STATE OF NEW JERSEY v. MALCOLM STOVALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2983-06T42983-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALCOLM STOVALL,

Defendant-Appellant.

____________________________

 

Submitted May 12, 2008 Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-06-02534.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

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

PER CURIAM

Defendant, Malcolm Stovall, appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On July 16, 2003, a jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1 (count one); the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1) (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count four). The trial judge initially merged the conspiracy into the robbery and the reckless manslaughter into the felony murder. On September 5, 2003, defendant was sentenced to thirty years with thirty years' parole ineligibility on the felony murder, and a concurrent twenty years on the robbery subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's convictions were affirmed on direct appeal, except that the State acknowledged that the robbery should merge with the felony murder. State v. Stovall, No. A-2229-03 (App. Div. June 24, 2005) (slip op. at 6). Accordingly, an amended judgment of conviction was entered which merged all offenses into count three, the felony murder. Defendant's petition for certification was denied. State v. Stovall, 185 N.J. 298 (2005).

The motion judge, who also presided over the trial, denied the PCR petition, including the request for an evidentiary hearing, in an oral decision rendered on November 14, 2006. The only issues raised on this appeal that were actually argued to the motion judge are that the cross-examination of the co-defendant who testified against defendant was impermissibly restricted, and that the judge should have given Model Jury Charge (Criminal), "Accomplice Testimony" (1999). All other contentions are raised for the first time on this appeal:

POINT I

PETITIONER-APPELLANT'S CONVICTION MUST BE REVERSED SINCE PETITIONER-APPELLANT HAS BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND POST-CONVICTION COUNSEL PURSUANT TO THE U.S. CONSTITUTION, AMENDMENT VI AND XIV THE NEW JERSEY CONSTITUTION OF 1947, ART. 1 PARA. 10 AND STATE V. RUE, 175 N.J. 1 (2002).

A. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE TRIAL, APPELLATE AND POST-CONVICTION COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE EVIDENCE AT TRIAL CLEARLY REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF THEFT AND ASSAULT AS TO THE CHARGES OF ROBBERY AND AS THE PREDICATE OFFENSE TO FELONY MURDER AND SUCH ISSUE WAS NOT RAISED BY TRIAL, APPELLATE OR POST-CONVICTION COUNSEL.

B. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE TRIAL, APPELLATE AND POST-CONVICTION COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE EVIDENCE AT TRIAL CLEARLY REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON THE ISSUE OF SELF-DEFENSE AND TRIAL, APPELLATE AND POST-CONVICTION COUNSEL FAILURE TO RAISE THE SELF-DEFENSE ISSUE.

C. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL WAS DENIED FULL CROSS-EXAMINATION OF A CRITICAL STATE'S WITNESS WITH RESPECT TO HIS POSSESSION OF DRUGS AND/OR CHARGES RELATING TO THE POSSESSION OF DRUGS THAT HE INCURRED ON THE NIGHT OF THE HOMICIDE WHICH ISSUE WAS NOT RAISED BY APPELLATE COUNSEL (RAISED ON THE POST-CONVICTION RELIEF PETITION).

D. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE EVIDENCE AT TRIAL CLEARLY REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON THE PROPER MANNER TO CONSIDER CO-DEFENDANT TESTIMONY.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.

POINT III

THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR CLAIM IN POST-CONVICTION PROCEEDING.

A brief summary of the facts is necessary. The victim, Ernesto Lopez, was punched once by defendant during the course of a robbery. Lopez struck his head on the sidewalk and died two days later.

Co-defendant Khaliff Broadus entered into a negotiated plea with the State which called for a maximum four-year sentence in exchange for his testimony at defendant's trial. At trial, Broadus testified that after being told by a third person that Lopez had money, he and defendant agreed to rob him. They followed Lopez to the Toast of the Town bar and liquor store. Broadus went in. Upon exiting, Broadus saw defendant "hit" the victim, check his pockets and take his wallet and his beer.

When arrested, defendant told police that Lopez tried to buy cocaine from him. When he told Lopez he had nothing to sell, Lopez disparaged the quality of drugs in the neighborhood and said he would go elsewhere. Defendant further claimed that he and Broadus went to the Toast of the Town merely to purchase cigars. While there, he encountered Lopez, and the two continued their argument outside the establishment. Lopez handed his bag to his female companion, in defendant's estimation, as if in preparation for a fight, as a result of which defendant punched him once on the jaw and the victim fell back. He also claimed neither he nor Broadus took anything from Lopez.

Defendant's statement to police was introduced at his trial, during which he testified that Broadus went into the Toast of the Town while he waited outside. On the stand he said that when Lopez left the establishment, the two men resumed their argument and that as they walked down the street, Lopez poked him in the chest. He said that he, Broadus, and Lopez were all drunk. When Lopez handed his bag to his companion and took a step towards him, he punched him once, knocking him to the ground. Defendant stated that no one came out of the bar, or called out to him about what he was doing. He also said that as he and Broadus left, he looked back and saw Lopez's companion bent down over him, "checking 'em to see if . . . he was moving."

When police arrived at the scene, Lopez was alive but incoherent. His empty wallet was found between five and ten feet from his body. The pathologist testified that Lopez had neither illegal drugs nor alcohol in his system. As a result of a broken vein bleeding into the brain, a large blood clot formed. Despite emergency neurosurgery, Lopez died two days later.

At trial, the manager of Toast of the Town said that as he was closing at 1:30 a.m., he looked out the window and saw two men, one of whom he recognized as Broadus. The other man was going through the pockets of a customer who was lying on the ground. The man going through the pockets of the victim pushed at him with his foot as if to see if he was moving.

Another employee saw defendant, whom he knew, and Broadus, hitting and kicking a man lying on the ground. That witness identified defendant in-court as the person he saw kicking the victim. When he asked defendant what was going on, defendant merely pulled up the hood on his sweatshirt and walked away.

(i)

Under the familiar test, a defendant must, on an ineffective assistance of counsel claim, first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Secondly, a defendant must demonstrate "there is 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. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We address the two issues considered by the motion judge in tandem, as they are properly raised on appeal. First, defendant contends appellate counsel was ineffective because he did not appeal the judge's limitation of Broadus's cross-examination as to his pending disorderly persons drug charges.

During the trial, Broadus was extensively examined, on direct and cross, about his favorable plea agreement with the State. Charges of murder, felony murder, and first-degree robbery were dismissed in exchange for Broadus's guilty plea to second-degree conspiracy to commit robbery and a maximum term of imprisonment of four years.

When defense counsel attempted to question Broadus about pending disorderly persons drug charges, the State's objection was sustained, as the charges were only pending, not convictions, and were not indictable offenses. Defense counsel argued that the cross-examination was permissible as it would establish additional motive for Broadus to lie. We find the contention to be without merit that appellate counsel should have argued the restriction of cross-examination was prejudicial error.

Broadus's motive to lie was fully developed by virtue of the first-degree charges, which were reduced or dismissed in exchange for his testimony against a man he described as like a "brother" to him. The impact of additional testimony as to pending disorderly persons charges on the jury would have been slight, if any. Appellate counsel's failure to raise the issue on appeal was therefore not an "unprofessional error." There is no probability that the appeal would have resulted in reversal if appellate counsel had raised the issue of the restriction on Broadus's cross-examination. No prima facie case of ineffective assistance of counsel was established on this ground.

Second, defendant contends that trial counsel was ineffective because she did not request that the judge give the then-existing Model Jury Charge (Criminal), "Accomplice Testimony" (1999). The point was not raised on direct appeal. Rule 3:22-4 unequivocally states that PCR cannot be used as the forum in which to address issues that could have been raised in the first instance by way of direct appeal. There are exceptions, but none apply here. Even if not precluded by Rule 3:22-4, the argument lacks merit because although the trial judge did not give that particular model charge, he explicitly told the jury to consider whether Broadus's testimony was "influenced" by the favorable plea agreement he negotiated with the State. He said:

The defense argues in this case that the testimony of Khaliff Broadus was shaped by his desire to get a good plea bargain. If you determine that Mr. Broadus's testimony was influenced by his desire to get a good plea bargain, then you must determine whether or not his desire to get this plea bargain affects the credibility or the believability of his testimony.

When joined with the model jury charge as to credibility which he did give, which included Model Jury Charge (Criminal), "False In One False In All" (1991), the judge's cautionary instruction fulfilled the model charge's goal of highlighting an accomplice's possible bias to the jury. The jury could not have misunderstood why Broadus's testimony was "especially suspect." State v. Harris, 156 N.J. 122, 180 (1998). Given the risks attendant to the model charge, it cannot be said that it was unprofessional error not to have requested it, as the judge unflinchingly charged the jury as to Broadus's motive to lie. Defendant thus gained by benefit of an instruction with none of the model charge's risks. The model charge discourages use unless specifically requested by a defendant because of "possible prejudice to the defendant." State v. Artis, 57 N.J. 24, 33 (1970). Since the issue should have been addressed on direct appeal, and enforcement of the bar does not result in fundamental injustice to defendant and is not contrary to the Constitution of the United States or New Jersey, this point will not be discussed further.

