Opinion
DOCKET NO. A-0432-10T4
03-04-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICKY JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0614.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Assistant Prosecutor, on the brief). PER CURIAM
A jury found defendant Ricky Jones guilty of first-degree robbery, N.J.S.A. 2C:15-1, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. On direct appeal, we affirmed defendant's convictions, State v. Jones, No. A-5289-05 (App. Div. June 5, 2007), and his sentence, State v. Jones, No. A-5289-05 (App. Div. July 12, 2007). Subsequently, the Supreme Court denied defendant's petition for certification. 193 N.J. 223 (2007).
The evidence supporting defendant's convictions is recited in this court's June 5, 2007 opinion. Jones, supra, slip op. at 2-4. Summarizing, defendant approached the victim of this robbery, Somia Alvarado, at about 4:00 p.m. on February 9, 2005. Alvarado was waiting for a taxi outside her apartment in Elizabeth. Brandishing a baseball bat, defendant demanded Alvarado give him her purse and threatened to strike her if she did not.
Alvarado separated herself from defendant by getting behind a vehicle. Defendant walked away, but he returned and confronted Alvarado again. She continued to avoid defendant by keeping the vehicle between them until the police arrived. At that point, defendant was standing on a corner nearby and still holding the baseball bat.
According to Alvarado, defendant appeared to be agitated and under the influence of alcohol. By the officers' account defendant was belligerent and slightly intoxicated but alert, responsive, coherent and not slurring his words that much.
A few months after the incident giving rise to the charges, defendant approached Alvarado again and apologized for what had happened. He told her he was drunk at the time.
At trial, defendant admitted that he had no legitimate reason for carrying the baseball bat. He testified to consuming a large quantity and variety of alcohol on the day of the crime, and his cousin confirmed that testimony and indicated that defendant was drunk when he left him — staggering, slurring his words and having "glossy" eyes. Defendant recalled having an argument with a woman when he left his house, but he could not remember anything else.
On direct appeal, defendant raised one argument pertinent to his conviction. He contended that the judge's charge to the jury was insufficient because the judge did not relate that law to the facts of the case. Noting that it would have been "preferable" to include some reference to the evidence, the panel found no error in the charge. Id. at 4.
Following the Supreme Court's denial of his petition for certification, defendant filed a timely petition for post-conviction relief. In that petition, he contended that his trial counsel was ineffective because he 1) conceded defendant's guilt, thereby undermining defendant's claim that there had been no robbery; 2) failed to object to certain alleged improper statements made by the prosecutor during trial; 3) failed to object to misleading and improper jury instructions; and 4) failed to request an instruction of lesser-included offenses.
After hearing argument on the petition, Judge Mega denied relief for reasons stated in a comprehensive letter opinion dated December 18, 2009. The judge addressed each point raised on the merits.
On this appeal, defendant challenged the judge's decision on only two of his claims — the failure to request an instruction on terroristic threats and the failure to object to the jury instruction on intoxication. He argues:
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. TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THAT THE TRIAL COURT INSTRUCT THE JURY REGARDING THE LESSER OFFENSE OF TERRORISTIC THREATS.
C. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE TRIAL COURT'S CHARGE TO THE JURY REGARDING INTOXICATION.
D. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.
In order to obtain relief from a conviction based upon ineffective assistance of counsel, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). Both showings are required, and an evidentiary hearing is not needed if defendant has failed to make a prima facie showing of either prejudice or deficient performance. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Judge Mega determined that defendant was not prejudiced by his counsel's failure to ask the judge to give the jurors the option of acquitting him of robbery and convicting him of a lesser-included offense, terroristic threats. The judge correctly reasoned that the trial court could not have directed the jury to consider terroristic threats unless the evidence provided a rational basis for the jury to acquit defendant of robbery and convict him of the lesser offense. State v. Cassady, 198 N.J. 165, 177-78 (2009); see also State v. Sloane, 111 N.J. 293, 299 (1988) (noting that a charge on a lesser-included offense is required "if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense").
