STATE OF NEW JERSEY v. CLINT WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0079-08T40079-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLINT WALKER,

Defendant-Appellant.

___________________________________

 

Submitted May 26, 2010 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1194.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Clint Walker appeals the denial of his petition for post-conviction relief (PCR). We affirm.

I.

In March 2004, Walker was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Two); third-degree unlawful possession of a weapon (sawed-off shotgun), contrary to N.J.S.A. 2C:39-5(c)(1) (Count Three); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (Count Four); third-degree knowingly possessing a prohibited weapon, contrary to N.J.S.A. 2C:39-3(b) (Count Five); and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7(b). He was acquitted of second-degree conspiracy to commit robbery (Count One), contrary to N.J.S.A. 2C:5-2 and 2C:15-1. Walker was sentenced to an aggregate term of fifty years, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appealed the conviction and sentence, which we affirmed. State v. Walker, No. A-1052-04 (App. Div. May 25, 2006). The Supreme Court denied Walker's petition for certification. State v. Walker, 188 N.J. 354 (2006).

In our opinion on his direct appeal, we summarized the facts related to the charges against Walker as follows:

On January 12, 2003, at approximately 8:00 a.m., Allen Cobb, sixty-nine years old, was loading groceries into his van at the Pathmark Supermarket located on the corner of Prospect Avenue and Eagle Rock Road in West Orange. As he did so, he heard a car pull up alongside him, which he thought was odd because the parking lot was empty. The car parked parallel to Cobb's van, facing the opposite direction and was "maybe four feet" away.

After the car stopped, Cobb turned around and saw two men, later identified as defendant and co-defendant Kenneth Grady, approaching him. The man on Cobb's left took his arm, checked the pockets of Cobb's sweatsuit and took his car keys and wallet, which contained approximately $120 cash, credit cards and all of Cobb's identification. The man on Cobb's right, who was standing about three feet away, said "give me the rest of the money" and "jacked" a shotgun that protruded from under his coat. As a former Marine and hunter, Cobb was very familiar with shotguns; he noticed the shotgun was shorter than usual.

Cobb told the men that he did not have any more money. The men got into their car and drove off with Cobb's wallet and keys. Although Cobb could not identify the make of the car, he described it as grey in color with a square back. Cobb also wrote down the license plate number, . . . . Cobb then went inside the market and called the police.

Officer Michael Mastras arrived on the scene approximately three minutes later. Cobb described the robbery to Mastras, provided him with the license plate number of the car, and then drove to police headquarters in his van with the use of a spare key that he kept in the van. Mastras immediately placed a notification regarding the license plate and a description of Cobb's assailants on the State Police Emergency Network (SPEN), which alerts all units to keep an eye out for the vehicle. Mastras learned that the license plate was registered to Crystal D. Braxton . . . in Newark. Mastras also learned that the plates were registered to a four-door silver 1985 Nissan Stanza. The registration had expired in May of 2001.

At police headquarters, Cobb spoke with Detective Joseph Spero, who took Cobb's sworn statement. Cobb provided Spero with a description of the men. Both were black males; one of the men had "crazy looking hair and the other guy was a lighter skinned male with a mustache." He also described the men as being in their twenties. Spero showed Cobb two photo books, which contained about 150 to 200 photographs of black males, but Cobb made no identification at the time.

On the same day, Spero also learned that the registered owner of the car used by the assailants was Crystal D. Braxton. Spero spoke to Braxton, who said she no longer possessed the car or the plates. Braxton explained that she originally had the plates on a 1998 Nissan Stanza, but the car became disabled in 2000 and she abandoned the car and the plates on the boarder of East Orange and Newark. Braxton received a ticket for abandoning the vehicle, which she paid, and never saw the plates again. Upon returning to police headquarters from his interview with Braxton, Spero was informed by Cobb that his ATM card had been used at Newark Penn Station and $260 had been withdrawn.

Five days later, on January 17, 2003, Spero received further information from which he learned that Clint Walker's address was the same as Braxton's. Spero also learned that Grady lived on Hickory Street in East Orange or Orange. With that information, Spero, along with his sergeant, spoke to Braxton again. Braxton told Spero that Clint Walker was her fiancé and had been residing with her for the last three years. In addition, Walker had been with Braxton when her vehicle became disabled in 2000. Braxton identified a photograph of Kenneth Grady as a friend of Walker known to her as Kareem. Braxton signed and dated the back of the photograph.

Having obtained a statement from Braxton, Spero returned to police headquarters and requested photographs of Grady and Walker for a photo array. A few days later, Spero contacted Cobb and asked him to come to headquarters and view some photographs. When Cobb arrived at police headquarters, Detective Matthew Palardy of the West Orange Police Department showed him two photo line-ups. Spero was not allowed to show the victim any photographs because he was involved in the investigation. When Palardy showed Cobb the first six-person photo array, Cobb made an identification, signed the back of the photograph and said "that's the guy who pointed the gun at me." Cobb selected a photograph of defendant. Detective Palardy then showed Cobb the second six-person photo array, at which time Cobb made another identification, signed the back of the photograph and said "that's the guy who went through my pockets or took my money." This photograph depicted co-defendant Grady.

After Cobb made the identifications, Palardy gave Spero the photographs and informed him that Cobb made two identifications. Spero learned that Cobb identified Kenneth Grady and Clint Walker. Based on that information, Spero obtained arrest warrants for both Walker and Grady on the same day. On January 23, 2003, Spero arrested Grady and Walker.

At trial, Cobb was asked to identify the defendant and co-defendant in court. When asked whether the two men in court were the men that robbed him, Cobb responded that he was "reasonably sure" that they were, but acknowledged that they looked different. He explained that "the hair is different on both men" and "[o]ne man probably looks like he gained a little weight." In addition, when asked to look at the pictures he selected from the photo array, Cobb testified that defendant was the person depicted in co-defendant's photograph and that co-defendant was the person depicted in defendant's photograph. Cobb's testimony also differed from the statement he made to Spero on the night of the incident. In his original statement to Spero, Cobb said the person on his right with the shotgun spoke first, demanded money from Cobb and then the other person went into Cobb's jacket and took out his wallet. However, at trial, Cobb testified that the man on his left, who did not have the shotgun, spoke first. The man on Cobb's right, who had the shotgun, demanded more money after the other person went through Cobb's jacket.

[Walker, supra, slip op. at 2-7.]

Walker filed a pro se PCR petition on September 29, 2006. His PCR counsel filed a supporting brief in February 2008. The trial judge heard argument on the petition on June 6, 2008. The judge denied the petition in a written decision. This appeal followed.

II.

Walker raises the following issues on appeal:

POINT ONE: TRIAL COUNSEL'S FAILURE TO REQUEST A CHARGE ON PRIOR INCONSISTENT STATEMENTS, TO REQUEST A CHARGE ON THE LESSER INCLUDED OFFENSE OF THEFT, AND TO CONDUCT MEANINGFUL PRETRIAL INVESTIGATION RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. FAILURE TO REQUEST CHARGE ON PRIOR INCONSISTENT STATEMENTS.

B. FAILURE TO REQUEST CHARGE ON LESSER INCLUDED OFFENSE OF THEFT.

C. FAILURE TO CONDUCT MEANINGFUL PRETRIAL INVESTIGATION.

POINT TWO: MR. WALKER'S CLAIMS ARE NOT BARRED FROM REVIEW AS PREVIOUSLY ADJUDICATED UNDER RULE 3:22-5.

POINT THREE: THE CLAIMS IN MR. WALKER'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

In a pro se supplemental brief, Walker raises the following additional arguments:

POINT ONE: POST CONVICTION RELIEF COUNSEL FAILED TO ADDRESS THE CROSS-RACIAL JURY INSTRUCTION REGARDING IDENTIFICATION SUBMITTED BY THE TRIAL COURT.

POINT TWO: POST CONVICTION RELIEF COUNSEL FAILED TO ADDRESS THAT DEFENDANT WAS NOT GRANTED A PROPER WADE HEARING.

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . ;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "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. Our Supreme Court adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

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 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, 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). Moreover, such acts or omissions of counsel must amount to more than mere tactics or strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

B.

Having reviewed Walker's arguments on appeal in light of the record before us, we find them to be without merit and not warranting an extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons set forth in Judge Thomas R. Vena's comprehensive written decision. We add only the following comments.

Walker has not demonstrated a prima facie case of ineffective assistance of counsel with respect to his assertion that a prior inconsistent statement charge should have been requested. Unlike the trial judge in State v. Allen, 308 N.J. Super. 421, 427-29 (App. Div. 1998), Judge Vena gave a detailed charge on the issue of credibility with respect to Cobb's identification. He specifically included "discrepancies or inconsistencies between identifications (if any)" among the factors to be considered by the jury. We found that charge to be adequate on the direct appeal. Walker, supra, slip op. at 18. Thus, even if a more detailed charge should have been sought, Walker has not demonstrated a reasonable likelihood that the result would have been different had it been requested.

Walker's assertion that trial counsel should have requested a charge on the lesser-included offense of theft is without merit. Although Cobb may have expressed some uncertainty as to which of the two defendants had the shotgun and which went through his clothing, he never wavered with respect to his assertion that "one of his assailants was armed with a sawed-off shotgun, that he was threatened with immediate bodily harm, and that the other assailant removed his wallet and car keys." Id. at 12. Consequently, there would have been no rational basis for a charge of theft even had it been requested. N.J.S.A. 2C:1-8(e); State v. Cassady, 198 N.J. 165, 178-79 (2009).

Walker complains of a general failure by trial counsel to consult with him and to develop a favorable strategy, but, except for the changed testimony of Crystal Braxton, he does not suggest what would have resulted from more intensive consultation or the nature of the more favorable strategy. With respect to Braxton, we agree with Judge Vena that she was not a strong alibi witness because her testimony did not constitute a solid alibi, her trial testimony conflicted with her prior sworn statement, and she was Walker's fiancée. Consequently, we conclude that Walker failed to demonstrate a reasonable probability that the result would have been different had Braxton been presented as a formal alibi witness with mention in the defense summation and the charge.

In his pro se supplemental brief, Walker suggests that counsel should have requested a cross-racial identification charge. That argument lacks merit because there was such a charge. See Walker, supra, slip op. at 17. We also find no merit with respect to the issue of his attorney's failure to subpoena Cobb's attendance at the Wade hearing.

III.

 
For the reasons outlined above, we affirm the denial of Walker's PCR petition.

Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-0079-08T4

July 12, 2010