STATE OF NEW JERSEY v. MICHAEL BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1700-07T41700-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BROWN,

Defendant-Appellant.

___________________________________________________

 

Submitted April 30, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-0043.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Brown appeals from the dismissal of his petition for post-conviction relief (PCR) without an evidentiary hearing. He presents the following points for our consideration:

POINT I

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO PRODUCE TAWANDA WILFONG AS A DEFENSE WITNESS AT TRIAL SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE COURT APPLIED AN ERRONEOUS LEGAL STANDARD IN DEN[Y]ING POST-CONVICTION RELIEF.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION FOR POST-CONVICTION RELIEF.

We have considered these arguments in light of the record and applicable legal standards. While we do not reach the ultimate merits of defendant's request for relief, we conclude he presented sufficient evidence to warrant a plenary hearing on the petition. We therefore reverse and remand the matter to the trial court for further proceedings.

I.

Following a jury trial, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1; two counts of aggravated assault in the fourth degree, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). On the robbery conviction, he was sentenced to a term of seven years in prison, with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Concurrent sentences on the other charges were imposed, along with appropriate financial penalties.

We affirmed defendant's conviction and sentence in an unreported opinion. State v. Brown, No. A-0869-03 (App. Div. October 8, 2004). Therein, we summarized the State's proofs at trial:

[O]n December 24, 2003, while in line at a Shop Rite supermarket in Watchung, ostensibly waiting to pay for groceries, defendant reached into the open cash register and took about $180 to $200 from the drawer. Defendant then ran from the store. The incident was filmed on the store's security videotape.

Less than five seconds later, two uniformed police officers who were on duty in the store, Mathew Melchionda and William Kelly, ran out the store exit, saw defendant running across the parking lot, and gave chase.

The officers were approximately forty yards behind defendant as they began their pursuit. During the chase, the officers shouted commands: "stop, police" and "you're under arrest". Defendant, however, did not stop, but looked back over his shoulder several times while running. While continuing the chase, the officers radioed for backup.

Defendant approached Route 22 and crossed the westbound lanes, where he reached a two-and-one-half foot "Jersey barrier" separating east and west bound traffic on Route 22. Because of the volume of traffic, the officers were unable to immediately follow defendant across the westbound lanes of Route 22.

When the officers were finally able to cross the westbound lanes, they again identified themselves and ordered defendant to put his hands in the air. Defendant again failed to comply, but eventually put his hands in the air when Officer Melchionda drew his service weapon and pointed it at defendant. As Officer Kelly approached to take defendant into custody, defendant made fists with both hands and assumed a fighting stance. As Officer Kelly reached for defendant's right arm, defendant swung his right elbow at the officer's head. As Officer Melchionda holstered his weapon and approached to assist Officer Kelly, defendant swung a left-handed punch at him. Officer Kelly then took defendant down to the ground where they began to fight. Defendant continued to fight with the officers in the middle of Route 22, while traffic passed the group traveling between 50 and 60 miles per hour.

Defendant continued to resist the officers, in what Officer Melchionda described as a "violent and exhausting fight," until the officers subdued him and handcuffed him. Much of the stolen money had blown away during the chase and Officer Kelly was able to retrieve only $34[].

[Id. at slip op. 2-4.]

Defendant did not testify and called no witnesses at trial. Based upon the above referenced testimony, he was convicted by the jury of all counts.

After defendant's subsequent petition for certification to the Supreme Court was denied, State v. Brown, 182 N.J. 427 (2005), he filed a pro se PCR petition. An amended petition in which he alleged a number of deficiencies in the representation afforded by trial counsel was filed after appointment of counsel from the Public Defender's Office. In particular, defendant certified that he advised trial counsel that he had suffered a head injury in an automobile accident some fourteen months before the crime. He claimed that trial counsel "never tried to get any information about the accident or obtain records about the prescription[]" drugs he was taking as a result.

Defendant further claimed that he told trial counsel that his live-in girlfriend, Tawanda Wilfong, was present in the parking lot of the Shop Rite on the day of the robbery. She apparently saw the events "after [defendant] left the store," and she also "knew how [defendant] had been acting after the automobile accident[.]" Defendant claimed that his trial counsel "did not want to use [Wilfong] as a witness because she was [his] girlfriend." Defendant further certified that his son, Michael, Jr., was with Wilfong and "was also a witness to some of what happened by the barrier on Route 22[.]"

The amended PCR petition was also supported by Wilfong's certification in which she claimed that she and defendant had lived together for thirteen years at the time of his arrest and that she was with him on the night in question. Wilfong certified that defendant had been badly injured in a car accident and "was not himself" thereafter. As she waited for defendant in a rented van outside of the Shop Rite on that night, she could see him reach into the cash register and remove the money. Wilfong claimed that defendant ran from the store and she "tried to follow him in the van[.]" She saw the officers running after defendant and she "drove to where [defendant] and the two [] policemen were on the barrier in the middle of Route 22, and [she] pulled over."

Wilfong brought the van to a stop "just a few feet from where [defendant] and the police were[.]" She claimed that as soon as defendant "stepped over the barrier, one police officer grabbed him by the jacket and then threw him to the ground and put his knee in [defendant's] back." Wilfong claimed that her son got out of the van, but the officer "pointed his gun at him" and commanded him to get back in the vehicle. Most importantly, Wilfong certified that trial counsel "never contacted [her] to discuss testifying at trial[.]" She claimed that she could have testified about defendant's medical condition, and that along with her son, she could have described what occurred on Route 22, because "[she] was an eyewitness to almost everything that happened from the time that [defendant] ran out of the store[.]"

A hearing on defendant's petition took place on January 17, 2007 before a judge that was not the trial judge. Among other things, PCR counsel argued that trial counsel had provided ineffective assistance by not investigating defendant's medical condition and Wilfong's potential testimony. She noted that in providing a statement to the police after his arrest, defendant was specifically asked about the "van" that stopped during the altercation. This evidenced, she argued, that Wilfong's presence at the scene was in fact noted by the police themselves. PCR counsel further contended that trial counsel's decision not to call Wilfong as a witness was not to be deferentially reviewed as "trial strategy" because it was a decision made without any investigation at all.

After reserving his decision, the trial judge issued a written opinion on March 8, 2007. After setting forth the relevant case law, the judge concluded that "Wilfong's testimony, even if admissible, would have had no capacity to alter the result, nor does its omission even demonstrate or suggest to this Court any deficiency on the part of trial counsel." Finding trial counsel was "faced with overwhelming proof of [defendant's] guilt at trial[,]" the judge determined his "failure to introduce the testimony of [] Wilfong d[id] not constitute 'serious error[,]'" but rather "constituted sound trial strategy[.]" He addressed defendant's other claims and concluded that defendant's petition should be denied without an evidentiary hearing. This appeal followed.

II.

On appeal, defendant concedes, as did PCR counsel, that "there was no defense to the minor charge of theft from the Shop Rite." However, he argues that Wilfong's testimony was significant in undermining the officers' testimony as to what occurred on the highway, the only evidence that converted the theft into second-degree robbery. Since he demonstrated trial counsel's deficient performance by not interviewing Wilfong, and since her testimony may have altered the result in the case in some respect, defendant contends he demonstrated a prima facie case of trial counsel's ineffective assistance and the judge "applied an erroneous legal standard" to deny his request for an evidentiary hearing.

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2009); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). We have noted, however, that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" Rountree, supra, 388 N.J. Super. at 206 (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)).

In considering the first prong of the Strickland/Fritz test, the PCR judge concluded that trial counsel's decision not to call Wilfong as a witness "constituted sound trial strategy" and was not deficient. However, as the Supreme Court has noted,

If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is virtually unchallengable. But strategy decisions made after less than complete investigation are subject to closer scrutiny. Indeed, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. A failure to do so will render the lawyer's performance deficient.

[State v. Savage, 120 N.J. 594, 617-18 (1990) (internal quotations omitted).]

Since the PCR judge denied the petition without an evidentiary hearing, we have no explanation from trial counsel as to why he did not call Wilfong as a witness at trial. At best, on the current record, we have only defendant's version of trial counsel's thought process, i.e., that Wilfong would not be credible because she was defendant's girlfriend.

In assessing the bona fides of defendant's prima facie case of ineffective assistance, the PCR judge is required to consider the petition "[a]s in a summary judgment motion," that is, "view the facts in the light most favorable to [] defendant[.]" Preciose, supra, 129 N.J. at 462-63. In short, based upon defendant's certifications in support of the PCR petition, he established that trial counsel never spoke to Wilfong at all, yet nevertheless concluded she was not credible because of her relationship to defendant. Having never contacted Wilfong, and absent some other explanation, that conclusion was not the product of reasonable decision-making. It is not entitled to our deferential review, and therefore defendant established the first prong of the Strickland/Fritz test.

