STATE OF NEW JERSEY v. LITEL KELLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3617-03T23617-03T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

LITEL KELLEY,

Defendant-Appellant.

__________________________________

 

Argued: June 5, 2006 - Decided June 29, 2006

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-11-2404.

A. Harold Kokes argued the cause for appellant.

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

PER CURIAM

Defendant Litel Kelley is serving a seventeen-year term of imprisonment subject to an 85% parole disqualifier pursuant to the No Early Release Act following his conviction of first degree robbery, contrary to N.J.S.A. 2C:15-1; second degree possession of a weapon (a firearm) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and fourth degree aggravated assault with a firearm contrary to N.J.S.A. 2C:12-1b(4). Defendant appeals from the denial of his petition for post-conviction relief. We affirm.

The charges arise from the early morning robbery of James Tau as he returned home at the end of his shift at the Showboat Casino and Hotel (Showboat). Three persons, one of whom was defendant, were charged with the robbery. The facts developed at trial are as follows.

In the early morning hours of October 5, 2002, the victim left the Showboat after his 8 p.m. to 4 a.m. shift. He took his customary route home. He walked to Pacific Avenue and turned left. He walked on Pacific Avenue and turned right into Gordon's Alley, a darker side street. Tau testified that the lights from Pacific Avenue permitted him to see.

The victim passed defendant and his two co-defendants in Gordon's Alley. They followed him and surrounded him. Defendant, who was closest to the victim and standing in front of him, pulled out a handgun and demanded money. He then struck the victim in the face with the nozzle of the gun. This caused considerable pain to the victim and caused his face to be bloodied.

The victim screamed and defendants took flight, heading away from the beach on Gordon's Alley, and turning right onto Atlantic Avenue. Patrons of the Grand Fromage, a bar not far from the place of the assault, exited the bar when they heard the victim's scream. Some patrons attended to the victim and called the police.

The police arrived within minutes. The victim described the attackers and the direction of their flight. Within ten minutes, police located all three defendants on Pennsylvania Avenue near Mediterranean, about three blocks from the scene. The victim was driven to the location where the three males had been detained and, from inside the police vehicle, identified all three defendants as the assailants. He specifically identified defendant as the person who struck him with the gun. The victim was between fifteen and thirty feet from defendant, who was not handcuffed or otherwise restrained. The area was illuminated by a spotlight from the police cruiser. About twenty minutes elapsed between the time the victim was assaulted and the time he identified his assailants.

After the victim identified defendant and his companions, they were arrested. One of the officers who participated in the arrest was Chinese, like the victim. While the Chinese officer was conducting the pat-down and arrest of defendant, defendant stated, "[Y]ou're doing all this shit because he's your kind." This officer stated that, from the point where he was standing with the defendants, he was unable to make out the face of the victim in the police vehicle. Others testified that the lighting at the scene did not permit defendant to view the occupants of the police car.

The victim identified all three defendants in open court, but was more certain of his identification of defendant, because defendant was closer to him and was the one who struck him in the face with the gun. During a prior court date, in a courtroom other than that in which this trial took place, the victim was asked by an investigator whether he recognized defendant. He was able to positively identify defendant as the person who struck him with the gun. He also reported that he was not as certain with respect to Jerome Moore, a co-defendant.

None of the defendants testified. The trial judge questioned each defendant concerning his election whether to testify. Defendant stated on the record that he had elected, by his own free will, not to testify, and that no one forced or threatened him concerning that election.

In his petition for post-conviction relief, defendant alleged that retained trial counsel was ineffective because he failed to file any pre-trial or post-trial motions. He also alleged that he provided names of witnesses to counsel, and counsel did not interview the witnesses or provided a conclusory report of the interviews. He also alleged that counsel did not obtain the surveillance tapes of a convenience store which would have demonstrated that he was not at or near the site of the robbery at or near the time of the robbery. Defendant also asserted that he requested counsel to meet him to inspect the area but his attorney failed to keep two appointments. Finally, defendant alleged that trial counsel did not question the victim about the discrepancy between his description of the assailant that he provided to police and defendant's physical appearance at trial, never interviewed defendant out of the presence of his co-defendants, and never consulted defendant about his summation or the jury charge.

Judge Isman denied the petition. He did not conduct an evidentiary hearing. Judge Isman was the trial judge and he recounted his recollection and observations of the trial. He noted that the State's case against defendant was "significantly stronger" than the cases against the co-defendants to the extent that he questioned defendant's decision to reject a very favorable plea offer. He also commented that retained counsel "did a really outstanding job." In fact, the judge noted that defendant's attorney did a "beautiful job" addressing the State's argument concerning the victim's identification of defendant.

Judge Isman also observed that retained counsel focused on the central issues of the out-of-court identification and defendant's proximity to the site of the robbery at the time of his apprehension. The judge acknowledged that defendant's attorney did not file a Wade motion or a Miranda motion, but stated "I'm convinced beyond a reasonable doubt that had he filed a motion in either of those respects it would not have made any difference in this matter because there was nothing unduly suggestive as to what the police did." The judge also held that he would not have granted a motion for severance because there were no grounds for such relief.

Judge Isman commented that he viewed the allegations of the petition as second guessing after defendant obtained an unsatisfactory result. He emphasized that defendant's attorney focused on the issue of identification, closely questioned the victim, and repeatedly emphasized in his cross-examination of the victim and a police officer the discrepancy between the description of defendant's height provided by the victim shortly after the robbery and defendant's actual, significantly shorter stature. Defendant's attorney also attempted to focus the jury's attention on the disparity throughout his summation.

Finally, Judge Isman stated that the issue was not simply how skillful defendant's attorney may have been but whether defendant was prejudiced by the representation he received. He concluded the outcome would not have been different, even if his attorney had filed Wade and Miranda motions, a severance motion, and any or all the post-trial motions available to him. The judge stated:

It's not an issue here just of how skillful was the representation but had the representation been any different or any better, so to speak, would it have made a difference. And I clearly find that the fact that no application was made for a Wade hearing, the fact that there was no motion to request a corporal line up, the fact that there was no motion to sever, the fact that there was no motion to bar in court or pretrial identification, the fact that there was no request for a Miranda hearing made is of no moment because clearly if they had been applied for and had I granted the application and done a 104 hearing[,] the outcome would not have made a difference because the ruling would have been in concert with the way in which the case was tried without those motions. No change would have occurred. As far as the alibi, I'm kind of at a loss with that one, I really am, because I mean you're talking about a matter of minutes here. It's not as though it's your typical alibi. And I don't know whether any notice was served in the matter. So there may have been a total break with the Rule as far as whether the Rule was ever complied with as far as notice of alibi. But my recollection of the case was that there wasn't a whole heck of a lot of time between the time of the incident and the time of apprehending Mr. Kelley. And quite frankly, if the alibi is generally through a family member[,] I don't find those to be too effective with jurors nowadays.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for post-conviction relief:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "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. The Supreme Court adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 52, 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). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Here, defendant's petition suffers from the same defect that we observe in so many petitions for post-conviction relief -- the failure to allege specific facts. For example, defendant alleges that trial counsel's performance was deficient because he did not interview certain witnesses; however, he never advises the court what information these witnesses had that was relevant to his involvement in the charged offenses. Defendant also asserts that counsel should have obtained the surveillance tapes from a local convenience store. Defendant must do more that assert that counsel did not do a specific act; he must demonstrate that the information contained on those tapes would have made a difference in the outcome of the case. Defendant has not done so.

We, like Judge Isman, are also satisfied that the pre-trial motions defendant asserts should have been filed would not have been granted if made. There was no basis for a severance, the identification procedure was not unduly suggestive, and the statement made by defendant at the time of his arrest that demonstrated his knowledge of the ethnicity of the victim was not the product of a custodial interrogation without benefit of the requisite warnings. Our review of the record of the trial also provides no basis to find that the result would have been different, if any of the motions urged by defendant had been filed. Thus, there was no basis not only for an evidentiary hearing but also for post conviction relief.

The June 14, 2005 order denying defendant's petition for post-conviction relief is affirmed.

 

N.J.S.A. 2C:43-7.2.

At sentencing, the trial judge merged the firearms possession and aggravated assault charges with the robbery conviction.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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

By order dated November 9, 2004, this court permitted defendant to withhold his notice of appeal to pursue this petition. Pursuant to the terms of the order, defendant may move to reinstate the appeal.

(continued)

(continued)

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A-3617-03T2

June 29, 2006