STATE OF NEW JERSEY v. WARREN MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3430-04T43430-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARREN MILLER,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 4, 2006 - Decided April 26, 2006

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 99-03-0419.

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

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

Appellant filed a pro se supplement brief.

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition and his request for an evidentiary hearing. The indictment charged defendant with first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1)(2), and other offenses. The jury convicted defendant of a lesser-included offense, first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and related weapons offenses. Defendant was sentenced for aggravated manslaughter to an extended term as a persistent offender, see N.J.S.A. 2C:44-3a, of life imprisonment, subject to a parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, of sixty-three years, nine months. Concurrent terms of imprisonment were imposed on the weapons offenses.

Defendant appealed. In an unreported decision, we affirmed his conviction but remanded for reconsideration of the parole disqualifier. (A-5279-99T4, March 27, 2002). As a result, the period of parole ineligibility was reduced to twenty-five years, six months. In September 2002, defendant filed a pro se PCR petition. Counsel was assigned, and on October 21, 2004 he submitted a brief on defendant's behalf. An unsigned copy of an affidavit by defendant had been submitted to the court as part of the PCR application.

The matter came on for hearing on December 3, 2004. The judge heard oral argument, at the conclusion of which he directed that defense counsel submit a portion of the trial transcript that would reflect the colloquy regarding defendant's election not to testify. The judge noted that until he reviewed that portion of the transcript he was not prepared to rule on the issue raised regarding defendant's failure to testify. With respect to the other issues raised by defendant in the PCR proceeding, the judge expressed the view that defendant failed to establish a prima facie case of ineffective assistance of trial or appellate counsel, and was therefore not entitled to an evidentiary hearing or to relief in the PCR proceeding. The judge stated that he would issue a written decision, which he did on January 6, 2005. In the interim, the judge received and reviewed the requested portion of the trial transcript. The judge denied defendant's PCR petition in its entirety. This appeal followed.

Defendant argues on appeal:

POINT ONE

THE LOWER COURT SHOULD HAVE HELD A FULL EVIDENTIARY HEARING ON THE DEFENDANT'S CLAIM OF THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE APPELLATE COUNSEL FAILED TO COMMUNICATE WITH THE DEFENDANT, WHICH RESULTED IN A DEFICIENT APPEAL AND THE LACK OF A PRO SE APPEAL BRIEF.

POINT TWO

THE DEFENDANT'S POST CONVICTION ATTORNEY DENIED THE DEFENDANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FASHION EFFECTIVE ARGUMENTS, FAILING TO AMEND THE DEFENDANT'S AFFIDAVIT AND BY DISPLAYING LITTLE FAMILIARITY WITH THE DEFENDANT'S POST CONVICTION CLAIMS. (Not Raised Below).

These arguments, presented by defendant's counsel, have been supplemented by a pro se supplemental brief, with attachments, from defendant, which we have also reviewed and considered. We reject defendant's arguments and affirm.

Defendant's first argument alleges ineffective assistance of his appellate counsel on the direct appeal. He complains that appellate counsel did not communicate with him and did not raise the issue of prosecutorial misconduct based upon a comment by the prosecutor in her opening statement. He further contends that because of the lack of communication, he was precluded from filing a pro se brief which "would have certainly raised the prosecutorial misconduct claim as well as other issues." We find this argument unpersuasive.

For a defendant to be entitled to relief because of a claim of ineffective assistance of counsel, he must satisfy the Strickland/Fritz test, and establish that counsel's performance was deficient and that a reasonable probability exists that but for counsel's unprofessional errors the result of the proceeding would have been different. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. 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). Evidentiary hearings in conjunction with such claims are discretionary. State v. Preciose, 129 N.J. 451, 462 (1992). To be entitled to such a hearing, a defendant must establish a prima facie case of ineffective assistance. Ibid. The PCR petition must be verified by defendant and must set forth with specificity the facts upon which the claim is based. R. 3:22-8. Bare assertions or conclusions will not suffice to establish the requisite showing. State v. Cummings, 321 N.J. Super. 154, 165-66 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We first note that, except for the prosecutorial misconduct issue, defendant has not identified any "other issues" that he or his attorney could have raised on direct appeal. Therefore, there are no other issues for our consideration with respect to appellate counsel, and, even if there was a complete lack of communication between that counsel and defendant, no issue other than the alleged prosecutorial misconduct has been raised. That is to say, a lack of communication would shed no light on the merits of the prosecutorial misconduct issue. If appellate counsel was deficient for not raising that issue, the deficiency exists whether or not counsel communicated with defendant. Likewise, if counsel was not deficient for failing to raise it, or if the deficiency would not have had the probability of changing the result of the appeal, defendant would nevertheless not be entitled to relief, with or without communication.

In the PCR proceeding, defendant identified the alleged prosecutorial misconduct only by making a general reference to a comment in the prosecutor's opening statement which resulted in a defense motion for a mistrial that was denied. In the present appeal, defendant has done the same. He has not specifically set forth what the prosecutor said that allegedly constituted reversible error, but has again spoken only in terms of generalities.

We have reviewed the trial record. In her opening statement, the prosecutor commented that after defendant stabbed the victim, defendant returned to the apartment where the stabbing occurred. The prosecutor then said:

While he was there a person came over to that apartment, and I believe you will hear testimony from one or more of the witnesses that the person who came to this apartment was Claudette Bailey. And that Claudette Bailey told this defendant Alvin's down by the rec room or community room, I think he's dead, you'd better get out of here.

The prosecutor then described how defendant reacted to that statement.

Defense counsel moved for a mistrial based upon the quoted passage on various grounds. The attorneys argued over the details of what was contained in the discovery pertaining to this alleged statement and who may have heard it. Defense counsel also complained of late discovery about the statement that he had received only that morning, although the prosecutor contended it had been delivered to his office the previous Friday. The judge denied the motion and immediately gave the jury the following cautionary instruction:

Statements made by Counsel during her opening statements are not evidence. So any statements that the Prosecutor made during her opening statement, of course, is not evidence and should not be considered as evidence. The only evidence in the case is going to be the testimony of the witnesses, what they say together with any physical exhibits that come into evidence, and nothing else should be regarded as evidence or play any part in your deliberations.

Defendant has not explained to us how this sequence of events deprived him of a fair trial. It is apparent that appellate counsel did not view this issue as meritorious. Neither do we. Counsel was not deficient for failing to raise the issue on appeal. Had it been raised, it would not have resulted in reversal. The Strickland/Fritz test has not been met with respect to appellate counsel.

Defendant's second point alleges various deficiencies by his PCR counsel. He alleges five areas of deficient conduct. The most significant claim revolves around his decision not to testify at trial. We previously mentioned that PCR counsel had submitted an unsigned affidavit by defendant. After receiving that unsigned affidavit, defendant communicated with his PCR counsel and advised that the affidavit should be amended in some respects. PCR counsel made the amendments requested by defendant, and, by letter of August 22, 2004, submitted the fully executed amended affidavit to the court, with a copy to the prosecutor.

The original version of the affidavit, submitted initially in an unsigned form, stated that defendant's trial counsel did not advise him as to his right to testify on his own behalf at trial, and then stated: "My trial counsel only advised me that it would not be in my best interest to testify; however, he did not advise me as to the reasons for his opinion." The affidavit then went on to say that since defendant was not fully and adequately advised of his rights to testify, his decision not to testify was not fully voluntarily and knowingly made. The affidavit was amended at defendant's direction, changing the quoted portion to read: "My trial counsel stated unequivocally that I could not take the stand due to my priors."

The PCR judge reviewed the colloquy at trial at the time of the charge conference, and noted that defendant acknowledged that he chose not to testify and agreed with his attorney in declining the model jury charge pertaining to the defendant's choice not to testify. However, defendant insists that he has made a prima facie showing of ineffective assistance on this issue because, viewed in the light most favorable to him, his affidavit sets forth that his attorney told him he could not testify because of his prior criminal record. Essentially, defendant contends his attorney misstated the law to him, telling him that because of his prior record he was not allowed to testify. We note, as did the PCR judge, that defendant's prior record is extensive, including prior convictions for manslaughter and robbery. Thus, it was very likely a strategic decision for defendant not to testify because his credibility would be seriously undermined, even though evidence of his prior convictions would have been sanitized. See State v. Brunson, 132 N.J. 377, 394 (1993). Nevertheless, as the PCR judge noted, whether to testify or invoke the right against self-incrimination is defendant's decision to make. State v. Savage, 120 N.J. 594, 626 (1990).

