Opinion
DOCKET NO. A-4247-10T1
06-22-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEROME BROOKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 05-10-1814.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Jerome Brooks appeals from the September 24, 2010 order denying his petition for post conviction relief (PCR). Tried to a jury in October 2006, defendant was convicted of one count of knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2), and two counts of felony murder, in violation of N.J.S.A. 2C:11-3(a)(3). He was sentenced on February 9, 2007, to a term of life imprisonment with a thirty-year parole ineligibility period, consecutive to any sentence he was then serving.
We affirmed defendant's conviction and sentence, State v. Brooks, No. A-4760-06 (App. Div. Oct. 22, 2009), and the Supreme Court denied defendant's petition for certification on January 28, 2010. State v. Brooks, 201 N.J. 156 (2010). In March 2010, defendant filed a pro se PCR petition and counsel was assigned to represent him. After hearing oral argument on September 24, 2010, the trial judge denied the petition and declined to conduct an evidentiary hearing. The trial judge thereupon entered an order, and this appeal followed.
In the brief filed by his counsel, defendant argues:
POINT I SINCE THE CLAIMED FIFTH, SIXTH, AND FOURTEENTH AMENDMENT CONSTITUTIONAL VIOLATIONS TAINTED THE "JUSTNESS" OF THE DEFENDANT'S CONVICTION, THE ORDER DENYING DEFENDANT'S PETITION SHOULD BE REVERSED BECAUSE THE PCR COURT'S ENFORCEMENT OF THE PROCEDURAL BAR OF RULE 3:22-4 WITH REGARD TO "ISSUES OF THE QUESTION OF COUNSEL" WAS CONTRARY TO THE REMEDIAL PURPOSES OF POST-CONVICTION RELIEF AS ARTICULATED BY THE SUPREME COURT IN STATE V. RUE.In a pro se supplemental brief, defendant further argues:
POINT II THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING THE DEFENDANT'S PETITION WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE APPELLATE COUNSEL'S FAILURE TO RAISE THE BANKSTON ISSUE ON DIRECT APPEAL RESULTED IN PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A)
TRIAL COUNSEL'S FAILURE TO MOVE TO SUPPRESS STATEMENTS THAT WERE OBTAINED IN VIOLATION OF THE POLICE [OBLIGATION] TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AND SEPARATELY, INEFFECTIVE ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
(B)
PETITIONER WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT THEREFORE THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED.
We reject these arguments and affirm.
(A)
THE PCR COURT ERRED WHEN IT DID NOT ADDRESS PETITIONER'S CLAIMS OF INEFFECTIVE ASSISTANCE IN THE FAILURE OF THE POLICE TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AND SEPARATELY, INEFFECTIVE ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF THE FIFTH, AND SIXTH, AMENDMENTS OF THE UNITED STATES CONSTITUTION.
(B)
PETITIONER WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT THEREFORE THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED.
I.
We set forth at length the facts developed at trial as recited in our prior opinion:
Roberto Arenas, known as a small-time narcotics dealer, was murdered in Fair Lawn, New Jersey, on November 21, 1983. The Fair Lawn Police Department initiated an investigation into the homicide, which proved fruitless. The case remained dormant until sometime in 2004 when it was assigned to Detective Mark Bendul of the Bergen County Prosecutor's Office (BCPO) as a "cold case" for review. Bendul's review of the file revealed the names of Albert Bolt and defendant. Bendul focused his investigation on Bolt and defendant and coordinated with Detective John Ietto of the Fair Lawn Police
Department, who had been the original detective assigned to the homicide.
At trial, the State's case was essentially based upon defendant's confession. Bendul was the only witness to testify at the pre-trial hearing on defendant's motion to suppress his confession. Bendul stated that he located defendant in the Passaic County Jail. On March 16, 2005, Bendul and Ietto met defendant at the jail and told him that they wanted to speak to him about an old case. Defendant agreed to accompany the detectives to the BCPO's Paramus office, arriving at approximately 10:30 a.m. Bendul told defendant that he had information that defendant, Albert Bolt and another individual named Ronald Wimbush had been involved in a murder in Fair Lawn in 1983. Defendant agreed to speak to Bendul and executed a Miranda rights form. Bendul read all of the rights aloud to defendant who indicated that he understood each of them. At Bendul's request, defendant wrote the word "yes" next to each right and signed his initials. Bendul then asked defendant if he would speak to the officers without an attorney; defendant "verbally agreed."
Bendul showed defendant two photographs of Albert Bolt; defendant identified both photographs and stated that he knew Bolt as "Tafari." Defendant wrote the name Albert Bolt and the alias "Tafari" on the margin of each photograph and initialed them.
Bendul began discussing the
investigation of the 1983 homicide. Defendant stated that he was not in Fair Lawn at that time and, in fact, had been in jail. Bendul took a break from the
interview and ascertained defendant's incarceration status in 1983; he learned that defendant had been lodged in the Passaic County Jail on May 15, 1983, and was released on bail on June 28, 1983; the next time defendant was in the Passaic County Jail was December 5, 1983. Bendul informed defendant that the homicide had occurred in November 1983, and that the detective had determined that defendant was not in jail at that time. Defendant asked Bendul for the exact date of the homicide; when Bendul told him it was November 21, 1983, defendant "said that . . . he could have been on the street at that time."
Bendul told defendant that "based on the information that was . . . obtained during the investigation[,] . . . he was clearly involved in the murder of Roberto Arenas." Bendul also told defendant "that the investigation revealed that he was not the mastermind, that this was not his plan, that he was simply doing what . . . he was told by Albert Bolt." When "confronted with that scenario," defendant "became quiet, and put his head down, and stared at the floor."
When Bendul specifically asked defendant "if it was his idea[,]" defendant "shook his head, and said that it was not his idea . . . . He became very emotional, and he actually broke down and cried." Defendant stated "that he never killed anyone on his own, and . . . that since the incident he has become very religious and swore off all violence."
Bendul asked defendant "how many times he shot the victim," and defendant responded "that he didn't shoot the victim, that it was Albert Bolt who shot the victim." Defendant stated that Bolt shot the victim in the back of the head, which matched the file information that Arenas "had been shot four times in the back of the head."
"[E]ventually[,]" defendant "stated that he did, in fact, shoot Roberto Arenas in the back of the head . . . . He said he shot him once."
Bendul told defendant that Arenas "exhibited multiple gunshot wounds to the back of the head[,]" and advised defendant "that at this point it would be in [his] best interest to be honest and truthful with regards to the amount of shots he fired." Defendant then stated that he shot Arenas "two or three more times in the back of the head."
At that point, defendant asked Bendul what would happen to certain Passaic County charges for which he had been arrested in November 2004. Bendul advised defendant that "those charges are independent[,]" but that defendant's "level of cooperation, truthfulness and honesty would be made known . . . to the assistant prosecutor investigating the case."
Bendul then asked defendant, "[W]hat happened on that day, the day of the murder?" Defendant stated that "he was hanging out in the area" of 12th Avenue and 24th Street with Wimbush, when Bolt and Arenas approached them in a blue Datsun. Bendul showed defendant a photograph of the Datsun and defendant recognized it as the vehicle in question. Defendant told Bendul that he and Wimbush "worked for Albert Bolt as drug runners in . . . marijuana for 12th Ave[nue], . . . [and] 24th Street[]."
Defendant said that Bolt told Wimbush and him to get into the car, "that they had something to take care of . . . ." Arenas then drove the car "to an unknown apartment . . . some place out of Paterson . . . ." Bolt and Arenas exited the car, went into the apartment, and returned several minutes later. Defendant stated that he believed
Bolt was "going to take Roberto Arenas['s] . . . cocaine in his apartment." Bolt instructed Wimbush to drive and told Arenas to sit in the back.
Once they were all in the car, "that's when Albert Bolt pulled out a gun, and pointed it toward Roberto Arenas, and told him that he was not going to pay for the drugs." Bolt told Wimbush to drive "to the eventual location of the shooting." They "went over a bridge and then went into a residential area."
Bolt then exited the car and instructed defendant to follow him. Bolt also told Arenas to get out of the car. The three of them "then walked away from the car, between two houses, down the driveway a little bit[,]" and Bolt told Arenas "to get down, and when . . . Arenas resisted a little bit[,] . . . Bolt kicked the knees out from . . . Arenas, forcing him face down onto the ground." Defendant stated he was "[r]ight there . . . with them[,]" and "that . . . Bolt then gave him a gun[,]" which he described as "possibly a .357 Magnum."
Defendant stated that, after giving him the gun, Bolt "took out . . . some type of a plastic rope, and . . . proceeded to tie . . . Arenas's wrists behind his back." Arenas was lying flat on the ground face down at that time. Bolt then "told [defendant] to shoot . . . Arenas[, a]t which time [defendant stated that he] shot . . . Arenas multiple times in the back of the head."
Bolt and defendant then returned to the car, and Bolt "told Wimbush to drive away." They stopped after driving a distance, and Bolt provided defendant and Wimbush "with pieces of cloth, and said wipe down the car for any fingerprints. They did that for several minutes." When they left the area,
Bolt told defendant and Wimbush "to lay low. Stay cool. Not say anything." Defendant added that "Wimbush did not want to get rid of the gun for a couple of days[,]" but that defendant was "finally able to convince Wimbush to throw the gun away."
At the conclusion of his interview, Bendul asked defendant if he would provide a stenographic statement regarding the information he had just disclosed, "and he agreed." Bendul commenced taking defendant's stenographic statement at 1:40 p.m., and completed it at 2:15 p.m. Throughout this time, Bendul described defendant's demeanor as "very cooperative. He appeared to be very relieved."
Defendant's acknowledgement of the accuracy of the stenographic statement was videotaped, albeit without his knowledge. Defendant reviewed each page and confirmed its accuracy; he initialed the bottom of each page, as did Detectives Bendul and Ietto. After reading the entire statement, defendant voluntarily signed his name following the written acknowledgement that he had read the foregoing statement and that it was "a true and accurate transcript of the statement" he gave on March 16, 2005. He further acknowledged that he was signing the statement "freely and voluntarily."
Because defendant is a citizen of Jamaica, Bendul asked him if he wanted the officer "to contact the Jamaican embassy, and notify them of . . . these charges." Defendant responded "that he did not want [Bendul] to do that." At Bendul's request, defendant wrote and signed the following statement on a consular rights form: "'I don't want the police to contact the Jamaican Consulate about my arrest'"
Based upon defendant's stenographic statement, Bendul swore out a complaint for
his arrest for Arenas's murder. Bendul advised defendant that "complaints were being processed[,]" and that he "had to be processed, photographed and fingerprinted." Defendant remained "cooperative." Defendant was formally arrested at approximately 10:30 p.m., and was transported to the Passaic County Jail.
Defendant did not testify at the Miranda hearing; he did, however, testify on his own behalf at trial. Defendant repudiated his confession and claimed that he had requested an attorney which Bendul refused to provide. Defendant further claimed that he only admitted to the crimes because Bendul promised he would be charged with manslaughter and would receive a sentence concurrent with his sentence on the Passaic County offenses. In addition, defendant testified that he only admitted to shooting Arenas four times because Bendul told him the police could use his statement against Bolt and that he would be charged with a lesser offense.
Defendant also testified that when Bolt told him to shoot Arenas, he refused to do so and held the gun down at his side. Defendant stated that he and Bolt began to argue; Bolt reached for the gun and managed to cock it, as a result of which the gun accidentally went off in defendant's hands, with the shot hitting Arenas behind his right ear, causing a wound that was not fatal. Defendant testified that, at this point, he returned to the car despite Bolt's insistence that he come back. Defendant sat in the back seat of the car and stated that he then heard more shots fired. Bolt returned to the car cursing and making threats, gave the gun to Wimbush and stated that if defendant told anyone about Arenas's murder, he would kill defendant's family. Defendant stated that Bolt ordered Wimbush
and him to drive to another location and to wipe down the car.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II.
On direct appeal, defendant argued, among other things:
THE STATEMENT TAKEN FROM DEFENDANT WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF INCRIMINATION. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. Const. (1947), ART. I, PAR. 1).Defendant argued that his statement was not voluntary; that his will was overborne by the detective who took the statement; that only his confession was recorded and not the interrogation that preceded it; and that he was not advised of his right to contact the Jamaican Consulate. We rejected each of these arguments and determined that "the trial judge properly admitted defendant's confession into evidence . . . ." State v. Brooks, supra, slip. op. at 15.
In his PCR proceeding, defendant contended that he had "invoked his right to counsel at the time of questioning but the interrogation continued, thus the statement was unlawfully obtained." In rejecting this argument, the judge explained,
Clearly this was something that should have been addressed on direct appeal, [and] was not addressed. It was brought out at the trial and certainly defendant knew of it and either through appellate counsel or [otherwise] chose not to raise it. He is barred from raising that at this time on post conviction relief.We agree that this issue could have been raised on direct appeal and thus is procedurally barred.
PCR petitions are subject to certain procedural bars. Rule 3:22-4 bars a claim if "[the defendant] could have, but did not, raise the claim in a prior proceeding." State v. Preciose, 129 N.J. 451, 459 (1992). The rule provides for certain exceptions under which a claim may be raised in a PCR proceeding even if it could have been raised in a prior proceeding. These exceptions shall apply only in "exceptional circumstances," and the defendant bears the burden of proving that an application of the Rule 3:22-4 bar would result in fundamental injustice. State v. Mitchell, 126 N.J. 565, 587 (1992).
Rule 3:22-5 is a second procedural bar. Under this provision, "[a] prior adjudication upon the merits of any ground for relief is conclusive" and may not be relitigated on PCR. In deciding whether to apply Rule 3:22-5, the issue is whether the claim made in the PCR proceeding and the claim previously asserted "are either identical or 'substantially equivalent.'" State v. Marshall, 173 N.J. 343, 351 (2002). "If the claims are substantially the same, the petition is procedurally barred; if not, the claim of error should be adjudicated when there is no other reason to bar it." Ibid. Rule 3:22-5 may be relaxed where the constitutional issues raised are of substantial import. State v. Johns, 111 N.J. Super. 574, 576 (App Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972). This exception is, however, "very limited." State v. Franklin, 184 N.J. 516, 528 (2005).
There is no compelling basis here to lift the procedural bars to defendant's claims. Defendant challenged the admission of his statement on direct appeal, claiming it was involuntary and the product of improper "promises" made by the detective who took the statement. Defendant obviously knew that he had allegedly asked for counsel, yet elected not to testify at the Miranda hearing. While it may be a common practice for an accused not to testify at a pretrial hearing, defendant cannot knowingly withhold evidence critical to the admission of his statement to a detective and thereafter claim the statement should not have been admitted because he had asked for counsel - a fact he purposely withheld from the motion judge.
Beyond this, from our review of the record, we conclude there was not a reasonable probability that the result of the Miranda hearing would have been different, or that defendant would have prevailed at an evidentiary hearing on his PCR application, even if he had testified. Defendant testified at trial that he told the Bergen County detective he wanted to speak with the attorney he had hired on the criminal charges then pending against him in Passaic County, but the detective "kept ignoring" the request. Eventually, however, defendant claimed he gave a statement in light of the detective's "promises." The motion judge would have had to find this testimony credible notwithstanding defendant's signature on the Miranda form waiving his right to counsel. Further, the motion judge would have had to have found defendant's testimony more persuasive than that of the detective who testified that defendant never asked for counsel, was never threatened or coerced in any way, and voluntarily gave his statement after being fully advised of his Miranda rights.
In denying suppression of defendant's confession, the motion judge found that the detective was a "trustworthy, truthful witness" and "accept[ed] his testimony." The judge determined that defendant signed the Miranda rights form, "and initialed all of the questions, and . . . a proper procedure was done." The judge found that defendant "freely, [and] voluntarily waived his right to have an attorney present and he never requested an attorney or requested to have the interrogation stop . . . ." On these bases, we reject this claim of error.
III.
Next, defendant claims the trial judge improperly denied the PCR petition without a "full evidentiary hearing" because of appellate counsel's "ineffective assistance" in failing to "raise the Bankston issue on direct appeal." However, the judge did consider the "Bankston issue" on the merits during the PCR hearing. After reviewing the trial transcripts, the judge found that the State "properly phrased" its questions and that "there's no basis for a hearing . . . because there is no factual dispute."
State v. Bankston, 63 N.J. 263 (1973).
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To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability[,]" Fritz, supra, 105 N.J. at 58, that the deficient performance "affected the outcome . . . ." Id. at 49. We apply the same standard to defendant's claims of ineffective assistance of appellate counsel that we do to claims of ineffective assistance of trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007)(citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. (1987)), certif. denied, 194 N.J. 444.
We will review the judge's determination on the Bankston issue without considering any procedural bar. Also, we agree with the judge that there is no need for an evidentiary hearing on this issue because all the relevant facts are in the record developed at trial.
Defendant adverts to the following sections of the record in support of his claims that the principles of Bankston were violated:
(PROSECUTOR) And can you tell us whether in 1996 something had occurred that had briefly made this case active again prior to you taking it over as a cold case?
(DETECTIVE BENDUL) On November 18 of 1996, a man by the name of Ronald Wimbush was arrested by members of the Fugitive Task Force with the FBI in Paterson. He provided --
(TRIAL COUNSEL) Objection, Judge. Hearsay I'd like to be heard.
(TRIAL COURT) I haven't heard any statements that this witness said were being said by a Mr. Wimbush * * * He's not going to tell us what that information was. As a result of that information he may tell us what he did but he's certainly not going to tell us what was said to him. I'm going to overrule the objection.
(PROSECUTOR) That would be my understanding what the witness would testify to. What did he provide?
(DETECTIVE BENDUL) He provided a statement to a Detective John Palotta with our office as well as a Detective James Woods with the Passaic County Prosecutor's Office relative to this homicide.
Q. And can you tell us what kind of a statement was it?
A. It was a stenographic statement.
Q. Let me show you what's been marked S-133.
(TRIAL COUNSEL) I would object under [State v. Bankston, 63 N.J. 263 (1973)]. I don't believe this testimony is admissible. I believe it would call for hearsay which has been found to be objectionable by courts for a long time and I would ask that it not be admitted.
(TRIAL COURT) I haven't heard anything. (TRIAL COUNSEL) Well, Judge, I can see where this is going. It's clear to me at this point where the State intends to go with this testimony and under Bankston I believe that this type of testimony is inadmissible.
(TRIAL COURT) Let me hear from the Prosecutor.
(PROSECUTOR) I withdraw the question. I would like to rephrase the question.
(TRIAL COURT) Withdrawn.
(TRIAL COUNSEL) Judge, it's not the question itself. it's the whole line of questioning regarding this statement. This person obviously - -
(PROSECUTOR) We haven't heard the testimony yet.
(TRIAL COURT) He's not going to get the testimony of the statement in. It's not coming in. He's not asking for it to come in. He said there was a statement, a stenographic statement. He's shown this witness something that's going to be marked for ID S-133 and I'm sure after he looks at what's been marked for identification he'll tell us what if anything he did in response to that document. He's not going to tell us what's in the document.
(TRIAL COUNSEL) That's the basis for the objection. I would ask to be heard outside the presence of the jury.
(PROSECUTOR) I withdraw the question, Judge.
(TRIAL COURT) Withdraw the question. Next question.
(TRIAL COUNSEL) I would ask the entire statement be withdrawn[.]
(PROSECUTOR) I haven't done anything with the --
(TRIAL COURT) [I]t's not been offered.
(TRIAL COUNSEL) It was just handed to the witness.
(TRIAL COURT) Next question.
(PROSECUTOR) Now, what year did you say you reviewed some items in the file?
A. Was --
Q. From what year were the items?
A. In 1996.
Q. As a result of reviewing the file, did you go about beginning your own investigation of a cold case of the murder of Roberto Arenas?
A. Yes.
Q. Can you tell us did you focus on any individuals at that time?
A. Yes.
(TRIAL COUNSEL) Objection for the same reason previously stated.
(TRIAL COURT) Overruled.
Q. What were the identities of the individuals that you began your investigation upon?
A. Jerome Brooks and Albert Bolt.
Citing Bankston, supra, 63 N.J. at 263, defendant argues that he was convicted on the basis of hearsay testimony in violation of the Confrontation Clause of the federal and state constitutions and the New Jersey Rules of Evidence. He contends that when the testimony about "statements made by a non-testifying witness" was allowed, an inadmissible inference was injected into the trial that the out-of-court declarant had implicated him in the murder of Arenas.
Under Bankston, "the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." State v. Branch, 182 N.J. 338, 350 (2005) (citing Bankston, supra, 63 N.J. at 268-69); see U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; N.J.R.E. 801, 802. The Bankston rule is triggered "[w]hen the logical implication to be drawn from [police] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt." Bankston, supra, 63 N.J. at 271; see State v. Frisby, 174 N.J. 583, 592-93 (2002); State v. Irving, 114 N.J. 427, 445-46 (1989).
A police witness can testify, however, that he took action "based on information received" as long as the testimony does not lead to an inference that the out-of-court information was specifically about defendant. See State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003); Bankston, supra, 63 N.J. at 268; see also State v. Luna, 193 N.J. 202, 217 (2007) ("testimony should be limited in a manner that allows the witnesses to provide appropriate context but not secondhand details about the crime or the defendants").
