Opinion
DOCKET NO. A-3204-13T2
05-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGEL MEDINA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-09-2973. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Angel Medina appeals from a June 28, 2013 Law Division order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.
After a 2005 jury trial, defendant was convicted for the purposeful murder of Mutah Coleman, along with two related weapons possession charges, arising out of a shooting in Newark during the early morning hours of January 1, 2004. On January 6, 2006, defendant was sentenced to an extended term of forty years in prison with thirty-five years of parole ineligibility on the murder charge. The court imposed a concurrent five-year term on the unlawful possession of a weapon count. The remaining count, possession of a weapon for an unlawful purpose, was merged with the murder.
The trial began on September 28, 2005, and concluded on October 26, 2005. There was a hiatus in the trial due to a long weekend and the trial judge's vacation the following week.
We affirmed defendant's conviction on direct appeal. State v. Medina, No. A-4611-05 (App. Div. June 23, 2008). The Supreme Court thereafter denied defendant's petition for certification. 196 N.J. 466 (2008).
We incorporate by reference the salient facts leading to defendant's conviction, as described in our unpublished opinion affirming the jury's verdict. Medina, supra, at 4-9. In brief, defendant and the victim engaged in an argument at a Newark fast-food restaurant. Defendant shot Coleman in the head outside the store, then quickly departed in a car driven by Yusef Battle and also occupied by Battle's girlfriend, Makisia Haskins. Haskins testified that she saw a gun fall out of defendant's pocket, which defendant picked up from the floor of the vehicle. Ferming Wilson, a friend of both defendant and the victim, and an acquaintance of Battle, saw the gun in defendant's hand and witnessed him shoot Coleman in the head. At the time of trial Wilson was serving a three-year sentence for a parole violation, and, while testifying, was clad in prison garb and shackles. In a statement to police, Kevin Reed also indicated that he saw defendant shoot the victim in the head, jump in a car, and drive away. Although at trial Reed contradicted his initial statement to police, the trial judge conducted a Gross hearing, concluded that Reed's prior inconsistent statement was "very trustworthy," and admitted it in evidence.
State v. Gross, 121 N.J. 1 (1990).
On March 8, 2010, defendant filed the PCR petition under review, claiming ineffective assistance of trial counsel. Appointed counsel filed a certification of defendant in further support of his PCR petition, along with a brief raising the following points:
Defendant's initial PCR petition, filed on December 18, 2008, was dismissed without prejudice on May 11, 2009.
--------
POINT I
THE TRIAL COURT DENIED THE DEFENDANT HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY PERMITTING A WITNESS TO TESTIFY IN PRISON GARB AND SHACKLES DURING THE TRIAL.
POINT II
THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BY IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE THE COURT FAILED TO PROVIDE A LIMITING INSTRUCTION TO THE JURY.
POINT III
THE DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF.
POINT IV
THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF DISJOINTED TRIAL PROCEEDINGS.
POINT V
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
POINT VI
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
On March 1, 2013, Judge Thomas M. Moore, who was not the trial judge, conducted an evidentiary hearing. Defendant testified that trial counsel did not keep him apprised of the case, and that he never received the grand jury transcript. Defendant contended that he wanted to testify at trial but that his attorney "told me not to." According to defendant, he was unaware that he could overrule his attorney's advice not to testify. Defendant acknowledged that he had two prior felony convictions, one involving a shooting, and the other an aggravated assault with a knife. Defendant also faulted counsel's failure to object when Wilson testified in prison garb and shackles.
Defendant's trial counsel testified that although he could not recollect specific matters pertaining to the trial, he was certain that he provided defendant with the discovery. He confirmed that the defense had put on a case at trial and called witnesses, which in turn had caused the State to call a rebuttal witness. Defendant had "indicated he had no desire to testify," and that remained his steadfast position at trial. The attorney recalled that defendant had two prior indictable convictions that factored into their discussion and defendant's decision not to testify. According to defendant's trial counsel, the decision whether to testify was solely defendant's, and he "ha[d] a specific recollection of telling [defendant] that the decision [was] his." Counsel also admitted that he was disbarred in 2010 due to an unrelated ethics matter.
Judge Moore issued a comprehensive thirty-page written opinion on June 28, 2013, denying defendant's PCR petition. Judge Moore found the testimony of trial counsel credible, and that it negated defendant's claims that his trial attorney (1) failed to keep him advised of his case status; (2) did not provide him with discovery or other case materials; (3) did not discuss the State's witnesses and his trial strategy for those witnesses; and (4) lacked overall trial preparation. Judge Moore concluded that these claims of ineffective assistance of trial counsel failed to meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge found that trial counsel "called defense witnesses, made reasonable investigations on behalf of [defendant] as well as actively included him in trial strategy," and that "[s]uch conduct [fell] within the realm of reasonable, competent counsel." After reviewing the trial testimony and the testimony at the PCR hearing, the court further concluded that
[Defendant's] claims of prejudicial conduct by trial counsel fail[] the second prong of the Strickland test. Two witnesses of no relation or acquaintance to each other identified [defendant] as the individual that shot Coleman. In light of such compelling evidence against [defendant], this court cannot attribute [defendant's]
conviction solely to the errors of his trial counsel.
Judge Moore next rejected defendant's contention that trial counsel usurped his right to testify. The judge reviewed the trial transcript and noted that defendant testified in response to voir dire questions from the trial judge that he would not exercise his right to testify because of his prior criminal history, that his attorney answered all his questions about this decision, that he had sufficient time to consider it, and that he was not threatened or forced in any way not to testify. The court concluded that this claim also failed both prongs of the Strickland test, reasoning:
In connection with the first prong, the trial court's voir dire of [defendant's] decision not to testify reveals the existence of trial strategy as opposed to the lack of preparedness to do so. [Defendant] had a criminal record that would have been exposed during cross-examination. At sentencing, the trial [] judge addressed [defendant's] prior convictions. In 1997, he was charged with aggravated assault and was sentenced to eighteen months in prison. In 1998, he was again charged with attempted murder, which he ultimately pled guilty to aggravated assault and possession of a weapon for an unlawful purpose. Each of these charges were for violent crimes resulting in serious bodily injury.
[Trial counsel's] performance in this regard was not deficient or defective as to violate [defendant's] Sixth Amendment rights. The court finds that [defendant] was aware his criminal history had the
potential to hurt his defense and substantially impact his credibility. The court finds support for this conclusion in the trial court's [] transcripts. [Defendant] cites his criminal history as the sole reason he decided against testifying on his own behalf. Furthermore, the trial court gave [defendant] an opportunity to articulate any concerns regarding his right to testify. He asserted none. [Defendant], in hindsight, disagrees with his trial counsel's strategy and his decision. Under such circumstances, the court gives deference to the counsel's strategy.Citing the trial testimony of the two witnesses who identified defendant as the individual who shot Coleman, the court again found that defendant failed to satisfy Strickland's second, prejudice prong.
Defendant next argued that Wilson's appearance in prison garb and shackles, coupled with his statement that he knew defendant from the streets, was prejudicial because it invoked guilt by association in the minds of the jurors. In considering this contention, the PCR court carefully reviewed the other evidence presented, and noted that "Wilson's account of how [defendant] exited the scene is fully corroborated by the testimony of Haskins and Battle. Moreover, Haskins testified to hearing [defendant's] gun fall out of his pocket[,] landing on the car floor." Defendant then informed Battle that it was his gun, and Haskins saw defendant pick it up. The court further noted that "[Reed's] initial account of the event that claimed Coleman's life was consistent with Wilson and Haskins'[s] respective testimonies." The court concluded that trial counsel's failure to object to Wilson's testimony in prison garb did not lead to an erroneous verdict, and that the trial court's failure to give a limiting instruction "was harmless when evaluated against eyewitness testimony that identified [defendant] as the perpetrator."
Next, Judge Moore found no merit to defendant's contention that the trial court abused its discretion in temporarily adjourning the trial proceedings due to the trial judge's scheduled vacation. The judge found "[t]he harm in this claim is generalized," and that defendant failed to "advance any evidence that the adjournment was prejudicial in any way to his defense."
Finally, the PCR court found that trial counsel's disbarment, five years after the trial, was not prima facie evidence of his inability to represent defendant competently. Rather, having fully examined counsel's performance during defendant's trial, the court concluded that it "clearly [fell] within the wide range of reasonable, competent conduct."
On appeal, defendant raises the following issues for our consideration:
POINT ONE: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS IMPROPERLY DENIED.
A. The PCR Court Applied an Improper Legal Standard.
B. The PCR Court Unduly Restricted its Consideration of Trial Counsel's Disciplinary History.
C. Ineffective Assistance of Appellate Counsel.
The applicable law for evaluating these arguments is well-settled. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.
Claims of constitutionally ineffective assistance of counsel are well-suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. To establish a claim of ineffective assistance of counsel, defendant must satisfy the test formulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (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" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984); see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Having considered defendant's contentions in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Moore's thorough and cogent written opinion of June 28, 2013. We add only the following comments.
