Opinion
DOCKET NO. A-4613-13T2
03-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH M. ALEXANDER, a/k/a JOSEPH D. ALEXANDER, CLARENCE ALEXANDER, CLARENCE ALEXANDER, JR., ROGER BROWN, ROGER M. BROWN, RODGER BROWN, RODGER D. BROWN, and RODGERS BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-12-2950. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on brief). PER CURIAM
Defendant Joseph M. Alexander appeals from an April 23, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
Defendant was charged in Camden County Indictment No. 11-12-2950 with second-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7 (count two).
Defendant filed a motion to suppress the handgun, which the police seized without a warrant. The trial court held a N.J.R.E. 104 hearing on the motion, at which Borough of Lindenwood police officers Edward Slimm and Robert Helveston testified. Defendant did not present any witnesses.
The evidence at the hearing showed that at about 10:30 p.m. on October 21, 2011, Slimm went to a large apartment complex in response to anonymous tips that there was narcotics activity. The apartment complex was known as a high crime area with a history of violent and drug-related crimes.
Upon his arrival at the complex, Slimm saw a group of seven to ten men standing in a parking lot. He requested assistance and other officers travelled to the scene. As Slimm drove his patrol car in the direction of the group, some of its members disbursed by walking or running away.
Helveston was one of the officers who received the call from Slimm and responded to the apartment complex. When he arrived, he observed the group of men and walked toward them. Defendant was in the group but walked away in the direction of Helveston. At some point, defendant made eye contact with Helveston and defendant immediately reversed his direction, with Helveston following behind him. Defendant quickly placed his hands in his jacket pockets as he walked away from Helveston and then turned right and walked between two parked cars. While defendant was between the cars, Helveston heard what sounded like a heavy, metal object strike the ground at defendant's location.
Helveston followed defendant and told him to stop because Helveston wanted to speak with him. Helveston directed another officer to the area between the parked cars where he had heard the object strike the ground. The officer found a handgun and defendant's cellphone under one of the cars.
The court found the testimony of the officers to be credible and denied defendant's motion to suppress. The court rejected the contention that the handgun should be suppressed because it was seized as the result of an unlawful stop of defendant. The court also found that the defendant lacked standing to challenge the legality of the seizure because the handgun had been abandoned. State v. Johnson, 193 N.J. 528 (2008).
On June 22, 2012, defendant pled guilty to second-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b), pursuant to a plea agreement. The State agreed to recommend that defendant be sentenced to a five-year custodial term with a three-year period of parole ineligibility. As part of the plea agreement, defendant reserved his right to appeal the court's denial of his motion to suppress the handgun.
Defendant also agreed to withdraw a pending motion to suppress statements he made to law enforcement which alleged that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were violated.
At the plea hearing, defendant acknowledged reviewing the plea form with his counsel, initialing each page of the plea form and signing the last page, and voluntarily entering into the plea agreement. Defendant stated that he had sufficient time to discuss the matter with his attorney and that he was fully satisfied with his attorney's services.
Defendant also testified that on October 21, 2011, he possessed a firearm, specifically a Smith and Wesson .38 caliber, Model 36 revolver, and that he did not have a permit to carry the handgun. The judge accepted defendant's plea and found that defendant entered it knowingly and voluntarily.
On September 12, 2012, the judge sentenced defendant in accordance with the plea agreement to a five-year custodial term with a three-year period of parole ineligibility. The judge also imposed appropriate fines and penalties. The court dismissed count two of the indictment and the underlying warrant and summons. Defendant did not file a direct appeal.
On June 7, 2013, defendant filed a pro se PCR petition and was assigned counsel. Counsel filed a supplemental brief in support of defendant's PCR petition. Defendant asserted that he was denied the effective assistance of counsel based on counsel's failure to call defendant and two exculpatory witnesses, Lamar Williams and Ronnie Young, to testify at the suppression hearing; counsel's failure at the suppression hearing to challenge the police officer's legal basis for detaining defendant; and counsel's failure to file a motion to suppress the statements he gave to the police. Defendant also sought relief based upon an alleged Brady violation by the State.
As noted, defendant's counsel filed a motion to suppress defendant's statements. The motion was withdrawn as a condition of the plea agreement.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The court heard argument on the petition on April 23, 2014, and rendered an oral decision that day. The court rejected defendant's contention that his attorney was ineffective by failing to call Williams and Young as witnesses at the suppression hearing because defendant failed to supply affidavits or certifications from the witnesses detailing their knowledge. The court found that the information defendant alleged the witnesses would have provided if they had testified would not have changed the outcome of the suppression hearing.
In addition, the court found that defendant did not establish that the outcome of the suppression hearing would have been different if he had testified and that counsel's decision not to have defendant testify constituted a sound exercise of trial strategy. The judge denied defendant's petition and entered an appropriate order. This appeal followed.
The court also addressed and rejected defendant's other arguments made in support of the PCR petition. We do not detail the judge's rulings on those other issues because they are not the subject of this appeal. --------
II.
On appeal, defendant raises the following issue:
POINT I:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE PLEA COUNSEL WAS INEFFECTIVE IN FAILING TO CALL WITNESSES TO TESTIFY ON DEFENDANT'S BEHALF AT THE SUPPRESSION HEARING.
Defendant's claim that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution is governed by the two-part analysis 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).