A police officer may, without violating the hearsay rule or the defendant's right of confrontation, explain the reasons he apprehended a suspect or went to the scene of the crime by stating that this was done based "upon information received." Bankston, supra, 63 N.J. at 268. However, when the witness becomes more specific by repeating what some other person told him concerning a crime by the accused, that testimony constitutes inadmissible hearsay and a violation of the accused's right of confrontation. Id. at 268-69. "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. Thus, a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant. Branch, supra, 182 N.J. at 351.
The Sixth Amendment of the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI. The right of confrontation includes the right to cross-examine witnesses at trial. Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1706, 95 L. Ed. 2d 176, 185 (1987). Consequently, the introduction of an out-of-court statement made by a non-testifying codefendant which directly or by necessary implication inculpates another defendant has the capacity to violate that defendant's Sixth Amendment right of confrontation. Bruton v. United States, 391 U.S. 123, 125-26, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476, 478-89 (1968); State v. Roach, 146 N.J. 208, 224-225, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
In Roach, supra, the Court confronted the creation of an impermissible inference of the defendant's guilt when a police officer's testimony referred to an interview with two co-defendants following their arrest. 146 N.J. at 224. In his trial testimony, the police officer recounted the course of his investigation. Ibid. In doing so, he identified the persons from whom he received information. Ibid. The Court noted that the officer did not specifically repeat the information obtained from the named individuals but found that the officer "by necessary inference implicated defendant," and that this inference was contrary to the hearsay rule and violated the defendant's right to confront the witnesses against him. Id. at 224-25. Nevertheless, the Court found the error harmless in large part because the "defendant's confession created in itself an inescapable inference that he was a criminal actor, either as an accomplice or, possibly, as a principal." Id. at 226.
Here, the PCR judge correctly determined that nothing in the detective's testimony with regard to his interaction with Wimbush rose to the level of prejudicial error. The Supreme Court and this court have consistently found such evidentiary violations require a new trial only when the cited errors are far more specific and revealing than those that occurred in this case. See, e.g., State v. Vandeweaghe, supra, 177 N.J. at 241 (finding prejudicial error in testimony that the reason for police dispatch was a report of a man beating a woman); State v. Farthing, 331 N.J. Super. 58, 74-75 (App. Div.) (finding investigator testimony error where his purpose was "[t]o locate and arrest defendant for whom he had obtained arrest warrants for murder and robbery"), certif. denied, 165 N.J. 530 (2000); State v. Bowens, 219 N.J. Super. 290, 299-300 (App. Div. 1987) (noting police officer specifically referred to the defendant and the time of the offense based on hearsay report); State v. Thomas, 168 N.J. Super. 10, 15 (App. Div. 1979) (finding prosecutor's step-by-step questioning of detective's investigation based on interviews with witnesses contrary to hearsay rule and in violation of the defendant's right to confront the witnesses against him); State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975) (noting officer's testimony that he went to the scene of the arrest because he was told by people at that address about drug dealing), certif. denied, 70 N.J. 143 (1976).
All of the cases cited by defendant require more than what occurred in this case. Only when the logical, or inescapable, inference to be drawn from the testimony can lead the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, should the testimony be disallowed as hearsay. Bankston, supra, 63 N.J. at 271. At most, in this case the jury could infer an association between defendant and Wimbush based on the officer's statements.
Finally, as in Roach, defendant's confession by itself created an inescapable inference that he was a criminal actor, either as an accomplice, or as a principal. Defendant admitted to shooting Arenas multiple times in the back of the head. Defendant claimed in his confession that he did so on orders from Bolt. At trial, defendant said he refused to shoot Arenas and that he and Bolt struggled over the gun, which then accidentally discharged. The jury had substantial evidence other than the tangential inferences to Wimbush upon which to found its verdict.
Applying these cases, we find no error in the testimony elicited from the detective at trial. No testimony was offered pertaining to the substance of the statements made by the out-of-court declarant and no implication was raised, therefore, about the detective's alleged "superior knowledge" outside of the record. Further, as noted, even if the detective's statements at trial respecting his conversations with Wimbush violated the Bankston principle, in view of defendant's confession and his testimony at trial, the error was harmless. R. 2:10-2; Roach, supra, 146 N.J. at 226. Consequently, defendant's assertion that appellate counsel was ineffective is without merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION