Opinion
DOCKET NO. A-0203-10T2
10-05-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMARI SHABAZZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane D. Plaisted, 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NOT FOR PUBLICATION WITHOUT THE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 Ashrafi and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-06-1944.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane D. Plaisted, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a December 16, 2009 order denying his third petition for post-conviction relief (PCR). He contends that (1) his trial and appellate counsel were ineffective; and (2) the trial judge committed evidentiary errors and demonstrated a bias in favor of the State. Defendant did not raise certain available arguments on his direct appeal, and failed to establish a prima facie case of ineffective assistance of counsel. We affirm.
Defendant's first two petitions for PCR were dismissed without prejudice.
The facts giving rise to defendant's convictions, sixteen years ago, are set forth in our earlier unreported opinion. State v. Shabazz, No. A-5761-94 (App. Div. June 13, 1997), certif. denied, 151 N.J. 468 (1997). We now summarize the facts for this appeal.
An armed assailant robbed four retail stores at gunpoint between December 27, 1993 and January 6, 1994. The stores were within a three-block area, and the same modus operandi was employed in each case. Although the jury acquitted defendant of one of the robberies, the record disclosed that there existed "substantial evidence of guilt" on the remaining three robberies. Defendant was apprehended immediately after the last robbery, apparently while he was attempting to flee the scene of the crime.
At the conclusion of a jury trial, defendant was convicted of three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. After the appropriate mergers, the judge sentenced defendant to consecutive fifteen-year terms in prison with five years of parole ineligibility for the robbery convictions, and concurrent terms of five years in prison for the weapons-related convictions. The aggregate prison term is forty-five years with fifteen years without parole. We affirmed the convictions, State v. Shabazz, supra, slip op. at 1-2, and the Supreme Court denied certification on September 9, 1997, supra, 151 N.J. at 468.
Pro se defendant made the following points in his PCR petition:
POINT I
DEFENSE COUNSEL'S WAIVER OF DEFENDANT'S RIGHT TO BE PRESENT AT HEARING ON SEVERANCE MOTION AND [OMISSION] AT SEVERANCE [HEARING] OF DISCUSSION BETWEEN PARTIES AT PLEA BARGAIN HEARING OF ADDITIONAL ROBBERIES, DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, RIGHT TO BE PRESENT & A FAIR AND IMPARTIAL HEARING, IN VIOLATION OF THE 6TH AND 14TH, AMEND. CONST. U.S.C.
POINT II
TRIAL COURT'S CONDUCT [DURING] TRIAL DENIED DEFENDANT OF A FAIR AND IMPARTIAL TRIAL DEPRIVING HIM OF DUE PROCESS, IN VIOLATION OF THE 14TH AMEND. CONST. U.S.C.
POINT III
TRIAL COURT'S CONVERSATION WITH ASST. PROSECUTOR ON EVIDENCE DURING TRIAL WITHOUT
THE PRESENCE OF DEFENSE COUNSEL, DENIED DEFENDANT HIS RIGHT TO COUNSEL AND DUE PROCESS, IN VIOLATION OF THE 6TH AND 14TH AMEND. CONST. U.S.C.
POINT IV
TRIAL COURT'S FAILURE TO DEFINE SPECIFIC DISPUTED FACT IN ISSUE FOR USE OF OTHER CRIME EVIDENCE AND FAILURE TO INSTRUCT JURY WITH SPECIFIC USE OF EVIDENCE WAS ERROR
POINT V
APPELLATE COUNSEL FAILURE TO RAISE THE FOREGOING ISSUES ON APPEAL DENIED PETITIONER EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS 6TH AND 14TH AMEND. CONST. U.S.C. THIS POINT INCORPORATES POINTS, I, II, III, & IV
In his brief, PCR counsel made the following additional points before the PCR judge, which we have renumbered to run consecutively to defendants petition:
POINT VI
THE TRIAL JUDGE COMMITTED PLAIN ERROR BY
INJECTING BIAS INTO THE TRIAL IN FAVOR OF THE STATE SUCH THAT DEFENDANT WAS DENIED A FAIR TRIAL
POINT VII
THE EX PARTE COMMUNICATIONS BETWEEN THE PROSECUTOR AND THE JUDGE WAS IMPROPER
POINT VIII
THE TRIAL COURT ERRED IN PRECLUDING THE DEFENDANT FROM PRESENTING A DEFENSE
POINT IX
THE TRIAL COURT IMPROPERLY INTERFERED WITH RELEVANT AND PROPER CROSS-EXAMINATION RESULTING IN AN UNFAIR TRIAL
POINT X
THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BY JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY
POINT XI
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
POINT XII
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
POINT XIII
THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR
POINT XIV
AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF HIS PETITION FOR POST CONVICTION RELIEF
POINT XV
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION
On December 16, 2009, Judge Michael Nelson conducted oral argument and denied the PCR without holding an evidentiary hearing. Although the judge found that defendant's arguments of ineffective assistance of counsel were raised, or could have been raised, on direct appeal, he considered the arguments substantively. In a thorough oral opinion, Judge Nelson concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel.
On appeal, defendant raises the following arguments:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WERE VIOLATED, AND BECAUSE THE PCR COURT MISAPPLIED THE PROCEDURAL BARS OF RULE 3:22-4 AND RULE 3:22-5
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO COMPLY WITH DISCOVERY RULES WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST AND THE ENSUING PREJUDICE TO DEFENDANT SATISFIED THE SECOND PRONG
POINT III
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
POINT IV
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed, [counsel must] ensure that the trial is fair[; therefore], 'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, § 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must 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).
An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This State's Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:
If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.
[Ibid. (citations omitted).]
To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. As our Supreme Court stated in State v. Echols:
Because post-conviction relief is not a substitute for direct appeal and because of the public policy "to promote finality in judicial proceedings," State v. McQuaid, 147 N.J. 464, 483, 688 A.2d 584 (1997), our rules provide various procedural bars. For example, a petitioner may be barred from
relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12. Although our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars.
[199 N.J. 344, 357 (2009) (citing State v.Goodwin, 173 N.J. 583, 594 (2002)).]
After considering the record and briefs, we conclude that the arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Nelson in his oral opinion dated December 16, 2009. We add the following brief comments.
Defendant could have raised on direct appeal the majority of issues contained in his petition for PCR, including (1) the State's failure to file written opposition to defendant's severance motion; (2) the trial judge's alleged bias in favor of the State; (3) evidentiary rulings; and (4) improper jury instructions concerning evidence of other crimes. Rule 3:22-4(b) provides that a subsequent petition for post-conviction relief shall be dismissed unless it (1) is timely under Rule 3:22-12(a)(2), and (2) alleges on its face:
(A) that the petition relies on a new rule of constitutional law, made retroactive toDefendant does not argue that his third petition for PCR alleges, on its face, any of the three exceptions contained within the rule. Although defendant has not satisfied the exceptions to Rule 3:22-4(b), we have considered defendant's arguments on the merits and conclude that he has not established a prima facie case of ineffective assistance of counsel, and that an evidentiary hearing is unwarranted.
defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.
Nor does the State argue that defendant's third PCR is barred by the time limitation imposed by Rule, 3:22-12(a)(2), which provides that no second or subsequent petition shall be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; orWe note that the court sentenced defendant on April 26, 1995. Defendant filed separate petitions for PCR on March 11, 1998, January 3, 2000, and January 7, 2009.
(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.
We also reject defendant's argument that he was denied effective assistance of appellate counsel. The standard is the same two-prong test under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Appellate counsel "does not have a constitutional duty to raise every nonfrivolous issue requested by defendant." Jones v. Barnes, 463 U.S. 745, 746, 103 S. Ct. 3308, 3310, 77 L. Ed. 2d 987, 990 (1983). Here, it appears defense counsel chose what he considered to be the most promising arguments when the appeal was taken in 1997. And that was for him to do. We cannot "second-guess reasonable professional judgments and impose . . . a duty to raise every 'colorable' claim suggested by a client[.]" Id. at 754, 103 S. Ct. at 3314, 77 L. Ed. 2d at 995.
We are not persuaded by defendant's argument that his trial counsel was ineffective by failing to produce two letters timely, which impaired his ability to present a defense. He contends that he is entitled to an evidentiary hearing on the subject. We disagree.
The police chased defendant as he attempted to flee from the last armed robbery. They followed him as he entered a building, arrested him, and searched him. Detective William Robinson testified at trial that the police "recovered $108.00 in cash and $28.00 in food stamps, which [the detective] later found out w[ere] proceeds of the robbery." Defendant disputed that the cash and food stamps had anything to do with the crime.
At trial, defendant testified that he obtained the cash and food stamps as someone who "receive[s] social security and . . . food stamps." On direct examination, he gave the following testimony:
Q. Do you recall when you picked up your food stamps in January of 1994?
A: It was around the 3rd, the 3rd of January [three days before the arrest].
Q: Do you recall what your social security benefit is or was in January 1994?
A: $432.00 or four something like.
His counsel possessed one letter from the Social Security Administration and one letter from the "Food Stamp Office." Defendant argues that the letters would have corroborated his defense that he was entitled to Social Security and food stamp benefits. He argues that the benefits would have explained why cash and food stamps were found on him when he was apprehended.
The parties did not produce the letters on appeal.
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Although counsel possessed both letters "for quite some time," she deliberately did not produce them until after the State rested its case. The assistant prosecutor objected, and the judge sustained the objection and excluded them from admission into evidence.
The trial strategy of defendant's counsel was to withhold the letters until it was clear that defendant would testify. Defense counsel admitted to the trial judge, obviating the need for an evidentiary hearing, that "[she did not] believe they were going to be moved into evidence . . . [unless defendant] opted to testify[.]" After the State rested, defendant decided to testify. In other words, defendant's attorney strategically did not produce the letters sooner. Presumably, if defendant had decided not to testify, counsel would not have produced the letters.
The record fully supports Judge Nelson's conclusion that defendant failed to present a prima facie claim of ineffective assistance of counsel. See State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009) (noting that "[d]ecisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds"), certif. denied, 201 N.J. 155 (2010). "'Merely because a trial strategy fails does not mean that counsel was ineffective.'" Id. at 58 (quoting State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000)). Thus, we find that defendant has not established the first prong under Strickland.
Moreover, we conclude defendant has failed to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698. There was "substantial evidence of defendant's guilt," State v. Shabazz, supra, slip op. at 2, and it is not probable that the proceedings would have been different had the letters, which purportedly explained an alternative source for the cash and food stamps, been introduced into evidence. Thus, defendant failed to meet the second prong of Strickland.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION