Opinion
DOCKET NO. A-0952-11T2
05-20-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEMEL POWELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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 Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-02-0237.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Jemel Powell appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted following a jury trial of third-degree receiving stolen property, N.J.S.A. 2C:20-7a (count one); third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3 (count two); first-degree carjacking, N.J.S.A. 2C:15-2a(2) (count three); second-degree robbery, N.J.S.A. 2C:15-1 (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3a and/or (count five); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count seven); fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e) (count nine); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count ten). At sentencing, following the appropriate merger of offenses, the trial judge sentenced defendant to an aggregate term of thirty-five years' incarceration, with twenty-five of those years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Only the carjacking and robbery sentences, totaling twenty-five years, were subject to NERA.
On appeal, among other points, defendant argued that the admission of a statement given by his co-defendant was error, identification testimony was admitted in error, and his sentence was excessive. State v. Powell, No. A-3989-03 (App. Div. March 14, 2006) (slip op. 17-23). We affirmed defendant's convictions and sentence and defendant then filed a petition for certification with the Supreme Court. The petition was granted "limited solely to the sentencing issue," and the Court remanded the matter to the trial court for "resentencing in light of State v. Natal, 184 N.J. 458 (2005)." State v. Powell, 187 N.J. 77 (2006).
The trial judge imposed the same sentence at the re-sentencing hearing and at a subsequent re-sentencing hearing necessitated by the trial judge's decision to allow defendant to represent himself at the first re-sentencing without making the inquiries required by State v. Crifasi, 128 N.J. 499 (1992).
Defendant filed a petition for PCR and was assigned counsel to represent him. His petition alleged fourteen grounds for relief:
Ground One: Trial Counsel Failed To Object To The Exclusion Of Potential African-American Juror's [sic] During The Jury Selection Process
Ground Two: Trial Counsel Failed To Prepare For Trial By Failing To Adequately Conduct A Pre-Trial Investigation And Interview Potential Material Witnesses
Ground Three: Trial Counsel Failed To Call An Expert In Psychology
Ground Four: Trial Counsel Failed To Pursue An Affirmative Defense Of Diminished Capacity
Ground Five: Trial Counsel Failed To Consult With And Call An Expert In Controlled Dangerous Substances
Ground Six: Trial Counsel Failed To Pursue An Intoxication Defense And Introduce The Defendant's Medical Records
Ground Seven: Trial Counsel Erroneously Advised Defendant Not To Testify On His Own Behalf
Ground Eight: Trial Counsel Failed To Adequately Cross-Examine The State's Witnesses
Ground Nine: Trial Counsel Failed To Object To The Introduction Of A Police Report Containing False Statements; Or In The Alternative, Move For A Mistrial After The Report Was Introduced
Ground Ten: Trial Counsel Failed To Object To The Prosecutor's Comments During Closing Arguments Where He Repeatedly Referred To The Defendant's [sic] As Blacks To Influence An All White Jury To Secure A Conviction Against The Defendant; In The Alternative, Appellate Counsel Failed To Raise On Appeal That The Prosecutor's Comments Constituted Prosecutorial Misconduct And Denied The Defendant Of His Constitutional Right To A Fair Trial
Ground Eleven: Trial Counsel Failed To Object To The Prosecutor's Misstatement of Evidence During Closing Arguments; In The Alternative, Appellate Counsel Failed To Raise On Appeal That The Prosecutor's Misstatement Of Evidence Constituted Prosecutorial Misconduct And Denied The Defendant Of His Constitutional Right To A Fair Trial
Ground Twelve: Trial Counsel Failed To Request A Self-Defense Charge Wherein The Facts Adduced At Trial Was Indicative That Victim Was The Aggressor
Ground Thirteen: Appellate Counsel Failed To Raise On Appeal That The State's Suppression Of The Victim's Statement Was A Violation Of the Rules Of Discovery, Constituting Prosecutorial Misconduct, Denied The Defendant Of His Constitutional Right To A Fair Trial
Ground Fourteen: Appellate Counsel Failed To Raise On Appeal That The Defendant Was Entitled To A Direct Judgment Of Acquittal As the Verdict Was Against The Weight Of The Evidence Because The State Failed To Prove Unlawful Taking Or An Attempt Of Unlawful Taking Beyond A Reasonable Doubt
Appointed counsel submitted an amended petition for PCR and brief in support thereof, which set forth the following two points:
Point I: AS A MATTER OF FUNDAMENTAL FAIRNESS, PETITIONER'S APPLICATION SHOULD BE CONSIDERED TIMELYOn February 7, 2011, the judge entered an order denying Powell's petition without an evidentiary hearing.
