STATE OF NEW JERSEY v. KIERON JACKSON

This case can also be found at 199 N.J. 133, 970 A.2d 1049.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1934-06T41934-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIERON JACKSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 17, 2008 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0079.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Kathleen O'Leary, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. The indictment charged defendant with eight counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and other offenses, arising out of a spree of armed robberies at various Chinese restaurants in Jersey City and Bayonne between November 28, 2001 and December 28, 2001. Defendant was tried before Judge Callahan and a jury. One of the armed robbery counts was dismissed. Defendant was convicted of six of the seven armed robbery counts that were tried, one count of conspiracy to commit armed robbery, and one count of aggravated assault. The jury acquitted him of one count of armed robbery. The judge imposed concurrent sentences on most counts, but sentenced two armed robbery counts consecutive to each other, each with a twenty-year sentence subject to an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Therefore, defendant's aggregate sentence was forty years imprisonment, of which he must serve at least 85%, or thirty-four years, before being eligible for parole. Defendant appealed, and in an unreported decision we affirmed his conviction, but remanded for reconsideration of sentence in accordance with State v. Natale, 184 N.J. 458 (2005). State v. Jackson, No. A-4684-03T4 (App. Div. Nov. 10, 2005).

Defendant filed his PCR petition on February 1, 2006, alleging ineffective assistance of trial and appellate counsel. The matter came before Judge Venable. Without granting an evidentiary hearing, she denied the petition for reasons set forth in an oral opinion on September 28, 2006. The denial was memorialized in an order of October 13, 2006. This appeal followed.

In the appellate brief filed by his counsel, defendant argues:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A) TRIAL COUNSEL FAILED TO ARGUE THAT DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT WAIVED HIS MIRANDA RIGHTS AFTER GIVING THE STATEMENT.

B) TRIAL COUNSEL FAILED TO CROSS-EXAMINE THE VICTIMS THOROUGHLY ON THEIR IDENTIFICATION OF DEFENDANT.

C) TRIAL COUNSEL FAILED TO HIGHLIGHT THE VICTIMS' DISCREPANCIES IN THEIR DESCRIPTIONS OF THE PERPETRATOR.

D) TRIAL COUNSEL FAILED TO FILE MOTIONS TO DISMISS THE INDICTMENT.

E) TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

A) APPELLATE COUNSEL FAILED TO CHALLENGE THE ADMISSION OF DEFENDANT'S PHOTOGRAPH.

B) APPELLATE COUNSEL FAILED TO CHALLENGE THE ADMISSION OF DEFENDANT'S STATEMENT.

C) APPELLATE COUNSEL FAILED TO ARGUE ALL OF DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT V

THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

In a pro se supplemental brief, defendant also argues:

ONE:

DEFENDANT WAS UNFAIRLY PREJUDICED BY THE ABUSE OF DISCRETIONARY POWER BY ALLOWING USE OF DEFENDANTS CUSTODIAL STATEMENT PRIOR TO THE CONSENTUAL SIGNING OF WAIVER.

TWO:

DEFENDANT WAS DENIED THE BENEFIT OF DUE PROCESS BY THE COURT STANDING ON THE USE OF FLAWED IDENTIFICATION PROCESS.

THREE:

DEFENDANT WAS DEPRIVED OF FUNDAMENTAL FAIRNESS WHEN THE TRIAL COURT PERMITTED COUNSEL TO ENTER INTO STATES STIPULATION REGARDING ACCURACY OF VICTIMS TESTIMONY.

FOUR:

TRIAL AND COURT ON POST PROCEEDING FAILED TO DISMISS INDICTMENT FOR INSUFFICIENCY.

Defendant subsequently filed a letter with the court, bringing to our attention the Supreme Court's decision in State v. O'Neill, 193 N.J. 148 (2007). See R. 2:6-11(d).

We reject defendant's arguments and affirm.

I

The State's evidence demonstrated that the first four robberies occurred at one Jersey City establishment, previously frequented by defendant as a customer. We summarized the facts on direct appeal as follows:

The first armed robbery occurred on November 28, 2001, at the Yoan Fong restaurant in Jersey City. Tony Zhu was working at the restaurant when defendant entered with a gun and demanded money. Zhu testified that defendant pointed the gun at the employees and said "take the money out, take the money out." Zhu gave defendant money from the register, and defendant left. Zhu did not see defendant's face on that occasion.

Defendant returned to Yoan Fong two days later. Zhu was again working at the restaurant. He testified that defendant came in, pointed a gun at him, and demanded money. Zhu gave defendant the money from the register and defendant left. Defendant returned to Yoan Fong again on December 6, 2001. On this occasion, defendant climbed over the counter near the front of the restaurant and came to the back where the employees were eating. Defendant pointed a gun at the employees and demanded money, and again Zhu provided money from the register and defendant left.

Zhu testified that during the November 30 and December 6, 2001 incidents, he was able to see defendant's face in the course of the robberies. Zhu also recognized defendant as a customer in the restaurant "once or twice." He was able also to identify defendant in a photo array and at trial.

On the evening of December 22, 2001, defendant returned to Yoan Fong. On this occasion, Yun Yang, a deliveryperson for the restaurant, was on his bicycle returning to the restaurant after making a delivery. Defendant stopped Yang on the sidewalk in front of the restaurant, demanded money, and struck Yang on the forehead and the back of the head with a gun. Yang fell to the ground, and defendant then pointed the gun at Yang's right temple and neck. Yang then provided defendant with the twenty dollars he had in his possession. Defendant searched Yang for more, and upon finding nothing, left. Yang testified that he had seen defendant in the restaurant "many times," and identified defendant from a photo array and at trial.

Also on December 22, 2001, defendant robbed the Cheun Xing restaurant in Jersey City. At the time of the robbery, Li Li Xu, the owner of the restaurant, was in her second-floor apartment directly above the restaurant. Xu observed the robbery occurring via a monitor in her apartment that displayed the video of a security camera in the restaurant. Upon seeing the robbery in progress, Xu ran downstairs with a phone, saw defendant leaving, and called the police. Xu authenticated the video recording at trial before it was played for the jury.

On December 28, 2001, defendant committed robberies number six and seven. First, at approximately 10 p.m., defendant entered the Neptune Caf in Jersey City, also owned by Li Li Xu. Xu was working that evening, and observed defendant enter, armed with a gun. Although defendant covered his face with a mask, Xu saw defendant's clothing, including a black jacket with a pattern on the back. Xu watched as defendant struck two of her employees, took money, and left the restaurant. Xu also authenticated a video of this robbery, taken by a security camera in the restaurant, which was likewise played for the jury.

Defendant's second robbery of the evening took place at the Kung Hing restaurant in Bayonne. At approximately 11 p.m., Xiaomin Chen and his sister were working in the Kung Hing restaurant when defendant entered, wearing a ski mask and holding a gun. According to Chen, defendant ran into the restaurant, ordered Chen to open the cash register, hit Chen on the head with the gun's handle, and again ordered Chen to open the register. When Chen complied, defendant grabbed the cash and ran. Chen testified at trial that defendant was wearing blue jeans during the robbery and that he was sure that defendant was the man that robbed the restaurant.

On December 29, 2001, the day after the last two robberies, Officer Al Roesinger of the Bayonne police and his partner were on patrol when they observed a black Honda Accord double-parked on the street with no occupants. A mobile computer check revealed that the plate was assigned to a white Oldsmobile rather than a black Honda, so the officers checked the vehicle identification number, called for back-up units and waited for the driver to return to the vehicle. About five minutes later, four people entered the vehicle. Before the car drove off, the officers approached and conducted a motor vehicle "stop." The officers observed a male and a female juvenile in the rear of the vehicle, defendant in the driver's seat, and co-defendant Lance Rose in the passenger seat. The officers placed the individuals under arrest and searched the vehicle. Rose and the male juvenile were in possession of handguns, one of which was a fake. The search also revealed a ski mask and a black BB gun. The BB gun was discovered between the driver's seat and the console of the vehicle.

At the time of defendant's arrest, he was wearing a black jacket. Li Li Xu identified the jacket as the same one worn by the man who robbed the Neptune Caf . After defendant's arrest, he was taken to the Bayonne Police Department Detective Bureau and interviewed by Detective William Nide. Defendant was informed of his rights, and signed a waiver statement. Defendant then provided Detective Nide with a formal statement. Defendant's statement described the robbery of the Kung Hing restaurant. After defendant gave his statement to Detective Nide, he was again advised of his rights, waived them, and provided another formal statement to Detective George Moore of the Jersey City Police. In this second statement, defendant confessed to the robbery of the Neptune Caf . Defendant admitted to wearing a black jacket with a sword on the left arm and the word "Avirex" on the back, and hitting someone "near the head area" during the robbery. Defendant also admitted to committing other robberies of Chinese restaurants using a black BB gun. Defendant stated that he was the get-away driver for the robbery of the restaurant on Kennedy Boulevard and Winfield Avenue, and the black BB gun was used in that robbery as well.

[State v. Jackson, supra, slip op at 3-7.]

II

After the jury returned its verdict, but prior to sentencing, defendant filed a pro se motion for a judgment of acquittal or, alternatively, a new trial. He alleged ineffective assistance of his trial attorney, John Young, and also alleged there was "new evidence" that Young failed to present to the jury. Defendant raised eleven distinct points criticizing his attorney's representation. He argued that his attorney: never argued his side of the story; did not cross-examine the State's witnesses during the Wade/Miranda hearing; did not argue that Yun Yang's description of his assailant did not match defendant's physical traits; did not move to suppress evidence; did not discuss with defendant a line of defense or investigate the case; never argued that Xiaomin Chen identified a different individual on the night of defendant's arrest; never argued that the police lied in their reports about his identification being made positive; never argued that the police engaged in misconduct regarding his identifications; never argued prosecutorial misconduct regarding his identification; never argued that the indictment was invalid because it was not signed by the grand jury foreperson; and never argued to reduce defendant's bail.

In a thorough oral decision on February 25, 2005, Judge Callahan denied the motion. In doing so, he rejected on the merits those arguments that could be resolved based upon the trial record. With respect to others, for which the alleged evidence lay outside the trial record, the judge noted that they would be more appropriately addressed in a PCR proceeding. Although the disposition of this motion by Judge Callahan might raise a procedural bar to some of the arguments defendant raised in the PCR proceeding, see R. 3:22-5, we nevertheless will address and decide all of defendant's arguments on the merits. To the extent it is appropriate to our determination, we will refer to Judge Callahan's findings in disposing of defendant's motion for acquittal or a new trial.

III

We begin by setting forth the standard of review of ineffective assistance of counsel claims. The Sixth Amendment, and the parallel provision of the New Jersey Constitution, provide to each criminal defendant the right to the effective assistance of counsel. U.S. Const. amend. VI; N.J. Const. art. I, 10; McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970). This right extends to the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821, 830 (1985). It entails the right "to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The starting point for Sixth Amendment ineffective assistance claims continues to be Strickland. Our Supreme Court adopted "the Strickland test" to consider challenges to attorney performance under our Constitution in State v. Fritz, 105 N.J. 42, 58 (1987).

Under Strickland and Fritz, the petitioner must satisfy a two-prong test in order to overturn a prior conviction on the basis of ineffective assistance. The defendant must first show that the attorney's representation "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This prong "is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). This objective standard recognizes that the goal of the Sixth Amendment remains to ensure a fair trial, not to guarantee optimal representation. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; State v. Orecchio, 16 N.J. 125, 129 (1954). The standard also places a large premium on counsel's right to formulate trial strategy as his or her professional judgment sees fit. State v. Arthur, 184 N.J. 307, 320-21 (2005). Given these two considerations, we indulge in a strong presumption that counsel provided reasonable assistance. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Under the second prong, we require the defendant to demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Of course, our confidence in the outcome must be analyzed with one eye toward the State's evidence of defendant's guilt. Castagna, supra, 187 N.J. at 314.

We rarely presume prejudice. Fritz, supra, 105 N.J. at 60-61. The presumption of prejudice is warranted "when there are 'circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.'" Id. at 53 (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 667 (1984)).

It is permissible to confine our analysis to either prong. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").

IV

We synthesize defendant's ineffective assistance of trial counsel arguments into seven contentions: (a) failure to argue that defendant, prior to the reading of his Miranda rights, gave an unconsented, involuntary, and coerced oral statement; (b) inadequate cross-examination of the detectives at the Wade/Miranda hearing; (c) inadequate cross-examination of the victims about their identifications of defendant; (d) unjustified stipulation to the erroneous nature of Yun Yang's testimony; (e) failure to highlight the discrepancies in Tony Zhu and Yun Yang's description of the assailant; (f) failure to challenge to the facial validity of the superseding indictment; and (g) inadequate investigation. We will discuss each argument in turn.

a. The confession

Defendant concedes that there was a pretrial Miranda hearing, but argues that Young failed to argue at that hearing that "defendant's waiver of rights occurred after defendant gave a formal statement to the police." Judge Callahan, who presided over the Wade/Miranda motion as well as the trial, rejected this argument in ruling on defendant's post-trial motion. Reviewing the evidence and the testimony at the hearing, he found that "defendant gave his formal statement to the detective after, underline after, defendant signed the Miranda waiver." The record supports that finding.

The parties stipulated that defendant's arrest occurred on the morning of December 29, 2001, at 1:05 a.m. William Nide, a detective with the Bayonne Police Department, testified at the pretrial hearing about his reading of Miranda rights to defendant prior to the receipt of a formal statement. At 3:29 a.m., defendant acknowledged, in writing, his willingness to waive these rights and to give a formal statement. Defendant admitted his involvement in the robbery that night of the Kung Hing restaurant in Bayonne.

Detective Nide testified that defendant received, and waived, his Miranda rights for a second time prior to the giving of the statement, which began at 4:30 a.m. Detective Nide conceded on cross-examination that defendant did not sign this second waiver of rights until after the completion of the statement. Cross-examination was limited to this point. Young argued the exact point that defendant claims was not argued. The judge permitted the introduction of defendant's statement, concluding that this was a case in which Detective Nide erred on the side of caution and in effect "over-Mirandized" defendant.

Against this background, it is clear that there was nothing unreasonable in Young's performance. Defendant misinterprets the testimony and the evidence. The first exhibit included defendant's signed acknowledgment of his rights. Defendant agreed, in writing, to waive these rights at 3:29 a.m. Even though the formal statement did not commence until 4:30 a.m., the judge believed Detective Nide's testimony that there was a further reading of rights before the statement, and that defendant understood these rights at the time. Defendant signed the statement after an additional review of the document.

It is clear that Young attempted to draw the court's focus to the timing of defendant's signing of the second document. Given the clear evidence that defendant waived his rights one hour earlier, however, there was little else counsel could accomplish. The representation was neither unreasonable nor prejudicial.

As one his "additional errors," defendant argues that "the night [he] was interrogated [he] was never aware of [his] rights." This argument is belied by the credibility of the police testimony and the production of the waiver forms with defendant's signature.

Defendant adds that Young did not investigate defendant's claim that the police officers threatened defendant in order to extract his confession. However, defendant presents vague and conclusory allegations, the equivalent of bald assertions, to support this claim. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The proponent of an "inadequate investigation" claim "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. Defendant has not made this showing.

Finally, defendant alleges that Young failed to note defendant's initial denial of involvement in the armed robberies. This argument lacks merit. It is clear from the transcripts that Young conducted a vigorous cross-examination of Detectives Nide and Moore. He questioned Nide about the one hour gap between the reading of defendant's Miranda rights and the formal statement. He questioned an unresponsive Moore on the time lapse between the reading of defendant's rights and the beginning of the second formal statement. Nide admitted that there was no tape or video recording of the initial interrogation. He admitted that defendant at first denied any involvement in the armed robberies. During cross-examination and in summation, Young attacked Nide's failure to record these initial denials of involvement. Moore admitted that there was some inconsistency in defendant's descriptions of the crimes. Young attacked Moore's failure to keep a comprehensive record of the interrogation.

There was nothing unreasonable in Young's representation regarding this issue. And, because the evidence revealed that defendant was administered his Miranda rights and waived them before any questioning transpired, there was no violation of the rule laid down in O'Neill, supra, 193 N.J. at 180-81.

b. Cross-examination at the Wade/Miranda hearing

Defendant argues in his PCR petition that Young failed to adequately cross-examine the detectives at the Wade/Miranda hearing. This repeats an argument rejected by Judge Callahan prior to sentencing. As the judge noted, Young asked for a Rule 104 hearing to consider (1) the admissibility of defendant's statement the night of his arrest and (2) the constitutionality of the photo array procedure by which Yun Yang identified defendant.

Judge Callahan heard the latter issue first. To support the introduction of evidence of Yang's out-of-court identification, the State produced Jersey City Detective James Harris. Harris conducted the independent photo array procedure by which Yang allegedly identified defendant on January 3, 2002. Detective Harris presented six photographs to Yang, with the explanation that "the actor may or may not be in the photo array." There was no involvement by Harris in this case prior to this procedure. The procedure complied with the Attorney General's guidelines. Yang identified the fourth photograph, defendant's, as his assailant. He signed the back of the photograph. This photograph was presented to the jury.

There was an irregularity in the memorialization of this procedure. Each of the six photos showed to Yang possessed a Bureau of Criminal Investigation (BCI) number. These numbers (48944, 80771, 77181, 79850, 77181, and 19641) were entered on an evidence card attached to the file. According to this card and Harris's supplemental report, Yang identified 48944 as his assailant. The photo allegedly signed by Yang, however, was marked "104498." The number 48944 did not appear on any of the six photos. Harris reiterated that, notwithstanding this incorrect transcription, defendant was the person depicted on the photo signed by Yang. The "real" 48944 was an unknown individual.

Young cross-examined Harris on this irregularity. Young also questioned Harris about an evidence card pertaining to a separate photo array. This second card displayed both 48944 and 104498. It appears that this card corresponded to a photo array shown to Tony Zhu by a different detective in the Jersey City Police Department. There is no indication in the record, however, of which photo Zhu selected. That detective testified that Zhu picked out a photo of defendant. Of course, Zhu's identification of 104498 would not have aided defendant.

Judge Callahan concluded that the incorrect entry of the BCI numbers was a simple "ministerial mistake." He found Detective Harris credible. There was no doubt that Yang selected defendant's photo. Young's representation did not fall below an objective standard of reasonableness. He attempted to discredit the police department's records and to demonstrate that Yang did not identify defendant as his assailant.

To support the introduction of defendant's statements to the Bayonne and Jersey City Police Departments, the State relied on the testimony of Detective Nide and Detective George Moore. We have previously addressed Young's cross-examination of Detective Nide.

Detective Moore took a second formal statement from defendant at 5:25 a.m. on December 29. Prior to doing so, Moore obtained defendant's waiver of his constitutional rights. In the course of defendant's formal statement, Moore read defendant his rights a second time as "a form of habit." The body of the statement reflected this caution.

The thrust of Young's brief cross-examination was that the State could not produce the official Miranda form signed by defendant prior to the giving of a formal statement. Young asked the judge to preclude the introduction of the first part of defendant's statement -- the section preceding Moore's alleged second reading of defendant's rights. The judge credited Moore's testimony and refused.

Trial counsel's representation did not fall below an objective standard of reasonableness on this issue. Faced with strong evidence corroborating defendant's signed waiver of his constitutional rights, Young attacked the statements as best he could. The judge chose to permit the jury to sort out the credibility of the statements.

c. Cross-examination of the victims at trial

Defendant argues that Young did not cross-examine Yun Yang and Xiaomin Chen with the vigor required by the Sixth Amendment. We disagree.

Yun Yang, the deliveryperson for the Yoan Fong restaurant, identified defendant as his assailant in court. He also recognized defendant's face at the scene of the crime, because "this guy had come to my restaurant many times."

The incident report from the night of the robbery contained Yang's statement to the effect that his assailant was a short, stocky, 200-pound black male. Using this limited description, the police questioned one black male at the scene. They transported another black male to the restaurant for a possible identification, but the identification was negative. Given that defendant weighed about 300 pounds at the time of the armed robberies, defendant argues that there should have been an attempt at trial to elicit from Yang a full description of the assailant's appearance on the night of the robbery. It is unclear how this cross-examination would have aided defendant.

Young chose to attack Yang's credibility in another manner. To comprehend Young's approach, it is necessary to elaborate on the testimony of Detective Harris. We have described the mechanics of the photo array. As noted, Harris testified that Yang signed the back of defendant's photograph after his positive identification. Harris did not believe that Yang had viewed any photographs prior to the viewing of the photo array.

During cross-examination, Yang, however, could not remember a specific procedure like that described by Harris. Yang claimed to review thick photo albums provided by the police. During his review of a third photo album, Yang said he identified defendant's picture as "[t]his guy, this man." Yang also disclaimed any memory of signing the back of any photo.

Young relied on this contradictory testimony to emphasize Yang's inability to remember the photo array procedure and his erroneous statements about the photo albums. Young attempted to discredit Yang's testimony, and with that, Yang's in-court identification. This approach was reflected in Young's final summation.

It is clear from the summation that Young wanted to leverage Yang's incomplete description to defendant's advantage. To weaken the strength of Yang's in-court identification, Young noted the absence of any previous description by Yang of his assailant. He argued that "my recollection is you don't have any identification that he ever gave. I don't recall there being any testimony about what he may have told the police about the description of the person that robbed him." Young implied that Yang could not have described the assailant on the night of the crime because there was no observation; Yang simply picked out the only black male in court to compensate for this deficiency. We will not interfere with Young's strategic choice on this matter.

Xiaomin Chen testified about the armed robbery of the Kung Hing restaurant the night of defendant's arrest. He testified that the assailant covered his face with a ski mask. Chen did not provide an in-court identification of the assailant.

Young conducted a brief cross-examination. He asked Chen about the assailant's pants. He raised Chen's prior identification of a man in "blue jeans" as the assailant. At the time of this identification, about 11:30 p.m., the alleged assailant sat in the back of a police car.

Young relied on this limited testimony to point out serious flaws in the State's case. He wondered why defendant's arrest did not occur until 1:05 a.m. if there was a positive identification at 11:30 p.m. He pointed out that defendant was not wearing blue jeans on the night of his arrest. And, he asked the jury to consider the State's failure to produce police testimony to validate Chen's identification.

Defendant argues that there should have been an attempt to require Chen to describe the physical characteristics of the assailant. It appears, however, that Young did not probe Yang's memory because it could have backfired if, contrary to direct examination, Chen gave a physical description of the assailant consistent with defendant's traits. We attribute Young's avoidance of this possible pitfall to trial strategy.

Even if Young's representation fell below an objective standard of reasonableness, it is clear that there was no prejudice to defendant. There was sufficient evidence on which the jury could return a guilty verdict on this count. Chen's testimony did not fully link defendant with the crime. To accomplish that task, the State relied on defendant's confession to Detective Nide. It is clear that the jury assigned great weight to this evidence. The allegedly deficient cross-examination does not undermine confidence in the verdict.

d. The stipulation

Defendant's pro se supplemental brief challenges Young's decision to stipulate to the fact that Yang did not identify defendant's picture from the photo albums. This stipulation was precipitated by the substance of Yang's unanticipated testimony. This did not constitute ineffective assistance. The stipulation effectively constituted an admission by the State that the jury could not believe part of Yang's testimony. And, Young emphasized Yang's inability to remember the photo array procedure. Given Yang's belief that he did not sign defendant's photograph at any time, and the conflict over the BCI numbers, the jury could conclude that the police rigged the identification procedure. There was no deficient attorney conduct in this regard.

e. The discrepancy between Zhu's and Yang's descriptions

Defendant attached two police reports in support of his PCR petition. The first concerns the November 28 robbery of Tony Zhu at the Yoan Fong restaurant. The report relates the observations of an eyewitness, Jack Daily. Daily saw two black males running away from the restaurant. Although it is not clear whether Daily or Zhu provided this description, the report described the assailant as "5'10", thin build." Zhu's in-court testimony about the assailant matched the description. The second police report concerned the December 22 robbery of Yun Yang. Yang described the assailant as a short, stocky black male. He identified defendant as the assailant at trial.

Defendant notes the inconsistency of these descriptions. He argues that "[t]he differing descriptions of the actor leads to the conclusion that two different persons were described . . . . Thus, a reasonable doubt is created as to whether the same individual committed these robberies." Defendant's observation is correct. But defendant fails to acknowledge that the jury resolved this discrepancy in favor of defendant on the first armed robbery count. The jury acquitted defendant on Count One, charging defendant with the November 28 armed robbery. It is probable that the jury relied on three facts: Zhu did not observe the assailant's face on that date; Zhu agreed, on cross-examination, with his earlier description of the assailant as a thin man; and the jury observed that defendant was not a thin man.

Assuming that Daily described the assailant he saw on November 28 as "5'10" thin build," and given the consistency between Zhu's prior statement and his testimony, there was no need to produce Daily or the investigating officer at trial. Even assuming that Young's failure to subpoena these individuals was unreasonable, there was no prejudice to defendant. The jury acquitted defendant of the crime witnessed by Daily.

f. The indictment

Defendant argues that Young should have filed a motion to dismiss the indictment. The appellate brief submitted by counsel fails to provide a basis on which the indictment would have been subject to dismissal. The answer appears in defendant's pro se supplemental brief. Defendant argues that the foreperson's signature does not appear on the superseding indictment. This repeats an earlier argument presented to Judge Callahan in defendant's post-trial motion. In rejecting the argument, the judge concluded:

[I]n reviewing the defendant's court jacket, 0079-01-03 was presented and stamped on 12/17/02, signed by the Grand Jury Foreman, and on January 14, 200[3], the Presiding Judge of this division, Judge Elaine Davis, signed the indictment, thereby making it a true bill. Counsel's copy obviously was not signed, but the original was. Therefore, the Court finds that the defendant's claim on this motion is without merit, does not warrant any further discussion.

There was no meritorious basis to challenge the facial validity of the indictment, and failure to pursue a legally unmeritorious motion is not deficient attorney conduct. See State v. Worlock, 117 N.J. 596, 625 (1990); State v. Hughes, 128 N.J. Super. 363, 369 (App. Div.), certif. denied, 66 N.J. 307 (1974).

g. Inadequate investigation

Defendant argues that Young did not conduct adequate investigation. With proper investigation, defendant alleges, in vague terms, he "could have mounted a successful defense based on misidentification." This defense would be centered on the testimony of Daily, an eyewitness that counsel did not attempt to interview or subpoena.

There is no need to assess the reasonableness of counsel's investigative efforts. As we have stated, the failure to produce Daily did not prejudice defendant, given that the jury did not find, beyond a reasonable doubt, that defendant committed the crime witnessed by Daily.

Defendant does not allege that Young should have interviewed Daily, the resident of a nearby home, about Daily's possible observation of the other three armed robberies of Yoan Fong. As such, there is no claim that the failure to question Daily led to erroneous convictions on three of the armed robbery counts.

Assuming that there was no attempt to question Daily about the later robberies, it is difficult to attribute this oversight to "strategy." It is necessary to apprise oneself of the relevance of certain witness testimony prior to making an "educated" decision to withhold the testimony from the jury's consideration. Stewart v. Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2006); United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).

However, defendant does not make this argument. Thus, defendant did not comply with the clear procedural requirement that the proponent of an "inadequate investigation" claim "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. These facts are not set forth and there is no need for us to conjecture.

V

Defendant argues that "the errors committed by trial counsel, which independently may have been harmless, when viewed cumulatively, deprived defendant of a fair trial." We disagree.

It is clear that even when "an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). This result follows from the obligation to ensure that each criminal defendant receives the constitutional guarantee of a fair trial, "surrounded by the substantive and procedural safeguards which have stood for centuries as bulwarks of liberty." Orecchio, supra, 16 N.J. at 129.

Of course, this language presumes that there are underlying errors that, by themselves, are not "of such magnitude as to prejudice the defendant's rights." Ibid. Defendant has failed to demonstrate that trial counsel committed errors or acted in an "unreasonable" manner, let alone that there was palpable, but insufficient, "prejudice" from any one of these errors in isolation.