We are satisfied, therefore, that defendant did make out a prima facie showing with respect to the first prong of the Strickland/Fritz test. If he could establish that his attorney informed him that because of his prior record it was not permissible for him to testify (as opposed to not advisable), the conduct would be deficient. However, defendant must also satisfy the prejudice prong of the two-part test. State v. Bey, 161 N.J. 233, 271-72 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

Defendant has failed to do so. Defendant never stated in his affidavit that he would have testified if he knew he could. Indeed, at the PCR hearing, when the judge specifically asked whether defendant would have testified, his attorney replied, "he's not saying that he would have testified. He would like to have the opportunity to at least make that decision, and he didn't make that decision." In the absence of a prima facie showing that he would have testified, what his testimony would have been, and that such testimony would have likely changed the result of the trial, there is no prima facie showing of the prejudice prong. A bald assertion is insufficient. See State v. Cummings, supra, 321 N.J. Super. at 165-66. We conclude, therefore, that defendant failed to make the required prima facie showing to entitle him to an evidentiary hearing on this issue.

On a related issue, defendant argues that his PCR counsel was deficient for failing to furnish the PCR court with the background facts on this issue. We note that this argument is based, in part, on the fact that the PCR judge, in his written decision, referred to the unsigned affidavit in its pre-amendment form, and did not refer to the amended affidavit signed by defendant. Any error in this regard is harmless. The analysis pertaining to the second prong does not differ based upon the unsigned pre-amendment affidavit or the signed amended affidavit. The PCR judge reached the same conclusion with respect to the second prong, for substantially the same reasons we have discussed.

Defendant further argues that his PCR counsel did not make it clear in the PCR proceeding that his appellate counsel never communicated with him. Instead, defendant contends that his PCR counsel argued that defendant directed appellate counsel to pursue the prosecutorial misconduct issue, but he did not. Defendant's argument is not supported by the record. His PCR counsel made clear defendant's position on this point.

The next issue raised by defendant pertains to a surveillance tape of the housing project where the homicide occurred. Apparently the prosecutor reviewed such a tape and did not retain it because, according to the prosecutor, its quality was poor and it did not reveal anything germane to the case. Defendant complains that his trial counsel was ineffective for not obtaining the tape, and he complains that his PCR counsel failed to present all of the relevant facts to the PCR judge and argue this point persuasively. In the amended affidavit, defendant stated that he directed his trial attorney to obtain the tape, which "was in the possession of the prosecutor's office." The PCR judge, in part, rejected defendant's argument on this point because it was not known whether the tape existed when defendant allegedly directed his attorney to review it.

However, the primary reason the PCR judge ruled against defendant on this issue was that there was no showing that the loss of the tape resulted in the loss of exculpatory evidence. We agree. And it would not be impossible to make a prima facie showing even if the tape were lost. A thorough investigation would have included interviews with any law enforcement personnel or others who had viewed the tape. Defendant proffered no such evidence, but merely asks that we speculate that a video tape existed and it depicted evidence that would have been helpful to his defense.

Finally, defendant argues that his PCR attorney was ineffective for failing to present adequate information about proposed character witnesses. Defendant contended that he directed his attorney to interview two or three prospective character witnesses, who lived in Detroit, Michigan. One was his aunt, and the other his pastor, and possibly the pastor's wife. Nowhere in his affidavit does he state that they would have testified or what they would have said. Even if we can presume that they would have testified and their testimony would have been that which is typical of character witnesses, there is nothing to suggest that, in the overall scope of this trial, their testimony would have had the likelihood of changing the result. Indeed, their testimony might have opened the door to evidence about defendant's prior criminal record and been very detrimental to his defense.

We conclude that none of the arguments presented by defendant with respect to his PCR counsel were meritorious and there was no error in denial of defendant's PCR petition without an evidentiary hearing.

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-3430-04T4

April 26, 2006