Point II: PETITIONER IS ENTITLED TO POST CONVICTION RELIEF DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL
By the time defendant perfected the PCR petition, the trial judge had retired and another judge ruled on the petition.
The judge opined, in pertinent part,
Here, [Powell] has not established a prima facie case that either his trial or appellate counsel's ineffectiveness rose to a level requiring [the] court have an evidentiary hearing. Rather, [Powell] has attempted to throw out fourteen assertionsDefendant appeals from the denial of his petition.
as to why [the] court should grant an evidentiary hearing in the hopes that one of these unsupported allegations would "stick," and ultimately result in a retrial. Defendant has not alleged sufficient facts to demonstrate counsel's substandard performance by way of affidavits, certifications, or even explanation beyond a one sentence bald assertion for each ground. Thus, none of the fourteen allegations meet the prima facie burden to warrant an evidentiary hearing.
On appeal, defense counsel argues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.Defendant's pro se brief repeats counsel's claim and adds:
POINT I: TRIAL ATTORNEY JEFFREY COUGHLIN FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL ACCORDING TO (U.S. CONST. AMEND. VI, XIV, N.J. CONST, (1947) ART. I, PAR 10)[.]
POINT II: TRIAL ATTORNEY FAILED TO CALL ANY [EXPERT] WITNESS IN THE FIELD OF TOXICOLOGY [AND AS A RESULT THE] TRIAL COURT REFUSED TO CHARGE THE JURY ON SELF[-]INDUCED INTOXICATION. . . .
ALSO THERE IS NO EVIDENCE THAT THERE WAS ANY VALID STRATEGIC REASON FOR TRIAL ATTORNEY [TO] NOT FURTHER DEVELOP DEFENSE THAT WOULD EITHER JUSTIFY/AN[D] OR EXCUSE DEFENDANT[']S BIZARRE BEHAVIOR[.]
POINT III: [PCR] COUNSEL . . . FAILED TO INCORPORATE ANY FACTUAL CLAIMS IN HER BRIEF TO SUBSTANTIATE HER ARGUMENT THAT . . . TRIAL ATTORNEY FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF COUNS[EL] DURING TRIAL . . . .
[PCR] COUNSEL . . . IN FACT DID HAVE EVIDENCE TO SUPPORT ARGUMENT THAT TRIAL ATTORNEY FAILED TO INVESTIGATE THAT [POWELL] WAS NOT ONLY SUFFERING FROM SELF[-]INDUCED INTOXICATION, BUT ALSO SUFFERING FROM UNDERLYING MENTAL HEALTH DISORDER . . . THAT COULD JUSTIFY AN[D] OR EXCUSE OBVIOUS BIZARRE BEHAVIOR, ON THE DAY OF AUG 7TH 2002.
In support of points one and two, defendant argues: "there was no evidence" to support a conviction on the carjacking charge; there were no grounds for the unarmed robbery conviction because the robbery victim "had in fact assaulted him"; and he lacked "full control of his mental faculties" on August 7, 2002, due to cocaine-induced paranoia. Defendant further argues trial counsel "failed to call [an] expert witness . . . in the field of toxicology to sustain a model jury charge" with respect to self-induced intoxication and/or diminished capacity, and further failed to introduce a Kimball Medical Center toxicology report and a Monmouth County Jail mental health report, which he claims would have supported a jury charge on the issues of voluntary intoxication and diminished capacity.
In support of point three, defendant recounts having had a conversation with assigned counsel in which he asked her to recuse herself if she was unwilling to present his "extensive mental health file of 20 [years,]" the Kimball Medical Center toxicology report, a "Bay Harbor Hospital inpatient mental health file[,]" and reports by experts "Dr. Jonathan Mack, [Psy.D.]" and "Dr. [Robert] Raymond[.]"
A letter from trial counsel to the Monmouth Country Correctional Institution, dated May 12, 2003, demonstrates that counsel retained Jonathan Mack, Psy.D., to examine defendant on May 19, 2003. The record contains no evaluation report, and there is no evidence a report was ever produced. A letter from assigned PCR counsel to the trial judge, dated March 1, 2010, and a subsequent order entered by the judge on March 8, 2010, indicate counsel retained Dr. Robert Raymond to evaluate defendant. Again, the record contains no evaluation report, and there is no evidence a report was ever produced. Furthermore, defendant's pro se brief does not recount how PCR counsel responded during this alleged discussion of factual proofs.
We shall not recite the testimony from the trial which is extensively detailed in our prior opinion. We note, however, that a statement by co-defendant admitted at trial without objection indicated that he and defendant had smoked crack cocaine during the incidents giving rise to the indictment. Also, following his arrest, defendant was found to be in possession of a substance that tested positive for trace amounts of cocaine, and he claimed he had consumed two grams of crack cocaine. Defendant was taken to Kimball Medical Center where an initial drug screen undertaken in the early morning of the day after his arrest was positive for cocaine. No confirmatory test results were provided. Finally, one of the police officers involved in apprehending defendant and his co-defendant testified that both appeared to be under the influence of some narcotic at the time of their arrest.
Defendant elected not to testify at trial. Before submission of the case to the jury, defense counsel sought a jury instruction on voluntary intoxication based on defendant's use of crack cocaine during the incident. After a review of the guiding decisional law, the trial judge concluded "[Powell's] faculties were not so prostrated that he was unable to form the necessary intent as set forth in the various elements of the offense which would lead me to charge the jury with intoxication. So the application is denied." In closing, defense counsel argued Powell acted recklessly, and not purposefully or knowingly, as required for a finding of guilt on the carjacking or robbery charges.
See State v. Bauman, 298 N.J. Super. 176, 194 (App. Div. 1997) (requiring a jury charge on voluntary intoxication only if "there exists a rational basis for the conclusion that defendant's faculties were so prostrated that he or she was incapable of forming the requisite intent" (quotation marks and internal citation omitted)); State v. Johnson, 309 N.J. Super. 237, 266 (App. Div. 1998) (finding "[v]oluntary intoxication is not a valid defense unless it negates an element of the offense").
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Defendant's appellate counsel argues that PCR counsel "did nothing at all to produce any evidence of defendant's intoxication [and] did not so much as advance the name of one witness, lay or expert, who could have testified to such intoxication." He adds, "[m]oreover, there was no attempt by PCR counsel to advances any proofs or arguments as to defendant's other grounds."
This appeal requires us to employ two standards: one governing claims of ineffective assistance of trial counsel, and another, somewhat different standard, governing claims against PCR counsel. We briefly set forth each standard.
The legal principles that govern our analysis of a defendant's claim that he was deprived of the effective assistance of trial counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Parker, supra, 212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing Fritz, supra, 105 N.J. at 58).
A reviewing court must grant substantial deference to the discretion of counsel in determining which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322-23.