We next consider the "additional errors" raised by defendant. Defendant argues that the trial court should have granted the motion to suppress defendant's custodial statements because "the detective who procured his statements changed his testimony several times regarding the signing of the waiver of rights." "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). To the extent that defendant would have challenged on direct appeal the trial judge's well supported credibility findings, we would have been unable to reverse the admission of the statements. Thus, the failure to raise this argument did not constitute ineffective assistance. Worlock, supra, 117 N.J. at 625.

Citing Yang's inability to remember the photo array procedure, defendant argues that the trial court should have struck, sua sponte, both Yang's and Detective Harris's testimony from the jury's consideration. This argument lacks merit. For the reasons we have explained, the confusion created by these two prosecution witnesses did not prejudice defendant. State v. Butler, 32 N.J. 166, 178-79, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960). There was ample documentary evidence to corroborate Harris's testimony. Even though Yang's unclear and confusing testimony did not strengthen the State's case, he saw defendant's face on the night of the crime and provided an in-court identification.

VI

We now address defendant's arguments regarding the alleged ineffectiveness of his appellate counsel.

a. The constitutionality of the photo array procedure

Defendant argues that appellate counsel should have challenged the trial court's resolution of the Wade issue. Defendant asserts that there were factual questions concerning Yang's out-of-court identification of defendant.

For the reasons we have previously expressed, the trial judge's finding of a clerical error in the transcription of the BCI numbers from the photographs to the evidence cards would have been entitled to deference by an appellate court. The testimony did not suggest that there was an impermissible degree of suggestiveness in this photo array procedure. We would have been hard-pressed to reverse the trial court's credibility determinations and the consequent resolution of the Wade issue.

b. The confession

Defendant argues that appellate counsel should have challenged the admission of defendant's custodial statements "because defendant's waiver of his rights occurred after his statement was taken by police." Having concluded that there was nothing unreasonable in Young's treatment of this issue, we find nothing unreasonable in appellate counsel's failure to argue that defendant's formal statement preceded the reading and the waiver of Miranda rights. The argument lacked factual and legal merit.

c. The remainder of defendant's claims

According to defendant, appellate counsel should have repeated every point of defendant's pro se motion for new trial. However, defendant's PCR petition raised the same arguments as the new trial motion. The PCR court did not bar these arguments. Nor have we. We have assessed the merits of each argument. There has been no prejudice caused by any asserted deficiency on appellate counsel's part.

VII

Finally, we consider defendant's argument that the PCR court should have conducted an evidentiary hearing to address his ineffective assistance claim. Defendant argues that he presented a prima facie case of ineffective assistance and there is a need to supplement the record with "communications between defendant and his trial or appellate counsel." The State argues that defendant failed to establish a prima facie case. We agree with the State.

There is no requirement that the PCR court conduct an evidentiary hearing to consider the merits of the petition. State v. Preciose, 129 N.J. 451, 462 (1992). To the extent a petition raises a pure question of law, there is no need to hold a hearing to develop the record. Ibid. (citing State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)). Even when the petition could benefit from further development of the record, the PCR court should grant an evidentiary hearing only if the defendant has presented a prima facie claim in support of relief. Ibid.

To set forth a prima facie claim, the defendant's arguments must consist of more than vague allegations. State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971). The defendant, for example, "must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. He must raise a genuine issue of material fact as to the adequacy of counsel's representation in light of the two-prong Strickland/Fritz test. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

At the outset, it is clear that a number of defendant's arguments raise legal questions, the resolution of which did not require an evidentiary hearing. Even the petition's factual allegations, however, consist of nothing more than bald assertions. There has been no attempt to develop the inadequate investigation or misconduct claims with the requisite certifications or affidavits. Cf. State v. Petrozelli, 351 N.J. Super. 14, 20-21 (App. Div. 2002). Viewing the facts in the light most favorable to defendant, Preciose, supra, 129 N.J. at 462-63, there has been no prima facie showing of either ineffective assistance or prejudice, for the reasons we have stated. An evidentiary hearing was unwarranted.

Affirmed.

The record on this appeal does not reflect the result of the remanded sentencing proceeding.

Defendant was acquitted of this charge.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

34

A-1934-06T4

January 8, 2009