Opinion
DOCKET NO. A-2402-12T1
06-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LORENZO BELFOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-10-2329.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant guilty of attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1)-(2); nine counts of aggravated assault, three each under N.J.S.A. 2C:12-1b(1), N.J.S.A. 2C:12-1b(2) and N.J.S.A. 2C:12-1b(4); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following merger, the judge sentenced defendant, who, although fifteen-years-old at the time of the offense, was tried as an adult, to a seventeen-year prison term on the attempted murder count and to consecutive seven-year terms on two of the counts for aggravated assault, each subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a concurrent five-year term on the count charging possession of a weapon for an unlawful purpose. Defendant filed a direct appeal which he subsequently withdrew.
Defendant's appeal is from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel. Because we conclude that defendant presented a prima facie case of ineffective assistance of counsel on one of the issues he raised, warranting an evidentiary hearing, we affirm in part, reverse in part, and remand for such a hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Defendant and Antonio Witherspoon got into a dispute at a youth football game in Pleasantville on the evening of October 1, 2005, allegedly over a girl. Witherspoon punched defendant, who thereafter left the game. Two police officers working security learned of the altercation and began keeping an eye on Witherspoon who remained in the area. As Witherspoon was unchaining his bike to leave, defendant returned and fired four shots at him. Defendant was hit in back of his neck. Two bystanders were also shot. The officers, both of whom witnessed the shooting and identified defendant at trial, gave chase, but defendant escaped into the woods.
Later that evening, one of the officers showed Witherspoon several photographs, including one of defendant. The officer testified at trial that Witherspoon identified defendant and placed his initials on defendant's photograph. Witherspoon, who wanted nothing to do with the police, testifying that he preferred to deal with the shooter in his own manner, admitted that he was shown defendant's photo that night. He, however, denied having identified defendant to the police and specifically denied having placed his initials on defendant's photo.
Building on Witherspoon's testimony, defense counsel presented testimony from two of defendant's aunts in order to establish that members of the Pleasantville police department, and particularly Detective Moore, were biased against defendant and his family. Defense counsel asked one of the aunts why Detective Moore was biased against defendant's family, who responded:
I just can't give a direct reason why he's so biased towards them personally. I just can't give that direct reason. But I just know from what I've seen or what I've heard that's been going on as far as the Belfors are concerned. That every time there's something, . . . Mr. Moore is always the one there. Every single time there's a[n] incident, Mr. Moore is there. No matter what it is. He's the first one to show up almost every time to whatever's going on, or whatever's claimed to be going on. That I know.
Defendant's other aunt testified to an occasion when Detective Moore accused defendant of shooting at a car on Broad Street in Pleasantville. When she confronted the detective about the accusation at the police station, she claimed that Detective Moore's eyes were bloodshot and he smelled of alcohol. She also testified that Detective Moore prevented defendant from returning as a student to Pleasantville High School after his placement in an alternative school. Finally, she accused Detective Moore of having suggested to defendant's grandmother that she perform an obscene act. Specifically, she testified that Detective Moore appeared on a bike path behind her mother's home.
And when I came up, I said, well, mom, who are you yelling at and she pointed over to . . . the bike path and it was Richard Moore out there. And as I came up, he was
telling my mother to suck his private part. And I said, oh, no, no. I said you know what, mom, I said I got somebody to call.
So I picked up my phone again and this time I act[ed] like I was talking to a lawyer. And I said oh, no, he didn't identify [himself]. He's standing on the bike path. Yes, it's dark. And I just kept saying different things like as if I was speaking to someone. And then he walked away. That was another incident that was with Richard Moore.
The State re-called Detective Moore in rebuttal who testified that none of the encounters described by defendant's aunt had ever occurred. The detective denied that defendant was ever arrested or accused of shooting at a car on Broad Street and maintained that the department had no record of any such incident. While the detective denied having prevented defendant's return to the high school, he was allowed to testify to his participation on a school safety committee consisting of the principal, vice principals, teachers and a parent liaison. According to the detective, the committee determined to deny defendant's re-admittance as a student following the shooting "due to the safety . . . of the students in the school."
Defendant contended on PCR that trial counsel had failed to utilize an available handwriting expert to demonstrate that Witherspoon had not initialed the photographic identification sheet; that counsel's cross-examination of one of the wounded bystanders was inadequate; that counsel improperly asked the detective whether defendant had confessed; that counsel failed to object to testimony elicited by the State from a police officer about prior contacts the officer had with defendant; that counsel's attempt to establish that the Pleasantville Police Department was biased against defendant's family had the disastrous consequence of prejudicing defendant by placing before the jury other crimes evidence and his family's numerous contacts with the criminal justice system; that counsel failed to object to the prosecutor's improper summation; and that counsel failed to keep defendant and his family apprised of the status of the case.
The same judge that presided over defendant's trial heard his PCR application. The judge found that this was a "case of eye-witness identification and strong circumstantial evidence." He determined that the "introduction of handwriting experts by the defense would have done very little to attack the proofs or advance any meaningful strategy of the defense." The judge concluded that
a strategic determination not to pursue this collateral and tangential line should not be second-guessed on the speculation of what an expert's opinion may have yielded. Trial counsel was faced with a truculent, evasive, smug and uncooperative State's witness. By Witherspoon's denial on the stand that he signed the identification documents, trial
counsel had already raised the suggestion that the documents may have been faked. Trial counsel made a strategic judgment call, apparently, to leave well enough alone.
The judge similarly dismissed defendant's claims regarding counsel's cross-examination of one of the wounded bystanders and his failure to object to testimony elicited from one of the officers about prior contacts the officer had with defendant as "strategic moves" not subject to question under Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). The judge acknowledged that not only did defense counsel ask the detective whether defendant confessed to the police, but after the judge instructed the jury to disregard the question and not speculate about the answer, counsel again asked whether defendant had made any statements to the police. The judge found, however, that "even if trial counsel erred in king this question," the error was cured by the instruction and "was not a serious enough mistake to have changed the outcome of the trial." The judge rejected defendant's claims that the prosecutor had overstepped his bounds in summation.
The judge also rejected defendant's arguments that his counsel erred in cross-examining the records custodian for the school district about whether Detective Moore was stationed at Pleasantville High School or the alternative school. The judge noted that "counsel's strategy may have been to explore the strength of [Moore's] identification, potential for bias on the part of Detective Moore, or merely to elicit background information [about defendant] and his education." The judge concluded that "[w]hatever the purpose of the questioning, trial counsel was pursuing strategy. This [c]ourt should not second-guess trial counsel. This line of questioning was a strategy employed by trial counsel to show that Detective Moore would not have had much occasion to come into contact with [defendant]."
With regard to counsel's efforts to establish police bias, and the opportunity it provided the State on rebuttal, the judge concluded that "counsel was employing strategy here." Further, the judge concluded that "this was probably the best strategy that trial counsel could have employed, being that police officers witnessed [defendant] shooting at the victims." The judge concluded that "counsel's performance was not deficient but was reasonably competent," thus failing the first prong of the Strickland test. The judge also concluded that defendant did not establish a reasonable probability that pursuit of that strategy affected the outcome of the trial.
The judge rejected defendant's argument regarding Detective Moore's testimony on rebuttal that defendant was denied re- admittance to the high school to protect the safety of the other students. The judge rejected the claim because counsel had objected to the testimony, which objection was overruled. Finally, the judge rejected defendant's claims regarding counsel's alleged failure to keep defendant apprised of the status of his case because the claim was belied by the record.
On appeal, defendant focuses on two issues, trial counsel's failure to call a handwriting expert and his attempt to establish that the police department, and specifically the detective in charge of the investigation, harbored a bias against him. He frames the issues as follows:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDNT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO UTILIZE A HANDWRITING EXPERT WHOSE EXPERT OPINION CONTAINED IN HER REPORT WOULD HAVE ADVERSELY IMPACTED THE CREDIBILITY OF A CRUCIAL STATE'S
WITNESS WHOSE TESTIMONY IMPLICATED THE DEFENDANT AS THE PERPETRATOR.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S INEFFECTIVE YET DAMAGING DEFENSE ATTEMPTING TO DEMONSTRATE A HOSTILE RELATIONSHIP EXISTED BETWEEN THE DEFENDANT AND HIS FAMILY WITH THE POLICE DEPARTMENT, THE STATE WAS ABLE TO ELICIT REBUTTAL TESTIMONY DEPICTING THE DEFENDANT AS AN INDIVIDUAL POSSESSING DANGEROUS TENDENCIES.
To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 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. A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001).
Measured by that standard, defendant has not established that he received ineffective assistance as a result of his counsel's failure to call a handwriting expert. Although defendant asserts in his brief on appeal that "trial counsel had at his disposal an expert report which unequivocally opined that Witherspoon had not, in fact, initialed the [photograph identification form]," defendant's appendix does not bear that claim out.