(ii)

Defendant's remaining claims of ineffective assistance of counsel raise points not argued before the PCR judge. Generally, issues not raised in the trial court will not be considered on appeal unless they are jurisdictional in nature, or substantially implicate the public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The claims fit neither exemption.

Furthermore, all the instances of alleged ineffective assistance of counsel refer back to the jury instructions. Defendant contends that the failure to instruct as to the lesser included offenses of theft and assault, and to instruct as to self-defense, constituted prejudicial error, and that it was ineffective assistance of trial, appellate and PCR counsel to have failed to raise these contentions.

Some discussion is necessary, if only to point out that even if considered on the merits, the arguments fail. A charge as to a lesser included offense, for example, should only be given when "the evidence at trial presents a rational basis for the jury to acquit the defendant of the greater offense and convict him or her of the lesser." State v. Garretson, 313 N.J. Super. 348, 354 (App. Div.), certif. denied, 156 N.J. 428 (1998).

Defense counsel argues this was an "afterthought robbery," and that therefore the asserted lesser included of theft and assault should have been charged pursuant to State v. Lopez, 187 N.J. 91 (2006), as the jury could have found that the victim's wallet was taken as an afterthought once he was unconscious. In Lopez, the only testimony about the event, or intent for that matter, was from the defendant himself. Id. at 93. He said he struck the victim to ward off unwanted sexual advances, and then stole the victim's chain only as an afterthought. Ibid.

In this case, defendant denied ever touching the victim after the one punch, but the testimony of all the eyewitnesses was explicitly to the contrary. Broadus saw defendant going through the victim's pockets. The eyewitnesses from the Toast of the Town saw defendant either going through the victim's pockets or kicking him. Broadus testified that defendant's intent in striking the victim was to rob him. Based on the State's witnesses, there was no rational basis to reject the greater charge of robbery, only to convict on the lesser charges of assault plus theft, and therefore no rational basis existed to give the assault and theft charges.

Similarly, there was no rational basis to give the self-defense charge. When the judge asked defense trial counsel if she wanted the charge, she declined. The only proof presented on this issue was defendant's own testimony, as he said that he thought the victim, by virtue of handing his bag to his companion, was preparing to fight. In order to raise self-defense, defendant would have had to put the State on notice, which he did not do. R. 3:12-1. Moreover, the judge would have had to find that defendant's asserted interpretation of the victim's conduct was based on an objectively reasonable belief that he was about to be attacked. State v. Jenewicz, 193 N.J. 440, 450 (2008). There was no rational basis, on defendant's statement alone, for that instruction to be given.

None of defendant's counsel were ineffective due to having failed to request these instructions at trial, to having failed to argue on direct appeal that their absence was fatal to the conviction, or to having failed on PCR to contend that the failure to previously raise the issues was ineffective assistance of counsel. None of the instances rise to the level of professional error, nor would the inclusion of the instructions have affected the outcome. It is clear from the jury's verdict that they believed the independent eyewitnesses and Broadus's versions of the night's events, and not that of defendant. The additional charges would not have affected the outcome as the dispositive question was as to credibility.

(iii)

Defendant also argues that error was committed by the PCR judge because he did not grant defendant's request for an evidentiary hearing. There is no entitlement to such a hearing without a defendant establishing a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-63. Since the court correctly concluded that no prima facie case had been made out, no evidentiary hearing was necessary.

(iv)

 
Defendant's final point is that he is not procedurally barred from raising his claims pursuant to Rule 3:22-4 because they all relate to ineffective assistance which could not raised until PCR. In light of our discussion, this point does not require further consideration in a written opinion. R. :11-3(e)(2).

Affirmed.

The jury found defendant not guilty of murder, the indicted charge, and the lesser included offense of aggravated manslaughter.

We note that no issue of voluntariness has been raised under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We consider defendant's request for a jury charge in light of the jury charge he would have received at the time under Model Jury Charge (Criminal) "Accomplice Testimony" (1999), and not the current charge, Model Jury Charge (Criminal) "Testimony of a Cooperating Co-Defendant or Witness" (2006).

The potential for prejudice lies in a jury improperly concluding that the court is suggesting a defendant is guilty because others have come forward, admitted their guilt, and implicated him.

(continued)

(continued)

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A-2983-06T4

June 25, 2008