STATE OF NEW JERSEY v. ANDRE FRAZIER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3858-04T43858-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE FRAZIER,

Defendant-Appellant.

 

Submitted: June 5, 2006 - Decided July 20, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 98-11-4353.

Andre Frazier, appellant, pro se.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andre Frazier appeals from an order entered in the Law Division on July 12, 2004, denying his application for post-conviction relief. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Essex County Indictment Number 98-11-4353 with first-degree murder of Philip Davis, N.J.S.A. 2C:11-3a(1) or -3a(2) (count one); first-degree attempted murder of Leon Brown, N.J.S.A. 2C:11-3 and 2C:5-1 (count two); second-degree aggravated assault of Leon Brown, N.J.S.A. 2C:12-1b(1) (count three); second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts five and six). Tried to a jury, defendant was convicted on all counts; his motion for a new trial was denied.

On the murder conviction on count one, the trial judge sentenced defendant to a term of imprisonment of forty years with a thirty-year parole disqualifier. On the attempted murder conviction on count two, the judge sentenced defendant to a consecutive ten-year term of imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The convictions on counts three and six were merged with the attempted murder conviction; the conviction on count five was merged with the murder conviction; and the court imposed a concurrent five-year imprisonment term on the conviction on count four.

On his direct appeal, defendant presented the following arguments for our consideration:

POINT I

THE TRIAL JUDGE IMPROPERLY REFUSED DEFENSE COUNSEL'S REQUEST TO EXPLAIN TO THE JURY THE PRINCIPLES OF LAW GOVERNING THE RIGHT OF A LAW-ENFORCEMENT OFFICER TO USE DEADLY FORCE.

POINT II

THE NERA PORTION OF THE SENTENCE FOR ATTEMPTED MURDER SHOULD NOT HAVE BEEN IMPOSED WHEN THE JURY NEVER MADE THE REQUISITE FINDING OF THE NERA ELEMENT UNDER State v. Johnson, 166 N.J. 523, 544 (2001).

POINT III

THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST MERGE INTO THE MURDER AND ATTEMPTED-MURDER CONVICTIONS.

In an opinion decided on September 27, 2002, we affirmed the convictions and sentences imposed, except for the sentence imposed on the weapons conviction on count four, which we reversed pursuant to State v. Diaz, 144 N.J. 628, 639-41 (1996), and remanded the matter to the Law Division for amendment of the judgment of conviction to reflect the merger of that conviction with the murder and attempted murder convictions. State v. Frazier, A-5230-00T4 (Sep. 27, 2002). On November 26, 2002, the Supreme Court denied defendant's petition for certification. State v. Frazier, 175 N.J. 80 (2002).

On or about February 16, 2004, defendant filed a petition seeking post-conviction relief, alleging he

is unlawfully restrained because there was a substantial denial in the conviction proceedings of his rights under the Constitutions of the United States and New Jersey, as well as, the laws of New Jersey and more particularly he lacked adequate assistance of counsel and he was deprived of a fair trial because it was presided over by a biased judge.

Defendant sought an evidentiary hearing. In a trial brief submitted by defendant, he raised the following arguments:

POINT I

THE PETITIONER'S DEFENSE WAS UNCONSTITUTIONALLY COMPROMISED BY THE INADEQUATE ASSISTANCE OF HIS COUNSEL.

POINT II

DEFENSE COUNSEL FAILED TO INVESTIGATE, PREPARE AND CONDUCT AN ADEQUATE DEFENSE.

POINT III

THE TRIAL JUDGE MANIFESTED A BIAS AGAINST ANDRE FRAZIER, THEREBY DEPRIVING HIM OF A FAIR TRIAL.

Defendant's petition was considered by the court at a hearing conducted on June 28, 2004. Counsel for defendant argued, inter alia, that the conduct of defendant's trial counsel was ineffective because he was

sanctioned four times by the court for contempt and was fined. On numerous occasions he was admonished by the court for various matters, some of which were procedural, some went to substance. He was admonished for . . . being late, he was admonished for . . . asking improper questions, the court chastised him for asking the same questions over and over again, the court criticized him both in front of the jury and outside the presence of the jury. He was told to stop changing witnesses' testimony and the jurors were told to ignore what he was doing. All of this had to undercut the credibility of the attorney and, consequently, the defense that was being put forward by Mr. Frazier. Counsel was . . . at times almost bizarre in his remarks and his interplay with the court, he interrupted the court's charge to the jury, the court characterized his conduct during his summation as being unprofessional. I think this sets forth, in and of itself, a prima facie case that would require an evidentiary hearing.

In addition, counsel said that the court, in chambers, used a racial epithet towards him. Now, I don't know whether that was true or not. If it was not true, then it's another example of bizarre behavior on the part of defense counsel. If it were true, then it indicates bias on the part of the judge towards counsel, who is black, and the defendant, who is black, and I think this requires an evidentiary hearing to find out did the court set forth this racial epithet. I acknowledge that it wasn't before the jury, but then it calls into question some of the court's conduct. I acknowledge that the court had a difficult situation on his hands because of the behavior of defense counsel, but the court did not have to constantly criticize counsel before the jury because the court's conduct undercut defense counsel[.]

In rejecting defendants arguments, the motion judge stated, in pertinent part:

The issue for the post-conviction relief is whether or not the defendant was provided with effective assistance of trial counsel at the time of trial. Rule 3:22-10 vests the trial court with the discretion to conduct such a hearing; a petitioner is not automatically entitled to an evidentiary hearing on a post-conviction relief motion. Despite the [State v. Preciose, 129 N.J. 451 (1992)] Court's indication that ineffective assistance of counsel claims are more likely to require an evidentiary hearing, the petitioner must still demonstrate a prima facie claim. As counsel has pointed out, there is a two-prong test. The first prong would be whether or not counsel's performance was deficient. The second prong would be that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different.

In this case, I have reviewed the briefs submitted on behalf of the petitioner and on behalf of the State and have reviewed the transcript. My analysis begins with the second prong of the standard set forth in the Strickland v. Washington[, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)] case, which states that there must exist a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In my judgment, having reviewed the overwhelming evidence in the case, I see nothing on the record, in the transcript or in the briefs which would indicate to me that . . . even if the [defendant's] counsel's performance was deficient that that would have changed the ultimate result in this case. It is clear that the State presented overwhelming evidence. They presented motive, they presented eyewitnesses, they presented ballistic evidence that was very persuasive, they presented direct and circumstantial evidence of the defendant's guilt. The record is replete with extremely strong evidence and I have seen nothing that would indicate to me that regardless of the conduct of [defense counsel] that that would have changed the substantive evidence in the case. And the reason I'm looking at that first and then going backwards is because the defense attorney in this case did . . . attempt to extensively cross-examine all of the State's witnesses. It's hard for me to foresee that any other defense attorney would have done a better job cross-examining the witnesses, but, in any event, his cross-examination of the witnesses, which really would have been the key to the case, certainly could not be called deficient. He also conducted an investigation and, as pointed out, he even went to the scene of the . . . incident during the course of trial. So I think that . . . at least as the heart of what the defense counsel is supposed to do, and that is to cross-examine the State's witnesses, particularly in a case like this, I do not see . . . prima facie evidence that the defense counsel's performance with regard to that was deficient. Certainly, there are questions and red flags raised by . . . defense counsel's conduct . . . during the case. That's not in dispute, but whether or not his conduct complies with the standard set forth in Strickland certainly is in dispute.

Putting that issue aside for a second now, I want to deal with the issue of [the trial judge]. [The judge], in my judgment, in reading the case, in reading the transcripts, did a remarkable job of handling what even the petitioner's attorney has labeled as a very difficult situation, and I think the record is clear that [the trial judge] . . . out of the presence of the jury, did [an] excellent job of holding the trial together and trying to defuse the explosive situation that the defense counsel was trying to create. [The trial judge] did criticize the defense attorney on a number of occasions in front of the jury, but those criticisms, I do not believe, undermined the credibility of the defense and I think were probably consistent with the . . . whole strategy of the defense because the atmosphere that the defense counsel was trying to create was one of explosiveness and, in reviewing the record, I don't see any evidence that the credibility of the . . . defendant or even the defense attorney, for that matter, were affected by the remarks that [the trial judge] made in the presence of the jury.

. . . [G]etting back to the defense attorney, it's borderline whether or not his conduct would comply with the test that's set forth under Strickland and whether or not his obvious attempts to create this explosive atmosphere and in fact cause a mistrial would rise to the level of deficient in terms of his performance. However, . . . I don't think I have to make that ruling because . . . the performance of the defense counsel, as I have indicated, in no way affects . . . prong two, which is that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

With regard to the issue as to [the trial judge's] alleged use of the "N" word, I find that that allegation lacks credibility in the way that it was made but, more importantly, it's irrelevant because I find that [the trial judge's] conduct during the trial was impeccable and he really should be commended for the way he handled such a difficult trial. I don't know that I or many judges could have handled that situation the way he did. . . .

Accordingly, for all of the reasons that I have set forth, I do not feel that the petitioner has established a prima facie basis for an evidentiary hearing under Rule 3:22-10 and the Preciose case.

Judge Dennis F. Carey, III, issued an order on July 12, 2004, denying defendant's application for post-conviction relief. On appeal, defendant argues that the judge erred in denying his petition in that the court should have conducted an evidentiary hearing to properly evaluate his claim of ineffective assistance of trial counsel.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the contentions presented by defendant are without sufficient merit to warrant extensive discussion, R. 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Carey in his oral opinion delivered on June 28, 2004. We add the following.

The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland, supra, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692. Moreover, the right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.

In order to establish a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set out by the Strickland Court:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The standards embodied in the Strickland test have been adopted by New Jersey courts. State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, 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.

Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

We conclude that the motion judge properly analyzed and applied these standards. Our review of the record discloses that, although there are certainly some aspects of his behavior that were unusual and questionable, defense counsel vigorously cross-examined every witness produced by the State, presented several witnesses on behalf of defendant, and presented a thorough and lengthy summation in which he raised many critical issues, including the contention that there was no motive, that the State's witnesses were biased, and the lack of nighttime visibility by a key eyewitness. Apart from his behavior, we are not persuaded that defense counsel's overall performance failed to meet the standard of "reasonable competence."

However, recognizing that defendant could arguably meet the first prong of the Strickland test, the motion judge properly concluded that defendant could not meet the second prong in that he could not establish that defense counsel's behavior prejudiced the defense. Defendant has failed to demonstrate that, but for the behavior of his trial counsel, the result would have been different. Simply put, the evidence presented by the State overwhelmingly established defendant's guilt and defendant has failed to produce any information or evidence that could even arguably suggest a different result. There were two eyewitnesses to the shooting and the forensic evidence was conclusive. Defendant has failed to establish a link between his trial counsel's conduct and his actual performance in defending these charges against the overwhelming evidence adduced by the State.

Finally, with respect to the conduct of the trial judge, our review of the record leads us to the same conclusions as those reached by the motion judge. The trial judge admirably endured personal affronts and confrontations with dignity and managed to maintain a consistent appearance of justice and propriety.

Affirmed.

 

The motion judge considering the post-conviction relief petition was not the judge who presided over the trial conducted between June 6, 2000 and July 27, 2000.

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A-3858-04T4

July 20, 2006