To prevail on a claim of ineffective assistance of counsel, defendant must first "show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, supra, 105 N.J. at 52). This requires a showing that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must also demonstrate that counsel's deficient performance "prejudiced the defense" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
In the context of a guilty plea, to satisfy the two-part test, "a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).
We first address defendant's contention that the PCR court erred in rejecting the claim that his trial counsel was ineffective by failing to call two purported exculpatory witnesses, Williams and Young, to testify at the suppression hearing. Defendant claims that the witnesses would have casted doubt on the police officers' credibility and the State's theory regarding the abandonment of the handgun.
We are convinced the court correctly rejected defendant's argument because he failed to provide affidavits or certifications from Williams and Young as required under Rule 3:22-10(c). Defendant submitted reports prepared by an investigator which purported to detail information provided by Williams and Young during telephone interviews. When a defendant asserts that his attorney failed to call exculpatory witnesses, "he must assert the facts that would have been revealed, 'supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)); see also R. 3:22-10(c).
Moreover, the information contained in the investigator's reports, even if accepted as fact, does not establish a prima facie case of ineffective assistance of counsel under the Strickland standard. Defendant argues that Williams and Young would have testified that defendant did not possess a handgun on October 21, 2011, and their testimony would have undermined the credibility of the officers because defendant "could not have discarded a weapon he did not possess."
"Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citing Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). We choose to first address the prejudice prong of the Strickland standard here.
Testimony that defendant was not in possession of a handgun would not have resulted in the suppression of it as evidence. As noted by the PCR court, if defendant did not possess the handgun he would have lacked standing to move for the suppression of the evidence in the first instance. In Johnson, supra, 193 N.J. at 548, the Supreme Court found an exception to the rule that defendants charged with possessory offenses have automatic standing to challenge the legality of the search or seizure of evidence that will be used to prove an element of an offense. The Court held that "if the State can show that property was abandoned, a defendant will have no right to challenge the search or seizure of that property." Ibid.
Defendant's motion to suppress was founded upon the contention that he discarded the handgun as the result of an unlawful stop by the police. See, e.g., State v. Tucker, 136 N.J. 158 (1994) (finding evidence seized as the result of an unconstitutional stop of the defendant must be suppressed). If defendant had introduced evidence that the handgun was not his, he would have been unable to make the unlawful stop argument because, as he acknowledges, a person cannot discard a handgun he or she does not possess. More importantly, if defendant introduced evidence that the gun was not his, he would have lacked standing to challenge the legality of the search and seizure of the handgun under Johnson because it was otherwise found abandoned under a car in a parking lot. See State v. Carvajal, 202 N.J. 214, 223 (2010) ("For standing purposes, 'property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.'" (quoting Johnson, supra, 193 N.J. at 549)).
The trial court correctly concluded that the putative testimony of Williams and Young would not have changed the outcome of the suppression hearing. Their testimony would have undermined defendant's unlawful stop argument and required a finding that defendant had no standing to request suppression of the evidence. In either event, the outcome of the suppression hearing would not have been different.
Defendant also contends that his counsel was ineffective by failing to call him to testify at the suppression hearing. Defendant asserts that he also would have testified that he did not possess the handgun. We reject defendant's contention for two reasons. First, defendant's testimony would not have resulted in a change in the outcome of the suppression hearing for the same reasons that Williams's and Young's testimony would not have altered the result.
Second, defendant could not have testified at the suppression hearing that he was not in possession of the handgun because he would have been required to commit perjury to do so. See Taccetta, supra, 200 N.J. at 194-95 (finding that a defendant does not establish the second prong of the Strickland standard by showing that he would provide perjured testimony in a proceeding). At his plea proceeding, defendant testified that on October 21, 2011, he possessed the handgun. He therefore could not have truthfully testified at the suppression hearing that he did not have a handgun in his possession. For the same reason, he could not have called Williams or Young as witnesses. To have done so would have required them to perjure themselves.
Testimony that defendant did not possess the gun, regardless of the source, could not have been properly admitted during the suppression hearing and would not have altered the outcome. The PCR correctly concluded that defendant did not establish that "but for counsel's unprofessional errors, the result of the [suppression] proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Taccetta, supra, 200 N.J. at 195.
We also are convinced defendant did not establish that his counsel's failure to call any witnesses at the suppression hearing "fell below an objective standard of reasonableness" as required under the first prong of the Strickland standard. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "Determining which witnesses" to subpoena to testify "is one of the most difficult strategic decisions that any trial attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005).
A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," and a court's review of such a decision should be "highly deferential."
[Id. at 320-21 (quoting Strickland, supra, 466 U.S. at 693, 689, 104 S. Ct. at 2067, 2065, 80 L. Ed. 2d at 697, 694).]
We must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michael v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).
Counsel is not constitutionally ineffective by failing to call witnesses at a hearing whose testimony would not change the outcome. State v. Bey, 161 N.J. 233, 262 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Because defendant did not demonstrate that calling witnesses would have changed the outcome of the suppression hearing, counsel's decision not to call any witnesses constituted sound trial strategy. As the PCR court noted, counsel's decision not to have defendant testify permitted defendant to proceed to trial without the prospect that his testimony at the suppression hearing could be used to impeach him if he chose to testify at the trial.
We also reject defendant's claim that the court should have conducted an evidentiary hearing on his PCR claim. A hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702. Here, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION