STATE OF NEW JERSEY v. VICTOR MCCARGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5691-06T45691-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR MCCARGO,

Defendant-Appellant.

_________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, No. 95-04-0862.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Patricia Drozd, Designated

Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Roseann A. Finn,

Assistant Prosecutor, of counsel and on

the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury convicted defendant in 1997 of murder, N.J.S.A. 2C:11-3(a)(1)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); robbery while armed, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). At sentencing, the trial court merged the conviction for felony murder into the conviction for murder and sentenced defendant to life in prison, with a thirty-year period of parole ineligibility. It also sentenced defendant to a consecutive five-year term, with two and one-half years of parole ineligibility, for unlawful possession of a weapon. All other sentences were concurrent. Defendant appealed to this court, and we affirmed in an unpublished opinion, State v. McCargo, No. A-0998-98T4 (App. Div. Nov. 21, 2000). The Supreme Court denied defendant's petition for certification. 167 N.J. 634 (2001).

In 2001, defendant filed a timely petition for post-conviction relief. The matter was presented to the trial court in 2007. The record before us does not disclose the reason for this six-year delay in hearing defendant's petition. After hearing oral argument, the trial court denied defendant's petition without conducting an evidentiary hearing.

Defendant has appealed from the order denying his petition and raised the following issues.

POINT I THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.

POINT III BECAUSE DEFENDANT RAISES ISSUES OF CONSTITUTIONAL MAGNITUDE, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DISMISSED. U.S. CONST. AMENDS. VI, XIV: N.J. CONST. ART I, PARS. 1, 10.

After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

We take the facts surrounding defendant's convictions from our unpublished opinion

Defendant's convictions were based upon the shooting death of Ronald Shaw on August 27, 1994[,] in a section of Camden, New Jersey, known as Ablett Village. There was testimony during the course of the trial that Ablett Village was an area known for drug-trafficking and had been the scene of many shootings. Defendant admitted shooting Shaw, but maintained he acted in self-defense. Both men were in their early twenties at the time of the incident.

On the night in question, Shaw was visiting a friend of his, Elizabeth Pinto, who lived in Ablett Village. When he left and returned to his car, he saw that someone had attempted to break into it. Defendant was standing nearby; Shaw asked if defendant knew where "the little Spanish boy" was; defendant said he did not. Shaw drove off and returned a short while later, again looking for "the little Spanish boy." Defendant said Shaw retrieved a gun from the trunk of his car. Defendant said he asked Shaw if anything had been stolen from the vehicle and Shaw said nothing had. Defendant said he suggested that Shaw leave matters as they were but that Shaw insisted that someone "had to pay." Shaw got back into his car. He drove forward to where defendant was standing. Defendant said he feared for his life and, using a gun that a friend had given him earlier in the evening, opened fire. At least five .380 caliber bullets struck Shaw. Defendant looked into the car to see if he could see Shaw's gun but could not. Defendant fled the scene. After the shooting but before the police and ambulance arrived, the speaker and tape player were stolen from Shaw's car. No gun was recovered from Shaw's car during the subsequent investigation, but a live .9 millimeter cartridge was discovered on the front passenger seat.

More than a month later, defendant was apprehended in Syracuse, New York, where he had been staying with a cousin. He provided an inculpatory statement the trial court held admissible under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant testified at trial and repudiated that statement. He said he made the statement because the police were threatening to arrest his cousin for harboring a fugitive. He insisted to the jury he shot Shaw because he feared for his own life. By its verdict, the jury rejected defendant's testimony.

[State v. McCargo, supra, slip op. at 2-3.]

A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In State v. Fritz, 105 N.J. 42, 60 (1987), our Supreme Court adopted the Strickland standards.

[A] defendant whose counsel performed below a level of reasonable competence must show that "there is 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).]

Thus, to establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Second, defendant must show that this deficient performance materially affected the outcome of his trial. In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991).

One of the issues defendant raised in his petition was his allegation that his trial counsel had been ineffective for failing to raise his intoxicated state at the time of the shooting as a defense. He included with his petition certifications from his brother Dante McCargo and his friend Arnold Lyles, as well as his own certification, detailing the amount of alcohol he had consumed. According to Dante McCargo's certification, defendant began drinking around noon the day of the shooting and drank continuously throughout the day. He recited that defendant was an alcoholic and drunk most of the time. He saw defendant between 8:30 and 9:00 p.m. at the Chateau Bar the evening of the shooting, and defendant was stumbling and slurring his words. He said his brother continued to drink beyond that point.

Arnold Lyles stated in his certification that he had been with defendant the evening of the shooting at the Chateau Bar and that defendant consumed at least fifteen rounds of drinks, including shots and beers. He said that he and defendant drank every day and got very drunk together every day.

Defendant in his certification said he started to drink that day at home around noon and continued to drink all day. He said he was at the Chateau Bar with his friend Arnold Lyles, where he drank shots, beer and malt liquor and was extremely drunk.

The trial court rejected defendant's assertion of ineffective assistance for not pursuing a defense of intoxication, concluding that there had been a sound strategic choice not to pursue that avenue of defense. The trial court reached that conclusion on the basis of a certification of one of the two attorneys who represented defendant at trial, finding "[T]he record supports fully the proposition that he thought of it, considered it, and chose not to pursue it."

While defense counsel may indeed have come to that conclusion, we are unable to glean that from counsel's certification submitted to the trial court. In that certification, he said that he "believe[d]" he raised the question of an intoxication defense with the attorney who served as co-counsel. He never discussed the possibility of an intoxication defense with defendant and never inquired how much he had had to drink that day. In the certification, he stated that he left it to his co-counsel to discuss the question of intoxication with defendant since co-counsel was to conduct defendant's direct examination.

The certification is entirely silent on the issue whether he inquired of his co-counsel as to whether he was going to pursue the issue of intoxication during direct examination. One would reasonably expect the topic to be discussed between counsel in order to assist in preparing opening and closing statements.

If an allegation of ineffective assistance of counsel is to fail because of a strategic choice made by counsel, there should be a showing that, indeed, counsel considered the issue and selected one avenue of defense over another. There would be many sound reasons for trial counsel to have elected not to pursue an intoxication defense in this matter, but we are unable to conclude from this record that such an election was in fact made.

Defendant raised an additional allegation in his petition, that the attorney who served as co-counsel at trial had a conflict of interest in that he had submitted an employment application to the prosecutor's office which was prosecuting defendant. In his papers, he alleged that co-counsel did not appear at sentencing because he was attending a job interview that day with the prosecutor's office. In our review of the record on appeal, we have noted that the trial transcripts indicate that co-counsel appeared every day of the trial except for the day of sentencing. The transcript for that day contains no mention of his presence.

Post-conviction relief counsel did not raise this during oral argument, and the trial court did not address it in its oral opinion. We do not know whether this was the result of an inadvertent omission or the trial court's familiarity with the state of affairs in that county and its own knowledge that the allegation lacked any merit. The allegation, however, raises troubling issues of conflict of interest which we may not disregard. As we have recently noted, "a criminal defendant has the right to counsel 'whose representation is unimpaired and whose loyalty is undivided.'" State v. Alexander, 403 N.J. Super. 250, 255 (App. Div. 2008) (quoting State v. Murray, 162 N.J. 240, 249 (2000)).

Because there is no record on this question, we are unable to conclude whether it is entirely devoid of merit or whether defendant is entitled to further relief. We thus reverse the order denying post-conviction relief and remand the matter for further proceedings.

Reversed and remanded. We do not retain jurisdiction.

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9

A-5691-06T4

November 16, 2009