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noting that Petitioner did not raise on appeal all of the arguments presented to the PCR court
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DOCKET NO. A-1098-10T2
06-04-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RONALD BURNS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-07-0531.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the briefs).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief. PER CURIAM
Evidence at trial demonstrated that, on September 6, 1999, defendant, Ronald Burns, directed the murder by Tony Felder of Ronald Patterson, Jr., a rival drug dealer. Felder, who was offered a plea to aggravated manslaughter, testified against defendant at his trial for murder and, in March 2002, defendant was convicted of that crime, as well as second-degree possession of a weapon for an unlawful purpose and third-degree hindering the apprehension of another (Tony Felder). A substantial number of witnesses corroborated the fact that defendant directed that the murder take place. Defendant was sentenced to life in prison with thirty years of parole ineligibility on June 14, 2002 on the murder conviction and to a five-year consecutive sentence on the conviction for hindering apprehension. The weapons conviction was merged into that for murder.
The plea limited Felder's exposure to twenty-three years in custody with an eighty-five percent parole bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Following his testimony in defendant's trial, Felder was sentenced to twenty years in custody, subject to NERA.
Defendant appealed his convictions, and we reversed, State v. Burns, No. A-6273-01 (App. Div. May 11, 2006), but our decision was in turn reversed by the Supreme Court in July 2007. State v. Burns, 192 N.J. 312 (2007). Defendant sought post-conviction relief (PCR) in August 2007, and his claim was denied by the court without an evidentiary hearing in a lengthy written opinion issued on April 27, 2010. Defendant has appealed.
On appeal, defendant argues through counsel as follows:
POINT IDefendant has also filed a pro se brief, in which he argues:
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.
POINT II
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Investigate Adequately And/Or To Produce Exculpatory Witnesses.
B. Trial Counsel Failed To Advise Defendant Of The Advantages And Disadvantages Of Testifying At Trial.
Point IWe affirm.
Defendant has Presented Newly Discovered Evidence Warranting a New Trial.
Point II
PCR Counsel was Ineffective for Failing to Adequately Present Defendant's Claims. (Not Raised Below).
I.
Although defendant's PCR petition was filed more than five years after the entry of his judgment of conviction, we do not find that petition to be barred by Rule 3:23-12(a)(1). Defendant's petition was filed within one month of the issuance of the Supreme Court's decision reinstating defendant's conviction. Prior to that time, as the result of our reversal of that conviction, defendant had no cause to seek PCR. We thus excuse the late filing as resulting from the extraordinary procedural circumstances of defendant's case. We conclude that if the procedural bar were to be applied strictly, defendant would be unfairly denied the opportunity to seek PCR in his case, without evidence of fault on his part. R. 1:1-2(a).
We thus address the merits of defendant's claim, as did the PCR court. We commence by stating the familiar evidentiary standard that a defendant alleging ineffective assistance of counsel, as defendant did here, must meet in order to obtain PCR, set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
In initial and supplemental briefing submitted to the PCR court, defendant and his counsel raised a host of issues, each of which was addressed and rejected by the court in its thirty-page written opinion. On appeal, counsel raises only those arguments contained in the supplemental brief submitted on defendant's behalf. There, counsel offered a series of certifications, most of which contain hearsay evidence purporting to exonerate defendant as the instigator of the murder, and claimed alternatively that trial counsel was ineffective in failing to elicit the referenced testimony or that, as the result of the discovery of new evidence, a retrial should take place.
In this regard, defendant offers the certification of Angela Townes, an investigator with the Office of the Public Defender in Burlington County who interviewed the shooter, Tony Felder, by video conference on December 2, 2009. According to Townes, Felder stated to her that he was prepared to retract his trial testimony inculpating defendant, if he were guaranteed "that the new information he could provide would not net him any additional penalty." Townes then reported that Felder stated that he had not been directed by defendant to shoot Patterson. Rather, he killed Patterson because Patterson objected to Felder's role as a protector of defendant's drug territory and wished Felder to return to Philadelphia and to remain there. Townes reported that "Mr. Felder sought out [Patterson] that day to kill him because he was nervous about [Patterson's] constant outward show of disrespect toward him that included glaring looks and hand motions of a finger pulling a trigger."
Counsel also produced the certification of defendant's brother, Morris Burns, dated January 7, 2010, who stated that in the first two weeks of September 1999, he was on the run from the police in New York City. While there, he encountered his cousin, Tony Felder, whom Burns characterized as dangerous and trigger-happy. He also claimed that Felder had a history of lying to the police. According to Burns, while in New York, Felder told him that Patterson had slapped him in front of "a bunch of people." However, Felder did not have his gun with him at the time, and he was massively out-sized by Patterson. Additionally, Burns said, Felder had informed him that Patterson and a "guy named Hock from Newark" had robbed someone named "Bobby" and "smacked Bobby's mother around." As a consequence, "Bobby" offered Felder $5,000 to kill Patterson, and he gave him $2,500 in advance, as well as a gun. Morris Burns stated further that he was "never told that Ronald Burns was involved when Tony recounted the details of the shooting." He was told that Patterson got shot "because [of] his disrespect of Tony and because of Bobby's offer."
