STATE OF NEW JERSEY v. ROBERT JOSEPH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0333-07T40333-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT JOSEPH, a/k/a

ROBERT MASSENBURG,

a/k/a ROBERT R. JOSEPH,

Defendant-Appellant.

_______________________________________

 

Submitted January 6, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2629.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Robert Joseph appeals from an order entered by the Law Division on February 15, 2007, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Essex County Indictment No. 99-07-2629 with conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); murder, N.J.S.A. 2C:11-3a(1) and (2) (count two); unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count three); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four).

Defendant was tried to a jury. At the trial, the State presented evidence that defendant and co-defendant Alonzo Barber exited a burgundy-colored car with tinted windows and attacked Ronald Gordon (Gordon) while he was walking with three women. The State's evidence indicated that defendant struck Gordon on the side of his head with a handgun and knocked him to the ground. Defendant then shot Gordon four times in the chest and right arm, causing his death. According to the State's evidence, defendant killed Gordon because Gordon had punched him in the face during a prior confrontation.

The jury found defendant guilty of aggravated manslaughter and possession of a weapon for an unlawful purpose. The court merged the convictions for sentencing purposes and sentenced defendant to twenty-four years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentences. In that appeal, defendant raised the following contentions:

POINT I

THE TRIAL JUDGE IMPROPERLY EXCLUDED EVIDENCE OF ANOTHER SHOOTING IN NEWARK BY A SIMILARLY -DESCRIBED SHOOTER, UNDER SIMILAR CIRCUMSTANCES, WHO EXITED A SIMILAR BURGUNDY BUICK REGAL.

POINT II

THE SENTENCE IMPOSED IS EXCESSIVE.

Defendant filed a pro se supplemental brief in which he raised the following additional arguments:

POINT I

DEFENDANT SUBMITS THAT THE TRIAL COURT ERRED BY ALLOWING THE COERCED OUT-OF-COURT INCONSISTENT STATEMENT MADE BY STATE WITNESS NASIR TURNER INTO EVIDENCE.

POINT II

THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE PROSECUTOR HAD A STATE INVESTIGATOR TESTIFY [THAT] JALEEL FRAZIER HAD GIVEN INFORMATION THAT RESULTED IN OBTAINING INCULPATORY INFORMATION AGAINST DEFENDANT.

POINT III

THE OUT-OF-COURT IDENTIFICATION OF DEFENDANT WAS TAINTED AND SUGGESTIVE.

POINT IV

THE STATE FAILED TO SUBMIT INDEPENDENT EVIDENCE TO THE JURY PURSUANT TO STATE v. JOHNSON, AND FAILED TO FILE A TIMELY APPLICATION PURSUANT TO N.J.S.A. [2C:43-7.2e], RENDERING THE NO EARLY RELEASE ACT SENTENCE UNCONSTITUTIONAL.

We affirmed defendant's convictions and the sentences imposed. State v. Joseph, No. A-684-01T4 (App. Div. March 6, 2003). Defendant thereafter filed a petition for certification with the Supreme Court seeking review of our judgment. On June 23, 2003, the Supreme Court denied the petition. State v. Joseph, 177 N.J. 224 (2003).

In January 2004, defendant filed a pro se petition for PCR in which he alleged that he was denied the effective assistance of trial and appellate counsel because: 1) trial counsel failed to take action with regard to "juror taint;" 2) trial counsel failed to seek a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); and 3) appellate counsel failed to raise these issues in the direct appeal.

PCR counsel was appointed and in November 2006, counsel filed an amended PCR petition, in which defendant alleged that: 1) the trial court's failure to excuse a juror sua sponte deprived defendant of his right to a fair trial; 2) he was denied the effective assistance of counsel; 3) the admission of hearsay evidence denied defendant his right to confront the witnesses against him; 4) the decision to impose a sentence longer than the presumptive term was based on facts not decided by the jury; 5) the trial court erred by refusing to allow the defense to present certain evidence; and 6) defendant was entitled to interview jurors concerning his claim that one of the jurors was not impartial.

On January 12, 2007, the court conducted an evidentiary hearing on the petition. Thereafter, the court filed a written opinion in which it concluded that the petition should be denied. The court entered an order on February 15, 2007, memorializing its opinion. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

Defendant has filed a pro se supplemental brief in which he raises the following argument:

POINT I

THE STATE'S ARGUMENTS MUST FAIL AS THEY COMPLETELY IGNORE COUNSEL'S VIOLATIONS OF THE RULES OF PROFESSIONAL CONDUCT AND MULTIPLE INSTANCES OF INEFFECTIVENESS.

We are convinced from our review of the record and the applicable law that defendant's arguments are entirely without merit. We therefore affirm the order denying PCR substantially for the reasons stated by the trial court in its written opinion dated February 15, 2007. R. 2:11-3(e)(2). We add the following brief comments.

Defendant argues that he was denied the effective assistance of counsel because his attorneys failed to take appropriate action with regard to Juror Number Nine. Defendant claimed that this juror knew the victim and his family. In addition, during the trial, the juror informed the court that she knew one of the State's witnesses.

Defendant asserts that trial counsel was deficient because he did not seek the removal of the juror during the trial and should have raised this issue in a post-trial motion. Defendant additionally contends that appellate counsel was ineffective because this issue was not raised in the direct appeal. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test, a defendant first must show that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We note that there is no evidence in the record that Juror Number Nine knew the victim or his family. Moreover, during the trial, when the juror informed the court that she recognized the witness, defense counsel was given the opportunity to seek the removal of Juror Number Nine but, after consulting with defendant, chose to permit the juror to remain on the panel. The judge instructed the other jurors that the fact that Juror Number Nine recognized the witness should not enter into their deliberations. In addition, at the conclusion of the trial, defense counsel reserved the right to make a post-trial motion regarding the juror's participation in the case; however, at the PCR hearing, counsel testified that he decided not to file that motion because he determined that it would have been without merit.

In its written opinion, the PCR court found that trial and appellate counsel dealt appropriately with the issues raised regarding Juror Number Nine. The court wrote that:

[a]t the PCR hearing, Kevin McLaughlin, a very experienced senior attorney with the Office of the Public Defender, testified that he had specifically given [defendant] the opportunity to have the juror dismissed but that [defendant] had instructed him not to seek the dismissal of the juror in question. [Defendant] denies giving any such instruction. To the contrary, he claims that he instructed McLaughlin to seek the juror's dismissal. The Court finds McLaughlin much more credible. He clearly remembered that the Court insisted that he speak to his client to confirm directly the initial decision he expressed at sidebar to keep a juror. He remembers doing so and receiving the instruction to try to keep the juror. He had no reason to disobey his client's instructions and had no reason to keep a juror over his client's objections. On the other hand, [defendant] has an obvious motive to have a failure of recollection. It may well have been that he thought he might have an advantage if a juror went to school with him and was from his neighborhood. Granting his choice of keeping the juror cannot be the basis of an ineffective assistance of counsel claim or a claim of judicial error.

We agree. We conclude that defendant failed to show that he was denied the effective assistance of counsel because of the manner in which his trial and appellate attorneys handled the issues regarding Juror Number Nine.

The other arguments raised by defendant in this appeal are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

As part of a revision of NERA, N.J.S.A. 2C:43-7.2e was deleted. L. 2001, c. 129, 1.

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A-0333-07T4

January 22, 2009