STATE OF NEW JERSEY v. BRIAN N. JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1748-06T41748-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN N. JONES,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 01-12-01512 and 01-12-01514.

Yvonne Smith Segars, Public Defender, attorney for appellant (Eric A. Gang, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief (PCR). In the first phase of a sequential trial, the jury found defendant guilty of all three counts of Indictment No. 01-12-01512: (1) first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). In the second phase of the trial, the jury found defendant guilty of the sole count of Indictment No. 01-12-01514, second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). On the first indictment, Judge Peim merged the two weapons offenses with the robbery offense, on which he sentenced defendant to eighteen years imprisonment with a six-year parole disqualifier, consecutive to the sentence imposed on the second indictment. On the second indictment, the judge sentenced defendant to eight years imprisonment with a five-year parole disqualifier, consecutive to the first indictment. The sentences on both of these indictments were ordered to be served concurrently with a sentence defendant was then serving under an unrelated indictment.

Defendant appealed, and in an unreported decision, we affirmed his conviction. State v. Brian Jones, No. A-1788-02 (App. Div. November 25, 2003). Defendant's petition to the Supreme Court for certification was denied on January 4, 2005. State v. Brian Jones, 182 N.J. 426 (2005).

On April 26, 2005, defendant filed a pro se petition for PCR. On March 17, 2006, defendant's PCR counsel filed an amended petition and supporting brief. Defendant argued that his trial and appellate counsel were ineffective in several respects. He requested a new trial or, alternatively, an evidentiary hearing to resolve the ineffective assistance of counsel claims. Defendant also argued that he should be resentenced to clarify the order in which his consecutive sentences are to be served.

On September 14, 2006, without granting an evidentiary hearing, Judge Peim denied the petition. In his order, the judge set forth specific findings and reasons for rejecting each of defendant's claims of ineffective assistance of trial and appellate counsel, and his reasons for not granting an evidentiary hearing. The judge did not address the order in which defendant's sentences were to be served. This appeal followed.

Defendant argues:

POINT I

THE COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE [COUNSEL], DUE TO TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND SUBMIT EVIDENCE, FAILURE TO PRESENT AN ARGUMENT TO THE JURY REGARDING THE INADEQUATE POLICE INVESTIGATION, FAILURE TO DEMONSTRATE BATES' MOTIVE TO FABRICATE THE ROBBERY, FAILURE TO MOVE FOR A JUDGMENT OF ACQUITTAL, AND APPELLATE COUNSEL'S FAILURE TO RAISE SAID ISSUES IF ERROR ON APPEAL.

POINT II

THE COURT ERRED IN DENYING THE MOTION FOR POST-CONVICTION RELIEF BECAUSE THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL, PURSUANT TO R. 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE DEFENDANT'S SENTENCE IS NOT CLEAR AND MUST BE REMANDED TO SPECIFY THE ORDER OF SENTENCES TO BE SERVED.

With respect to Point III, the State concedes that the matter should be remanded to the trial court to specify the order in which the sentences are to be served. See State v. Ellis, 346 N.J. Super. 583, 594-97 (App. Div.), aff'd, 174 N.J. 535 (2002) (describing the effect of different sequences of consecutive sentences on parole eligibility). We accordingly remand on that limited issue. We reject defendant's remaining arguments, and in all other respects affirm.

On June 6, 2001, shortly before 1:00 p.m., Qua'wiyy Bates, a lifelong resident of Plainfield, was approached on the street in Plainfield by defendant, an individual Bates had known for many years. Bates knew defendant by the street name "Justice." When Bates first saw defendant, defendant was in the company of another person, later identified as Howard Bryant. Defendant and Bryant were on bicycles. Bryant stayed on one side of the street, as defendant approached Bates on the other side of the street.

Defendant pulled Bates between two parked vehicles. Defendant pulled an object from the area of his waistband, described by Bates as a black hand-sized object which Bates believed was a gun. He brandished it and then quickly secreted it under his clothing. All the time, defendant was holding Bates' arm with his other hand. Defendant demanded that Bates "give up everything you got." He said to Bates: "Don't, like, make no scene. I don't want to go up side your head with the pistol, or nothing like that. I don't want to shoot you." Bates responded, "Come on, man, I know you. If you want something I'll get you something." As defendant persisted, Bates realized defendant was very serious. When asked why he didn't run, Bates said: "Because I was too scared. I was in fear." Accordingly, Bates gave defendant all of the money he had in his possession.

At about that time, Bryant called out from across the street "Five O," a slang term indicating police presence. A Plainfield police car passed by at a nearby intersection, but its occupants apparently did not see this incident and the car did not stop. Defendant returned to his bicycle and he and Bryant left the area on their bicycles.

Bates immediately walked to a nearby police station and reported the incident to Detective Jean Calvin. Calvin drove Bates to the location of the robbery to look for the individuals Bates described. Defendant was not located, but Bryant was. Calvin arrested Bryant, who was brought back to the stationhouse and who gave a statement. Bryant acknowledged being at the scene, but denied any knowledge that defendant engaged in a robbery or intended to do so. Bates acknowledged that Bryant did not directly interact with him, said nothing to him, and was only present across the street when the robbery occurred. Accordingly, the police released Bryant and never charged him with participating with the crime.

Bates gave a written statement to the police. Several officers were familiar with an individual known as "Justice" and knew that he was in fact defendant, Brian Jones. The police made up a photo array which included defendant's photograph. Bates positively identified defendant from the photo array. A robbery complaint and arrest warrant were issued. However, defendant was not apprehended for a number of weeks or months.

At trial, the State called as its only witnesses Calvin and Bates. They described the events substantially as we have stated them. Defendant did not testify and did not call any witnesses.

In his first point of argument, defendant contends that Judge Peim erred in failing to find that defendant was denied the effective assistance of trial and appellate counsel. To be entitled to relief for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987). A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceedings. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). A defendant is entitled to the effective assistance of counsel in accordance with these principles at all stages of the proceedings, including on appeal. Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S. Ct. 830, 836-37, 83 L. Ed. 2d 821, 830-31 (1985); State v. Morrison, 215 N.J. Super. 540, 545 (App. Div.), certif. denied, 107 N.J. 642 (1987).

Defendant contends his trial counsel was ineffective in four respects. He first contends his trial counsel failed to conduct a thorough investigation and present exculpatory evidence at trial. In his PCR brief, defendant described a version of the events by which a female friend of his, who appeared to be sick, approached him on the street and complained that Bates, a drug dealer, refused to sell drugs to her. Defendant contended he then approached Bates to speak with him, Bates became agitated, and defendant grabbed him as a police car pulled up beside them. Bates attempted to flee and was arrested by the police. In order to avoid a drug charge, Bates allegedly crafted a story that defendant had robbed him. Defendant argues that his trial counsel should have produced witnesses to describe this version of the events.

This bald assertion of facts set forth in a PCR brief is insufficient to establish a prima facie case that trial counsel failed to conduct an adequate investigation. The assertion is not supported by affidavits or certifications based upon personal knowledge. State v. Cummings, 321 N.J. Super. 154, 170, certif. denied, 162 N.J. 199 (1999). The alleged female friend was not identified, and no certification or affidavit from her or anyone else was produced that might support defendant's belated version of the events.

Second, defendant argues that his trial counsel failed to present an argument to the jury that inadequate police investigation created reasonable doubt as to his guilt. On the contrary, this contention is belied by the trial record. Trial counsel elicited testimony from Calvin on cross-examination that the police conducted virtually no investigation and treated this as an insignificant case. In his summation, defense counsel argued extensively and forcefully that the inadequate investigation left many questions unanswered and supported a reasonable doubt as to defendant's guilt. Counsel was not deficient in this regard.

Third, defendant argues that his trial counsel failed to articulate to the jury that Bates had a motive to fabricate the story that defendant robbed him. As with the previous point, the trial record is to the contrary. Defendant's counsel questioned Bates on cross-examination regarding the fact that defendant owed Bates money and that, during the pendency of these charges, Bates had two or three conversations with defendant in which he told defendant if he would pay him the money he owed, Bates would drop the charges. Thus, trial counsel indeed presented to the jury a motive for Bates to fabricate the robbery allegation. In summation, defense counsel argued:

Ladies and gentlemen, first of all, let's consider the source from which this information is coming in the form of the victim. What do we know about the victim? Convicted felon, gets placed on probation, violates probation. He's a drug user, tests positive for drugs after he's placed on probation, and you will have as evidence, his Judgment of Convictions for you to see, and what were the conditions of probation? Unemployed, supposed to get a job, supposed to remain drug free, tests positive.

. . . .

Ladies and gentlemen, what occurred here was that [the] victim had a prior relationship with my client. He was owed money, he didn't get paid back, so he's here. He's here to tell you that my client robbed him with a gun.

The fourth alleged error by trial counsel is that he did not move for a judgment of acquittal on the weapons offenses in both indictments. Defendant argues that the evidence presented through Bates' testimony regarding the gun was insufficient to prove that defendant possessed a gun. Defendant notes that Bates saw the object which he contended was a gun only briefly and could not describe it with specificity. However, consideration of the entirety of Bates' testimony reveals much more.

While brandishing the object, defendant said it was a gun. He threatened that he would strike Bates in the head with the "pistol." He threatened that if Bates did not comply with his demands, he would "shoot" him. Although acknowledging that he could not describe the object with specificity, Bates insisted it was a "small black revolver," although he did not "know if it was a .38, or .25, or whatever."

A motion for judgment of acquittal pursuant to Rule 3:18-1 will be denied if,

viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

We apply the Reyes standard in our appellate review function in considering the sufficiency of the evidence. State v. Kittrell, 145 N.J. 112, 130 (1996). Jurors may find guilt based on circumstantial evidence. State v. Franklin, 52 N.J. 386, 406 (1968). Evidence that can reasonably support an inference of guilt is not rendered insufficient for that purpose because it does not preclude every other possible hypothesis. State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 187 (1997).

Viewing the totality of the evidence in the light most favorable to the State, we are well satisfied that the evidence was sufficient to prove beyond a reasonable doubt that defendant possessed a gun. Accordingly, trial counsel was not deficient for failing to move for judgment of acquittal on the weapons offenses. Even if his conduct was deficient in that regard, the second Strickland/Fritz prong would not be satisfied, because the judge would have surely denied the motion.

Defendant argues that his appellate counsel was ineffective for failing to raise the issues of trial counsel's errors as previously described. Because we have concluded that the asserted errors by trial counsel lacked merit, failure to raise them on appeal was not deficient conduct, and even if it were, the result would have been the same. Accordingly, neither prong of the Strickland/Fritz test was satisfied with respect to appellate counsel.

Finally, we address defendant's argument that he was wrongfully deprived of an evidentiary hearing. Such hearings in PCR proceedings are discretionary. State v. Preciose, 129 N.J. 451, 462 (1992). To be entitled to such a hearing, a defendant must establish a prima facie case of ineffective assistance. Ibid. The PCR petition must be verified by defendant and must set forth with specificity the facts upon which the claim is based. R. 3:22-8. Bare assertions or conclusions will not suffice to establish the requisite showing. Cummings, supra, 321 N.J. Super. at 168-69. A prima facie case requires a showing of a reasonable likelihood that the claim will ultimately succeed on the merits under the Strickland/Fritz test. State v. Marshall, 148 N.J. 89, 158 (1997).

From our review of the record, we are satisfied that defendant failed to make the requisite showing on any of his claims of ineffective assistance of counsel. He was therefore not entitled to an evidentiary hearing, and we find no error in the denial of his request for such a hearing.

 
We remand for reconsideration of sentence to clarify the order in which defendant's consecutive sentences are to be served. In all other respects, we affirm.

There was some conflicting testimony in which Bates said immediately after the robbery, while walking to the police station, he flagged down a police car occupied by Calvin, as opposed to walking into the police station and first encountering Calvin there.

Bates candidly acknowledged that he could not say for sure whether "it was fake or real."

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A-1748-06T4

April 1, 2009