STATE OF NEW JERSEY v. HASHONA CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2865-03T42865-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASHONA CLARK,

Defendant-Appellant.

_______________________________________

 

Submitted September 19, 2005 - Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 90-05-1489.

Yvonne Segars-Smith, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel; Mr. Pierce, on the brief).

Jeffrey S. Blitz, Prosecutor, Atlantic County, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor; of counsel and on the brief).

PER CURIAM

Defendant Hashona Clark appeals from an order entered November 12, 2003 denying his petition for post conviction relief (PCR). We affirm in part, reverse in part and remand for an evidentiary hearing.

I.

After trial before a jury, defendant was convicted of conspiracy to commit armed robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; armed robbery, in violation of N.J.S.A. 2C:15-1; felony murder, in violation of N.J.S.A. 2C:11-3a(3); purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b; and tampering which physical evidence, in violation of N.J.S.A. 2C:28-6(1). On the murder conviction, the judge sentenced defendant to life imprisonment with a 30-year period of parole ineligibility. The judge also imposed a concurrent 20-year term with a 10-year parole ineligibility period on the armed robbery conviction. In addition, the judge sentenced defendant to a consecutive 18-month term on the conviction for tampering with evidence. The judge merged the remaining counts. Defendant appealed and, in an opinion filed March 11, 1994, we affirmed the conviction and sentences. State v. Hashona Clark (Docket No. A-6271-90T4). The Supreme Court denied defendant's petition for certification by order entered May 24, 1994. State v. Hashona Clark, 137 N.J. 166 (1994).

We briefly summarize the relevant evidence that resulted in defendant's conviction. At about 4:00 p.m. on January 30, 1990, John J. Egan, an employee of Harry's Gold Exchange in Atlantic City, was shot and killed during a robbery of the store. About $35,000 to $40,000 in jewelry was stolen. Geraldine Jackson testified that the night before the robbery, she stole a gun from Carl Vanderhurst, an officer of the Pleasantville Police Department, who was drunk at the time. Jackson had a long term relationship with Vanderhurst and, from time to time, she and Vanderhurst would exchange sex for money. Jackson testified that she gave the gun to Raymond Clark, defendant's brother, who left the gun in a safe in a friend's home.

Jackson testified that, the following day, January 30, 1990, at about 3:30 p.m., she overheard defendant and his brother planning a robbery. Jackson said that Raymond had the handgun that she had stolen from Vanderhurst. Defendant, Raymond and Jackson then boarded a bus for Atlantic City and went to Harry's Gold Exchange. Jackson served as the lookout while defendant and his brother went inside the store. In the course of the robbery, Raymond shot Egan. Raymond and defendant took the jewelry and left the store. They met Jackson, got on a bus and returned to Pleasantville where they divided the jewelry.

Defendant attempted to sell the murder weapon to Nick Briggs but he and Briggs could not agree upon a price. Briggs agreed, however, to alter the weapon so that it could not be traced by ballistic tests. Defendant gave Briggs several stolen rings for his efforts. When he was told that the gun had been used in a shooting, Briggs discarded the gun in the parking lot of the Pleasantville police station. His efforts to alter the gun apparently were unsuccessful. Tests later established that the gun had been used to kill Egan.

Concerned about the investigation, defendant began to make plans to flee and he contacted Danny Stalworth, who agreed to assist him. While defendant was meeting Stalworth, Stalworth received a call from Sergeant Ernest Jubilee of the Altantic County Prosecutor's Office, who told Stalworth about the robbery. Jubilee informed Stalworth that a man had been killed in the robbery. Jubilee also said that he had information that defendant and his brother were giving away jewelry in Pleasantville. Stalworth told defendant to leave. Later, Stalworth turned over to Jubilee certain items of jewelry he had received from defendant.

The police subsequently located defendant at his girlfriend's home. Defendant accompanied the officers to the prosecutor's office, where he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant agreed to give a statement and he told Jubilee that his brother and Jackson had done "a job." Defendant asserted that he was in school when the robbery and murder occurred. Defendant also told Jubilee that he had endeavored to sell the gun to Briggs but, when Briggs heard it had been used in a crime, he discarded the weapon.

Defendant was arrested and charged with tampering with physical evidence, receiving stolen property and the illegal transfer of a firearm. Defendant was incarcerated. Meanwhile, the investigators learned that a palm print recovered in the jewelry store matched that of defendant. Defendant was returned to the prosecutor's office and he was again advised of his rights under Miranda. Defendant denied participating in the robbery but when he was informed that his palm print matched the print found in the store, defendant admitted that he assisted his brother in committing the robbery. He said that his brother shot Egan.

However, at trial, defendant testified that he was not present at Harry's Gold Exchange on January 30, 1990 when Egan was killed. He denied that he was involved in the robbery in any way. Defendant testified that he made the statement to the officers admitting involvement in the crimes but he said that his statement was not true. Defendant asserted that he made the statement because the investigating officers were yelling and threatening him. He stated that the officers told him that he was going to get the death penalty and that his life, and that of his brother, depended upon whether he would confess or not.

Defendant further testified that he was in the Pleasantville High School at the time the crimes were committed. He admitted that he did not attend class that day but he said that he was at the school to meet Briggs. Defendant stated that Briggs was going to meet him because, the night before, defendant had given him the gun that Jackson had taken from the Pleasantville police officer. Defendant stated that this was the last time he saw the gun until the trial. Defendant also testified about coming into possession of the jewelry. Defendant said that the day after he gave Briggs the gun, Briggs came to see him in Pleasantville. Briggs told defendant that he did not have any money to pay for the gun, so he gave defendant the jewelry.

As stated previously, defendant was convicted of various crimes, including armed robbery and purposeful or intentional murder. His conviction and sentences were affirmed on appeal. Thereafter, defendant filed a petition for PCR. The petition was denied and defendant appealed. The appeal was withdrawn and dismissed by order entered October 1, 1999.

On May 9, 2002, defendant filed a motion to vacate the dismissal of the appeal and to reinstate the appeal. We referred the matter to the Public Defender, who filed a motion for summary disposition. We granted the motion, found that defendant had not received effective assistance of counsel for his PCR petition, and we permitted defendant to file a new petition. Defendant filed a petition on April 15, 2003. The Public Defender filed a supplemental petition on defendant's behalf on August 6, 2003. On October 29, 2003, the PCR judge denied the petition for reasons stated in an oral decision from the bench. This appeal followed.

Defendant raises the following contentions for our consideration:

POINT ONE: DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

A. TRIAL COUNSEL FAILED TO CALL TWO EYEWITNESSES TO THE CRIME AS DEFENSE WITNESSES.

B. TRIAL COUNSEL FAILED TO CALL THE ALIBI WITNESSES.

C. TRIAL COUNSEL FAILED TO ADEQUATELY CHALLENGE THE STATE'S FINGERPRINT EXPERT.

D. DEFENSE COUNSEL FAILED TO CONSULT A PSYCHOLOGICAL EXPERT CONCERNING THE STATE'S COERCIVE INTERROGATION TECHNIQUES.

E. DEFENSE COUNSEL FAILED TO REQUEST A CHARGE ON CERTAIN LESSER INCLUDED OFFENSES.

F. DEFENSE COUNSEL FAILED TO ADVISE DEFENDANT OF A PLEA OFFER.

G. DEFENSE COUNSEL DID NOT REQUEST A JURY CHARGE ON THE CREDIBILITY OF DEFENDANT'S CONFESSION.

H. DEFENSE COUNSEL FAILED TO REQUEST A CHARGE ON THE CREDIBILITY OF THE TESTIMONY OF DEFENDANT'S ACCOMPLICES.

I. DEFENSE COUNSEL DID NOT OBJECT TO CERTAIN IMPROPER REMARKS BY THE PROSECUTOR IN THE CLOSING ARGUMENT, WHICH IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO DEFENDANT.

POINT TWO: THE CUMULATIVE ERRORS BY DEFENSE COUNSEL ESTABLISH THAT DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT THREE: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT FOUR: THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.

II.

In order to establish a denial of the effective assistance of counsel, defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Fritz, 105 N.J. 42, 52 (1987)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). The attorney's errors must be shown to have been so egregious that defendant was effectively denied his right to counsel under the Sixth Amendment to the United States Constitution. Ibid. In addition, defendant must show that, because of the errors of the attorney, he was denied his right to a fair trial. Ibid.

In reviewing a claim of ineffective assistance of counsel, the court must avoid the "distorting effects of hindsight." State v. Norman, 151 N.J. 5, 37 (1997)(quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694)). There is a strong presumption that defense counsel acted within the broad range of reasonable professional competence and defendant must overcome the presumption that the alleged error "might be considered sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Moreover, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. Defendant must establish that there is 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.

With these principles in mind, we turn first to defendant's contention that he was denied the effective assistance of counsel because his trial counsel did not seek instructions on certain lesser included offenses, specifically theft by receiving stolen property and aggravated manslaughter. In defendant's direct appeal, he argued that the judge erred by failing to instructed the jury on these offenses. In addressing this contention, we noted that counsel had not requested the instructions but the judge's failure to charge these offenses sua sponte was not plain error. We concluded that defendant was not prejudiced by the absence of these charges. Therefore, we are convinced that counsel's failure to seek instructions on these offenses was not an error that rises to the level of the ineffective assistance of counsel.

Defendant next contends that his counsel erred in failing to object to certain statements by the prosecutor in summation. Defendant argues that the prosecutor improperly shifted the burden of proof to defendant by pointing out that defendant had not produced certain witnesses and evidence at trial. In his closing argument, the prosecutor pointed out that there had not been any evidence of a "falling out" between defendant and his "friends" who testified against him at trial. The prosecutor also responded to defense counsel's assertion that the palm print found in the jewelry store could have been that of defendant's brother. The prosecutor said, "You never heard his qualifications in fingerprints, did you? You never heard him say he knows anything about fingerprints."

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J 76, 82 (1999)(citing State v. Harris, 141 N.J 525, 559 (1995)). Prosecutors are expected to make "vigorous and forceful closing arguments to juries." Ibid. Here, the prosecutor's remarks concerning the testimony of defendant's accomplices were fair comment on the credibility of these witnesses. In addition, the prosecutor's comment regarding the fingerprint testimony was a fair response to the summation by defense counsel. We are satisfied that the lack of objection by defense counsel to the prosecutor's closing argument was not erroneous, and if it was, it is not sufficient to establish the ineffective assistance of counsel.

We reach the same conclusion respecting defendant's contention that his counsel erroneously failed to consult a psychological expert to assist in advancing defendant's contention that he was subjected to coercion in his custodial interrogation. Defendant asserts that the interrogators engaged in an assortment of "coercive tactics" in obtaining defendant's confession. However, as the judge found in denying the PCR petition, defendant never claimed that his confession resulted from some psychological disorder or mental illness. Moreover, the relevant facts concerning the interrogation were brought both forth at the suppression hearing and at trial. We are not convinced that, in these circumstances, counsel's failure to seek the advice of a psychologist was erroneous or that the result of the proceeding would have been different had such advice been obtained.

Defendant additionally contends that he was denied the effective assistance of appellate counsel. Defendant asserts that appellate counsel erred in failing to argue on appeal that the trial court erred by not suppressing defendant's confession because he requested an attorney prior to making his statements. Defendant further contends that appellate counsel failed to seek reversal of the conviction because of the prosecutor's allegedly improper comments in summation. We are satisfied that counsel's failure to raise these points on the appeal does not constitute the ineffective assistance of counsel.

Here, following the suppression hearing, the judge found that defendant did not request an attorney prior to making his custodial statements. An appellate court will not disturb such a factual finding if it is based on substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). In our view, the judge's finding had ample support in the evidence, specifically the testimony of Detective Ronald DiGiovanni of the Atlantic City police force, which the judge found more credible than that of defendant. We are convinced that, had the contention been raised on appeal, it would not have been successful. In addition, the conviction would not have been reversed based on the prosecutor's allegedly improper remarks in his closing argument. Therefore, we are convinced that appellate counsel did not err in failing to raise these issues on appeal.

III.

Although we are satisfied that the PCR judge did not err in finding no merit in the contentions we have discussed previously, we are satisfied that an evidentiary hearing should have been conducted on defendant's claim that trial counsel erred by: 1) failing to call two eyewitnesses as witnesses at trial; 2) not calling two alibi witnesses; 3) not consulting an expert for the purpose of challenging the testimony of the State's fingerprint expert; 4) failing to seek instructions on the credibility of defendant's statements and the testimony of his accomplices; and 5) failing to advise defendant of the State's plea offer.

The trial court ordinarily should grant an evidentiary hearing to resolve the claim if defendant has made a prima facie showing that he or she was denied the effective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). A hearing is warranted when defendant demonstrates a reasonable likelihood of succeeding on the claim. Id. at 463. The PCR judge should treat the petition in the same manner as the judge would handle a summary judgment motion, and the judge must view the facts in the light most favorable to defendant. Id. at 462-63. A claim of ineffective assistance of counsel "is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required." Id. at 462.

Defendant contends that his attorney failed to call as witnesses two individuals who were in or around the jewelry store at the time the crimes were committed. The record shows that Charles Haywood gave a statement to the police in which he asserted that he was in the jewelry store at about 4:00 p.m. on January 30, 1990. Haywood said that he saw two black males in the store. Haywood asserted that one of the men walked behind the counter and the other man left the store. According to Haywood, the first man began taking jewelry from the display case and placing it in a black bag. He left the store and met the other man. Haywood gave descriptions of both men but when shown a photo array, he was unable to identify defendant as one of the two men he had observed.

The other witness was Lisa Brinson. She gave a statement to the police in which she asserted that she observed two black men enter the jewelry store on January 30, 1990. She said that she heard gun shots. Brinson also was shown a photo array but she could not identify defendant as one of the two men she had seen in the store.

As we stated in our opinion on the direct appeal, there was overwhelming evidence that defendant was guilty of the crimes for which he was charged. However, the record fails to disclose the reasons why defense counsel elected not to call Haywood and Brinson as witnesses. On this record, we cannot determine whether counsel's apparent strategic decision was erroneous or whether the testimony of these individuals may have led to a different result at trial.

Defendant also identified two witnesses who he claims would have supported his assertion that he was at the Pleasantville High School when the crimes took place. Angie Pebler was a teacher at the school in January 1990. Pebler gave a statement to the police on March 7, 1990. She told the police that defendant did not attend her class on the date the crimes were committed. However, Pebler said that she recalled seeing defendant in the hallway of the school with another student. Pebler told the police that she was with another teacher, Effie Jenkins-Smith, when she saw defendant but Pebler could not recall the precise day she had seen defendant in the hallway. In 2003, Pebler told an investigator that, with the passage of time, she could not swear that she had seen defendant on the afternoon of January 30, 1990. She also said that at the time of the incident, defendant was giving gold earrings to girls at the school.

The record does not disclose whether defense counsel ever interviewed Pebler or Jenkins-Smith. The record does not reveal defense counsel's reasons for not calling these individuals as witnesses. In our view, the record is insufficient for us to determine whether counsel's failure to call either witness was erroneous or whether the testimony of these individuals may have led to a different result at trial.

Defendant additionally argues that his trial counsel failed to adequately contest the State's fingerprint evidence. The record does not disclose whether defense counsel consulted with an expert to analyze the State's evidence and to provide assistance in cross-examining the State's expert. Defendant asserts that a fingerprint expert "could have opined" that the print found in the jewelry store was not defendant's palm print, or could have raised sufficient doubt on that point.

The record does not reveal what steps, if any, were taken by defense counsel to investigate grounds for contesting the State's evidence. The palm print was a key piece of evidence tying defendant to the crimes in the jewelry store. On this record, we cannot determine whether defendant was denied the effective assistance of counsel due to the alleged failure of his attorney to adequately contest the State's evidence identifying the palm print found in the store as that of defendant.

Defendant further argues that trial counsel erred by failing to seek jury instructions concerning the credibility of his custodial statements and the credibility of the testimony of his accomplices. We recognize that in defendant's direct appeal we concluded that the absence of these instructions was not reversible error. However, counsel's failure to object resulted in our consideration of the failure to charge under the more rigorous plain error standard in R. 2:10-2. The record does not disclose why counsel failed to seek these instructions. The record is insufficient for us to determine whether the result here would have been different if the charges had been requested and the jury instructed on these issues.

Finally, defendant contends that trial counsel erred by failing to discuss the State's plea offer with him. The record shows that the State offered a plea of life with a 30-year period of parole ineligibility. He was sentenced to a longer term because the judge also imposed a consecutive eighteen month term for tampering with evidence. The plea offer may therefore be viewed as somewhat more favorable than the sentence imposed after trial.

The failure of defense counsel to communicate a favorable plea may in certain circumstances constitute the ineffective assistance of counsel. State v. Powell, 294 N.J. Super. 557, 564-566 (App. Div. 1996). Defendant contends that counsel did not discuss this plea with him and therefore he did not realize that he was facing a more severe sentence if the matter proceeded to trial. In denying relief, the PCR judge stated that defendant knew the terms of the plea offer from the pre-trial memorandum and court proceedings. However, the defendant says otherwise. In view of this disputed issue of material fact, we are convinced that an evidentiary hearing should be conducted to establish what, in fact, defense counsel told defendant concerning the plea offer.

Therefore, we affirm in part and reverse in part the order denying defendant's PCR petition. We remand for an evidentiary hearing on defendant's claim that he was denied the effective assistance of counsel because his trial attorney: 1) failed to call Charles Haywood and Lisa Brinson as witnesses at trial; 2) did not call Angie Pebler and Effie Jenkins-Smith as witnesses; 3) did not adequately contest the State's fingerprint evidence; 4) did not seek charges on the credibility of defendant's custodial statements and the testimony of his accomplices; and 5) did not advise defendant of the State's plea offer.

Affirmed in part, reversed in part, and remanded for an evidentiary hearing in conformity with this opinion.

 

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A-2865-03T4

October 3, 2005