STATE OF NEW JERSEY v. FUQUAN MORGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0858-07T40858-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN MORGAN,

Defendant-Appellant.

___________________________________________________

 

Submitted October 21, 2009 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 03-05-1651 and 03-04-1526.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel and on the brief).

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

PER CURIAM

In this appeal, we examine whether defendant was deprived of the effective assistance of counsel when his attorney insisted that a detective employed by the prosecutor's office remain in the jury venire. The detective eventually served on the jury, which convicted defendant. Because the record does not suggest a reasonable tactical basis for defense counsel's unorthodox position, we vacate the order denying post-conviction relief and remand for an evidentiary hearing.

I

During a trial the jury heard testimony that, on March 16, 2003, six undercover Newark police officers conducted surveillance on Garside Street in what was referred to as a drug trafficking area. From an unmarked van, officers observed defendant talking to a woman on a street corner. During this conversation, the woman handed what appeared to be money to defendant, who then walked across the street and retrieved from under a rock a bag containing small envelopes from which he drew one envelope. The envelopes under the rock contained heroin. Defendant then recrossed the street and handed an envelope to the woman.

The officers decided to arrest defendant and the woman. As they neared, someone yelled, "Five-O, five-o," and defendant and the woman ran off. The woman got away, but defendant tripped and fell during the pursuit and was apprehended. He was found to be in possession of $95 in cash.

Defendant was arrested and charged in Indictment No. 03-04-1526 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(b)(3); third-degree possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.

At the conclusion of a trial, the jury convicted defendant of all the charges set forth in Indictment No. 03-04-1526. Soon thereafter, pursuant to an agreement, defendant pled guilty to third-degree possession of CDS with the intent to distribute within 1000 feet of a school in Indictment No. 03-05-1651 in exchange for the dismissal of the other counts in that indictment.

With regard to the convictions resulting from the trial in Indictment No. 03-04-1526, the judge granted the State's motion to impose an extended term, merged all convictions and, on the conviction of second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, the judge imposed a prison term of twenty years with a ten-year period of parole ineligibility. On the single count to which defendant pled guilty in Indictment No. 03-05-1561, the judge imposed a concurrent eight-year prison term with a three-year period of parole ineligibility.

Defendant appealed from both judgments of conviction, arguing that: (1) the admission of expert testimony of drug trafficking impermissibly invaded the jury's province; (2) imposition of an above the presumptive, persistent offender extended term with a maximum parole disqualifier violated his constitutional rights to trial by jury and due process of law; and (3) the trial judge abused his discretion by imposing the maximum extended term of twenty years with a ten-year period of parole ineligibility. By way of an unpublished opinion, we affirmed the convictions but remanded for reconsideration of the duration of the sentence. State v. Morgan, No. A-4864-03T4 (App. Div. June 1, 2006). Following reconsideration, the trial judge imposed the same sentences. Defendant's petition for certification was denied by the Supreme Court. 188 N.J. 491 (2006).

II

Defendant filed a petition for post-conviction relief on November 20, 2006. He argued that he was deprived of the effective assistance of counsel in numerous ways. The judge did not conduct an evidentiary hearing, but heard only the argument of counsel and denied defendant's petition for post-conviction relief by way of a written decision.

Defendant appealed, raising the following arguments for our consideration:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSIS-TANCE OF TRIAL COUNSEL.

A. Trial counsel failed to excuse Detective Corella from the jury.

B. Trial counsel failed to object to expert testimony by Detective Hollo-way.

C. Trial counsel failed to object to the prosecution vouching for the cred-ibility of its witnesses.

D. Trial counsel failed to remind the court to explain the defendant's ab-sence at the outset of the trial.

E. Trial counsel failed to investi-gate potential rebuttal witnesses.

F. Trial counsel failed to consult with defendant in a meaningful manner.

G. Trial counsel failed to ask the court for a Wandering charge.

H. Trial counsel failed to argue that the imposition of the sentence vio-lated defendant's constitutional right to a trial by jury and due process of law.

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR.

III. THE LOWER COURT ORDER DENYING THE PETI-TION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

V. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

With the exception of the argument contained in Point I-A, we find insufficient merit in defendant's arguments that he was denied the effective assistance of counsel, which are contained in the remainder of Point I, to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, for the reasons set forth hereafter, we agree with defendant's contention in Point V to the extent he claims he was entitled to an evidentiary hearing on the argument contained in Point I-A, which as defendant correctly argues in Points III and IV, is a contention that is not procedurally barred.

III

A

In Point I-A, defendant argues that his trial attorney erred by urging that a detective employed by the Essex County Prosecutor's Office remain in the venire, which was summoned in this matter. Before selection commenced, the prosecutor brought this fact to the judge's attention and requested that the detective be excused, citing State v. Jackson, 43 N.J. 148 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). When defense counsel objected, the prosecutor asserted that the detective "does work" for her office, likely "did work" for the judge when he was employed by the prosecutor's office, and "knows the arresting officer in this case very well." The prosecutor argued that Jackson "would seem to dictate that he should be excused by the [c]ourt for cause."

The judge recognized that if defendant objected to the detective's presence in the venire, "there's no doubt" that Jackson would require his removal for cause. But the judge indicated that Jackson did not precisely apply because defense counsel insisted that the detective not be excused. The judge, however, probed further about the nature of the case:

THE COURT: . . . who is going to be the important State's witness whose credibility is going to be under direct attack?

[THE PROSECUTOR]: Officer Frank Rusignuolo, Your Honor, the very same witness --

[DEFENSE COUNSEL]: Well, I know Officer Frank Rusignuolo.

[THE PROSECUTOR]: -- that the potential juror has indicated he knows very well. He was the arresting officer, he observed the transaction, he engaged in the foot chase, and he ultimately apprehended the defendant. His credibility is under direct attack.

The judge then asked defense counsel whether, if he excused the detective from the venire, "it would impair the basic fairness of the trial or prejudice the defendant," to which defense counsel responded in the affirmative. The judge asked, "precisely what prejudice"? That inquiry prompted the following from defense counsel:

Well, Your Honor, in light of -- well, I don't know. I can't make that determination at this point. I haven't seen the rest of the panel. But, clearly, there's a limited number of juror -- prospective jurors available in the courthouse this week and, at this point, it would adversely affect -- I can make that analysis right now, I want to have him here as my -- one of my prospective panelists.

The judge concluded that he did not see "any percentages in excusing him under the circumstances right now," considering that the detective might not be selected or might be excused before the conflict between the prosecutor and defense counsel on the matter ripened into a real controversy.

The detective was seated in the jury box during jury selection and not excused from the jury. He ultimately participated in the deliberations that resulted in the verdict of guilt.

Having been convicted, defendant argued in his PCR petition and argues here that defense counsel was ineffective. He contends that defense counsel was ineffective by failing to request that the detective be excused from the venire or by failing to take other steps, through either the use of a peremptory challenge or a challenge for cause, to prevent him from sitting on the jury.

B

In determining whether an accused has been deprived of the constitutional right to the effective assistance of counsel, we apply the two-part test formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test was also adopted as the means for determining when the performance of counsel offends our state constitution. State v. Fritz, 105 N.J. 42 (1987).

The Strickland/Fritz test requires that the court determine whether "counsel's representation fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and, if so, whether "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.

In applying the first prong, we recognize that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Castagna, 187 N.J. 293, 314 (2006). Thus, as a general matter, "strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial." Id. at 314-15.

The "prejudice" requirement of the second prong was based on the conclusion that "'[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 209 (1985) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696).

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process" that it cannot be relied on as "having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. In holding that a petitioner for post-conviction relief must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," the Court defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Fritz, supra, 105 N.J. at 52.

In short, a defendant is not required to show with mathematical precision that he would have been acquitted instead of convicted but for trial counsel's mistakes, but instead is required to show only that his attorney's errors and omissions were of such significance as to undermine confidence in the outcome. In examining the parties' contentions, we must remain mindful that "[p]ost-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)).

