Opinion
DOCKET NO. A-3346-12T2
06-24-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. RAYNARD BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline Turner, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1724.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Raynard Brown appeals from an order dated November 13, 2012, denying his petition for post-conviction relief (PCR). Defendant raises only the issue of ineffective assistance of PCR counsel. We affirm.
On May 18, 2007, an Essex County Grand Jury returned an indictment charging defendant Raynard Brown with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count seven); firstdegree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six and eight); and third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1) (count five).
On January 3, 2008, defendant pled guilty to first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count seven); second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1) (count five). In accordance with the plea agreement, the trial court sentenced defendant to a forty-year term on the murder conviction, with an eighty-five percent period of parole ineligibility. The conviction for second-degree possession of a shotgun for an unlawful purpose was merged into the murder conviction. Defendant was also sentenced to a concurrent five-year term, with a two-and-one-half year period of parole ineligibility, for the third-degree possession of a weapon for an unlawful purpose conviction. The remaining charges were dismissed. Defendant did not appeal the conviction or sentence.
During the plea colloquy defendant admitted the following. Defendant and a person by the name of Earl Downy had an argument; the following day, Downy approached defendant and pulled out a gun. Defendant responded by pointing a shotgun at Downy. Downy then backed up, but continued to point his gun at defendant. Defendant then shot his gun but Downy was able to run away.
Defendant chased after Downy, but then ran into a yard and hid. While still hiding, defendant heard a noise and saw a weapon "come towards my way." He fired a shot and wounded a plainclothes detective. At the same time a police officer accidentally shot the detective with a handgun. The detective later died from his wounds. During the colloquy defendant admitted that, when he shot at the detective, he believed he was shooting at Downy. Defendant further admitted it was his purpose to cause serious bodily injury when he fired his shotgun at the person he thought was Downy.
According to the medical examiner's report, the "bird shot pellets" from the shotgun penetrated the victim's heart, aorta, and lungs. The bullet from the handgun hit the victim's right axilla and caused a rib fracture and an associated lung contusion. The medical examiner concluded the cause of death was the "shotgun wound of the chest," but that a contributing condition was the gunshot wound "of right axilla to back with right fifth rib fracture and associated lung contusion."
According to Stedman's Medical Dictionary 555 (5th ed. 1982), an axilla is an armpit.
On February 23, 2012, defendant filed a pro se PCR petition alleging ineffective assistance of trial counsel. One of the points raised in defendant's petition was that trial counsel failed to have a medical expert evaluate the merits of the medical examiner's conclusions. Thereafter, assigned PCR counsel filed a twenty-page brief and, in accordance with State v. Rue, 175 N.J. 1, 19 (2002), incorporated by reference all of the issues raised in defendant's petition. PCR counsel also raised additional points on the ineffectiveness issue.
In addition to raising the issue of trial counsel's failure to retain a medical expert to assess the accuracy of the medical examiner's conclusions, defendant or PCR counsel asserted that trial counsel: (1) failed to seek the dismissal of the murder charge from the indictment; (2) failed to investigate the case by interviewing all "potential" witnesses and gather other relevant evidence; (3) allowed defendant to plead guilty when counsel did not know whether or not the medical examiner's opinion could be successfully challenged, causing defendant to give a plea that was not knowingly, voluntarily and intelligently rendered; and (4) allowed defendant to accept an "illegal" sentence.
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The trial court addressed the points raised and concluded defendant failed to make out a prima facie case of ineffective assistance of counsel under both prongs of the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Those two prongs are that: (l) counsel made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but would have insisted on going to trial.'" State v Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
On appeal, defendant raises one point:
POINT I - THE MATTER SHOULD BE REMANDED FOR A PCR HEARING REGARDING DEFENDANT'S PRO SE ALLEGATIONS WHICH WERE NOT DEVELOPED AT ALL IN PCR COUNSEL'S SUPPORTING BRIEF OR
ARGUMENT.
Defendant acknowledges the medical examiner concluded the shotgun wound caused the victim's death and that the gunshot wound was only a "contributing condition." Defendant complains, however, that PCR counsel failed to obtain or at least investigate whether there was evidence that would have countered the medical examiner's conclusions. While defendant concedes an "independent" medical expert might ultimately concur with the medical examiner, he claims it was not a "foregone conclusion" and therefore PCR counsel should have at least solicited an expert's opinion on the cause of death.
First, the claim PCR counsel was ineffective was never raised before the trial court, which considered only whether trial counsel had been ineffective. Whether PCR counsel provided ineffective representation should have been first resolved in the Law Division. See State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994). In Calloway, we held that our Rules of Practice do not authorize the Appellate Division to hear in the first instance PCR claims alleging ineffective assistance of appellate counsel. The same principle applies to the Appellate Division hearing claims in the first instance that PCR counsel rendered ineffective assistance in the trial court.
Second, defendant's claim must fail on substantive grounds. When a defendant asserts his attorney inadequately investigated his case, "'he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343, 353 (2013) (citing State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).
Here, defendant does nothing more than engage in the most tenuous speculation, untethered to any evidence whatsoever, that an investigation might have shown the shot he fired neither caused nor contributed to the victim's death. Further, defendant not only failed to provide an affidavit or certification setting forth the facts that an investigation would have revealed, but also does not even proffer any premise or theory setting forth why he suspects the medical examiner's conclusions are vulnerable to challenge. While we understand defendant faults PCR counsel for not launching an investigation to find out whether there were any flaws in the medical examiner's findings, nevertheless that does not negate defendant's responsibility to come forward with more than simply suggesting an investigation might reveal the shot he fired did not cause or contribute to the victim's death.
Any other issue raised by defendant is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION