Opinion
DOCKET NO. A-3989-14T4
01-31-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NASIR SALAAM, a/k/a NASIR JAMEEL SALAAM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Koblitz, Rothstadt and Sumners. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0310. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Nasir Salaam, who was seventeen years old at the time of the crime, appeals from the March 12, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant pled guilty to a felony murder involving the death of a gas station proprietor during a robbery, after a jury trial resulted in a hung jury on that charge, and convictions on many other serious charges. He is serving an aggregate sentence of forty years, thirty without parole eligibility.
Little more than a month after his arrest, defendant gave an incriminating statement to law enforcement pursuant to the advice of his privately-retained attorney, who had secured no plea agreement nor any agreement not to use the statement against defendant. We reverse and remand for a hearing to resolve conflicting testimony given by defense counsel, defendant, and defendant's mother regarding defense counsel's representations to defendant about a plea agreement or potential agreement prior to the statement. Regardless of the nature of defense counsel's advice, the court must also determine at the hearing whether counsel's production of his juvenile client to give a self-incriminating statement under these circumstances — after conferring only with a co-defendant's counsel and prior to the completion of discovery — was a fundamental deprivation of counsel pursuant to United States v. Cronic, 466 U.S. 648, 661, 104 S. Ct. 2039, 2048, 80 L. Ed. 2d 657, 667 (1984).
Defendant and four co-defendants, Darrick Hudson, Basir Biggins, Gina McCrossen and Tyler Hart, were charged with various crimes in connection with a killing during a robbery on March 9, 2007. McCrossen was driving the four young men when they decided to rob a gas station to obtain money for drugs. While Hart and McCrossen stayed in the car, defendant, Biggins, and Hudson approached the gas station. Defendant admitted to pointing a .22 caliber handgun at two gas station attendants who were outside and demanding they "give it up." Hudson and Biggins entered the mini-mart where the proprietor, Makhan Singh, was working.
According to defendant, he heard scuffling followed by shots fired from inside the mini-mart, which caused the attendants to panic and run away. Defendant fired one shot at the fleeing attendants, striking one of them in the lower left flank. He also fired two shots toward the mini-mart before returning to the waiting vehicle with Hudson and Biggins. Defendant's gun, which fired the shot that injured the attendant, was located. Singh died from six bullet wounds he sustained during the robbery; the gun that shot Singh was never recovered.
Due to information from an eyewitness who reported the license plate of the car, the police were able to find and arrest McCrosson and Hart the night of the robbery. Both gave statements to the police and identified the other participants. Biggins was also arrested that day, but did not give a statement until the following morning. Defendant and Hudson were arrested the day after the robbery. Hudson, who was also a juvenile, gave a partial statement to the police that day, and two weeks later, under the direction of his privately-retained attorney and without a plea agreement, gave a full statement to police.
The following month, defendant, on the advice of his private counsel, who had consulted with Hudson's lawyer but not the prosecutor, gave a statement to the police. At the time, defendant believed an offer for fifteen to twenty years was available. Later, after DNA evidence came back indicating that Singh's and defendant's blood were both found on a sweatshirt, the prosecutor reached out to have defendant clarify his statement. Although defendant's lawyer arranged a meeting for defendant to answer the State's additional questions, defendant refused to cooperate further and the case went to trial.
No pre-trial Miranda hearing was requested by the defense. At trial, defendant's recorded statement was introduced into evidence by the State. The State did not argue that defendant shot the proprietor. Defendant was convicted of the less serious charges, including shooting the attendant, but the jury could not agree on the felony murder of the proprietor. The jury foreman stated that one juror expressed an unwillingness to accept the concept of felony murder.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Participation in a robbery where someone is killed makes all of the participants guilty of felony murder. See State v. Pantusco, 330 N.J. Super. 424, 430 (App. Div.) ("felony murder 'is committed when the actor . . . is engaged in the commission of, or an attempt to commit. . . robbery . . ., and in the course of such crime or of immediate flight therefrom, any person causes the death of a person" (quoting N.J.S.A. 2C:11-3(a)(3)), certif. denied, 165 N.J. 527 (2000); Model Jury Charge (Criminal), "Felony Murder-Non-Slayer Participant" (2004).
After the trial, defendant filed a pro se motion to suppress his statement. A testimonial hearing was held, which was characterized by the trial judge as a Miranda hearing, where defense counsel, defendant, and defendant's mother testified. At the conclusion of the hearing, the judge determined that defendant's statement had been properly admitted.
Defendant appealed his conviction. We reviewed the procedural and factual history of this case in more detail, see State v. Salaam, No. A-2288-10 (App. Div. August 2, 2013) (slip op. at 2-6), affirmed his conviction, but remanded for correction of the judgment of conviction to reflect the time served prior to sentencing. Id. at 22. In our opinion, we noted that defendant did not raise ineffective assistance of counsel on direct appeal, and stated:
[s]hould defendant raise the issue seeking post-conviction relief, we anticipate another hearing will be necessary to fully explore the issues surrounding defense counsel's decision to have his client give an incriminating statement outside of the protection of plea negotiations and counsel's failure to move to suppress that statement prior to trial.
[Id. at 9 n.3.]
At the subsequent PCR petition, both defendant pro se and his PCR counsel alleged ineffective assistance of trial counsel. Both contended that trial counsel was ineffective for encouraging defendant to give an incriminating statement without a plea agreement in place, defendant additionally asserted that: 1) trial counsel made a "dubious representation" to him that a plea offer was on the table, 2) his mother was improperly not consulted prior to the statement, and 3) his trial attorney was ineffective for failing to investigate the information provided to him by co-defendant's attorney.
Although defendant's appointed PCR counsel represented that an evidentiary PCR hearing was not necessary, the PCR judge determined not to grant a plenary hearing because the judge determined that defendant had not met his burden of proving a prima facie case of ineffective assistance of counsel. See State v. Jones, 219 N.J. 298, 311 (2014) (stating that "[w]hen determining the propriety of conducting an evidentiary hearing, the PCR court should view the facts in the light most favorable to the defendant," and conduct an evidentiary hearing if the PCR claim has "a reasonable probability of being meritorious"). After considering counsels' arguments, the judge denied defendant's petition.
Defendant raises the following issues on this PCR appeal:
POINT I: THE ADVICE OF THE DEFENDANT'S LEGAL COUNSEL WAS CONSTITUTIONALLY DEFICIENT WHERE HE ALLOWED THE DEFENDANT TO MAKE A STATEMENT TO A LAW ENFORCEMENT OFFICER WITHOUT A PLEA OFFER AND WITHOUT ADEQUATELY REVIEWING THE FACTS OF THE CASE. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 10 (1947)).
POINT II: THE ADVICE OF THE DEFENDANT'S LEGAL COUNSEL BEFORE KNOWING ALL OF THE FACTS OF THE CASE PREJUDICED THE DEFENDANT'S ABILITY TO NEGOTIATE A MORE FAVORABLE SENTENCE. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 10 (1947)).
POINT III: IN SUMMARY FASHION, THE DEFENDANT INCORPORATES HEREIN THE REST OF HIS ARGUMENTS MADE TO THE PCR COURT.
We asked for supplemental briefing on the issue of whether PCR counsel was ineffective in not seeking an evidentiary hearing or asking the PCR judge to review the petition pursuant to Cronic, supra, 466 U.S. at 648, 104 S. Ct. at 2039, 80 L. Ed. 2d at 657. The State argued that PCR counsel's possible ineffective representation of defendant should await defendant's second PCR application, at which he might not be appointed counsel. R. 3:22- 6(b) (stating a second PCR petition attacking the same conviction "shall be assigned to the Office of the Public Defender only upon application therefor and showing of good cause"). Defendant argued that the PCR judge had the obligation to hold a hearing regardless of the position of PCR defense counsel, and that a claim of ineffective assistance of PCR counsel should not await a second PCR application.
Just as we occasionally address ineffective assistance of trial counsel on direct review if the facts are clear from the record before us, State v. Castagna, 187 N.J. 293, 313 (2006), so also we now determine that PCR counsel was not ineffective, but a remand is necessary nonetheless. Although PCR counsel did not ask for an evidentiary hearing, we stated a hearing was necessary in our opinion on direct appeal. Salaam, supra, slip op. at 9 n.3. A hearing was necessary for several reasons.
The post-conviction Miranda hearing did not resolve all of the issues relevant to PCR. The trial judge did not clearly determine whether he believed defendant's mother or defendant as to what defense counsel promised defendant would happen as a result of providing a statement to the State. See State v. Gaitan, 209 N.J. 339, 351 (2012) (voicing an "abiding concern about affirmative misinformation from counsel to a pleading client that could undercut a knowing and voluntary plea"), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Neither did trial defense counsel indicate for what strategic reason he did not seek use immunity, or any other agreement from the State for his client. Although defense counsel stated he encouraged his client to give a statement because he did not want his client to be the "last man standing," in fact defendant was the last of the five to give an incriminating statement. Defense counsel testified that he spoke only to co-counsel and not to the prosecutor prior to recommending that defendant give a statement to the prosecutor's detective. Defense counsel should not have relied on advice from co-counsel as their clients were in adversarial positions, both seeking favorable treatment from the State by inculpating the other. See State v. Bellucci, 81 N.J. 531, 545 (1980) (holding that private attorneys from the same law firm may not represent criminal co-defendants without full disclosure to the clients); State v. Alexander, 403 N.J. Super. 250, 255-57 (App. Div. 2008) (holding that a public defender's dual representation of the defendant and another individual who allegedly participated in the crime constituted a per se conflict of interest and did not require a showing of actual or likely prejudice). An attorney's conflict of interest has been held to be a violation of Cronic. See State v. Miller 216 N.J. 40, 60 (2013) (citing State v. Cottle, 194 N.J. 449, 452 (2008)), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2013).