Counsel also offered an additional undated, handwritten letter from Morris Burns, written while he was in custody in the Bayside State Prison, having turned himself in to the Mount Holly police in March, 2006. In that letter, Burns again recounted his alleged encounter with Tony Felder in New York City, and Felder's admission that he killed Patterson because he was "smacked" by him and because he was paid to do so by a "Bobby Johnson." While in prison in 2006, Burns encountered Bobby Johnson, who allegedly stated to Burns that, as the result of police pressure, he had lied by inculpating defendant at defendant's trial.
Counsel also offered two certifications by defendant. In one, defendant claimed that trial counsel had only spent two minutes with him discussing defendant's trial testimony. In the other, defendant asserted that he asked trial counsel to interview defendant's mother, whom defendant believed would have testified that defendant did not take Tony Felder to Philadelphia following the shooting of Patterson.
Our review of the certifications of Angela Townes and Morris Burns, as well as the letter written by Burns, satisfies us that they do not contain prima facie evidence of ineffective assistance of counsel. The certifications are not "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify" as required by Rule 1:6-6. Their content is hearsay, N.J.R.E. 801, inadmissible pursuant to N.J.R.E. 802. See also State v. Williams, 169 N.J. 349, 358 (2001); State v. White, 158 N.J. 230, 238 (1999). Notably, the record does not contain a certification from Tony Felder himself. Thus defendant has failed to offer any competent evidence, with respect to Felder's testimony, that counsel was ineffective or that counsel's performance prejudiced defendant's defense. Strickland, supra, 466 U.S. at 587, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
We reach the same conclusion when we analyze the evidence for purposes of establishing defendant's right to a new trial. In that regard, defendant must demonstrate that "the evidence is 1) material, and not 'merely' cumulative, impeaching or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1980)). However, the Supreme Court has cautioned:
A jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons. Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial.
[Id. at 187-88.]
The evidence proffered by counsel does not pass this initial test. At trial, Felder testified against defendant pursuant to a plea agreement that required his truthful testimony in order to obtain the benefit of his bargain. Although Felder is allegedly now willing to recant, he is reported as being willing to do so only if the proffer of the new testimony does not "net him any additional penalty." When we consider this condition, together with the absence of any certification by Felder himself, we find ample grounds to conclude that Felder's alleged proffer is a product of fabrication and is not credible. Thus an evidentiary basis for a new trial based on Felder's alleged recantation is absent.
Even greater evidentiary difficulties exist with respect to defendant's certification that he instructed trial counsel to interview defendant's mother, whom, defendant believed, would testify that defendant did not drive Felder to Philadelphia following the shooting. That certification does not even contain a hearsay statement as to the mother's testimony, but merely speculation on that issue. As such, it, too, provides no support for a claim of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant also raised before the PCR court and on appeal a claim that counsel did not adequately prepare him for his own testimony. However, as the PCR court noted, the subject of defendant's testimony was raised on the record at trial on March 13, March 20, and March 21, 2002. Specifically, on March 21, defendant was asked by the court whether he had had enough time to discuss his testimony with trial counsel, and at that time, defendant raised no issue as to counsel's performance. Although defendant now claims that counsel failed to discuss with him the "pros and cons" of testifying, under questioning at trial, defendant revealed a firm determination from the outset to offer testimony, stating in response to the court's question regarding defendant's discussions with counsel: "I mean there is nothing to discuss. I believe the truth needs no support, so I knew from the beginning that I wanted to testify anyway." Nonetheless, defendant affirmed, when asked, that he "had sufficient time to discuss the ramifications of testifying and not testifying with [his] lawyer." As a result, we find defendant's present complaints to be insufficient to constitute prima facie evidence of counsel's ineffectiveness.
II.
In a pro se supplemental brief, defendant argues that Felder's statements to Townes were admissible as statements against his penal interest pursuant to N.J.R.E. 803(c)(25). We reject that argument, noting that Felder was reported to be willing to offer testimony diametrically opposed to that which he had given at trial only if he suffered no penal consequence as a result. The rationale for admitting statements against interest is that "'by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably.'" State v. Brown, 170 N.J. 138, 148-49 (2001) (quoting White, supra, 158 N.J. at 238). "[S]tatements that so disserve the declarant are deemed inherently trustworthy and reliable." White, supra, 158 N.J. at 238 (citations omitted). Because Felder is reportedly unwilling to testify as alleged if it disserves his interests, the reliability of his testimony cannot be assured, and that testimony is therefore inadmissible under N.J.R.E. 803(c)(25).
If Morris Burns testified at a new trial to Felder's purported admissions, Felder could be called, on threat of a charge of perjury, to contradict him, or Felder's prior trial testimony could be utilized to impeach Burns. As a consequence, a proffer of Burns's testimony does not satisfy the second Strickland prong, since the testimony would not be likely to affect the result of trial.
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Defendant also claims that PCR counsel was ineffective in failing to offer a signed certification by trial witness Tifani K. Young, that had been presented by counsel in unsigned form in connection with defendant's PCR petition, and in failing to offer a certification by Morris Burns that, despite his prior statements that he remained on the run from 1999 to 2006 when he surrendered to the Mount Holly police, he actually attended defendant's 2002 trial in Mount Holly on several days and was prepared to testify of defendant's behalf regarding statements made by Felder and trial witness Bobby Bryant, whom he knew as "Bobby Johnson." However, we decline to address these claims, which have been raised for the first time on appeal. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). If defendant seeks their consideration, he must first raise them in the trial court.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION