STATE OF NEW JERSEY v. JOSEPH BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5684-03T45684-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH BROWN,

Defendant-Appellant.

_________________________________________

 

Submitted October 6, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County, Indictment No. 94-12-4083.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Patricia Drozd,

Designated Counsel, of counsel and on

the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Michael J.

Williams, Deputy Attorney General,

of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Joseph Brown appeals from a denial of his application for post-conviction relief. We affirm substantially for the reasons stated by Judge Goldman in his written decision of March 15, 2004.

In September 1994, Franklin Powell was shot in an apartment in the City of Newark. He died as a result of the gunshot wounds.

On December 1, 1994, the grand jurors for Essex County returned an indictment charging defendant and his codefendant Terrence Echols in six counts related to Powell's homicide. The charges were as follows: conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:3-11-3a; burglary in the second degree, contrary to N.J.S.A. 2C:18-2, murder, contrary to N.J.S.A. 2C:11-3a(1)-(2); felony murder, contrary to N.J.S.A. 2C:11-3a(3); unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5b; and, possession of a firearm with the purpose of using it unlawfully against another, contrary to N.J.S.A. 2C:39-4a. Codefendant Echols was charged in additional counts that did not include defendant.

Defendant was released on bail prior to and during trial. He had two trial attorneys. An experienced public defender handled the case until he was disqualified on the State's motion several weeks before trial. After the disqualification, an experienced private attorney agreed to assume responsibility as counsel designated by the public defender.

Codefendants were tried to a jury before Judge Goldman in June 1996. The jurors found both defendants guilty of aggravated manslaughter, a lesser included offense of purposeful or knowing homicide, felony murder, possession of a firearm without a permit and possession of a firearm with the purpose of using it unlawfully against another. The judge merged the convictions as required and imposed an aggregate term of life imprisonment, thirty years to be served without possibility of parole.

On August 15, 2000, this court affirmed defendant's judgment of conviction and sentence. State v. Brown, No. A-6508-96 (App. Div. Aug. 15, 2000) (slip op. at 105). The Supreme Court denied defendant's petition for certification on January 3, 2001. State v. Brown, 167 N.J. 629 (2001).

On April 17, 2001, defendant filed a petition for post-conviction relief. On May 22, 2003, Judge Goldman heard argument on and granted defendant's request for a hearing on whether his trial attorneys were ineffective because they failed to locate and produce witnesses, Fe-Fe Graham and her mother, who could have established that he was at his mother's home when Powell was shot.

Prior to scheduling the hearing, the court asked the attorney representing defendant on his petition for post-conviction relief whether the matter should be held in abeyance so that it could be considered with his codefendant's application, which had not yet been perfected. Defense counsel advised that there was no reason to delay because his client's claims were distinct. The judge asked about efforts to find Fe-Fe Graham. Defendant's lawyer explained: "They've attempted to locate, [Fe-Fe] Graham's mother[, who] is since deceased, and the defendant and the Public Defender's Office investigator ha[ve] spent a significant amount of time trying to track down Fe-Fe, [and] have been unable [to] at this time."

The hearing was conducted on November 14, 2003. Seven years after his trial and nine years after the homicide, defendant remained unable to produce any evidence to support his claim that, but for his attorneys' failure to conduct a competent investigation, he could have presented witnesses whose favorable testimony would have changed the outcome of his trial.

According to defendant's testimony, as he left his mother's home for the store on the day of Powell's shooting, Fe-Fe Graham and her mother, who lived a few houses away, warned him not to go because they had heard gunfire. Defendant told both of his attorneys about his conversation with the Grahams. He explained,

He told me that he would get his investigator, I think, if I'm not mistaken, Michael Blain, or that was [the first lawyer's] investigator, one of the two, but he said he was going to get his investigator on it immediately. I asked him, I think it was like maybe a week or so before trial, I asked him, you know, did he contact, did he send the investigator out to go see these people, and he told me, I went out there, and the investigator went out there, [and] nobody want[s] to talk to us, [be]cause they think we're the police.

When asked whether he had offered to go with the investigator or have someone else go as in intermediary, defendant explained: "That wasn't the issue. I spoke[] to them, they said that nobody []ever came out to see them. I said, 'All right, well, I'll send them back out here,' and they said he never came." Defendant acknowledged that at the time of trial he knew where the Grahams were and could have found them. He explained that his codefendant had been charged with tampering with a witness, and he was going through his lawyer.

Defendant also told his post-conviction relief attorney about the Grahams. Defendant's mother had information about Fe-Fe's location, she said that Fe-Fe had moved and that she was living between First and Orange Streets. However, on the day of the hearing defendant did not know her address.

Both of defendant's trial attorneys testified at the hearing. Neither recalled the details of any investigation conducted in connection with the trial. His first lawyer had a detailed recollection of defendant's description of the conversation with the Grahams, but not of the name Fe-Fe. The second lawyer recalled the name, but not the details. They both advised that an investigator had been involved in the case during the term of the first lawyer. The first lawyer recalled that "Michael Bland" was an investigator for his office at the time. They both admitted that they would have taken action to present a viable alibi defense if they had received useful or promising information.

Defendant's first attorney, who was responsible for his defense until a few weeks before the trial, testified that his file included a list of the names of potential witnesses. That list did not include a first name, nickname or surname identifiable to either of the Grahams. Defendant acknowledged that this lawyer "was doing a good job" while he was handling his case. The attorney's "file jacket" was no longer in the file when he reviewed it to prepare for the hearing. He testified:

There were no investigation requests written by me [in the file], which I was really surprised at when I saw the file. Either the rest of the file was somewhere else and didn't make it to [the second attorney], or didn't get included in his file. . . .

The only place that I didn't personally get a chance to look to was with the Appellate attorneys to see if they had requested the original file, because they sometimes want to see the discovery.

Although he had expected to see several investigation reports written by him in the file, there were none.

Defendant's second attorney explained that he considered the investigation complete when he took the case, just weeks before the trial date. After reviewing the file, including all discovery, he had a four-hour meeting with defendant. In preparation for the post-conviction relief hearing, he reviewed the file again. He found a file note, in his own handwriting, that referred to Fe-Fe, but he had no independent recollection of the contents or import of the note. Despite his belief that the trial date was firm and additional postponements were unlikely, he would have moved for more time to investigate a viable lead about a helpful witness. The theory of the defense was limited to demonstrating the weaknesses in the State's evidence.

Judge Goldman found that trial counsel, like counsel on defendant's application for post-conviction relief, had made unsuccessful efforts to locate the favorable witnesses, which they could not recall in detail. He concluded that defendant failed to establish that the performance of either attorney was deficient or that the witnesses would have given testimony that would have changed the outcome of defendant's trial.

Defendant's counsel raises one issue on appeal. He argues:

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF BASED UPON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

On September 7, 2005, defendant filed a supplemental pro se brief in which he raises three issues:

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT MISSTATED THE FACTS OF THE DEFENDANT'S TESTIMONY AT HIS HEARING FOR POST-CONVICTION RELIEF.

THE LOWER COURT COMMITTED REVERSIBLE ERROR BY FAILING TO ALLOW ORAL ARGUMENTS ON THE ISSUES RAISED IN THE DEFENDANT'S PRO SE LETTER BRIEF.

We have reviewed the record in light of the arguments presented and find that they lack sufficient merit to warrant discussion in a written opinion, and we affirm substantially for the reasons stated by Judge Goldman in his written decision of March 15, 2004. R. 2:11-3(e)(2). We add a brief explanation.

Defendant's supplemental brief raises several objections to the manner in which Judge Goldman proceeded with his petition. We find that the judge did not err in scheduling, limiting argument or unduly restricting the scope of the evidentiary hearing.

Defendant claims that the judge's opinion incorrectly reports that the defense opted to proceed with the evidentiary hearing rather than await the perfection of his codefendant's petition. The record establishes that the judge was not mistaken. The hearing was scheduled after consultation with defendant's attorney.

The judge did not limit testimony on matters that were the subject of the evidentiary hearing. He properly declined to permit questions related to ineffective assistance of counsel that had been addressed by this court on direct appeal.

R. 3:22-5. And, there was no basis for a hearing on defendant's claim that his appellate counsel was ineffective; performance of counsel on appeal is readily assessed on the basis of the record.

The court did not decide the matter without permitting appropriate oral argument. The trial court has broad discretion in determining whether to grant oral argument in defendant's presence on an application for post-conviction relief. See R. 3:22-10; State v. Flores, 228 N.J. Super. 586, 589-91 (App. Div. 1998), certif. denied, 115 N.J. 78 (1989). Defendant and his attorney submitted argument in writing. His attorney argued prior to the evidentiary hearing. A hearing was held, and the parties were given the opportunity to provide additional written submissions. There was no abuse of discretion.

Judge Goldman's conclusion that the evidence defendant presented at the hearing was inadequate to establish grounds for post-conviction relief is entitled to deference; his findings and conclusions are supported by substantial credible evidence in the record and dependent upon the judge's observation of the witnesses and the performance of trial counsel. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

 
We see no legal error in the judge's conclusion that defendant failed to establish the elements that were essential to his claim -- deficient performance by either attorney and a reasonable probability that the outcome at trial would have been different but for unprofessional error. See State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (discussing failure to present testimony), certif. denied, 162 N.J. 199 (1999).

Affirmed.

(continued)

(continued)

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A-5684-03T4

November 14, 2005