"[U]nder a grant of use immunity, [defendant]'s testimony could not be used to prove a past offense." State v. Feaster, 184 N.J. 235, 264 (2005).
Counsel also testified that he had not thoroughly reviewed discovery. See Commonwealth v. Celester, 45 N.E.3d 539, 555 (Mass. 2016) (stating that before defense counsel advised his client to give a statement, he "should have made an effort at a minimum to understand the factual basis for the murder charge that had been lodged against the defendant"); see also State v. Savage, 120 N.J. 594, 618 (1990) (internal citations omitted) (stating "counsel has a duty to make 'reasonable investigations' . . . [and a] failure to do so will render the lawyer's performance deficient"). The results of DNA blood evidence that had been sent to the laboratory had not yet been received. Those results showed defendant's blood and the victim's blood together on defendant's sweatshirt. In addition, although defense counsel had read the police reports before encouraging defendant to give a statement to police, he had not read the co-defendants' statements. Defense counsel testified that in his seventeen years of criminal defense work, he had never before allowed a client to give a statement absent an agreement with the State. Yet he did so here for reasons that are difficult to decipher.
Defendant's four co-defendants worked out a plea arrangement with the State. See State v. Hudson, No. A-2631-12 (App. Div. March 1, 2016) (slip op. at 2, 28-29); R. 1:36-3 (allowing an unpublished case to be cited when it involves the same case). Both Hudson and Biggins entered the mini-mart where the proprietor was killed. Hudson, who waited to plead guilty until well after defendant entered his plea, pled guilty to first-degree aggravated assault; first-degree robbery, and third-degree hindering apprehension and was sentenced to an aggregate term of twenty-five years in prison. Id. at 2. Biggins pled guilty to three counts of first-degree robbery and was sentenced to twelve years in prison. Id. at 28. Hart and McCrosson pled guilty to conspiracy to possess a controlled dangerous substance and hindering apprehension, and were sentenced to eight years in prison. Ibid.
We were not provided with information regarding the mandatory minimum terms the co-defendants are serving. --------
The PCR judge astutely considered analyzing defense counsel's actions under the Cronic standard, which the PCR judge defined generally as "actual or constructive denial of the right to counsel altogether." He did not do so because PCR counsel had not asked for such an analysis. PCR counsel argued, however:
I don't think I've ever seen a case where I had a situation where defense counsel voluntarily delivers their client to give a confession to law enforcement without there not only being some sort of discussion as to a plea, some discussion as to whether or not it could result in a plea, some discussion that it's going to lead to a better result for the client, let alone there being no discussion at all with the prosecutor before the client is delivered to make a confession to law enforcement, and unfortunately that's exactly what happened here.
Although PCR counsel did not specifically mention Cronic, he argued that defendant was deprived of the basic legal assistance expected from a defense lawyer.
When defendant, a juvenile, was first interviewed by the police, his mother stopped the interview before he incriminated himself. It goes without saying and is a fundamental part of our criminal justice system that a criminal defense attorney is not retained to assist the State in securing a conviction, not in the pre-trial stage any more than at trial. See People v. Claudio, 629 N.E.2d 384, 385 (N.Y. 1993)(stating "[w]e accept the premise, which was shared by every court that has considered this case, that retained counsel's conduct in advising defendant to confess to the police--at a time when there was no concrete evidence against him and no possibility of a plea offer--represented gross professional incompetence"); Cottle, supra, 194 N.J. at 463 ("The paramount obligation of every attorney is the duty of loyalty to his client."); see also ABA Standards for Criminal Justice, Advising the Client, Standard 4-5.1(h) (4th ed. 2015) ("Defense counsel should consider and advise the client of potential benefits as well as negative aspects of cooperating with law enforcement or the prosecution.").
We therefore remand this case for a full evidentiary hearing for credibility determinations as to what was explained to defendant regarding what he would receive in return for giving a statement, after which the PCR court should analyze whether counsel was ineffective not only under the two-pronged Strickland standard, Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 647, 693-94 (1984), but also under the Cronic standard. State v. Fritz, 105 N.J. 42, 61 (1987) (citing Cronic, supra, 466 U.S. at 659-60, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668) (recognizing "no specific prejudice" need be shown if defense counsel demonstrates "egregious shortcomings").
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION