November 20, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DERRICK ROSSI, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-09-1199.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, 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 Yannotti and Leone.
Defendant Derrick Rossi appeals from an order entered by the Law Division on January 4, 2012, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with murder, N.J.S.A. 2C:11-3a(1) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); robbery, N.J.S.A. 2C:15-1 (count three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five). Defendant was tried before a jury.
At the trial, Daniel Pedroza testified that on February 4, 2001, he looked out a window on the second floor of his residence in Trenton and observed two men. Pedroza identified defendant as one of the two men that he saw from his window. The other man was later identified as Daniel Rojas. According to Pedroza, the men started pushing each other. When they were across the street from his home, Pedroza saw defendant grab Rojas by his coat. Rojas tried to pull away from defendant. Defendant swung at Rojas and hit him in the face.
Defendant then pulled out a gun. Pedroza said a shot rang out. Rojas fell, kicked his legs and tried to get away. Pedroza ran downstairs so he could call 9-1-1. Pedroza was on the steps inside his home when he heard a second shot. Pedroza went back upstairs, looked out the window and saw defendant running down the street. The police arrived shortly thereafter. Pedroza told the police what he had seen and gave the police a description of defendant. Rojas was taken to a hospital and pronounced dead.
Officer Jason Astbury of the Trenton Police Department was dispatched to the area. He observed a man walking across the street. The man matched the description that Pedroza had provided. Astbury stopped his vehicle and told defendant to stop. When he exited his car, defendant began to run. Astbury chased him and observed defendant enter a house. Astbury tried to enter but the door was blocked. Astbury ran to the rear of the house and looked up. He saw defendant in the window.
At the time, defendant was residing in the house with his girlfriend, Maria Pineda. She testified that she was in bed on the second floor of the house when defendant entered. She heard the officer outside calling to defendant and telling him to come out. Pineda went downstairs and saw defendant run into the kitchen.
Pineda testified that defendant repeatedly stated that he was sorry. Defendant ran into the living room and pushed a sofa in front of the door. He again told Pineda he was sorry. According to Pineda, defendant said "he thought he might have shot someone." The police forced their way into the house. The officers found defendant hiding in one of the bedrooms.
The jury found defendant not guilty of murder (count one), felony murder (count two) and robbery (count three), but guilty of the lesser-included offense of aggravated manslaughter (count one) and the two weapons offenses (counts four and five). The judge sentenced defendant to thirty-years for the aggravated manslaughter, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged counts four and five and imposed a consecutive four-year term on count five.
Defendant appealed from the judgment of conviction entered on July 31, 2003. He raised the following issues in his appeal.
POINT I: DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S HIGHLY IMPROPER SUMMATION, IN WHICH HE VOUCHED FOR THE CREDIBILITY OF HIS OWN WITNESS AND CONTRASTED HIM WITH DEFENDANT, WHO HAD A "MOTIVE TO LIE" (Not raised below).
POINT II: THE COURT'S JURY INSTRUCTION ON CREDIBILITY WAS SO FLAWED AND SO PREJUDICIAL TO DEFENDANT, THAT IT DEPRIVED DEFENDANT HIS CONSTITUTIONAL RIGHT TO THE DUE PROCESS OF LAW (Not raised below).
POINT III: THE SENTENCE IMPOSED UPON DEFENDANT WAS SO MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES AS TO SHOCK THE CONSCIENCE AND REQUIRE REVERSAL.
POINT IV: IN IMPOSING A SENTENCE ABOVE THE PRESUMPTIVE BASED ON NON-JURY FINDINGS, THE COURT VIOLATED CONSTITUTIONAL PRINCIPLES SET FORTH IN BLAKELY v. WASHINGTON, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Defendant filed a supplemental pro se brief in which he raised the following argument:
POINT I: DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW BY THE COURT'S FAILURE TO CHARGE PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER.
We affirmed defendant's conviction and the consecutive sentence imposed on count five, but remanded the matter for re-sentencing on count one in accordance with State v. Natale, 184 N.J. 458 (2005). State v. Rossi, No. A-133-04 (App. Div. May 12, 2006) (slip op. at 22-24). The Supreme Court thereafter denied defendant's petition for certification. State v. Rossi, 188 N.J. 353 (2006).
In December 2006, defendant filed a pro se petition for PCR. The trial court appointed counsel, who filed a supplemental brief on defendant's behalf. After the petition was filed, defendant was re-sentenced. The judge merged the conviction for possession of a weapon for an unlawful purpose (count four) with the conviction for aggravated manslaughter (count one), and imposed a twenty-five year term of incarceration for the aggravated manslaughter, with a NERA period of parole ineligibility. The judge also imposed a consecutive four-year term of incarceration for unlawful possesian of the handgun. Defendant appealed and challenged his sentence.
Because defendant's appeal was pending, the court dismissed the petition without prejudice. R. 3:22-3. The court entered an order which provided that, if defendant re-filed his petition within ninety days after conclusion of the appeal, the petition would be treated as having been filed on the date it was initially filed. See R. 3:22-6A(2); -12(a)(3). We later affirmed defendant's sentence. State v. Rossi, No. A-4809-08 (App. Div. June 29, 2010).
Defendant filed an amended PCR petition on April 11, 2011. In his pro se brief, defendant claimed that: (1) he was denied a fair trial and his rights under the United States Constitution due to the assistant prosecutor's reference to defendant's statement that he did not want to go "back" to jail; (2) the judge's charge on "flight" was prejudicial and denied him of his right to a fair trial; and (3) he was denied the right to the effective assistance of trial and appellate counsel in violation of his rights under the United States Constitution and the New Jersey Constitution.
In addition, PCR counsel raised the following contentions: (1) defendant was denied the effective assistance of trial counsel because defendant's trial attorney failed to properly investigate the case, call witnesses that would have supported the defense, and object to Pineda's testimony; (2) defendant was denied the effective assistance of appellate counsel because his attorney did not raise the issue regarding Pineda's testimony on appeal; (3) the trial court erred by failing to limit Pineda's testimony, which deprived defendant of his right to a fair trial; (4) defendant's right to a fair trial was prejudiced by the State's "improper use" of his prior criminal record; (5) PCR should be granted for the reasons in defendant's pro se submission; (6) cumulative errors deprived defendant of his right to due process and a fair trial; and (7) defendant's petition should not be procedurally barred.
The PCR judge heard argument on the petition on October 28, 2011, and on January 4, 2012, filed a written opinion, concluding that defendant did not file his petition within the time required by Rule 3:22-12(a)(1) and did not establish excusable neglect for relaxation of the time-bar. The PCR court nevertheless considered the petition on the merits and determined that defendant was not entitled to relief. The judge entered an order dated January 4, 2012, denying PCR. This appeal followed.
Defendant raises the following arguments for our consideration:
THE LOWER COURT ERRED IN CONCLUDING THAT DEFENDANT'S PETITION WAS TIME-BARRED.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
Defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his claim that he was denied the effective assistance of trial and appellate counsel. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant first must establish that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To do so, the defendant must show that his attorney's handling of the case "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
A defendant also must establish that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To meet this part of the test, a defendant must show that there is "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.
An evidentiary hearing is not required unless a defendant presents a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case, the defendant must show that there is a reasonable likelihood he will satisfy the Strickland test. Id. at 463.
Defendant argues that his trial attorney was deficient because he only contacted him three times in the two years he was in jail awaiting trial. He contends that trial counsel told him he would investigate Pedroza and Rojas but never did so. He says counsel "never bothered" to interview Pineda. He maintains that his attorney never attempted to develop a defense strategy.
Defendant additionally claims that his trial attorney failed to obtain a transcript of the grand jury minutes, which might have revealed a basis for a motion to dismiss the indictment. He says the minutes of the grand jury proceedings would have "aided" counsel in his trial preparation and cross-examination of the State's witnesses.
Defendant further claims that his trial attorney failed to appreciate that Rojas was the aggressor in the incident and defendant acted in self-defense when he shot him. Defendant says his counsel failed to demonstrate that he panicked and ran after this "frightening encounter" with an armed aggressor, and also failed to establish that Pedroza did not witness the entire encounter.
The PCR judge correctly found that defendant had not established a prima facie case of ineffective assistance of counsel. The judge correctly noted that while defense counsel's contacts with defendant may have been limited, this did not satisfy either prong of the Strickland test.
The judge also noted that in his cross-examination of Pedroza, defense counsel had elicited testimony that, while Pedroza had seen defendant and Rojas walking, he could not hear their conversation. When cross-examined by defense counsel, Pedroza also conceded that although he had testified on direct that he actually observed defendant shoot Rojas, he told the police that he saw defendant pull the gun but did not actually see him shoot Rojas. The record therefore supports the judge's finding that defense counsel was not deficient in his cross-examination of Pedroza.
The judge additionally noted that defense counsel had objected to the admission of Pineda's statement that defendant told her he was not "going back" to "jail." Defendant maintains that trial counsel should have sought to limit Pineda's testimony and she should not have been allowed to refer to "jail."
According to defendant, at a hearing on the admissibility of her testimony, which was conducted outside the presence of the jury, Pineda stated that defendant did not use the word "jail." However, the transcript of the hearing of April 24, 2003, indicates that Pineda testified that defendant told her he was not going back "to jail."
In any event, as the PCR judge pointed out in his opinion, the record shows that defense counsel argued that Pineda's testimony about defendant's statements should not be admitted at trial. Trial counsel maintained that the jury could infer from the reference to "jail" that defendant had a criminal record and it would force him to take the stand.
The trial judge found, however, that defendant's statements were admissible because they showed a consciousness of guilt. The judge also found that the statements were relevant to any claim of self-defense. It appears that defendant filed a notice of self-defense prior to the trial.
The record therefore supports the PCR court's finding that defendant was not denied the effective assistance of trial counsel because his attorney did, in fact, object to the admission of Pineda's testimony regarding defendant's statements to her. Furthermore, defendant was not denied the effective assistance of appellate counsel because this issue had not been presented in defendant's appeal The argument had no merit and the appeal would not have been decided differently if this issue had been raised
Defendant additionally argues that his trial counsel erred by failing to investigate Rojas However defendant has not identified the evidence that would have been obtained had such an investigation been conducted Thus defendant failed to establish that his attorney was deficient because he failed to investigate Rojas Defendant also did not establish that if defense counsel had conducted the investigation it would have led to a different result at trial
We have considered defendant's other arguments regarding the alleged ineffectiveness of his trial attorney We are convinced that those arguments are without sufficient merit to warrant discussion R 2:11-3(e)(2)
In sum the PCR judge correctly determined that defendant had not established a prima facie case of ineffective assistance of trial or appellate counsel Thus the judge correctly determined that an evidentiary hearing on the petition was not required In view of our decision we need not consider whether the PCR court erred by also determining that defendant's PCR petition was time-barred