December 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CHARLES H. RASHID, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-0036.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Sapp-Peterson and Maven.
Defendant, Charles H. Rashid, appeals from the July 27, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
Following a trial in 2004, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); two counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) and (b)(4); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). Defendant was sentenced to an aggregate sixty-five-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In an unpublished opinion, we affirmed defendant's conviction, but vacated the sentence and remanded for re-sentencing because the court should not have considered, as an aggravating factor, N.J.S.A. 2C:44-1(a)(4). State v. Rashid, No. A-3853-04 (App. Div. September 5, 2008) (slip op. at 9-10). On November 21, 2008, the Supreme Court denied defendant's petition for certification. State v. Rashid, 197 N.J. 16 (2008).
On April 27, 2009, defendant filed a pro se PCR petition. Assigned counsel thereafter submitted a brief and appendix in support of the petition, which included certifications by defendant's counsel, as well as a written summary of a telephonic interview PCR counsel conducted of the former lead defense investigator. The court conducted oral argument on the issues raised in the PCR petition and subsequently issued a written decision denying defendant's request for an evidentiary hearing and denying the petition.
Judge Dennis V. Nieves rejected defendant's claim that trial counsel lacked sufficient experience to represent him, concluding that "[e]xperience alone cannot be used as a means by which effectiveness can be measured - a specific deficiency must be identified. Whether that deficiency is ultimately attributed to inexperience is irrelevant." Addressing defendant's contention that trial counsel was ineffective because he failed to exercise peremptory challenges to remove two particular jurors, the judge found that defendant presented no evidence demonstrating the "probability that the outcome would have been in any way different had these jurors not been on the panel."
Next, the court rejected defendant's challenges to trial counsel's strategic choices. According to defendant, these strategic choices included trial counsel's failure to reveal to the jury his extensive background with police, his failure to use information gathered by the defense investigator to disprove premeditation, and pursuing passion provocation manslaughter rather than a diminished capacity defense as was initially discussed with defendant. The court concluded that "[s]trategic choices made by counsel after thorough investigation of the relevant law and facts are 'virtually' unchallengeable."
Turning to defendant's claim that trial counsel neglected to explain the benefits of entering into a negotiated plea bargain with the State, the judge noted that defendant executed the pretrial memorandum, which expressly indicated that defendant faced life imprisonment with a sixty-seven-year period of parole ineligibility, contained the proposed plea offer of thirty-years imprisonment with a thirty-year period of parole ineligibility, and the possible consequences if defendant rejected the plea offer. Additionally, Judge Nieves observed that defendant initialed each page and signed the last page of the proposed plea bargain. The judge stated that defendant's choice to "ignore the word 'LIFE'" in the plea agreement "cannot be attributed to ineffective assistance of counsel.
Finally, Judge Nieves rejected defendant's claim that defense counsel failed to prepare witnesses. He noted that defendant failed to proffer any evidence to support this contention. The ensuing appeal followed.
On appeal defendant raises the following points for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed to Exercise Peremptory Challenges So As To Ensure That Defendant Was Tried Before An Impartial Jury.
B. Trial Counsel Failed To Prepare Defense Witnesses.
THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO ADVANCE ALL OF THE ISSUES DEFENDANT RAISED IN HIS PCR PETITION. (Not Raised Below)
In his pro se supplemental brief defendant raises the following points:
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THAT COUNSEL FAILED TO SUBPOENA LEAD DETECTIVE AS WITNESS.
TRIAL COUNSEL FAILED TO PROPERLY ADVISE DEFENDANT OF PLEA DEAL.
THE ACCUMULATION OF ERRORS DEMAND AN EVIDENTIARY HEARING.
The test for ineffective assistance of counsel was formulated 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 (1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the following two-pronged Strickland/Fritz test: (1) trial counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and, (2) there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, supra, 466 U.S. at 687-88, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698. In making that determination, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance. State v. Parker, 212 N.J. 269, 279 (2012). If a defendant establishes one prong of this test, but not the other, the petition for PCR must fail. Id. at 280. Thus, both prongs of the Strickland/Fritz test must be satisfied before post-conviction relief may be granted. Strickland, supra, 466 U.S. at 687-88, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698.
We apply the Strickland standard and review the reasonableness of counsel's assistance with "'a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). With such deference, we are satisfied there is ample basis in the record to support Judge Nieves's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel to warrant an evidentiary hearing.
We first address trial counsel's failure to exercise peremptory challenges to remove two jurors during the voir dire, Twyla Paige and Regini Shah. Paige disclosed to the court that her brother was a corrections officer at the Middlesex County Adult Corrections Center and that the nature of his employment would not affect her impartiality as a juror. Shah reported that some members of her family had been victims of domestic violence. Although initially advising the court that this particular fact may affect her ability to be fair, at the request of the court, she reconsidered her initial response and advised the court that she could fairly judge the matter if selected as a juror.
We accord deference to the manner in which a trial judge conducts a jury voir dire. State v. Koedatich, 112 N.J. 225, 274 (1988), cert. denied, sub. nom. Koedatich v. New Jersey, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). A conviction will be reversed on appeal only when a voir dire was so inadequate that it deprived a defendant of his constitutional right to a fair trial. See, e.g., State v. Oates, 246 N.J.Super. 261, 265 (App. Div. 1991) (reversing defendant's conviction on grounds of inadequate questioning during voir dire). We are satisfied that the information elicited from Paige and Shah was sufficient for defense counsel to make an informed decision as to whether to exercise a peremptory challenge to excuse these two jurors.
Although Paige's brother was employed in law enforcement that status alone is not a disqualifying factor for jury service. See State v. Reynolds, 124 N.J. 559, 564 (1991) (noting that N.J.S.A. 2A:69–1, which was repealed in 1995, "[did] not by its terms disqualify from general jury service members of the law-enforcement community"). Moreover, there is nothing in the record to suggest that Paige knew that defendant was incarcerated at the correctional facility where her brother was employed and defendant proffered nothing to indicate that Paige's brother knew him or had interacted with him while he was housed at the correctional facility.
Likewise, although Shah initially thought her family's prior experience with domestic violence may affect her impartiality, upon further reflection, she advised the court that she could be fair. The trial court was satisfied with her explanation, and defendant presents no other evidence from the record to suggest that Shah's response to any other questions or her conduct during the balance of the voir dire should have alerted defense counsel to exercise a peremptory challenge to excuse her. Nor has defendant presented additional information pertaining to the number of peremptory challenges remaining, if any, and, if none were remaining, information about those jurors for whom defense counsel exercised peremptory challenges. Such information would have been relevant to any determination that the selection process undertaken by defense counsel fell below acceptable standards for trial counsel. Thus, the PCR judge properly rejected defendant's contention that trial counsel was ineffective for failing to exercise peremptory challenges to remove these two jurors.
Next, defendant contends his trial counsel appeared confused during the trial, the jury asked the trial judge whether a mistrial could be declared based upon defense counsel's ineffectiveness, and trial counsel changed trial strategy mid-trial and neglected to prepare defense witnesses in advance of the trial. Beyond asserting these contentions as a basis for establishing a prima facie case of ineffective assistance of counsel, defendant proffers nothing to support these claims. Defendant failed to provide a copy of the jury question in which the jury purportedly asked whether a mistrial could be declared due to trial counsel's performance. Nor did defendant provide certifications or affidavits from defense witnesses proffering what would have been presented to the jury had trial counsel properly prepared the witnesses in advance. Nor does defendant cite to any portion or portions of the record demonstrating confusion on the part of defense counsel. Additionally, while PCR counsel submitted a certification reiterating what was purportedly stated by Norma Ayala, an investigator with the Office of the Public Defender at the time defendant's charges were pending, Ayala provided no certification. As such, PCR counsel's certification was not the type of competent evidence from which the court could conclude defendant established a prima facie case of ineffective assistance of counsel.
"[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). We therefore agree, as Judge Nieves concluded, defendant's claim that trial counsel made poor strategic decisions is without merit.
Finally defendant urges that he is entitled to a remand for a new PCR hearing because trial counsel failed to advance all of the issues he raised in his pro se PCR petition We disagree That PCR counsel submitted the issues raised in the pro se petition is evident by Judge Nieves's statement that he considered the issues raised and concluded they "consisted mostly of issues that should have been raised on [direct] appeal and are barred from being considered at this juncture" The PCR judge additionally noted that "[t]hose issues not barred are largely contained in Point II of the subsequent brief submitted by PCR counsel" We agree as the State urges that there is no requirement that PCR counsel repeat all arguments advanced in defendant's supplemental PCR brief as long as those issues have been presented to the court as was done here Defendant has not claimed that PCR counsel failed to communicate with him or failed to investigate his claims Consequently we discern no violation of the dictates of State v Rue 175 N.J. 1 (2002)