STATE OF NEW JERSEY v. DEVON FLOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3140-07T43140-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DEVON FLOYD,

Defendant-Appellant.

__________________________________

 

Submitted: February 11, 2009 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1940.

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

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

PER CURIAM

Defendant Devon Floyd appeals from the denial of his petition for post-conviction relief. He is serving a thirty-year term of imprisonment, eighty-five percent of which must be served without parole pursuant to N.J.S.A. 2C:43-7.2 (No
Early Release Act), for his 2002 conviction of aggravated manslaughter. He was also convicted of possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. We affirm.

The facts giving rise to this conviction are set forth in our unreported opinion, State v. Devon Floyd, No. A-1986-02 (App. Div. November 10, 2004). Essentially, the jury found that defendant left but returned to an apartment building armed with a gun after Gregory Shelton's fiancée declined out of deference to the victim to give defendant a congratulatory hug to mark the birth of defendant's child. When defendant returned to the building, he shot and killed Shelton.

Defendant filed a pro se petition for post-conviction relief in which he alleged that he was denied effective assistance of counsel because he was denied discovery of material and relevant confidential records, including medical records and ballistic records, and trial counsel did not assure production of all relevant discovery. He also asserts that his conviction was the product of cumulative error, including the failure of trial counsel to object a) to improper comments by the prosecutor in her opening statement, b) to autopsy photos, and c) to an unclear verdict sheet. Defendant alleged that trial counsel should have requested a jury instruction concerning the prior inconsistent statements of Shonda Oliver and did not aggressively cross-examine various State witnesses. Defendant also alleged that the trial judge impermissibly restricted cross-examination of prosecution witnesses and allowed the prosecutor to exclude qualified jurors based on race. Defendant asserted that the prosecutor knowingly used perjured testimony, and he was denied the right to present witnesses in his defense. Finally, defendant alleged that appellate counsel was ineffective because he failed to argue that qualified jurors were excluded based on their race.

Following the assignment of counsel, appointed counsel filed an amended petition in which he alleged that newly discovered evidence demonstrates a myriad of defenses available to defendant and that trial counsel failed to conduct an effective investigation which denied defendant effective assistance of counsel and a fair trial. Judge Michael J. Nelson construed the papers filed by defendant pro se and assigned counsel as a motion for a new trial based on newly discovered evidence and a petition for post-conviction relief. The motion for a new trial was based on a statement by Robert Skipper that he had seen the victim armed earlier in the day. The judge held that the so-called newly discovered evidence was merely cumulative to the trial testimony of every witness offered by the State, could have been offered at the time of trial, and would not have changed the outcome of the trial. Therefore, he denied the motion for a new trial.

Addressing the petition and the claims of ineffective assistance of trial and appellate counsel, Judge Nelson found that the performance of trial counsel was neither deficient nor prejudicial. He noted that the evidence of guilt was overwhelming and defense counsel presented a zealous defense.

On appeal, defendant raises the following arguments:

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

A. Trial counsel failed to investigate Robert Skipper and failed to present him as a witness at trial.

B. Trial counsel failed to protect defendant's right to a fair and impartial jury.

C. Trial counsel failed to properly cross-examine state witnesses.

D. Trial counsel failed to consult and present the testimony of an appropriate expert.

E. Trial counsel failed to object to the admission of autopsy photographs.

F. Trial counsel failed to object to the submission of an unclear verdict sheet which did not contain lesser included offenses.

G. Trial counsel failed to object to the prosecutor's inappropriate comments during opening statement and summation.

H. Trial counsel failed to request necessary jury charges.

I. Trial counsel deprived defendant of his opportunity to testify on his own behalf.

J. Trial counsel was ineffective since he functioned on an incompetent level.

K. Trial counsel failed to object to the applicability of NERA during sentencing.

POINT II- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY TRIAL 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.

POINT IV- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NEWLY DISCOVERED EVIDENCE.

POINT V- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE PROSECUTOR KNOWINGLY USED PERJURED TESTIMONY AND FAILED TO CORRECT KNOWN FALSE TESTIMONY.

POINT VI- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE PROSECUTOR EXCLUDED QUALIFIED JURORS ON THE BASIS OF RACE.

A. The court's finding that the prosecutor had used peremptory challenges for class exclusion entitles defendant to a reversal of the convictions and a new trial.

B. Alternatively, defendant's showing of the prosecutor's use of peremptory challenges for class exclusion entitles defendant to a remand for a hearing to determine whether the prosecutor's use of the challenges was justified.

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

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

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting 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)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists 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. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. 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).

An evidentiary hearing is required only when the facts viewed in the light most favorable to the defendant would entitle defendant to post-conviction relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

We are satisfied that the various issues raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Many of the issues raised by defendant are procedurally barred because they were raised and addressed or could have been raised and addressed on direct appeal. R. 3:22-4, -5. For example, on direct appeal we rejected an argument that the State should not have been allowed to introduce the victim's fragmented belt buckle or photographs of his bloody pants as demonstrative evidence. The admissibility of autopsy photographs could have been raised at that time. More importantly, defendant does not explain in his petition why the autopsy photographs should not have been admitted. Similarly, defendant does not provide an affidavit of an expert concerning the impact of ingestion of alcohol and controlled dangerous substances on the ability of witnesses to observe and report or an affidavit about what a further investigation or more searching cross-examination of State witnesses would reveal. Defendant also has done nothing other than to allege that the prosecutor impermissibly struck qualified jurors based on their race. To support such a claim, defendant must analyze the reasons expressed to strike jurors and examine the composition of the jury that rendered the verdict. State v. McDougald, 120 N.J. 523, 554-56 (1990); State v. Gilmore, 103 N.J. 508, 536 (1986). He has not done so. A prima facie case of ineffective assistance of counsel is established by facts not speculation. State v. Bey, 161 N.J. 233, 255 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

As to Skipper, we will assume that trial counsel should have made a more substantial effort to obtain his presence at trial. Prejudice, however, is not presumed. State v. Allegro, 193 N.J. 352, 369-71 (2008). The fact or even the possibility that the victim was seen armed earlier in the day does not explain why the innocuous conduct of the victim's fiancée impelled defendant to leave the scene and return armed to confront and shoot the victim. In other words, defendant has not established that Skipper's presence would have altered the result at trial. This same reasoning compels affirmance of the order denying defendant's motion for a new trial based on the newly discovered evidence of Skipper.

Affirmed.

The Supreme Court denied certification. 182 N.J. 629 (2005).

(continued)

(continued)

10

A-3140-07T4

March 11, 2009