STATE OF NEW JERSEY v. CHARLES MAURER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1569-06T41569-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES MAURER,

Defendant-Appellant.

_______________________________________

 

Submitted November 18, 2008 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-02-0650.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Maurer appeals from an order entered on July 14, 2006, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged under Camden County Indictment No. 99-02-0650 with third-degree receiving a stolen automobile, N.J.S.A. 2C:20-7a; third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f. Prior to trial, two co-defendants, Rod Talley (Talley) and Tariq Smith (Smith), entered guilty pleas. Defendant was tried to a jury and found guilty on all charges.

At the trial, the State presented evidence that at about 10:30 a.m., on November 30, 1998, Officer Joseph Rossi (Rossi) of the Pennsauken Police Department, was traveling south on Mansion Boulevard in a marked patrol car when he observed two persons exit an automobile. The two men walked briefly in the officer's direction and then turned down Beacon Avenue.

Rossi continued along and pulled up behind the automobile from which these individuals had exited. It was a four-door, black 1994 Acura Legend with New York license plates. The vehicle remained at the stop sign at the intersection, even though there was no traffic and the vehicle could have turned onto Route 70.

After remaining at the intersection for about forty-five seconds to one minute, the driver looked up, saw the police vehicle, and made a right turn onto the highway. Rossi said that this behavior and the vehicle's out-of-state license plates made him "a little suspicious." Rossi asked the dispatcher to run a check on the Acura's license plate through the computer in his police car. Rossi made a right turn and followed the Acura. The car entered the parking lot of a strip mall.

Rossi drove through the parking lot and out onto Beacon Avenue looking for the two men who had exited the car. Rossi looked around but he did not see the men. He proceeded back to Mansion Boulevard and again approached the stop sign where he had first seen the Acura. At that point, the radio dispatcher informed him that the Acura had been reported stolen in Philadelphia.

Rossi said that he "raced" back to the parking lot where the Acura was located, and he saw three individuals getting into the car. Two of those individuals were the men who had been dropped off earlier. Rossi pulled up in front of the Acura to prevent the vehicle from leaving. He exited his patrol car, drew his weapon and ordered the persons in the car to put up their hands.

Officer David McBurdey arrived as back-up. Smith had been sitting in the back passenger seat of the Acura. Smith opened the door and "took off running." McBurdey ran after him. Defendant had been sitting in the front passenger seat. He also "took off and ran" toward Mansion Boulevard. Rossi radioed dispatch to provide defendant's description and approached the car. Talley was seated in the driver's seat. Rossi pulled him out of the car.

Talley was placed on the ground and handcuffed. Rossi returned to the car and observed the butts of two guns "sticking out" on the floor, behind the passenger seat. One gun was a semi-automatic with hollow nose bullets. The other gun was a revolver, which also contained hollow nose bullets.

Officer Michael Dean Briggs (Briggs) heard the dispatch with the description that Rossi had provided. After about four or five minutes, Briggs observed defendant. He pulled up along side of defendant and said that he wanted to speak to him. Defendant ran off. Briggs pursued him on foot, caught up with him, and placed him under arrest.

Defendant testified that he had never been inside of the Acura. He stated that he was with a person named "Carla" when he saw Talley and Smith. Defendant said that he spoke with Talley and Smith about a minute before Rossi first appeared in his patrol car. Then, Smith and defendant "took a walk." They went to a parking lot behind a fur store.

Defendant further testified that, about five minutes later, Talley was getting into his car near the donut shop when Rossi pulled up in his patrol car. Rossi jumped out with his gun. Talley was in the front seat of the car. Smith ran. Defendant said that he walked away and then started to run because he was on probation at the time. He stated that he left the scene because he was not "supposed to be around [any] convicted felons or people with handguns[.]"

Defendant was convicted on all three charges. The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. The court sentenced defendant on the receiving conviction to an eight-year term, with a four-year period of parole ineligibility. The judge also imposed a four-year sentence for unlawful possession of a handgun, as well as a one-year sentence for possession of hollow nose bullets, and ordered that both sentences be served concurrently to each other but consecutively to the sentence on the receiving conviction.

Defendant appealed. We affirmed defendant's conviction and the sentences imposed. State v. Maurer, No. A-5425-99 (App. Div. March 6, 2002). In that appeal, we declined to consider defendant's arguments that he had been denied the effective assistance of trial counsel, finding that those contentions were "better left for consideration on a petition for post-conviction relief." Id. at 3.

On January 4, 2005, defendant filed a petition for PCR in the trial court. Defendant argued that the trial court erred by failing to conduct a proper investigation of the empanelled jurors "for possible taint." Defendant also asserted that he had been denied the effective assistance of trial counsel because his attorney: elicited testimony concerning his prior convictions; failed to file a motion to suppress evidence obtained in a search of the vehicle; did not call Talley as a defense witness; failed to make objections and raise the issue of racial profiling; and did not raise certain defenses, including the absence of fingerprint evidence. In addition, defendant argued that the judge erred by imposing consecutive sentences and his sentence is excessive.

On July 14, 2006, Judge Linda G. Baxter conducted a plenary hearing on the petition. At the hearing, the State presented testimony from defendant's trial lawyer, John Mitchell DeMasi (DeMasi). DeMasi stated that when defendant testified, he brought out specific facts concerning defendant's prior criminal record. He said that he had discussed the matter with defendant prior to the trial. DeMasi said that his strategy was to elicit facts concerning those convictions to point out to the jury that defendant's prior convictions did not involve the use of a weapon.

After hearing argument by counsel, Judge Baxter placed her decision on the record. The judge found that counsel was not ineffective because he had not filed a motion to suppress evidence obtained by the police after the vehicle was stopped. The judge rejected the contention that it was improper for the officer to run a check on the Acura's license plates before stopping the vehicle and that such action was permitted even if the officer does not have "one iota or shred of suspicion."

The judge additionally stated that the officer had "an objectively reasonable basis for making the stop because" the officer only stopped the vehicle after being informed that the vehicle had been reported stolen. The judge found that, had a motion to suppress been filed, "it could not have succeeded."

Judge Baxter also rejected the argument that counsel should have filed a motion to suppress in order to allow defense counsel to learn more facts and develop other defenses. Defendant argued that the motion would have helped defendant decide whether to take a plea offer or proceed to trial. Defendant maintained that because the two men who exited the car were black, there was a potential issue of racial profiling. The judge stated that "a motion to suppress [is not] a fishing expedition or an opportunity for a deposition." The judge found that counsel had not been ineffective because he had not filed the motion.

The judge additionally found that counsel was not ineffective because he had elicited facts concerning defendant's prior criminal convictions when defendant testified. The judge noted that counsel had testified that this was a strategic decision and he had discussed the decision with defendant. The judge stated:

[t]he strategy was to present evidence of some detail about [defendant's] prior convictions to show that at no time did he ever have a gun in his possession and therefore he is not a person who would have possessed those guns. Because in this instance, there were three people in the car. Guns and the hollow-nosed bullets were found.

And, therefore, this was an argument to try to establish that the guns and hollow-nosed bullets must have belonged to one of the other occupants of the car because clearly [defendant] was not a man who ever had possessed guns. That is a valid, tactical, strategy decision. And the fact that it apparently did not succeed does not establish ineffective assistance of counsel.

Judge Baxter concluded that defendant had not established that he had been denied the effective assistance of trial counsel or any other basis for PCR. The judge entered an order dated July 14, 2006, denying defendant's petition. This appeal followed.

Defendant presents the following arguments for our consideration:

POINT I

THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; TRIAL COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY.

A. THE COURT ERRED IN FINDING THAT COUNSEL WAS NOT INEFFECTIVE WHEN HE ELICITED TRIAL TESTIMONY REGARDING DETAILS OF DEFENDANT-APPELLANT'S CONVICTIONS[.]

B. TRIAL COUNSEL WAS INEFFECTIVE WHEN FAILING TO SUFFICIENTLY OPPOSE DEFENDANT-APPELLANT'S EXTENDED SENTENCE[.]

C. THE PCR COURT ERRED IN RULING THAT THERE HAD BEEN NO RACIAL SELECTIVE ENFORCEMENT ISSUE PRESENT AT TRIAL[.]

D. THE COURT WAS IN ERROR WHEN IT DID NOT CONSIDER ALL ASPECTS OF THE VEHICLE SEARCH, IN FINDING THAT TRIAL COUNSEL HAD NOT BEEN INEFFECTIVE[.]

POINT II

THE PCR ATTORNEY WAS INEFFECTIVE IN FAILING TO OBJECT TO THE PCR COURT'S FAILURE TO HAVE A FULL EVIDENTIAL HEARING AND ALLOWING THE STATE TO CALL THE TRIAL ATTORNEY AS A WITNESS; THE COURT WAS IN ERROR IN CONDUCTING THE HEARING THUS[.]

We have reviewed the record in light of these contentions, and we are convinced that defendant's arguments are entirely without merit. We therefore affirm the trial court's order denying PCR substantially for the reasons stated by Judge Baxter in the decision that she placed on the record. R. 2:11-3(e)(2). We add the following brief comments.