We reject defendant's argument that trial counsel never reviewed the discovery or discussed witness testimony with him. Our standard of review gives deference to the PCR judge's fact-findings based on witness testimony. State v. Nash, 212 N.J. 518, 540 (2013). "In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid. Here, having heard the testimony at the evidentiary hearing, the PCR court found "[trial counsel's] testimony on these points to be credible," and that it "negate[d] these claims of [defendant]." Defendant has not shown that Judge Moore's credibility findings were "'so wide of the mark' as to result in a manifest injustice." State v. J.D., 211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001) (citation and internal quotation marks omitted)). Rather, the judge's credibility findings were sufficiently supported in the record to be afforded substantial deference. See Nash, supra, 212 N.J. at 540.
We similarly reject defendant's claim that the decision not to testify was that of counsel and not of defendant. Having weighed the testimony of defendant and trial counsel at the evidentiary hearing, and examined the trial record, Judge Moore determined that defendant "was aware [that] his criminal history had the potential to hurt his defense and substantially impact his credibility." The judge concluded that defendant's decision not to testify reflected "trial strategy as opposed to the lack of preparedness to do so." Informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002).
We next address the issue of Wilson's testimony at trial in prison garb, while shackled. In State v. Artwell, 177 N.J. 526, 530 (2003), the Court considered the related questions of whether defense witnesses could be required to appear either in restraints or in prison garb. The Court determined that "[b]ecause the appearance of a defense witness in restraints presents a risk of unfair prejudice to a defendant, the trial court may subject a witness to physical restraint only when it has reason to believe it is necessary to maintain the security of the courtroom." Id. at 537 (emphasis added) (citation and internal quotation marks omitted). With respect to prison attire, the Court ruled that, prospectively, "a trial court may not require a defendant's witness to appear at trial in prison garb." Id. at 539 (emphasis added) (citations omitted).
In State v. Kuchera, 198 N.J. 482, 486 (2009), the Court considered whether the principles espoused in Artwell apply to prosecution, as well as defense, witnesses. In Kuchera, the State's witness testified in prison attire and leg shackles. Ibid. Defendant did not object and, on the contrary, "embraced the notion that [the State's witness], as a convicted, incarcerated felon, was not credible." Id. at 490. The Court was unable to conclude that the trial court abused its discretion when it allowed the witness to testify in leg shackles that were not likely visible to the jury, or in failing to instruct the jury with respect to those restraints. Id. at 498. In affirming defendant's conviction, the Court also noted that defendant did not object to the State's witness testifying in prison clothes but rather sought to use it to his advantage. Id. at 502. The Court concluded under these circumstances that any error in allowing the witness to testify in prison garb was harmless. Ibid.
Certainly, under current standards, Wilson's appearance before the jury in prison garb and restraints was inappropriate. However, at the time of defendant's trial, Artwell's protections were specifically applicable to defense witnesses, not witnesses for the State. It was not until after defendant's trial that Artwell's holding was definitively extended by the Court in Kuchera to the testimony of both defense and prosecution witnesses. We are therefore unable to conclude that trial counsel was ineffective in failing to object to Wilson's appearance at trial, or that the trial court erred in failing to provide a limiting instruction.
Moreover, as in Kuchera, defendant sought to use Wilson's appearance to his advantage by immediately questioning him about his prisoner status on cross-examination. Also, as the PCR judge noted, Wilson's account was corroborated by the testimony of Haskins and Battle, as well as Reed's initial statement to police. We therefore agree with the PCR court that under the facts here present, any error in allowing Wilson's testimony in prison attire and shackles, and in not providing the jury with limiting instructions, was harmless and did not lead to an erroneous verdict. Accordingly, defendant also failed to satisfy the second prong of the Strickland analysis.
Finally, although not specifically addressed in the PCR court's opinion, we find defendant's claims of ineffective assistance of appellate counsel equally unavailing. The Strickland standard applies as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). An appellate attorney is not required to advance every argument the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983); Gaither, supra, 396 N.J. Super. at 515-16. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, supra, 463 U.S. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994.
With these principles in mind, we turn to defendant's argument that his appellate counsel was ineffective for failing to raise on direct appeal the issues of (1) Wilson's testimony in prison garb and shackles; (2) defendant's potential testimony; and (3) the disjointed trial proceedings occasioned by the trial judge's mid-trial vacation. From our review of the entire record, and for the reasons stated above, we are satisfied that defendant has not established a prima facie case of ineffective assistance of appellate counsel, as he has not shown that his appellate attorney's performance was deficient or that counsel's failure to raise these issues resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION