STATE OF NEW JERSEY v. GREGORY ROYAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4488-04T44488-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY ROYAL,

Defendant-Appellant.

_______________________________________________________________

 

Submitted November 15, 2006 - Decided December 26, 2006

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 97-01-0297.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M.

Gilson, Designated Counsel, of counsel

and on the brief).

James P. Lynch, Acting Camden County

Prosecutor, attorney for respondent

(Laurie A. Corson, Special Deputy Attorney

General, Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant Gregory Royal appeals from the Law Division judge's denial of his petition for post-conviction relief (PCR). Defendant, who is serving a life term with a twenty-five year parole disqualifier for first-degree robbery and related convictions, argues that he was denied effective assistance of counsel by his trial and appellate attorneys. Defendant asserts that he was ineffectively represented "because trial counsel continued to represent [him] after he had filed an ethics complaint against counsel," and failed to employ numerous essential trial strategies. Defendant also argues that appellate counsel "failed to contend that the third and fourth statements given by defendant violated his right to remain silent pursuant to Miranda." We reject these arguments and affirm.

Defendant's conviction arose from a break-in of Mildred Ordille's home. Ordille was seventy-one years old and alone when an assailant broke into her home through the back door. Ordille described her assailant as a "black man" with a husky build, medium complexion, and no facial hear, wearing a baseball cap, a white shirt, "pointy black shoes" with no socks, and cut off black trousers. Her assailant also was carrying a "very big club." He struck her several times with the club and sprayed her with Capstun, burning her face and eyes. He threatened her by saying "I want your money first. Then, I'm going to rape you; then I'm going to kill you." After she gave him about $3,200 in small bills, he ordered her to sit on the bed. As he attempted to tie her down, Ordille kicked him outside the bedroom door and called 9-1-1. The assailant fled the scene.

Officer Benko was the first to respond to Ordille's call. Benko saw that Ordille had a large bump on her head and was disoriented. Upon investigating the scene, Benko reported two men walking in the area who turned out to be Frank and Ralph Revels, neighbors of Ordille. According to Benko, Frank Revels matched the description Ordille had given to the officer.

Officer Leahy arrived at the scene after Officer Benko and spoke to Frank Revels. Officer Leahy did not agree that Frank Revels matched the description of the perpetrator, especially because the victim knew Frank Revels as her long-time neighbor. Several days after the incident, Leahy showed Ordille six photos, one of which was defendant, but Ordille was unable to identify her assailant.

The police had no suspects until Elwood Leftridge came forward. Leftridge was a friend of defendant's who, at the time of defendant's trial, was awaiting sentencing for burglary. Leftridge informed the police that on the day of the robbery defendant told him he had robbed Ordille.

Leftrige agreed to secretly tape-record a conversation with defendant. On the tape, defendant told Leftridge he knew he was a suspect in the robbery and that "it ain't dead." Defendant later indicated to Leftridge that, "[I]t ain't never dead, brother, until they solve the case." Defendant then revealed he had received $2000 from the robbery. Defendant then said, "no, the mother fucker is telling them it's me. We're all feeling that Ralph and Frank Revels are being paid by the police to tell them it's [me]." When Leftridge asked defendant whether those people knew it was him, defendant said, "No, but . . . they probably saw that [composite sketch, which was prepared from Ordille's description] in the paper."

Ralph Revels testified for the State and informed the jury that on the morning of the incident, he saw defendant's jeep parked in his yard. Defendant came running across a field next to Ralph's house, carrying a brown paper bag. Ralph testified that defendant was wearing black pants and a black tank top. After defendant left, Ralph and his brother Frank went to the store on their bikes. On the way, they passed Ordille's house and were stopped by the police and asked questions.

Investigator Kevin Kellejan testified that he interviewed defendant at the Prosecutor's Office. He was accompanied by Sergeant Beckett, who advised defendant of his rights. Defendant signed a "rights" card, and gave a taped statement. Defendant later said he wanted to give a second statement. Before giving this statement, defendant was again apprised of his rights. Later, defendant stated he wished to amend his statement, and subsequently provided a third and a fourth statement. In the fourth statement, defendant implicated himself in the robbery, but blamed the assault on Carl Williams, an older brother of the Revels.

At his trial, defendant presented two alibi witnesses who asserted that he had been sleeping at his sister's house during the robbery. Defendant also testified himself, denying any responsibility for the crimes against Ordille. Defendant explained that his statements to Leftridge were misinterpreted, that he had disassociated himself with Ralph Revels because he did not want to be involved in prostitution and drug sales, and that he had confessed only because he was beaten by the police.

I.

In his first argument on appeal, defendant argues that he received ineffective assistance from his trial attorney because he had filed an ethics complaint against the attorney. The PCR judge analyzed defendant's ineffective assistance claim under the normal Strickland/Fritz standard. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). When a PCR defendant asserts a conflict of interest claim, however, instead of applying the normal Strickland/Fritz test, we must apply our conflict of interest decisions. See State v. Drisco, 355 N.J. Super. 283, 291-92 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003). See e.g., State v. Bell, 90 N.J. 163, 171 (1982); State v. Bellucci, 81 N.J. 531, 538 (1980).

