STATE OF NEW JERSEY v. KHALIL CALDWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1042-04T41042-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHALIL CALDWELL,

Defendant-Appellant.

_____________________________

 

Submitted October 25, 2005 - Decided February 8, 2006

Before Judges Hoens and Seltzer.

On appeal from Denial Of Post- Conviction

Relief in the Superior Court of New Jersey,

Law Division, Criminal Part, Union County,

95-08-0909.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, on the brief).

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent

(Steven J. Kaflowitz, Assistant Prosecutor,

of counsel and Amy F. Newcombe, Law Intern,

on the brief).

PER CURIAM

Defendant appeals from a denial of his second post-conviction relief (PCR) application. We affirm.

A Union County grand jury returned Indictment No. 95-8-909,

charging defendant with seven counts, all of which related to the death of Raul Hernandez. At defendant's trial, the State produced evidence that the victim was a drug dealer who defendant and a co-defendant intended to rob; and that, during the course of the robbery, the co-defendant shot, and mortally wounded, the victim. The prosecutor also produced a statement given by the defendant to the police admitting his participation in the robbery. Defendant's statement was the subject of a motion to suppress, which was denied after a hearing. On June 4, 1996, the jury convicted defendant of aggravated manslaughter, felony murder, armed robbery, and possession of a handgun for an unlawful purpose.

On December 6, 1996, the trial judge merged the convictions for aggravated manslaughter and armed robbery into the conviction for felony murder and imposed a sentence on that conviction of life imprisonment, with a thirty-year period of parole ineligibility. He also imposed a concurrent ten-year sentence on the charge of possession of a handgun for an unlawful purpose. In an unpublished opinion, we affirmed defendant's conviction, although we modified the sentence somewhat. State v. Caldwell, No. A-6076-96T4 (App. Div. October 29, 1998). The Supreme Court denied defendant's petition for certification. 157 N.J. 648 (1999).

Defendant then filed a petition for post-conviction relief.

Pursuant to R. 3:22-6(a), counsel was assigned to represent

him. After considering the arguments of counsel, Judge Katherine Dupuis denied defendant's petition. We affirmed in another unreported opinion, State v. Caldwell, No. A-1217-00T4 (App. Div. May 23, 2002), and the Supreme Court denied certification. 174 N.J. 362 (2002).

This second PCR petition was filed on December 12, 2002. The basis for both the initial post-conviction relief and this application relates to the admission, at trial, of the statement made by defendant to the police shortly after the shooting with which he was charged. Defendant, who had been identified by two eye witnesses as one of the assailants, was taken to the police station where he executed a Miranda form and gave an oral statement. At the close of that initial interview, defendant agreed to execute a typewritten statement. That agreement was not recorded.

The police inquiry and the ensuing dialogue, however, were recorded by a stenographer who typed a transcript as the statement proceeded. The police began the process of taking that recorded statement by asking whether defendant had been advised of his Miranda rights and if he understood those rights. Defendant answered affirmatively to both questions. He was then asked if he wished to give a voluntary statement and he answered "no." The investigating officer responded by saying "something to the effect of '[W]ait a minute, I thought you wanted to give a statement and tell us about the shooting.'" Defendant acknowledged that he did, indeed, mean that he wanted to give a voluntary statement. The typist, however, did not correct the answer to the third question and did not record either the officer's statement or defendant's correction. Defendant then proceeded to confirm his involvement in the robbery.

Defendant reviewed the typewritten statement, initialed each page, and executed it. He did not, however, make any changes to the negative answer he had initially given when asked if he wanted to proceed with a statement that would be memorialized. Defendant then asked to make some phone calls, was brought to an office, and called his aunt, Diane Brown. Defendant has asserted that during this call he told his aunt that he was being forced to give a statement.

In any event, the telephone call ended and defendant came back to the interview room where the police had discovered that the stenographer had not recorded defendant's correction of the negative answer to the question concerning his willingness to give a statement. Defendant made another phone call and returned, after which he crossed out the word "no" and wrote in, and initialed, the word "yes."

Prior to trial, defendant moved to suppress the statement and Judge Wertheimer conducted a hearing. The hearing centered on defendant's assertion that his statement had been coerced. He testified that he had declined to give a statement and that the change of the word "no" to the word "yes" was forged. Judge Wertheimer found the police testimony that defendant always intended to give a voluntary statement was credible and the defendant's contrary testimony was not. Specifically, the judge found that "when defendant answered no, the police said, wait a second, you mean no, I thought you wanted to talk to us about it. The guy said, I don't mean no, I mean yes."

Judge Wertheimer also discounted defendant's claim that he had called his aunt and told her that he was being forced to provide a statement. The judge's rejection of that claim was premised, in part, on defendant's failure to produce Ms. Brown as a witness in the suppression hearing. Having found that defendant's statement was voluntarily given after the appropriate warnings, the judge admitted the statement.

Defendant's first post-conviction relief application claimed ineffective assistance of both trial and appellate counsel with respect to the conduct of the suppression hearing, but there was no claim made with respect to the failure of trial counsel to call defendant's aunt. As we have said, that application was denied and the denial was affirmed on appeal.

Defendant now argues his first PCR counsel provided ineffective assistance because he did not raise the failure of trial counsel to call Ms. Brown as a witness in the suppression hearing. Specifically, defendant argues that had trial counsel called Ms. Brown at the suppression hearing, the statement would have been suppressed and defendant would not have been convicted. From this argument, defendant concludes that if his first PCR counsel had raised that failure, the conviction would have been reversed.

In addition to the claim of ineffective assistance of his first PCR counsel, defendant's second application raised two other claims relating to what he claimed were errors that fatally tainted his conviction. Judge Dupuis declined to address those claims, finding that they were barred, both because they were raised more than five years after defendant's conviction, see R. 3:22-12, and because they might have been raised on direct appeal, see R. 3:22-4. Judge Dupuis' refusal to hear the second PCR application, insofar as it asserted trial errors, was legally correct.

The judge determined that defendant's claim that his first PCR counsel rendered ineffective assistance was not barred. She found that, although the second petition was filed more than five years after his conviction, it was filed promptly after the conclusion of the first PCR proceeding. The judge concluded: "Further, the sole issue on this PCR surrounds the effectiveness of his [first] PCR counsel. As such, his petition could not have been raised" within five years of his conviction.

Judge Dupuis recognized that, to prevail on the claim that his first PCR counsel was ineffective, defendant was required to demonstrate that counsel's performance was below an objective standard of reasonableness and that there is a reasonable probability that, but for the deficient performance, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694; 104 S. Ct. 2052, 2064, 2068; 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Judge Dupuis assumed that counsel's representation fell below the appropriate standard when he failed to call Ms. Brown. She concluded, however, that Ms. Brown's testimony, although confirming that of defendant, would not probably have changed the result. That conclusion is appropriate, and the facts on which it was based were well supported in the record. When he considered defendant's motion to suppress, Judge Wertheimer had rejected defendant's claim that his statement was not voluntary, in large part, because he found defendant's testimony "incredible" and accepted the testimony of the police officers that the statement was given voluntarily in an attempt to distance defendant from the actual shooter. The testimony of defendant's aunt, confirming defendant's testimony that he had told her that he was being forced to provide a statement, was unlikely to change that credibility finding. We have no warrant to disturb Judge Dupuis's denial of the PCR application. See

State v. Arthur, 184 N.J. 307, 320 (2005). Moreover, the overwhelming evidence of defendant's guilt, aside from his statement, compels the conclusion that no different result would have been reached had the statement been excluded. In those circumstances, no action by us is warranted. State v. Simon, 79 N.J. 191, 207 (1979).

Defendant's second petition also claimed that his first PCR counsel failed to meet with him. Judge Dupuis did not deal specifically with this claim in her written opinion. Nevertheless, our independent review of the record discloses no evidence to support that assertion, other than defendant's self-serving statement, while there are several indications in this record that counsel and defendant had met on several occasions. In any event, defendant does not suggest any specific prejudice resulting from the failure to consult. To the extent defendant claims the failure to raise the issue of the appearance of his aunt was a result of the failure to consult, that issue has become moot by virtue of our determination that Ms. Brown's testimony would not have probably changed the result.

 
Finally, defendant argues that he should have been afforded an evidentiary hearing on his claims. Such a hearing is required only after a prima facie showing of ineffectiveness of counsel has been made. State v. Preciose, 129 N.J. 451, 462 (1992). No such showing was made here.

Affirmed.

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

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A-1042-04T4

February 8, 2006