Opinion
Civil Action No. 99-1724 (NHP)
July 13, 2000
Mr. Thomas Dollard, Petitioner Pro Se.
Raymond W. Hoffman, Assistant Prosecutor, ESSEX COUNTY PROSECUTOR, for Defendants, Attorney General of the State of New Jersey and Roy E. Hendricks.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Litigants:
Petitioner Thomas Dollard seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter was resolved without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the petition is DENIED.
BACKGROUND
Petitioner, Thomas Dollard (hereinafter "petitioner"), who is presently incarcerated at the Trenton State Prison, filed a habeas corpus petition on April 16, 1999. From what is revealed by the record, on July 14, 1990, the petitioner, accompanied by two accomplices, broke into the premises of Leona Lacey. In the course of the crime, Henry Ladson was killed. At trial, petitioner was identified by witnesses as the person who shot Henry Ladson. On November 1, 1990, an Essex County Grand Jury indicted petitioner on thirteen counts, including burglary, aggravated assault, robbery, felony murder, unlawful possession of prohibited weapon, and possession of a weapon for an unlawful purpose. On February 13, 1991, petitioner pleaded not guilty to the indictment. The trial began on April 23, 1991. On May 21, 1991, petitioner was convicted by a jury on all thirteen counts. The Honorable Julius A. Feinberg sentenced petitioner to life imprisonment plus fifteen years with a thirty year parole disqualifier.
Petitioner appealed the final judgment of his conviction to the Superior Court of New Jersey, Appellate Division, on November 17, 1993. On appeal, petitioner argued that his conviction should be overturned on the following four grounds: (1) the trial court erred in permitting detective Gary Miller's (hereinafter "Miller") testimony as to co-defendant Dwayne Knight's (hereinafter "Knight") oral confession; (2) improper remarks were made by the prosecutor in his summation which prejudiced the jury; (3) the trial court erred in not permitting the medical records of Leslie Johnson into evidence; and (4) the conviction was against the weight of the evidence. Petitioner also submitted a supplemental brief in which he claimed being denied effective assistance of counsel at his trial in violation of his constitutional rights and complained about the excessiveness of his sentence. The Appellate Division affirmed petitioner's conviction and sentence on December 15, 1993.
Petitioner filed for certification with the New Jersey Supreme Court, which was denied on April 7, 1994. He subsequently filed a motion for post-conviction relief in the Superior Court of New Jersey, Law Division of the Essex County, arguing that his constitutional right to a fair trial was violated because his trial attorney rendered ineffective assistance of counsel, that he was entitled to a full evidentiary hearing pursuant to Rule 3:22-10, and that his sentence was so excessive as to shock the judicial conscience.
Later, in his appeal from a denial of post-conviction relief as well as in his petition for federal habeas corpus relief, petitioner claimed that he filed a supplemental brief during his motion for post-conviction relief, which asserted the trial court's failure to properly charge the jury as to the elements of felony murder. A copy of this brief was found in petitioner's file. However, it does not appear in the records that the brief was filed with any state court. In addition, it was mislabeled as a supplemental brief "On Appeal from a Judgment of Conviction of the Superior Court of New Jersey, Law Division, Mercer County", instead of being labeled properly as a supplemental brief "On Appeal from Denial of a Post-Conviction Relief of the Superior Court of New Jersey, Law Division, Essex County." Furthermore, it is not addressed or even referenced by Judge Feinberg or any of the lawyers in the transcript of proceedings on the motion for post-conviction relief. The transcripts relate that on May 30, 1996, the Superior Court of New Jersey, Law Division, reviewed and dismissed the allegations raised by the non-supplemental brief and denied the request for a full evidentiary hearing.
Petitioner appealed from the denial of the motion for post-conviction relief in the Superior Court, Appellate Division. Two briefs were filed on his behalf. One brief, filed on December 5, 1997, argued that petitioner was deprived of his right to counsel while petitioning for post-conviction relief due to his attorney's failure to raise a point of ineffective assistance of trial counsel. This brief further asserted that an evidentiary hearing was required for the defendant to establish that he had received ineffective assistance of trial counsel. A supplemental brief was filed on January 7, 1998, which added constitutional objections to the State's use of the co-defendant's statements to obtain defendant's conviction, and reiterated the allegations of ineffectiveness of trial counsel as well as the excessiveness of petitioner's sentence. Petitioner did not bring up the issue of the trial court's alleged improper felony murder jury instruction in his appeal of the post-conviction relief. The denial of post conviction relief was affirmed. On January 21, 1999, the New Jersey Supreme Court denied certification for petitioner's appeal of the denial of the post-conviction relief.
In his petition for habeas corpus, petitioner raises the following claims: (1) the state trial court erred in instructing the jury on accomplice liability; (2) the state improperly used a co-defendant's statement to obtain his conviction; (3) petitioner was denied effective assistance of trial counsel; and (4) there was a gross insufficiency of evidence to convict him.
DISCUSSION
I. Exhaustion
In order for the Court to grant a petition for habeas corpus, the procedural hurdle known as the exhaustion doctrine must be satisfied by the petitioner. Pursuant to 28 U.S.C. § 2254(b), the petitioner must exhaust the remedies available in state courts before he files a petition of habeas corpus in the district court. Since the Supreme Court decision of Rose v. Lundy, 455 U.S. 509 (1982), the exhaustion requirement has been strictly followed by the courts. See Novasak v. Mazurkiewicz, 1995 WL 430603, at *2 (E.D.Pa. Jul. 20, 1995). This requirement serves an important public interest grounded in the concept of comity between the state and federal systems. It preserves the balance and harmony in the dual judicial system, in which state and federal courts alike are bound to safeguard criminal defendants' constitutional rights. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990).
Under 28 U.S.C. § 2254(c), a petitioner has not exhausted the remedies available in state courts if, under the law of the state he has a right, by any available procedure, to raise the issue presented in the habeas corpus petition in any state court. In order to demonstrate exhaustion, the applicant must show that the claim asserted in his petition has been "fairly presented" to the state courts. See Landano, 897 F.2d at 668. To be "fairly presented," the claim must be substantially equivalent to the one presented in the state courts. See Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). This means that the legal theory and the facts of the issue raised in the habeas corpus petition must have been earlier presented to the state courts. See id. Furthermore, every issue raised in a federal habeas corpus petition must first be presented to the state's highest court for consideration. See Picard v. Connor, 404 U.S. 270, 276 (1971).
In this case, petitioner has not satisfied the procedural requirement of exhaustion. One issue raised in the petition is an alleged improper jury instruction as to accomplice liability for felony murder. Petitioner claims to have raised this issue for the first time in his supplemental brief on a motion for post-conviction relief. The records reveal that no such brief was filed in the Superior Court, Law Division of Essex County. The transcripts of Judge Feinberg's post-conviction hearing further show no references to the jury instruction issue which petitioner claims he raised in the supplemental brief. In addition, the claim of erroneous jury instruction was not raised on appeal from the denial of post-conviction relief. There is absolutely no record of petitioner bringing the issue of improper jury instruction to any state court. Therefore, under 28 U.S.C. § 2254(b) and (c), as well as under extensive precedent established through case law, the petitioner failed to satisfy the exhaustion doctrine as to the jury instruction issue. InRose, the Supreme Court clearly mandated district courts to apply a "total exhaustion" rule, requiring them to dismiss every habeas corpus petition that contains both exhausted and unexhausted claims. See 455 U.S. at 513. Here, the Court must dismiss the petition because it contains one unexhausted claim.
II. The Instructions to the Jury on Accomplice Liability
Even assuming the petitioner properly exhausted his remedies, his habeas corpus petition would still be denied on the merits. Petitioner's claim that the instructions to the jury on accomplice liability for felony murder deprived him of his constitutional rights is without merit. First, petitioner did not object to the jury charge at trial. When no objection is made to the jury instructions at trial, the standard of review used is that of plain error, which is defined as an error clearly capable of bringing about an unjust result. See State v. La France, 117 N.J. 583, 594 (1990).
In his argument that the jury instruction was a plain error, petitioner relied mainly on the law established in State v. Bielkiewicz, 267 N.J. Super. 520 (1993) and State v. Cook, 300 N.J. Super. 476 (1996). As explained in petitioner's brief, these cases stand for the proposition that a court errs in its accomplice liability instruction to the jury when it fails to explain that each participant in a crime of felony murder is guilty only to the degree of his own intent. See Bielkiewicz, 267 N.J. Super. at 533; Cook, 300 N.J. Super. at 486.
In Cook, the court also held that erroneous jury instructions on matters material to a jury's deliberations are presumed to be reversible error. See 300 N.J. Super. at 488. However, what appeared as material to the jury's deliberations in the Cook and Bielkiewicz trials is easily distinguished from what was material to the jury's deliberations in petitioner's trial.
The defendants in Cook and Bielkiewicz were not responsible for the physical actions of murder in their respective cases. In other words, they were not the principals of the crime, but rather the "aiders" of it. They did not pull the trigger or inflict a fatal wound on the victim. To these defendants it was material that the jury know that as long as their state of mind differed from the principal's intent, they could be found guilty of the lesser included offense of manslaughter. The court in Cook specifically stated that it found the instructions erroneous because they had the effect of causing the jury to believe "that merely silently assenting to and approving of another person's criminal behavior makes one an accomplice." 300 N.J. Super. at 480.
The principles explained by the courts in Cook and Bielkiewicz do not apply to the present case. Although Judge Feinberg's instructions did not specify that each participant in a crime is guilty only to the degree of his own intent, this specification was not material to the jury's deliberations and as such does not constitute a reversible error. The fact that an accomplice — whose state of mind was different from that of the principal's — could be convicted of a lesser offense did not apply to petitioner's conviction. Unlike the defendants in Cook and Bielkewicz, petitioner was not an accomplice, but rather the principal in the crime of murder. Three witnesses testified at trial that they observed petitioner shoot and kill the victim. Based on this evidence, the instruction to the jury on accomplice liability for felony murder, even if erroneous, was not clearly capable of bringing about an unjust result with respect to petitioner. Therefore, the petitioner's claim that an erroneous jury instruction on accomplice liability violated his constitutional rights is without merit.
III. Co-Defendant's Statement
Next, it is alleged that the State improperly used co-defendant Knight's statement to obtain petitioner's conviction in violation of his right to due process of law. Petitioner's brief alleges that detective Miller's testimony at trial contained statements given to him by co-defendant Knight in violation of Bruton v. United States, 391 U.S. 123 (1968).
The Bruton Court stated that if a co-defendant's confession implicating the defendant is admitted at a joint trial and the co-defendant does not take the stand, the defendant has been denied his constitutional right to confront witnesses who testify against him and to conduct a cross-examination. See Bruton, 391 U.S. at 124; Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). This means that a pretrial confession of one defendant could not be admitted against the other unless the confessing party took the stand in order to provide an opportunity for cross-examination. That is why when the prosecution seeks to introduce a statement of a co-defendant, there must be a judicial determination of whether all references to other defendants can be deleted. See State v. Young, 46 N.J. 152, 159 (1965).
Petitioner was tried jointly with co-defendants Knight and Durham. Prior to the trial, defendant Knight confessed the facts of the crime to detective Miller. When the prosecutor sought to introduce this information by putting detective Miller on the stand, the court held a hearing with the lawyers and without the jury present. At that hearing, petitioner's lawyers voiced concerns that detective Miller's testimony might be a violation of the Bruton doctrine. The prosecutor answered these concerns by telling Judge Feinberg that the detective's testimony would only concern Mr. Knight's personal involvement in the crime. "I do not intend to ask Detective Miller about what Mr. Knight had to say about his co-perpetrators but the comments wherein he implicated himself. . . ." Transcript of a Trial, Volume 2, p. 16 (hereafter "Tr., Vol. 2"). During this hearing the Judge repeatedly assured the defendants' lawyers that detective Miller would not be allowed to use any of Mr. Knight's statements which affected other defendants. When detective Miller finally testified about defendant Knight's confession, his statements in no way implied that he had any accomplices or that anyone else was involved in the crime. Throughout the whole testimony, detective Miller did not mention any other defendants but Mr. Knight.
When petitioner complained to the Appellate Division that detective Miller was improperly allowed to testify, the court found "absolutely no violation of Bruton or potential for prejudice to Knight or Dollard on this claim." New Jersey v. Dollard, No. A5681-90T4, slip op. at 13 (N.J.Super.Ct. A.D. Dec. 15, 1993). That court stated that the use of Mr. Knight's statements was approached very carefully at trial, specifically in order to avoid any violations of Bruton. See id.
The Bruton rule is only violated when the co-defendant's statement in some way implicates other defendants. See 391 U.S. at 124. The record demonstrates that detective Miller's testimony as to the statements made by co-defendant Knight in no way implicated or mentioned petitioner. There is no evidence which would contradict the Appellate Division's ruling. Therefore, petitioner's constitutional rights were not violated by the trial court's admission of detective Miller's testimony.
IV. Ineffective Assistance of Counsel
Petitioner's claim that he was denied effective assistance of counsel is also without merit and must be dismissed. In order to determine whether a defendant was denied the effective assistance of counsel at trial, the court must use the two prong test recognized by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The purpose of the review under the Strickland test is simply to ensure that a criminal defendant received a fair trial. See Strickland, 466 U.S. at 689. Therefore, the judicial scrutiny of counsel's conduct must be highly deferential. See id. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence. . . ." Id. The burden falls on the petitioner to first show that his attorney's performance at trial was deficient. See id. at 686. However, even if the appellant succeeds in effectively satisfying the first prong, he or she must then prove that counsel's errors were so serious as to deprive the petitioner of a fair trial. See id.
In order to satisfy the first prong of the Strickland test, a petitioner is required to demonstrate that counsel made errors so serious as to deprive his client of the right to counsel guaranteed to him by the Sixth Amendment. See Strickland, 466 U.S. at 686. The burden is on the petitioner to show that his counsel's representation fell below an objective standard of reasonableness. See id. at 687. Reasonableness is measured by the prevailing professional norms. See id. at 688.
In proving that his counsel's conduct fell below the applicable standard, the petitioner must overcome the presumption that the challenged action might have been a sound trial strategy. See Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In this case, petitioner failed to show that his attorney's performance was in any way deficient at trial. He claims that his counsel failed to properly prepare the case, but he does not explain what the counsel should have done differently. According to petitioner, his counsel also failed to properly advise him. Petitioner, however, fails to advance any examples of the type of advice he had failed to receive. Petitioner's whole argument contains many legal theories but very few, if any, factual proofs of his counsel's incompetence.
Petitioner next argues that his attorney failed to investigate. The only support for this allegation, however, is petitioner's confusing argument concerning his counsel's failure to subpoena another man who supposedly was present at the crime scene, who looked like the petitioner, and whose first name was similar to petitioner's name. The record, however, indicates that all of the witnesses testified that they saw petitioner and his companions walk into the apartment. The petitioner was identified by three witnesses as the man who shot and killed the victim. Under these circumstances, it is safe to assume that counsel's decision not to put this other person on the stand was a sound decision within the range of legal professional norms.
There is no evidence in the record which indicates that petitioner's counsel failed to adequately prepare for the case. Throughout the trial, he focused on numerous inconsistencies in the State's case. His summation was lengthy and well-organized. Therefore, petitioner's argument as to the ineffectiveness of his counsel fails on the merits.
It must be stated that even if the petitioner somehow showed enough evidence to prove that his counsel made errors, the argument would still fail on the merits because it would not pass the second prong of theStrickland test. Petitioner simply cannot point to any errors which may have changed the result of his conviction. Petitioner cannot demonstrate with reasonable probability that the outcome of the trial would have been different if his counsel made changes in the presentation of his case. Therefore, petitioner's argument clearly fails the two-prong Strickland test and must be dismissed.
V. Insufficiency of Evidence
Lastly, petitioner argues that the State failed to prove his guilt beyond a reasonable doubt due to a gross insufficiency of evidence in the case. Petitioner alleges that the record is void of proof that he is guilty of any crimes. He states that the only evidence against him came from detective Miller's testimony regarding co-defendant Knight's oral statements. The record of the trial indicates otherwise.
As demonstrated in Part III above, it is clear from the record that detective Miller at no time mentioned petitioner or implicated him in any way throughout his testimony. It is true that co-defendant Knight gave a written statement implicating his co-defendants. This statement, however, was not admitted against petitioner at trial. It is likely that petitioner's conviction had nothing to do with this testimony, but instead rested on the testimonies of the numerous witnesses who were present at the crime scene. Before the trial, Leslie Johnson identified petitioner as the shooter when shown two photo arrays. In court, petitioner was also identified by Georgeanna Monroe, Leone Lacey, Johnny Allen and Leslie Johnson.
It appears that the facts of the case were strong and compelling. The record indicates that petitioner was convicted because he was positively identified by many witnesses at trial and not at all due to detective Miller's testimony. The evidence against petitioner was sufficient to convince the jury beyond a reasonable doubt that petitioner was guilty of the crimes charged. Therefore, petitioner's due process rights were not violated in this case, and his petition for writ of habeas corpus is dismissed.
CONCLUSION
For the foregoing reasons, petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254 is DENIED.
A certificate of appealability shall not issue since the petitioner has not made a substantial showing of the denial of his constitutional rights.
An appropriate Final Order accompanies this Letter Opinion.