STATE OF NEW JERSEY v. HENRY ADAMSON

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5921-03T4
5921-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY ADAMSON,

Defendant-Appellant.

__________________________________

 

Submitted October 11, 2005 - Decided

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County,

98-01-0081.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Henry Adamson, appeals from a dismissal of his petition for post conviction relief (PCR). We affirm. The facts and procedural history are substantially undisputed.

On January 15, 1998, the Passaic County grand jury returned a multiple count indictment charging defendant and five others with offenses stemming from a single incident that occurred on December 14, 1996, in Passaic at 3:00 a.m., when an after hours social club was held up by men wearing masks and carrying firearms. Defendant was charged with: second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); first-degree attempted murder, N.J.S.A. 2C:11-3 (Count Two); five counts of first-degree (armed) robbery, N.J.S.A. 2C:15-1 (Counts Three, Five, Seven, Nine, and Eleven); five counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (Counts Four, Six, Eight, Ten, and Twelve); three counts of second-degree possession to use weapons unlawfully against others, N.J.S.A. 2C:39-4a (Counts Thirteen, Fifteen, and Seventeen); and three counts of third degree unlawful possession of weapons, N.J.S.A. 2C:39-5 (Counts Fourteen, Sixteen, and Eighteen). Defendant was also charged with second-degree possession of weapons by certain persons, N.J.S.A. 2C:39-7, for which he was tried separately.

During the grand jury proceedings, one juror revealed a potential conflict of interest. The assignment judge examined the juror to determine whether the juror could make a fair and impartial decision in the case. The following colloquy took place between the judge and the juror:

THE COURT: Now, in terms of the three cases today, as [sic] the Prosecutor indicated the names to you?

JUROR: Ah.

THE COURT: Of the witness? Police officers?

JUROR: Well, yeah.

THE COURT: Do those names ring a bell with you?

JUROR: Just the names, yes.

THE COURT: Okay. Do you conjure up a mental picture of who they are by just looking at their - - at their written names.

JUROR: You mean knowing them by face? Yes.

THE COURT: Okay. Are you socially friendly with any of the officers who are listed to testify today?

JUROR: No.

THE COURT: It's strictly a business relationship?

JUROR: Yes.

THE COURT: Can you give me some idea of what that business relationship involves, how frequently you interact with them and so forth?

JUROR: Just by testifying in court, if they have a case on, or with the detectives bringing the complaints down for me to sign, you know, warrants, and that's about it.

THE COURT: Now, you recognize that as a Grand Juror you are obligated to decide each case solely on the bases of your information that you hear in court.

JUROR: Right.

THE COURT: And there would be, as I said during the charge to you last Friday, it would be absolutely improper for any outside influence to affect you [sic] thinking.

JUROR: Right.

THE COURT: Do you think you could be able to put aside whatever you know about these individual police officers and decide each matter presented solely and exclusively on the bases of the evidence presented?

JUROR: Yes.

THE COURT: . . . When you assess the credibility of any witness that might testify are they telling the truth or not --

JUROR: Mm-hmm.

THE COURT: -- would you be able to do it with the officers with the same degree you would with others or would you in any way automatically believe them just because they're with the city of Passaic Police Department.

JUROR: No.

THE COURT: You'd be able to do it the same way for everybody?

JUROR: Same way with everybody else, yes.

The judge permitted the juror to participate in the grand jury proceedings, but cautioned the juror not to indicate that he knows a detective or that a detective would never lie. The juror responded that he would comply.

On June 16, 1998, the trial judge held a Miranda hearing. At the hearing, two police officers corroborated each other's testimony that defendant was read his Miranda rights. Detective-Sergeant Julius Cirelli gave defendant his Miranda rights and took defendant's statement. Detective Michael LaGreca was present, standing in the doorway, when Cirelli read defendant his rights. Defendant, however, testified that he was not read his rights. He indicated that he was not familiar with police procedures, despite having been previously convicted of two criminal offenses because he was not advised of his constitutional rights on either prior occasion. Defendant also testified that the police threatened to charge his girlfriend with conspiracy and told him that it was in his best interest to make a statement. The trial judge determined that defendant was not credible and found the detectives had in fact advised defendant of his rights. During the trial, defendant renewed his motion to dismiss the indictment on Miranda grounds. The judge again denied the motion.

On June 25, 1998, following a three day trial, the jury acquitted defendant of murder but found him guilty of the remaining counts. On October 9, 1998, defendant's motion to dismiss the indictment on the grounds of grand juror bias was denied and the judge sentenced defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, to a term of life with twenty-five years of parole ineligibility on the first-degree armed robbery conviction and a consecutive ten-year term with five years of parole ineligibility on the second-degree weapons conviction. Defendant filed his notice of appeal on January 13, 1999. On October 5, 2000, we affirmed the conviction and sentence in an unreported opinion. The Supreme Court denied certification on January 29, 2001. State v. Adamson, 167 N.J. 90 (2001).

On June 26, 2001, defendant filed his pro se PCR application. An amended PCR application was filed on September 19, 2003, contending ineffective assistance of trial counsel for failing to: (1) move to dismiss the indictment on the grounds of juror bias prior to trial; (2) obtain the police log to determine what hours LaGreca worked the day defendant was purportedly read his Miranda rights; (3) obtain a handwriting expert to analyze both detectives' writing on the Miranda card. Defendant also asserted ineffective assistance of appellate counsel for failure to raise the Miranda rulings as error.

Defendant's PCR application was heard by Judge Subryan on April 29, 2004. Rejecting defendant's arguments, Judge Subryan found that the assignment judge's voir dire of the grand juror was "more than sufficient," and established that the juror did not have a personal relationship with the law enforcement officers, and the fact that he knew them would not impact on his ability to be impartial. Judge Subryan also found that there was "no bias . . . readily apparent," and that counsel's failure to raise the issue prior to trial was not unreasonable. The judge also observed that defendant had not submitted any evidence to demonstrate that the results would have been different had trial counsel moved to dismiss the indictment prior to the trial rather than after the jury returned its verdict.

Regarding defendant's contention that trial counsel failed to obtain the log sheets, Judge Subryan recognized that defendant had not been able to obtain the log sheet or any other evidence that Detective LaGreca was not working that evening. He found that defendant's contention that LaGreca was not working was no more than "bare speculation." The judge also rejected for the same reason defendant's claim that trial counsel's failure to obtain a handwriting expert was tantamount to ineffective assistance. Again, defendant presented no evidence to indicate that the signatures on the Miranda card were not authentic. Accordingly, Judge Subryan noted that the trial judge decided the issue on credibility and that defendant did not present any evidence that the results of the Miranda hearing would have been different had the log been found or a handwriting expert been retained. Regarding appellate counsel's failure to raise these same Miranda issues on appeal, Judge Subryan observed that defendant had

raised no further argument with regard to the Miranda issue other than the second argument that he was not read his Miranda warnings and Detective LaGreca did not witness a reading of those rights. As aforementioned, this bare assertion does not suffice for a prima facie claim of ineffective assistance of appellate counsel.

On appeal, defendant raises the following points:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

II. POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE REPRESENTATION FOR DEFENDANT.

III. DEFENDANT'S SENTENCE WAS ILLEGAL BECAUSE THE JUDGE IMPOSED A SENTENCE HIGHER THAN THE PRESUMPTIVE BASED ON A FINDING OF FACT NOT REFLECTED IN THE JURY'S VERDICT AND BECAUSE HE FOUND THOSE FACTS UNDER A PREPONDERANCE-OF-THE-EVIDENCE STANDARD. (Not Raised Below).

Defendant argues, as he did before Judge Subryan, that he received ineffective assistance of trial and appellate counsel for failing to further investigate the factual circumstances surrounding his statement, specifically, obtaining the police log and a handwriting expert, as well as failing to raise grand juror bias prior to trial.

We are satisfied that defendant's contentions respecting ineffective assistance of counsel, in light of the record and the arguments presented, are devoid of all merit. R. 2:11-3(e)(2). Defendant has failed to establish ineffective assistance of counsel at any level. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We affirm substantially for the reasons expressed by Judge Subryan in his comprehensive bench opinion delivered on April 29, 2004.

Nevertheless, we make the following additional observations, focusing first on defendant's claim that the assignment judge improperly questioned potential jurors. The right to a fair and impartial jury is guaranteed under both the Federal and the State Constitutions, and "applies to all phases of the trial including jury selection." State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002); see U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10. The trial court is endowed with the "duty 'to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process.'" State v. Marshall, 123 N.J. 1, 75 (1991) (quoting State v. Williams, 93 N.J. 39, 63 (1983)), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Broad discretion is afforded the trial court in carrying out the jury selection process:

Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and "its exercise of discretion will ordinarily not be disturbed on appeal."

[State v. Williams, 113 N.J. 393, 410 (1988) (quoting State v. Jackson, 43 N.J. 148, 160 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)).]

Further appellate review of the jury-selection process is generally limited to determining whether "the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury." State v. Biegenwald, 106 N.J. 13, 29 (1987). The Court has explained the rationale for this deference to the trial court:

Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror's credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror's demeanor during the course of voir dire--observations which an appellate court is precluded from making.

[State v. Singletary, 80 N.J. 55, 63 (1979).]

Here, contrary to defendant's contention, the assignment judge's questioning was sufficiently searching to seek out and expose any bias that might have existed. He was also in the best position to weigh the juror's credibility and assess whether he was truthful and could be fair and impartial. Counsel's failure to attack the validity of the indictment prior to trial did not amount to ineffective assistance of counsel. A pretrial motion to dismiss the indictment on the grounds of grand juror bias would not have been successful. Even if it could be said that there was procedural impropriety in the grand jury proceedings, which there was not, defendant's subsequent guilty verdict renders any such irregularities harmless. State v. Lee, 211 N.J. Super. 590, 599-600 (App. Div. 1986).

Likewise, we agree with Judge Subryan that defendant fails to assert specific facts evidencing the existence of a prima facie case warranting an evidentiary hearing respecting ineffective assistance of trial and appellate counsel insofar as his Miranda rights are concerned. Where "defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Judge Subryan properly found that defendant's contention that the results of viewing the log sheet and a handwriting analysis would support his testimony that he was not given his Miranda rights was based upon pure speculation.

Finally, we address defendant's contention, raised for the first time on appeal, that his sentence violates the constitutional considerations announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). While this appeal was pending, our Supreme Court decided State v. Natale II, 184 N.J. 458, 466 (2005), holding, "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Recognizing, however, that "[f]ull retroactivity would overwhelm our courts with resentencings and impose a devastating burden on the judiciary," the Court limited its holding to cases on direct appeal as of the date of its decision or to those defendants who raised Blakely claims at trial or on direct appeal. Id. at 494. Defendant's direct appeal did not raise the constitutional validity of our sentencing scheme and was filed more than four years prior to the decision in Blakely. Accordingly, defendant's constitutional claims respecting sentencing are not cognizable on this appeal.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant's Point III heading as it appears in the Table of Contents fails to note that the Blakely issue was not raised below, as required by R. 2:6-2(a)(1).

(continued)

(continued)

13

A-5921-03T4

November 1, 2005

 


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