Applying these decisions, if defendant's "pool" attorney was "involved in simultaneous dual representations of codefendants, a per se conflict arises," otherwise "the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel." State v. Norman, 151 N.J. 5, 25 (1997).

In any event, this is not a case involving dual representation and the per se conflict rule of Bellucci, supra, 81 N.J. at 537-38, is not applicable.

Although a potential conflict is present in the instant appeal, defendant fails dismally in demonstrating that the conflict is so significant as to present "a great likelihood of prejudice." Norman, supra, 151 N.J. at 25. The core of defendant's ethics complaint was that counsel was not defending him vigorously enough. As such, we agree with the PCR court's finding that, if anything, the filing of the complaint would motivate counsel to provide a more vigorous defense.

II.

In his second PCR argument, defendant posits a plethora of examples of trial counsel's ineffectiveness for failing to present evidence defendant regards as exculpatory. Defendant argues that individually, and certainly cumulatively, these instances establish ineffective assistance. For example, defendant blames counsel for failing to (1) argue more forcefully during closing argument that Frank Revels was the person who committed the offense; (2) call Migdolia Guzman, who purchased drugs from Revels and Williams, to prove that Frank Revels was motivated to blame the crime on defendant because of arguments "about their drug business"; (3) call Reverend James Betner to testify to defendant's good reputation for truthfulness; (4) introduce three letters written by defendant while incarcerated in which defendant complained of injuries sustained for which medical treatment was being denied; (5) introduce letters from the Office of Inmate Advocacy inquiring into defendant's assertions that he was assaulted by law enforcement officers; (6) introduce evidence that defendant was transferred out of County Jail on a day in which he was scheduled to receive a medical exam, thereby masking the injuries defendant suffered when he was beaten by the police to obtain his confession; (7) ask defendant to testify as to why the State was "unduly motivated to identify defendant as the perpetrator" of this crime; (8) introduce evidence that Sergeant Beckett and an investigator used force upon Ravanna Bey in retaliation for Bey not providing a statement; (9) elicit testimony from the "defendant that Leftridge was addicted to crack cocaine" when the defendant allegedly admitted his involvement in the attack; (10) point out Leftridge's motivation to implicate defendant in the crime; (11) argue that "defendant was not present when he supposedly admitted to Leftridge that he was the perpetrator"; (12) object that Leftridge's wife's out-of-court identification of defendant was hearsay and should have been suppressed and (13) point out that Detective Leahy, who had learned about defendant's car from Leftridge, described defendant's car as being blue, while Ralph Revels testified that defendant's vehicle was grey.

Many of these contentions should have, and could have, been raised on direct appeal and are therefore barred. R. 3:22-4. Several of these so-called examples of ineffectiveness can also be characterized as tactical strategy, and therefore will not usually constitute ineffectiveness. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Defendant's coerced confession claim was raised on direct appeal and rejected. It has therefore been conclusively determined and is barred from reassertion in an application for PCR. R. 3:22-5. Furthermore, none of the evidence defendant claims would have bolstered his coercion contention establishes that defendant was in fact injured after the interrogation. Consequently, we see no reason to intervene at this point.

In any event, the PCR court addressed each of defendant's claims separately and found either that trial counsel's performance was not deficient, or that trial counsel's performance did not prejudice the defense. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 58. We agree with the trial court's disposition of these claims and conclude that none of the arguments advanced by defendant, considered separately or cumulatively, are of sufficient import to warrant an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). Consequently, we reject these arguments substantially for the reasons explained by the PCR judge.

III.

Finally, defendant claims that he was denied effective assistance of counsel when appellate counsel failed to argue that defendant's third and fourth confessions should have been suppressed because defendant invoked his right to remain silent when he stated to law enforcement officials, after his second statement, that he had nothing to add to that statement. The PCR court held that the question posed to defendant: "[i]s there anything further you would like to add to this statement," was unambiguous and simply was designed to ask defendant if he had anything to add to his previous statement. As such, the PCR court concluded that no Fifth Amendment protection was invoked and counsel was therefore not ineffective in failing to raise it. See State v. Bey, 112 N.J. 45, 64-65 (1988); State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005) (emphasizing that the words themselves as well as the full context in which they are spoken must be considered "in determining whether there has been an invocation of the right to remain silent"), certif. granted, 188 N.J. 219 (2006). We agree completely with the PCR court on this point.

In conclusion, defendant advances no argument that warrants an evidentiary hearing to determine whether to grant PCR. Consequently, we affirm the PCR judge's denial of defendant's application for PCR.

Affirmed.

 

Although the PCR judge assumed that defendant filed an ethics complaint against his counsel, the record does not contain any evidence of the filing of such a complaint.

This contention was framed by defendant as follows:

Defendant was denied his constitutional right to effective assistance of counsel, and therefore his convictions must be reversed, because trial counsel failed to present exculpatory evidence and/or adequately argue as to exculpatory evidence which had been presented and/or adequately impeach the credibility of a key witness and/or object to inadmissible hearsay statements; in the alternative, this matter must be remanded for an evidentiary hearing regarding defendant's claims.

(continued)

(continued)

11

A-4488-04T4

December 26, 2006