Finding no rational basis for such a verdict in the evidence, the judge correctly concluded that defendant could not show that he was prejudiced by his trial counsel's failure to request an instruction on the lesser-included offense. Given Alvarado's testimony and the other evidence, we agree that there was no rational basis for the jurors to conclude that defendant threatened to hit Alvarado with the bat not in the course of committing an attempted theft, as required by N.J.S.A. 2C:15-1, but for the purpose of terrorizing her, as required by N.J.S.A. 2C:12-3. Defendant correctly notes that a jury is free to accept some, but not all, of a witness's testimony. State v. Muhammad, 182 N.J. 551, 577-78 (2005). But in this case, there was no evidence suggesting that defendant threatened defendant for any purpose other than acquiring Alvarado's purse. See generally Cassady, supra, 198 N.J. at 177-78.
Similarly, evidence of defendant's intoxication provides no support for a verdict acquitting defendant of robbery and convicting him of terroristic threats. Voluntary intoxication provides a defense when a defendant's faculties are so affected as to preclude purposeful and knowing action. State v. R.T., 205 N.J. 493, 508 (2011). If the jurors in this case concluded that defendant was intoxicated to that degree, then they could not have found him guilty of either crime.
For all of the foregoing reasons, the trial court properly concluded that defendant failed to establish any possibility that he was prejudiced by counsel's failure to make a request for a charge on a lesser-included offense that could not be granted under the controlling legal principles. We affirm this determination substantially for the reasons stated by Judge Mega.
We turn to address defendant's claim that his trial counsel was ineffective because he did not object to the judge's alteration of the model jury instruction on intoxication. Judge Mega rejected this claim on the ground that the deviation did not make the charge misleading or ambiguous and that the charge delivered provided an adequate instruction on the law. We concur with that assessment.
The deviation about which defendant complains is truly minor. The model instruction directs the jurors to
carefully distinguish between the condition of mind which is merely excited by intoxicating-drink (or drugs) and yet capable of acting with (purpose or knowledge), and the condition in which one's mental faculties are so prostrated as to deprive one of (his/her) will to act and ability to reason, thereby rendering a person incapable of acting and thus preventing the person from committing the crime charged with the mental state required of either (purposely or knowingly).In the charge given to the jurors, the word "ability" to act was substituted for the word "will" in the portion of the charge that is emphasized above.
[Model Jury Charge (Criminal), "Intoxication Negating an Element of the Offense" (2005) (emphasis added).]
Defendant argues that there is a distinction between an inability to act and a will to act. That is likely true in the sense that a person's aspirations might exceed their physical or mental capacity to achieve them. Nevertheless, we fail to discern the legal significance of the distinction.
Appellate counsel contends that "the jury could have concluded the defendant was so intoxicated as to prevent him from being able to act and to reason, but conclude[d] the defendant nevertheless had the will and desire to act." But the instruction this jury was given did not indicate that the jury could reject defendant's intoxication defense on the ground that defendant had the will or desire to act. The omission of the substitution of the word "ability" for the word "will" did not have that significance. The judge merely informed the jurors that in order to recognize the defense, they had to determine that defendant's "mental faculties" were "so prostrated as to deprive [defendant] of his ability to act and ability to reason."
In fact, the instruction given was wholly consistent with the law. "The ultimate question for the judge is whether the evidence would permit a jury to conclude 'that defendant's "faculties" were so "prostrated" that he or she was incapable of forming an intent to commit the crime,'" not whether defendant had the will to form the intent. R.T., supra, 205 N.J. at 508 (emphasis added) (quoting State v. Mauricio, 117 N.J. 4 02, 418—19 (1990)). The decisional law incorporated in the codified defense based on intoxication negating an element of the offense, N.J.S.A. 20:2-8, addressed capacity, or ability, to entertain the state of mind required for conviction, not "will." State v. Cameron, 104 N.J. 42, 54-56 (1986). If anything, the judge's modification improved on the model charge by focusing the jury on the impact the intoxication had on the defendant's ability. For that reason and as a matter of law, defense counsel's silence in the face of this deviation was neither deficient nor prejudicial. An evidentiary hearing on this point was not warranted.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION