STATE OF NEW JERSEY v. CLARENCE COLLINS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5123-06T45123-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLARENCE COLLINS,

Defendant-Appellant.

_____________________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-02-0800.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Clarence Collins appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points for our consideration:

POINT I

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.

(A)

TRIAL COUNSEL'S FAILURE TO OBJECT TO PROSECUTORIAL IMPROPRIETIES DURING THE TRIAL AND TRIAL COUNSEL'S FAILURE TO FULLY INVESTIGATE THE DEFENSE OF ALIBI BY PRODUCING THE DEFENDANT'S CELLULAR PHONE RECORDS SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.

POINT II

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.

We have considered these issues in light of the record and applicable legal principles. We affirm.

Following a jury trial, defendant was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1; first-degree carjacking, N.J.S.A. 2C:15-2; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); and first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a). Defendant was sentenced to twenty-five years imprisonment on the carjacking count, with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. All other sentences were imposed concurrently.

We affirmed defendant's conviction and sentence on direct appeal. State v. Clarence Collins, No. A-5013-02 (App. Div. Nov. 3, 2004). Defendant's petition for certification to the Supreme Court was denied. State v. Collins, 182 N.J. 629 (2005).

In a pro se brief seeking PCR relief filed on February 23, 2006, defendant argued he was entitled to a new trial because of 1) "prosecutorial misconduct" involving the "vouching for State witnesses" and the "improper attacks on defendant and defense witnesses"; 2) failure by the prosecutor to "provide legal instructions" to the grand jury; 3) ineffective assistance of trial counsel in failing to "object to the prosecutor's improper remarks and failure to challenge the grand jury proceedings"; and 4) failure by the State to provide discovery regarding its witness, Verdell Paterson. Designated counsel filed a supplemental brief alleging the ineffective assistance of trial counsel, citing nine specific shortcomings, including counsel's "fail[ure] to investigate statements regarding the use of [defendant's] cellular telephone immediately prior to the incident." PCR counsel also claimed defendant's "appellate counsel was ineffective for failing to raise any of the obvious issues raised herein."

The PCR judge, who was also the trial judge, conducted a hearing on the petition on December 21, 2006. He concluded that defendant had failed to make out a prima facie case for relief and denied the petition. This appeal followed.

Defendant argues that he received ineffective assistance of trial counsel because she failed to object to alleged improper prosecutorial comments made in opening and summation, permitted the prosecutor to "interrupt[] her cross-examination of Bruce Matthews," the victim in the case, and "fail[ed] to fully investigate the defense of alibi by obtaining [] defendant's cell phone records." He also repeats, without any elucidation, the arguments raised by PCR counsel regarding other shortcomings in trial counsel's performance, including her "failure to object to . . . leading questions"; her "failure to object to the 'bogus lineup'"; her "failure to object to the prosecutor's pejorative use of the term 'hovering' during the trial"; her "failure to interview [] Paterson prior to trial"; and her "failure to object to the hearsay testimony concerning the use of phony names." Finally, also without any legal argument, defendant alleges his "appellate counsel was ineffective because had these issues been raised on direct appeal, his convictions would not have been affirmed by" us.

The analytic framework that controls our review is well known. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted by our Supreme Court in Fritz, supra, 105 N.J. at 58. 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); R. 3:22-10. "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, 241 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). 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). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463. We conclude that defendant failed to demonstrate a prima facie case for relief and his petition was properly dismissed without an evidentiary hearing.

Before considering the individual allegations, we briefly summarize the substantial evidence of defendant's guilt produced at trial. Defendant, who Matthews knew by the nickname "Chop," lived in the same neighborhood with the victim for years. On the day in question, Matthews agreed to give defendant a ride. While the car was stopped and defendant was on his cell phone, Matthews turned away to look out the driver's side window. When he looked back, defendant shot him in the jaw. Matthews escaped from the vehicle and called his girlfriend, Imani Robinson, who also knew defendant. Together with her stepfather, Petersen, she rode off to find Matthews and render assistance. In the process, she spotted defendant driving Matthews' car around the neighborhood. The vehicle was recovered the next day, bloodied, with a round of live ammunition in it.

Defendant testified and asserted alibi. He produced a number of relatives that testified as to his usual custom of picking up his son on Fridays for weekend visitation. None of the witnesses, however, had a specific recollection of the events of the day. Defendant, although admitting he knew Matthews, Robinson, and Petersen, denied seeing them on the day of the shooting, or that he had shot Matthews or taken his car.

In his opening statement, the prosecutor observed that trial testimony frequently revealed more than one version of events. He alluded to the "O.J. Simpson" trial, the Oklahoma City bombing, and a murder case of some notoriety in the vicinage. In summations, the prosecutor discussed the testimony of the alibi witnesses, who he claimed "ha[d] a motive to not tell [the jury] the truth[,]" as contrasted with Robinson who "ha[d] no motive to lie."

The failure to object to these comments does not demonstrate deficient performance by trial counsel. The PCR judge noted the prosecutor's comments in opening were "somewhat off base[,]" but he did not find them to equate to misconduct. We would describe them similarly. Moreover, in her opening, defense counsel deftly pivoted on the comments, noting her client's alibi and reminding the jury of the prosecutor's earlier statements about divergent testimony. As to the comments in closing, the PCR judge rejected any suggestion that the prosecutor was "personally vouching for witnesses," and we agree that the comments did not cross the line. Since neither scenario gave rise to prosecutorial misconduct, trial counsel was not ineffective for failing to object to the comments.

The same is true regarding defendant's claim that trial counsel failed to object to the prosecutor's repeated objections and interjections while she cross-examined Matthews. In fact, the record demonstrates trial counsel responded to some of these attempts by the prosecutor to re-characterize Matthews' prior direct testimony in a more favorable light via objections. Moreover, the judge overruled the prosecutor's objections and permitted wide-ranging cross-examination of the witness' inconsistent statements.

As to the cell phone records, defendant claims that trial counsel failed to investigate whether they could support his alibi defense. We presume this means that the records may have demonstrated defendant was either not on the phone when Matthews claimed he was, or that he was on the phone but at a different location. However, as the PCR judge noted, defendant supplied no information regarding his cell phone, nor did he certify as to any basis whatsoever for his belief that the records ever existed. In short, the claim rests upon "bald assertions" Cummings, supra, 321 N.J. Super. at 170, that fail to "demonstrate the reasonable likelihood of succeeding" on the merits. Preciose, supra, 129 N.J. at 463.

The balance of defendant's claims are without sufficient merit to warrant discussion in this opinion, as is the claim that appellate counsel was ineffective for failing to raise any of these issues on direct appeal. R. 2:11-3(e)(2). We apply the same Strickland/Fritz analysis to a claim of ineffective assistance of appellate counsel. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Since none of the issues regarding trial counsel's performance are sufficient to demonstrate legal error that may have affected the outcome of defendant's trial, it necessarily follows appellate counsel was not ineffective for failing to raise them. State v. Echols, ___ N.J. ___, ___ (2009) (slip op. at 19).

Affirmed.

 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-5123-06T4

June 19, 2009