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court established a two-part test for evaluating claims of ineffective assistance of counsel. In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 103 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 103 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

We note that, when evaluating a claim of ineffective assistance of counsel, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To overcome that presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Defendant argues that his trial counsel erred by eliciting testimony from him on cross-examination regarding his prior criminal convictions. At trial, defendant took the position that he was never an occupant of the stolen Acura and, therefore, could not have received stolen property or possessed the weapons and ammunition in the car. Because defendant testified, the prosecution was permitted to cross-examine him regarding his prior convictions, although the State could only elicit testimony regarding the date of the offenses and the degree of the crimes involved. State v. Brunson, 132 N.J. 377, 391 (1993). On direct examination, however, defense counsel had defendant testify that he had been previously convicted of robbery, aggravated assault, assault by a prisoner, criminal conspiracy, and forgery.

As we stated previously, counsel testified at the PCR hearing that he elicited this testimony as a matter of trial strategy. Counsel said that he was endeavoring to show that, while defendant had previously been convicted of certain offenses, those offenses did not involve a firearm.

In our judgment, Judge Baxter correctly concluded that this was a reasonable trial strategy. Although the jury apparently accepted Officer Rossi's testimony and rejected defendant's claim that he had never been in the stolen Acura, defense counsel's attempt to convince the jury that he did not commit the charged offenses in part because he had never been convicted of a crime involving a weapon did not fall outside of the "wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

We emphasize that "an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983)). Strategic miscalculations do not warrant reversal of a conviction "'except in those rare instances'" where the errors are of such a magnitude "'as to thwart the fundamental guarantee of [a] fair trial.'" State v. Buonadonna, 122 N.J. 22, 42 (1991) (quoting State v. Dennis, 43 N.J. 418, 428 (1964)). We are satisfied that Judge Baxter correctly found that defense counsel's strategic decision to elicit specific facts about defendant's prior convictions did not rise to the level of ineffective assistance of counsel under the Strickland/Fritz test.

We also find no merit in defendant's contention that counsel erred by failing to more strongly oppose the State's motion for imposition of an extended term sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Defendant argues that counsel failed to argue that imposition of an extended term in this case was not necessary to protect the public. See State v. Dunbar, 108 N.J. 80, 90-91 (1987).

In support of its motion to impose the extended term, the State established that, in the period from 1987 to 1993, defendant had been convicted on five separate occasions for offenses including robbery, aggravated assault, assault by a prisoner, receipt of stolen property, forgery, interference with commerce by robbery, and interstate transportation of stolen property. At sentencing, the judge observed that, although none of the prior convictions involved the use of weapons, several were for crimes of violence. The judge also observed that defendant had been sentenced previously to several lengthy terms of incarceration.

Defendant asserts that defense counsel should have argued that defendant was forty years old, most of the prior offenses had taken place when he was in his twenties, and the present offenses were non-violent. We are convinced, however, that counsel did not err by failing to point out those facts. The sentencing judge was well aware of defendant's age and his criminal record when she sentenced defendant. We are not convinced that a different sentence would have been imposed even if counsel had emphasized those facts.

Defendant also argues that counsel erred by failing to investigate facts that might have supported an argument that the officer checked the license plate number on the Acura for racially-motivated reasons. It appears that, during the trial proceedings, defense counsel had contemplated filing a motion raising a racial profiling claim; however, he elected not to do so.

It is unclear whether defense counsel investigated a possible claim of unlawful racial profiling before he elected not to pursue this issue. In any event, in her decision on defendant's PCR petition, Judge Baxter noted that Officer Rossi had valid grounds to run the check on the Acura and, once he was alerted to the fact that the vehicle had been reported stolen, had reasonable grounds to stop the vehicle.

Moreover, there is no indication in the record that the racial identities of defendant or his co-defendants played any role in the officer's decision to check the registration of the Acura or stop the vehicle. Thus, we conclude that defendant was not denied the effective assistance of counsel because his attorney failed to conduct an investigation to support a potential racial profiling defense.

In addition, defendant argues that he was denied the effective assistance of trial counsel because his attorney did not move to suppress evidence obtained in the search of the vehicle. Defendant argues that, after the vehicle was stopped and its occupants detained, there was no justification for the officer to search the interior of the car.

As stated previously, Officer Rossi testified that he looked into the vehicle and the butt ends of the weapons were in plain view. Defendant contends that Rossi's testimony on that point should have been challenged because his report did not mention his observations and because the vehicle allegedly had tinted windows. We are satisfied that, even if defense counsel had pointed out those inconsistencies, a motion to suppress would not have been successful.

Last, defendant claims that PCR counsel was ineffective because he was not prepared for the hearing and did not call defendant as a witness. There is, however, nothing in the record to support the assertion that PCR counsel was unprepared, nor is there any indication that defendant had anything of significance to add by way of testimony.

 
Affirmed.

(continued)

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A-1569-06T4

December 15, 2008