C

In considering the application of the Strickland/Fritz test to the circumstances surrounding defense counsel's failure or refusal to ensure the detective's dismissal from the venire or counsel's failure or refusal to exercise a challenge for cause or a peremptory challenge, we are initially hampered by inadequacies in the record on appeal. The colloquy among the judge and counsel prior to jury selection reveals that the detective had already been questioned. The transcript provided to us also does not contain that pre-selection voir dire. In addition, the transcript does not reveal what took place during jury selection. Instead, following the judge's introductory remarks to the venire, the transcript states only "Jury Selection Conducted," which was immediately followed by the judge's direction that the jury be sworn. As a result, we do not know what transpired when the detective was seated in the jury box and examined as to his ability to be fair and impartial. We also do not know whether there were any further challenges or additional colloquy regarding the detective, nor do we know anything else about jury selection.

The record only reveals that to which we have already referred. The detective was employed by the office that was prosecuting this defendant and the detective knew the arresting officer, whose credibility was a key issue. The judge, as he indicated during the colloquy from which we have already quoted, would undoubtedly have sustained any defense objection to the detective being in the venire. Although the record on appeal is not complete, a defense objection or application at any stage during jury selection would have undoubtedly required the detective's exclusion from the jury. See State v. Reynolds, 124 N.J. 559, 568 (1991) (holding that trial judges should "tend to favor excusal of a member of the law enforcement community"); Jackson, supra, 43 N.J. at 160-61. However, the limited record on appeal, as we have indicated, reveals that defense counsel was insistent on the detective remaining in the venire and was quite willing to allow the detective to take a seat on the jury and deliberate on defendant's guilt. It is fair to say that defense counsel's position regarding the detective was unorthodox.

Despite the considerable doubts engendered by defense counsel's unusual position regarding the detective, we cannot render any conclusive determination. As earlier observed, in examining whether an accused has received the effective assistance of counsel, as a general matter courts do not second-guess reasonable strategic decisions. Castagna, supra, 187 N.J. at 314-15. In the only clear statement in the record on appeal as to defense counsel's tactic regarding the detective, which was quoted earlier, she only indicated that she "couldn't make that determination now" but insisted that he remain in the venire. Thus, there is nothing in the record on appeal that would reveal whether defense counsel had made a sound strategic decision in insisting that the detective remain in the venire and in allowing him to ultimately sit on the jury.

The trial judge did not conduct an evidentiary hearing before ruling on defendant's petition for post-conviction relief on this specific point. We conclude he was mistaken in that regard. The judge could not have determined that defense counsel had made a sound tactical decision without knowing what the tactic was. Certainly, a defendant is required to overcome the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). But we are satisfied that defense counsel's failure to exclude from the jury a county detective, who was employed by the prosecutor's office and who knew well the arresting officer, presents sufficient evidence of the ineffective assistance of counsel to warrant closer examination into the reason or reasons, if any, for defense counsel's unorthodox position. We recognize that our rules do not automatically require an evidentiary hearing into matters raised in petitions for post-conviction relief. R. 3:22-10. However, an evidentiary hearing is often necessary to develop that which is not clearly presented by the existing record. See State v. Preciose, 129 N.J. 451, 462 (1992). When a defendant presents a prima facie case of the ineffective assistance of counsel, as here, there must be an evidentiary hearing so that the issue may be fully examined for purposes of determining whether defendant was deprived of the effective assistance of counsel and for purposes of further review by appellate courts. Id. at 462-63; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991); State v. Koch, 118 N.J. Super. 421, 426 (App. Div. 1972).

IV

We, thus, vacate the order denying post-conviction relief and remand for an evidentiary hearing so there may be a full exploration of counsel's reasons for failing to prevent the detective from sitting on the jury. In developing the record for consideration in the trial court, as well as potential further review on appeal, the PCR judge should require that counsel obtain and submit the entire trial transcript so that the record will contain the entire voir dire of the detective as well as the entire jury selection process.

 
The order under review is vacated and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

With regard to another event, which occurred on March 27, 2003, defendant was charged in Indictment No. 03-05-1651 with having committed various drug offenses.

At one point in the colloquy, the prosecutor indicated that "the potential juror has indicated that he can be fair and impartial in this case, and I have no doubt as to the sincerity of that statement." Shortly thereafter, the judge referred to the detective's "answers thus far." The transcript does not contain this voir dire. It is not clear to us whether it was recorded and not transcribed or simply not recorded at all because the transcript indicates at one point: "tape off."

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A-0858-07T4

November 2, 2009