The expert report included in defendant's appendix is dated more than two months after return of the jury's verdict. Further, the expert notes that she was contacted by defendant's aunt on June 12, 2008, approximately six weeks after the verdict. Accordingly, it appears patent that defense counsel did not elect to call an expert whose report he had in hand as defendant asserts. Rather, it would appear as if defense counsel never retained a handwriting expert to review Witherspoon's initials on the copy of the photographic identification sheet introduced into evidence. Because it is well established that the jury could consider the genuineness of Witherspoon's initials on the document without the assistance of expert testimony, see State v. Carroll, 256 N.J.Super. 575, 598 (App. Div.), certif. denied, 130 N.J. 18 (1992), we cannot conclude that counsel's failure to retain a handwriting expert constituted ineffective assistance of counsel.
It is not clear from the record whether the State lost the original document on which Witherspoon placed his initials. The State clearly lost the original photographs. The trial judge admitted both documents on the State's motion based on any lack of bad faith.
Defendant's assertion that his counsel was constitutionally ineffective in his efforts to establish police bias, and that he sustained actual prejudice as a result, requires more scrutiny. The testimony of defendant's aunts, easily and effectively discredited on cross-examination, had the unintended but readily foreseeable consequence of allowing the State to present the very damaging testimony about the conclusions of the safety committee. The judge allowed that testimony, over defense counsel's objection, because defendant himself had opened that door through his aunt's testimony.
On PCR, the judge rejected the specific claim relating to the rebuttal testimony because defense counsel had objected to the detective's testimony. But the judge dismissed the claim that spawned that rebuttal - the attempt to establish that the police were biased against defendant - because he perceived it as trial strategy beyond the reach of a reviewing court. Although we certainly agree that "there is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694), a defendant may rebut that presumption by showing that his trial counsel's actions were not "sound trial strategy". Ibid.
Here, the judge speculated that defense counsel's cross-examination of the records custodian for the school district about whether Detective Moore was stationed at Pleasantville High School "may have been to explore the strength of [Moore's] identification" and that it "was a strategy employed by trial counsel to show that Detective Moore would not have had much occasion to come into contact with [defendant]." Yet defense counsel ostensibly presented the testimony of defendant's aunts to prove that the detective was very well-acquainted with defendant and his family, well-acquainted enough to harbor a personal bias against defendant. The trial strategies the court ascribed to counsel do not appear to be consistent.
The judge ultimately concluded that the attempt to establish bias "was probably the best strategy that trial counsel could have employed, being that police officers witnessed [defendant] shooting at the victims." Absent an explanation from trial counsel, we are not so confident as the judge that we can divine a coherent, "sound trial strategy" on this record. Calling defendant's aunts allowed the jury to speculate about defendant and his family's numerous prior encounters with the police. Whatever counsel hoped to gain by the testimony was lost when their allegations were eviscerated on cross-examination. Worse yet, the testimony opened the door to the State's rebuttal in which defendant maintains the State depicted him as an individual "possessing dangerous tendencies."
Viewing the facts in the light most favorable to defendant, Preciose, supra, 129 N.J. at 462-63, we conclude that he established a prima facie case that his counsel's performance was deficient. Although establishing prejudice, the second prong of the Strickland test, is "far more difficult" id. at 463, we are satisfied that defendant has shown a prima facie reasonable probability that but for counsel's errors, the result would have been different.
In addition to the issues raised in his petition, defendant may explore other strategy questions at an evidentiary hearing, such as why counsel elected not to pursue a passion/provocation defense. See N.J.S.A. 2C:11-4b(2). We note in this regard the undisputed testimony that Witherspoon punched defendant shortly before the shooting, as well as defendant's age at the time of the crime. See State v. Crisantos, 102 N.J. 265, 274 (1986) (even mutual combat can support a finding of passion/provocation so long as it was entered on equal terms); State v. Pratt, 226 N.J. Super. 307, 319-20 (App. Div.) (holding that while age does not automatically alter the reasonable provocation standard "[t]here may be cases in which a child's age may connote a general inability to combat a course of ill treatment, thereby inducing a homicidal response in a person of ordinary firmness"), certif. denied, 114 N.J. 314 (1988).
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We remand to the trial court for an evidentiary hearing to evaluate counsel's reasons for attempting to establish police bias through the testimony of defendant's aunts. We express no view with respect to the results of the remand.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION