a school zone. Second, on October 19, 2005, defendant, armed with a BB gun, and two other men allegedly entered an apartment, forced the occupants onto the floor, and stole marijuana, cash, and other valuables.
That same day, the police arrested defendant at his girlfriend's apartment after one of the robbery victims identified him from a photo array. In searching defendant incident to the arrest, the police found cocaine on his person.
When the police asked defendant for permission to search the apartment, he declined because it was his girlfriend's apartment. The police immediately contacted defendant's girlfriend, who signed a consent form allowing the police to search the apartment. The search revealed drug paraphernalia and a cell phone taken from one of the robbery victims.
After defendant's arrest, the police contacted his mother, who came to the station and, at the request of the police, spoke with defendant. As a result of their multiple conversations, defendant agreed to cooperate with police and led them to two guns utilized in the robbery. Subsequently, the police gave defendant his Miranda warnings, and he gave a formal statement implicating himself in the robbery.
On August 7, 2006, pursuant to a plea agreement, defendant pled guilty to one count from each indictment. Specifically, he pled guilty to two counts of third-degree possession with intent to distribute on or near school property, with the State recommending two five-year terms with three years of parole ineligibility. Defendant also pled guilty to one count of first-degree armed robbery, with the State recommending an eight-year term with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. All sentences were to be concurrent to each other.
Thereafter, the judge sentenced defendant in accordance with the plea agreement and, at the request of the State, dismissed all remaining counts of the three indictments. Defendant then appealed his sentence, which we affirmed. State v. Cockren, No. A-0165-06 (App. Div. Mar. 27, 2007). The Supreme Court denied defendant's petition for certification. State v. Cockren, 192 N.J. 293 (2007).
Defendant filed a verified petition for PCR on May 5, 2010. Defendant's pro se petition stated the following claims:
POINT I: (INEFFECTIVE ASSISTANCE OF
COUNSEL) THE DEFENDANT'S ADVOCATE NEVER ATTEMPTED TO HAVE THE EVIDENCE AGAINST HIM SUPPRESSED. IN OTHER WORDS, THE DEFENDANT'S ATTORNEY NEGLECTED TO EXHAUST ALL POSSIBLE MOTION[S] IN THE DEFENDANT'S FAVOR. THE ARRESTING OFFICER IS THE FIRST COUSIN OF THE DEFENDANT, WHO THE DEFENDANT LATER ON FOUND OUT WAS GOOD FRIENDS WITH HIS ATTORNEY, AND FEELS HE COULD'VE BEEN HOOD-WINKED DURING HIS REPRESENTATION.
POINT II: (INVOLUNTARY CONFESSION) THE ARRESTING OFFICER, WHICH HAPPENS TO BE THE DEFENDANT'S KIN, COERCED THE DEFENDANT INTO MAKING A STATEMENT AFTER BLACKMAILING THE DEFENDANT BY SAYING THAT HIS MOTHER WOULD BE EVICTED FROM HER (HOUSING ASSISTANCE) SECTION PROGRAM. THE ARRESTING OFFICER COERCED THE DEFENDANT INTO SAYING: THE REASON FOR GIVING THE GUNS UP, WAS BECAUSE HE DID NOT WANT ANY CHILDREN TO GET HURT.
POINT III: (EXCESSIVE SENTENCE) NEITHER ONE OF THE DEFENDANT'S CO-DEFENDANTS RECEIVED STATE SENTENCES. THE DEFENDANT DOESN'T UNDERSTAND WHY HIS SENTENCE WAS SO EXTENSIVE AND OPPOSITE OF THE CO-DEFENDANTS. THE DEFENDANT WAS THE YOUNGEST SUSPECT INVOLVED WITH THE COMMITTING OF THE CRIME. THE DEFENDANT FEELS HE SHOULD HAVE BEEN CONSIDERED THE DEFENDANT BEING INFLUENCED BY MEN WHO WERE OLDER THAN HIM.
POINT IV: (CONFLICT OF INTEREST) THE DEFENDANT'S COUSIN WAS THE ARRESTING OFFICER; WHO NEVER GOT ALONG WITH THE DEFENDANT AND HAS HELD A GRUDGE AGAINST THE DEFENDANT SINCE 7TH GRADE. DURING THAT TIME THE ARRESTING OFFICER WAS IN THE NEWS FOR AN ALLEGED SEXUAL RELATIONSHIP WITH A MINOR. THE DEFENDANT TOOK THE NEWS ARTICLE, AND SHOWED IT TO HIS MOTHER, WHICH CAUSED THE REST OF THE FAMILY TO [FIND] OUT ABOUT THE ALLEGED INCIDENT. AFTER THAT INCIDENT, THE ARRESTING OFFICER TOLD THE DEFENDANT THAT HE WOULD GET HIM BACK ONE DAY AND THE DEFENDANT'S COUSIN HAS RESENTED HIM EVER SINCE THAT DAY.
Thereafter, defendant's appointed counsel filed a brief in support of the PCR petition raising the following claims:
POINT I: DEFENDANT IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS THE DEFENDANT'S STATEMENTS AS BEING INVOLUNTARY AND IN VIOLATION OF HIS MIRANDA RIGHTS.
POINT III: COUNSEL WAS INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS EVIDENCE SEIZED FROM DEFENDANT'S GIRLFRIEND'S APARTMENT.
POINT IV: COUNSEL WAS INEFFECTIVE DUE TO CONFLICTS OF INTEREST.
POINT V: PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF CUMULATIVE ERRORS BY COUNSEL WHICH AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
In support of defendant's petition, he supplied his girlfriend's certified statement. She asserted that she had been coerced by the police into consenting to the search when they threatened to "trash" her apartment if forced to obtain a warrant. He also supplied his mother's certified statement. She averred that one of the investigating police officers, who was her nephew and defendant's cousin, persuaded her to talk to defendant and get him to provide information to the police about the robbery. Defendant's mother claimed that the police provided questions for her to ask defendant and she conveyed the answers to the police. She stated that she only cooperated because her nephew threatened that she would lose her public housing if she did not.
Defendant also submitted his own certification, where he claimed that his attorney told him he had a "great relationship" with the police, but did not reveal that he was a friend of defendant's cousin, who investigated the robbery. He also certified that he once saw his attorney give some money to the prosecutor.
At the PCR hearing, defendant contended that his trial counsel was ineffective because, after being informed about the coercion involved in the search of defendant's girlfriend's apartment and the threats and trickery used in obtaining the defendant's pre-Miranda cooperation and statements, he did not investigate further. Thus, according to defendant, his counsel lacked the appropriate information to make a strategic decision regarding bringing any motions to suppress. Defendant further argued that if his counsel had spoken to his witnesses, he would have successfully moved to suppress both the physical evidence and his statements, which would have severely undermined the State's case.
The PCR judge found that "it appears that [defendant's] attorney at the time had made a strategic decision with the defendant to plead guilty" based on the substantial exposure defendant faced for his various crimes. The judge noted that attorneys often decline to file motions because of the adverse effect such litigation is likely to have on a plea offer. The judge held that defendant failed to present sufficient evidence that his trial attorney did not investigate the issues raised by defendant.
With regard to defense counsel's alleged conflict of interest because he stated he was on "good terms" with the local police, the judge held that defendant failed to provide any evidence that counsel's claimed "relationship" with the police had any impact on the outcome. Defendant had also alleged some vague impropriety based on his observation of his attorney was friendly with his cousin who investigated the case and that he had seen his attorney give money to the prosecutor. The judge determined that these unsupported claims were merely "sterile" allegations that provided no "basis to find that this somehow infected the proceedings in some way to the detriment of this defendant."
Consequently, the judge denied defendant's PCR petition without an evidentiary hearing. This appeal followed.
On appeal, defendant makes the following argument:
POINT I: MR. COCKREN IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE FAILED TO FILE MOTIONS TO SUPPRESS EVIDENCE AND STATEMENTS AND BECAUSE OF HIS CONFLICT OF INTEREST.
We begin with a review of well-established legal principles that guide our analysis. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.
Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).
Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693).
This standard also applies in the context of guilty pleas, where attorney competence is required and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996).
In considering the first prong, we give great deference to counsel's professional performance, and do not evaluate the decisions made utilizing hindsight, but rather in light of counsel's state of mind at the time. State v. Petrozelli, 351 N.J.Super. 14, 21-22 (App. Div. 2002). "Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.' In contrast, strategic choices made after a limited investigation are assessed for reasonableness, with great deference given to counsel's professional judgments." Id. at 22 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695).
A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.
A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. (citing Preciose, supra, 129 N.J. at 462-63). But where there are "material issues of disputed fact which cannot be resolved by reference to the existing record, an evidentiary hearing should be held." State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998) (citing Preciose, supra, 129 N.J. at 460), certif. denied, 158 N.J. 72 (1999).
Defendant argues that his attorney's familiarity and "relationship" with the local police created a conflict of interest resulting in ineffective assistance of counsel. We find no merit in this bare and unsupported claim.
A defendant has the right to the representation of a zealous advocate who does not have any conflict of interest. State v. Cottle, 194 N.J. 449, 466-67 (2008). "[A]n attorney hobbled by conflicting interests that so thoroughly impede his ability to exercise single-minded loyalty on behalf of the client cannot render the effective assistance guaranteed by our constitution." Id. at 467. Here, defendant failed to establish a prima facie case as he has merely provided bare allegations that his attorney had some vague conflict of interest due to an alleged friendship with the police or the prosecutor. See Cummings, supra, 321 N.J.Super. at 170.
Defendant further asserts that his counsel was deficient in failing to properly investigate and perhaps move to suppress physical evidence and defendant's statements. We agree that defendant has demonstrated a prima facie case of ineffective assistance warranting an evidentiary hearing on this issue.
Where valid consent is given without duress or coercion, police may search without a warrant or probable cause. State v. Hladun, 234 N.J.Super. 518, 521 (App. Div. 1989). "The voluntariness of a consent must be determined from the totality of the circumstances, and the State has the burden of proving by clear and positive testimony that the consent was voluntarily given." Ibid. (internal citations omitted). Defendant provided his girlfriend's certification that she was coerced into allowing the search that led to the discovery of the cell phone and drugs. This statement was prima facie evidence of coercion.
Whether a person's Fourth Amendment rights were violated warranting suppression of any seized evidence is a fact-sensitive analysis. Id. at 521-24. Defendant presented a prima facie case that his attorney performed deficiently by failing to investigate the allegation of coercion and moving to suppress the fruits of the search of her apartment and that it was reasonably probable that a motion would have succeeded, affecting the plea process. Thus, an evidentiary hearing is necessary to explore the merits of the prima facie case set forth by defendant.
Defendant also contends that his statements should have been suppressed due to the police obtaining information from him through his mother in violation of his Miranda rights. Taken in the light most favorable to him, Cummings, supra, 321 N.J.Super. at 170, defendant's allegations, supported by certifications, have established a prima facie case that his counsel was deficient in failing to investigate and move to suppress his statements and the guns he disclosed, prior to the police giving him Miranda warnings as well as his post-Miranda statement.
A confession is only admissible if a waiver of Miranda rights is "knowing, intelligent, and voluntary[.]" State v. Cooper, 151 N.J. 326, 354 (1997) (citation omitted), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed.2d 681 (2000). Courts must look at the totality of the circumstances when evaluating a violation of a defendant's Miranda rights, "including the characteristics of the defendant and the nature of the interrogation." State v. DiFrisco, 174 N.J. 195, 235 (2002) (citing State v. Miller, 76 N.J. 392, 402 (1978)). Additionally, the voluntariness of a confession is also determined based on the officer's actions and statements in the interrogation looking at the totality of the circumstances. State v. Di Frisco, 118 N.J. 253, 257-58 (1990).
Thus, defendant has presented a prima facie case that his counsel was deficient in failing to investigate and file a suppression motion, and that it is likely that defendant's statements would have been suppressed and the guns would have been suppressed as fruit of the poisonous tree. See State v. Badessa, 185 N.J. 303, 311 (2005); State v. O'Neill, 193 N.J. 148, 168 (2007). This suppression may have affected the outcome of the plea process. Whether a person's Fifth Amendment rights were violated warranting suppression is a fact sensitive analysis. Di Frisco, supra, 118 N.J. at 257. Thus, an evidentiary hearing is necessary to explore the merits of the prima facie case set forth by defendant.
The trial judge speculated that defense counsel had made a strategic decision not to file the motions, which is entitled to deference, Petrozelli, supra, 351 N.J.Super. at 22, and noted that evidence had not been submitted to demonstrate that defendant's plea counsel had not investigated. However, we are convinced that this issue must be explored at an evidentiary hearing.
In sum, we conclude that defendant established a prima facie case of ineffective assistance of counsel that could not be resolved on the record before the PCR judge. We therefore reverse the judge's denial of defendant's petition for PCR and remand the matter for an evidentiary hearing concerning counsel's failure to move to suppress defendant's confession, evidence seized as a result of defendant's statements, and evidence seized from the apartment search.
We have considered defendant's other contentions and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.