In considering the second prong of the analysis, the PCR judge concluded that Wilfong's testimony "would have had no capacity to alter the result" given "the testimony of the police officers, . . . eyewitness and videotaped accounts of the theft of money from the register and the confrontation during flight which elevated that theft to robbery." However, it was the events that took place on the highway that were critical to determining whether defendant was indeed legally culpable of robbery, and it is those events to which Wilfong's testimony was significant.

The situation in this case was not unlike that presented in State v. Mirault, 92 N.J. 492, 494 (1983), where the Supreme Court was required to decide "whether using force or inflicting bodily injury on a police officer investigating a burglary constitutes the assault 'upon another' that elevates theft to robbery under N.J.S.A. 2C:15-1." So too, here, in order to find defendant guilty of robbery, the jury had to be satisfied, beyond a reasonable doubt, that defendant assaulted the two officers "in the course of committing a theft." N.J.S.A. 2C:15-1.

In his opening statement, his cross-examination of the two officers and the State's other witness to the events on the highway, Augustus Lowther, and in his summation, trial counsel stressed the importance of these issues. He reiterated the argument again during the post-verdict motion for a new trial. Admitting that defendant had committed a theft from the Shop Rite cash register, counsel nonetheless attempted to focus the jury's attention on the events on Route 22, arguing that defendant had essentially stopped fleeing the police and that the assaults, if they occurred at all, were not "in the course of committing [the] theft." Lowther, the only impartial witness to the events, testified that he first made his observations of defendant after he was already on the ground and the officers were attempting to handcuff him. He also claimed that defendant's struggle with the police was not the "violent and exhausting fight" described by Officer Melchionda. Because defendant had a significant criminal record and chose not to testify, the jury was left with only the police officers' testimony regarding the critical events of what first occurred at the barrier on Route 22.

Wilfong's testimony, if consistent with her certification, would have provided a different version for the jury's consideration. She claimed to have brought the van to a stop on the highway "just a few feet from where [defendant] and the police were[.]" Her actual presence at the scene was corroborated by the officers' own questioning of defendant during the taking of his formal statement. Wilfong saw the police grab defendant as soon as he "stepped over the barrier," implying that there was no assault beforehand. Wilfong claimed that "one police officer grabbed [defendant] by the jacket and [] threw him to the ground" before defendant did anything. In short, if credible, Wilfong's testimony could serve to negate an essential element of the robbery charge. For purposes of a prima facie case of ineffective assistance of counsel, defendant has satisfied the second prong of the Strickland/Fritz test.

In considering the effect of newly-proffered evidence on the merits of a defendant's PCR petition, we have noted,

[I]f a prima facie showing of ineffective assistance of counsel has been made, even a judge who has conducted a bench trial may not assume that the proffered evidence does not create a reasonable probability that the result of the proceeding would have been different. The judge can only make that determination after conducting the necessary evidentiary hearing, hearing the evidence, and then making a qualitative judgment as to whether that evidence, after being subjected to cross-examination, is sufficient to engender a reasonable probability that the result of the proceeding would have been different, or that the evidence presented at the hearing was sufficient to undermine confidence in the outcome of the initial trial.

[Russo, supra, 333 N.J. Super. at 140.]

A judgment as to Wilfong's ultimate credibility, and its potential for having led the jury to a different result, is something that can only be assessed after an evidentiary hearing. In this regard, Wilfong's relationship to defendant, while a factor in assessing her credibility before a jury, is not dispositive of its potential to have changed the outcome of the trial. As we noted in similar circumstances in which we reversed and ordered an evidentiary hearing on defendant's PCR petition,

We are convinced that the trial court erred by its summary devaluation of the affiants' credibility. While it is true that the affiants were either friends, associates, or relatives of defendant, their accounts provided a plausible version of the transaction and its aftermath that should not have been so lightly dismissed.

[State v. Petrozelli, 351 N.J. Super. 14, 24 (App. Div. 2002).]

We conclude that defendant had established a prima facie case for relief on his PCR petition, and that the PCR judge mistakenly exercised his discretion in not providing for an evidentiary hearing before deciding the merits of the application.

We view the balance of defendant's arguments raised in his pro se PCR petition, and reiterated in Point IV, as being of insufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Reversed and remanded. We do not retain jurisdiction.

 

In a single sentence in Point III, defendant declares that appellate counsel's "performance w[as] deficient." The contention is otherwise unsupported by any legal argument, and was never raised below. We therefore refuse to consider it. R. 2:6-2; Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

It goes without saying that Wilfong's testimony would also be significant evidence regarding the aggravated assault and resisting arrest charges for which defendant was also convicted.

(continued)

(continued)

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A-1700-07T4

June 30, 2009