STATE OF NEW JERSEY v. RAUL ROJAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0002-08T40002-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAUL ROJAS,

Defendant-Appellant.

__________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-07-0912.

Yvonne Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Raul Rojas, appeals from the April 28, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

Following a trial in 2004, defendant was found guilty of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3); and third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Defendant was sentenced to an aggregate forty-two-month term of imprisonment with a thirty-six-month period of parole ineligibility. In an unpublished opinion, we affirmed defendant's conviction and the sentence imposed. State v. Rojas, No. A-0811-04 (App. Div. January 4, 2007)(slip op. at 6).

In February 2007, defendant filed a pro se PCR petition. Thereafter, in March 2007, counsel was assigned to represent defendant and filed an amended verified petition, along with a supplemental letter brief in support of defendant's petition and a reply opposition to the State's response. The court conducted oral argument on the issues raised in the PCR petition on April 25, 2008.

Before the PCR hearing, both counsel had the opportunity to speak to defendant's trial counsel and both counsel represented to the court that trial counsel had no specific recollection of why she did not pursue additional voir dire. Nor did she indicate any particular recollection she had that her decision not to exercise her remaining peremptory challenge to excuse Juror #12 was trial strategy.

During oral argument, the State agreed that the voir dire "was lousy," surmising that "it was a case of familiarity bred familiarity. You know, it didn't breed contempt in this case. . . . [I]t bred oh, I know you and you know me, and you know how the game is played, and so I don't have to ask you all these questions." The individual voir dire of Juror #12, Ms. Bennett, was as follows:

THE COURT: Hello, Ms. Bennett. How are you?

JUROR BENNETT/12: Fine, Judge.

THE COURT: Do we know each other?

JUROR BENNETT/12: Yes, we do.

THE COURT: Pretty well, huh?

JUROR BENNETT/12: Pretty well.

THE COURT: You work -- how do you think I'm doing, by the way?

JUROR BENNETT/12: I am very impressed.

THE COURT: Wow.

JUROR BENNETT/12: Very impressed, Judge.

THE COURT: I think I know something about you. So instead of asking questions, you are the court clerk for the Honorable James Francis Mulvihill sitting right over there.

JUROR BENNETT/12: Yes, I am.

THE COURT: Correct?

And he is my chamber mate.

JUROR BENNETT/12: Yes, he is.

THE COURT: Right?

And so you and I see each other every day.

JUROR BENNETT/12: Hm-mm.

THE COURT: And do you know [the assistant prosecutor] because [he] tries cases --

JUROR BENNETT/12: Absolutely.

THE COURT: -- in your courtroom.

JUROR BENNETT/12: Right.

THE COURT: And you know [defense counsel] because [she] tries cases in your courtroom.

JUROR BENNETT/12: Yes, she does.

THE COURT: And has motions.

And you know some of the witnesses --

JUROR BENNETT/12: Yes, I do.

THE COURT: -- because of the work that you do.

JUROR BENNETT/12: Hm-mm.

THE COURT: Is that fair to say?

JUROR BENNETT/12: Yes.

THE COURT: Is there anything about this case or being involved in this matter that causes you to doubt your ability to be fair?

JUROR BENNETT/12: No.

THE COURT: Thank you.

And I'm not even going to ask you whether it will be an extreme hardship for you to serve. Because I know that your -- the person that you work for would not be very happy --

JUROR BENNETT/12: You're right.

THE COURT: -- if you didn't volunteer to serve.

JUROR BENNETT/12: Absolutely.

THE COURT: Okay.

Actually, Ms. Bennett is an extremely proficient court clerk here in the building.

Ms. Bennett, what is your educational background, please?

JUROR BENNETT/12: High school.

THE COURT: And I know that you're married. And, in fact, I also know that you are married to a law enforcement officer.

JUROR BENNETT/12: Yes, I am.

THE COURT: Is that correct?

JUROR BENNETT/12: Yes.

THE COURT: And he is a Sheriff's Officer, who wears one of those uniforms?

JUROR BENNETT/12: He is a sergeant in the Sheriff's Department here.

THE COURT: And he works in the family courthouse.

JUROR BENNETT/12: Yes, he does.

THE COURT: Do you have children?

JUROR BENNETT/12: I have a son who's 18.

THE COURT: Thank you very much.

Let's see. What's your hobby?

JUROR BENNETT/12: The honey[-]do list since he works three jobs.

THE COURT: Thank you.

What about the bumper stickers?

JUROR BENNETT/12: No bumper stickers.

THE COURT: What is your favorite television show and your favorite reading material?

JUROR BENNETT/12: Everybody Loves Raymond. And I like to read romance novels.

THE COURT: Thank you very much.

In addition to these individual questions, Juror #12 was present when the court provided the prospective jurors with general instructions that included:

But here might be something about his particular case that causes you concern as to whether you can be fair. Our job is to make sure that all -- both parties receive a fair trial.

For example, suppose that you went to high school with Mr. Rojas or Mr. Rojas's family, a member of his family. You know him well. This may not be the case for you. Suppose you know some of the witnesses here. Well, this may not be the case for you. Suppose you know me or counsel. This may not be the case for you.

The PCR judge denied the motion, noting that trial counsel used her remaining peremptory challenge as "the bullet" to knock somebody else off the jury: "That was her strategy not to use it. She used it on somebody else." The PCR judge concluded that "it [is] clear, to me, she made a tactical decision not using her challenge on -- on Miss Bennett and used it on other people. And Counsel is right. It could have been done a lot better, but would the outcome have been different? Motion is denied."

On appeal, defendant raises the following points for our consideration:

POINT ONE

THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, [ ] 10.

POINT TWO

THE TRIAL COURT ERRED IN FAILING TO ADDRESS ANY OF THE DEFENDANT'S ARGUMENTS PUT FORTH IN HIS PRO SE BRIEF AND VERIFIED PETITION.

Defendant did not, on direct appeal, raise the issue that the State violated an earlier court order sequestering the witnesses or that the court's voir dire of Juror #12 was not "probing, extensive, fair, and balanced." State v. Papasavvas 163 N.J. 565, 584 (2000). Consequently, these issues were not properly before the PCR judge. R. 3:22-4; State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971). Pursuant to Rule 3:22-4, a PCR court will ordinarily not consider issues that reasonably could have been raised on direct appeal. Nonetheless, because these allegations also formed the basis of defendant's claim for relief based upon ineffective assistance of counsel, the PCR judge addressed the merits of at least the voir dire.

In order to prove ineffective assistance of counsel, a defendant must show

First . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland v. Wash., 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]

The standard used when judging attorney performance is objective. Ibid. Counsel must have provided reasonably effective assistance. Ibid. Therefore, in order to meet the first prong of the Strickland test, a defendant must show that his attorney did not perform as a reasonably effective attorney would. Ibid. When determining if an attorney acted reasonably, courts should be deferential, viewing the challenged conduct in light of the circumstances that existed at the time. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed 2d at 694. When evaluating counsel's conduct, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. If the defendant is able to overcome the significant burden placed upon him by the first prong of Strickland, he must then show that counsel's lack of professionalism affected the outcome of the case before the court will find that counsel's representation was ineffective. Id. at 692-93, 104 S. Ct. at 2067, 80 L. Ed 2d at 696-97. New Jersey has adopted the Strickland standard for determining ineffective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987).

In Strickland, the Court stated, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Supra, 466 U.S. at 690, 104 S. Ct. at 2067, 80 L. Ed. 2d at 695. Counsel's duty is limited to making reasonable investigation or making a reasonable decision that investigation is unnecessary. Ibid.

At trial, defense counsel observed the prosecutor holding a map in a room surrounded by his witnesses, including a witness who had already commenced his testimony. Defense counsel reported the incident to the court and moved for a mistrial based upon a violation of the court's sequestration order. The court found the violation was not malicious but neglectful and denied the mistrial motion. However, the court, during the cross-examination of one of the State's witnesses, informed the jury of the sequestration order, its purpose, and that the order had been violated. The court also permitted defense counsel to question the State's witnesses about the incident. Given the wide latitude the court afforded defense counsel to explore this issue with the State's witnesses and the court's instruction that the sequestration order had been violated, we conclude there was no prejudice to defendant resulting from the violation of the sequestration order. See State v. Williams, 404 N.J. Super. 147, 159-160 (App. Div. 2008) (noting that in the absence of a showing of prejudice an inadvertent violation of a sequestration order does not require exclusion of a witness' testimony).

Further, the record provides sufficient evidence demonstrating that trial counsel immediately brought to the court's attention her observations that led her to believe that the sequestration order had been violated and promptly moved for a mistrial. When the court denied the motion, defense counsel, through cross-examination, forcefully addressed the issue. Nothing in the record demonstrates that trial counsel's performance in this regard was deficient.

Likewise, defendant's contention of ineffective assistance of counsel, established by trial counsel's failure to request a more comprehensive voir dire of Juror #12, is also not supported by the record. Through the court's questioning, Juror #12's occupation, connection to the courthouse, her knowledge of some of the witnesses in the case, familiarity with the judge and both counsel, as well as marriage to someone in law enforcement, were all disclosed. Once these facts were disclosed, the court asked whether there was any reason why she could not be fair, to which Juror #12 responded, "No."

We accord deference to the manner in which a trial judge conducts a jury voir dire. State v. Koedatich, 112 N.J. 225, 274 (1988), cert. den. sub. nom. Koedatich v. New Jersey, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). A conviction will be reversed on appeal only when a voir dire was so inadequate that it deprived a defendant of his constitutional right to a fair trial. See, e.g. State v. Oates, 246 N.J. 261, 265 (App. Div. 1991) (reversing defendant's conviction on grounds of inadequate questioning during voir dire).

We are satisfied that the information elicited from the witness was sufficient for defense counsel to make an informed decision as to whether to exercise a peremptory challenge to excuse Juror #12 or to seek removal for cause. As noted earlier, the adequacy of the jury voir dire was not raised on direct appeal. We are nonetheless satisfied that the voir dire addressed the crucial inquiries required to seat a fair and impartial jury, in particular, Juror #12. Papasavvas, supra, 163 N.J. at 590.

The critical inquiry here is whether the failure of defense counsel to seek a more comprehensive voir dire of Juror #12 evidences ineffective assistance of counsel on her part sufficiently egregious that it fell below the standard to which the average lawyer is held in representing a defendant and that trial counsel's performance in this regard had the capacity to alter the outcome of the trial.

We are convinced that the record does not support such a finding. We observe that Juror #12 was not the only prospective juror ultimately seated with connections to law enforcement. Two other jurors had such connections and were questioned relative to this law enforcement connection and they too were ultimately selected. Had additional, more probing questions been asked of Juror #12, there is no evidence that she would have been excused. Moreover, the fact that trial counsel had no specific recollection of why Juror #12 was retained does not establish ineffective assistance of counsel nor warrant an evidentiary hearing to explore the issue further. Because the remaining peremptory challenge was used on another juror, the PCR judge could reasonably infer that trial strategy influenced trial counsel's decision.

Defendant's contentions that Juror #12 may have had special knowledge about defendant beyond the fact of the indictment, which is generally all that a jury knows during jury selection, is pure speculation. The PCR petition contained no affidavits or documentary evidence to support this allegation. Unsupported allegations will not support the grant of post-conviction relief. Further, because these contentions were speculative, the PCR judge was not obligated to conduct an evidentiary hearing to allow defendant the opportunity to establish a prima facie case of ineffective assistance of counsel not contained within the allegations in his PCR petition. See State v. Marshall, 148 N.J. 89, 158 (2000).

Finally, we note that just at the end of the oral argument, PCR counsel told the court that defendant did not want Juror #12 seated as a juror and that defense counsel told him she did not have anymore peremptory challenges, when in fact she had one remaining challenge. This contention was never put forth in defendant's pro se petition, nor in the supplemental letter brief submitted on defendant's behalf or in the reply opposition to the State's response. The PCR judge did not expressly address this point, but in denying defendant's PCR petition, we presume the court rejected this eleventh-hour, uncertified contention, and we do as well.

 
Affirmed.

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A-0002-08T4

September 1, 2010