Employing this standard, we reject defendant's pro se argument on appeal that trial and appellate counsel were ineffective because "there was no evidence to support the carjacking charge" and that the robbery conviction is without foundation because the robbery victim "had in fact assaulted him." These arguments do not even implicate the performance of trial counsel, and, to the extent such arguments are directed at appellate counsel, they are belied by the record. These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We now turn to the arguments against PCR counsel based on the claim that she failed to support defendant's alleged intoxication and diminished capacity.
The performance of PCR counsel is examined under a different standard than the standard applicable to trial counsel. Regarding a claim that PCR counsel was ineffective, the Supreme Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).
support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.
[State v. Webster, 187 N.J. 254, 257 (2006).]
"This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Hicks, supra, 411 N.J. Super. at 376. We determined in Hicks the defendant had failed to receive the benefits of the attorney's expertise, because the attorney limited his performance to re-presenting the arguments the defendant included in his own pro se petition; there was no evidence he conducted an independent evaluation of defendant's case to determine whether there were other grounds to attack defendant's conviction; and there were indications PCR counsel had not even reviewed the file, based on comments to the court in oral argument that betrayed ignorance of the essential facts of the underlying case. Id. at 374. We remanded for a new PCR proceeding. Ibid.
However, as we noted earlier, PCR counsel is not required to bolster claims raised by a defendant that are without foundation, but, rather, only those "the record will support." State v. Webster, supra, 187 N.J. at 257. With this standard in mind, we consider defendant's argument's as they pertain to his assigned PCR counsel.
Defendant argues his PCR counsel failed to meet the requirements imposed by Rule 3:22-6(d), by failing to advance proofs supporting defendant's claimed intoxication and diminished capacity, which subjected his petition to denial for lack of evidential support. He also argues PCR counsel should have raised the numerous points defendant has raised in his supplemental brief.
Unlike in Hicks, where it was apparent that PCR counsel had failed to meet his obligations, we cannot conclude on the record before us that PCR counsel failed to discharge her responsibilities under Rule 3:22-6(d), and that a remand for a new hearing is required. It is unclear whether the lack of proof before the motion court was the result of PCR counsel's failure to engage in a reasonable investigation and effort, or the failure of defendant to provide any facts upon which to base an investigation.
Here, counsel met with defendant to discuss the case, and submitted a substantial brief in support of the petition. We note the record still lacks sufficient evidence supporting a cognizable issue of intoxication or diminished capacity. See N.J.S.A. 2C:2-8; N.J.S.A. 2C:4-2. Both require the proffer of a sufficient evidential foundation providing a rational basis for a jury to find the defenses applicable: in the case of voluntary intoxication, there must be a showing of such "prostration of faculties" that defendant was incapable of forming the requisite mental state, State v. Cameron, 104 N.J. 42, 54, 57-8 (2986); and in the case of diminished capacity, there must be a showing of a particular condition relevant to defendant's ability to have formed the requisite mental state, State v. Breakiron, 108 N.J. 591, 619 (1987). Defendant alleges that PCR counsel failed to call expert witnesses, but has presented nothing on appeal suggesting that such witnesses had been prepared to offer testimony supporting his claimed intoxication or diminished capacity.
We cannot, on this record, determine that PCR counsel failed to marshal proofs or arguments supporting defendant's alleged intoxication and diminished capacity. We note that both trial and PCR counsel sought to have defendant examined by experts, but the record is otherwise silent. Further, the record developed at trial would not warrant disturbing the trial court's ruling that there was an insufficient evidential basis to warrant charging the jury on intoxication.
Any claim that PCR counsel failed to satisfy her obligations under Rule 3:22-6(d), entitling defendant to new counsel and a new proceeding, is not supported by this record. If there are any additional facts or records in existence that would have supported charging the jury on the issues of intoxication or diminished capacity, they are not part of this record. On this record, we are constrained to affirm. As we stated in Hicks, the issue whether PCR counsel has met the obligations under Rule 3:22-6(d) is distinct from a claim of ineffective assistance of counsel under Strickland. Hicks, supra, 411 N.J. Super. at 376.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION