STATE OF NEW JERSEY v. RUFUS YOUNG

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0159-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUFUS YOUNG,

Defendant-Appellant.

 

October 7, 2010

 

Submitted September 22, 2010 - Decided

 

Before Judges R. B. Coleman, Lihotz, and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-07-1396.

 

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

 

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Rufus Young appeals from an order entered on April 30, 2009, denying his application for post-conviction relief (PCR). We affirm.

I.

A Monmouth County grand jury returned an indictment charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) and 2C:58-4 (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count six). Defendant was tried before Judge Bette E. Uhrmacher and a jury, which resulted in a verdict of guilty on counts two, three, and six. The balance of the indictment was dismissed.

The court imposed an aggregate sentence of fifteen years, with five years of parole ineligibility. In an unpublished opinion, State v. Young, A-5231-03T4 (App. Div. May 31, 2005), we affirmed defendant's conviction and his aggregate sentence.

Thereafter, defendant filed an application for PCR alleging among numerous other putative deficiencies that he did not receive a fair trial because his attorney was ineffective. Following oral argument, Judge Ronald L. Reisner rejected the need for an evidentiary hearing and denied defendant's application in a well-reasoned twenty-one page written opinion. This appeal followed.

II.

A.

The facts underlying defendant's conviction primarily occurred on May 2, 2003, when defendant was hosting a party at a recording studio in Asbury Park. One of the partygoers, Bridgette Haines, observed a fight break out between defendant and the father of her unborn child, Curtis Pearson, a.k.a. "Justice." When Haines attempted to intervene to stop the fisticuffs, she was struck in the face by someone who she thought was defendant. Distressed by this ugly turn of events and irritated that his party was interrupted, defendant blamed Haines for being the cause of the fight. Then, according to Haines's trial testimony, defendant

pulled out the gun. He took it with his right hand, facing me. Took it from his right hand put it on the side of my head and cocked it a few times in the air.

 

Haines further described the immediate events as follows:

 

[Defendant] [p]ulled the gun out from his left side. Just laid it on my head like this and he shot it three times in the air real fast. He didn't have to pull it back. He did it a few times.

 

Asbury Park police responded to reports that shots were fired at the recording studio. The party was still in full swing when the officers arrived. Upon investigation, Sergeant Amir Bercovicz found a fresh bullet hole in the wall and a single shell casing. A firearm was neither found nor recovered. Nevertheless, defendant was placed under arrest and given his Miranda1 warnings. He voluntarily gave a statement to the police, stating, "I can't take aggravated assault, besides I didn't try to hurt anyone."

At trial, defendant presented six witnesses who all testified that defendant attempted to break up the fight, and that none of them saw who actually shot the gun. None of these witnesses claimed to have seen defendant with a gun in his possession that night. The jury's determination turned on the credibility of the cascade of State and defense witnesses. The jury found defendant guilty of the three weapons' possession charges.

When defendant appeared for sentencing before Judge Uhrmacher, his new counsel trial counsel had passed away shortly after the jury's verdict requested that two unauthenticated letters from additional eyewitnesses at the party, Michael Brown and David Martinez, be included in the pre-sentence report. After reviewing the contents of the letters, the court declined to include the letters as part of the presentence investigation, but stated, "[the letters] will be part of the record here if you choose to make [them] part of the record." Judge Uhrmacher then sentenced defendant to an aggregate term of incarceration of fifteen years, and imposed appropriate additional penalties.

B.

In this appeal, defendant raises the following ten arguments for our consideration:

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

 

A. TRIAL COUNSEL FAILED TO INVESTIGATE POTENTIAL WITNESSES.

 

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.

 

POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

POINT III: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE.

 

POINT IV: THE PROSECUTOR ENGAGED IN MISCONDUCT AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

POINT V: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN ORDER COMPELLING THE STATE TO ASSIST PCR COUNSEL IN RECONSTRUCTING THE TRIAL FILE. THUS, THE LOWER COURT MUST BE REVERSED.

 

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

 

POINT VII: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY.

 

POINT VIII: THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

 

POINT IX: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

 

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

 

We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for substantially the same reasons expressed in Judge Reisner's written opinion. We add the following comments, however, regarding points I, IV, and X.

 

 

III.

Defendant's primary argument is that he was deprived effective assistance of trial counsel at several stages of the proceedings. First, defendant argues that trial counsel was ineffective because he failed to properly and thoroughly investigate potential witnesses, including post-trial witnesses Michael Brown, Latoya Chandler, and Raymond Young "who would have provided favorable testimony at trial." Defense counsel is further criticized for failing to request a voir dire of the remaining jurors after one juror was excused mid-trial for cause, to ascertain whether they had been tainted by the removed juror. Lastly, trial counsel is chastised for his inability to "properly and adequately cross-examine the State's primary witness, Bridgette Haines" by failing to effectively use her prior statements regarding who had possession of a gun at the party to impeach her trial testimony.

A person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such claims, courts apply a strong presumption that defense 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy. . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980); see also State v. Perry, 124 N.J. 128, 153-54 (1991).

Moreover, as our Supreme Court reaffirmed recently, "an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In this regard, "[t]he quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." Ibid. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantees of a fair trial." Ibid. (quoting Castagna, supra, 187 N.J. at 314-15).

Defendant has presented no legally competent evidence in support of his claim regarding trial counsel's inadequate investigation and the effect of the emergence of post-trial witnesses to buttress the defense. The letters that were submitted were hearsay, and there was no evidence that any of the witnesses were actually available or willing to testify at a PCR hearing or at a re-trial. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).

[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

 

[Id. at 170].

 

See also State v. Arthur, 184 N.J. 307, 326 (2005); Fritz, supra, 105 N.J. at 64-65.]

Additionally, as the PCR court properly noted, "[t]rial counsel procured six witnesses who testified on behalf of defendant," all of whom were alleging the same series of facts that the additional witnesses would have provided. This court has held, "[i]f the undisclosed evidence was merely cumulative or repetitious as to the purpose for which it could have been used, the conviction should not be set aside." State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) (citing State v. Marshall, 123 N.J. 1, 206 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

We further note that a trial attorney's determination as to the witnesses who will be presented to the jury is afforded great deference. The Supreme Court has indicated that

[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," and a court's review of such a decision should be "highly deferential."

 

[Arthur, supra, 184 N.J. at 320-21 (internal citations omitted).]

 

The additional witnesses that defendant claims should have been discovered and utilized are not only cumulative and repetitive in nature, but they do not exculpate defendant or inculpate another individual of possession of the firearm. Defendant's entirely speculative theory fails to demonstrate that but for trial counsel's errors in failing to further investigate those witnesses, the result of the proceedings would have been different. Fritz, supra, 105 N.J. at 60-61; State v. Savage, 120 N.J. 594, 614 (1990).

Defendant's next contention is similarly rife with speculation. He asserts that trial counsel was ineffective by failing to seek a voir dire of all members of the jury when it was ascertained that a juror subsequently discharged from the panel had driven by the area of the incident and had heard negative things about defendant.

Where there is evidence that a juror may have communicated with other jurors about unfavorable or extraneous information regarding the critical issues of the case, it is within the trial court's discretion to conduct a voir dire of the remaining members of the panel, in order to determine if the juror's statements have tainted the rest of the jury. State v. Loftin, 191 N.J. 172, 193 (2007); State v. Phillips, 322 N.J. Super. 429, 441-42 (App. Div. 1999); State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998).

The record is utterly barren of evidence that the discharged juror spoke to the other members of the panel. Both defense counsel and the trial court were satisfied that the juror did not taint the rest of the jurors, and therefore no voir dire was required. Moreover, because the rest of the jury was unaware of why this particular juror was excused, and the potentially unfavorable information regarding defendant was not transmitted to the remainder of the panel, no prejudice was shown. Thus, defendant failed to fulfill both prongs of the Fritz test, Fritz, supra, 105 N.J. at 52, and has not demonstrated a prima facie claim of ineffective assistance of counsel.

In his final criticism of his deceased defense attorney, defendant makes the claim that the failure to use Haines's prior statements regarding who had possession of a gun at the party to impeach her trial testimony effectively denied him his constitutional right to confront his accusers. However, the constitutional right to cross-examination cannot go unchecked, as it does not give the defendant a "license to roam at will under the guise of impeaching the witness. The trial judge has broad discretion to determine the proper limits of cross-examination of a witness whose credibility is in issue." State v. Sanchez, 224 N.J. Super. 231, 251 (App. Div.), certif. denied, 111 N.J. 653 (1988); see also N.J.R.E. 611(a), (b); N.J.R.E. 403.

Trial counsel did attempt to use the multiple statements made by Haines, but the trial court limited their admissibility. As Judge Reisner explained, "defense counsel failed to impeach [Haines with her May 2, 2003 statement] not for want of trying. Trial counsel attempted to introduce the statement, but failed to overcome the boundary of its status as hearsay." "The mere fact that a trial strategy fails, does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693; 147 L. Ed. 2d 964 (2000). Therefore, under the Strickland/Fritz test for ineffective assistance of counsel, defendant failed to prove that counsel's performance was deficient or that the outcome of trial would have been materially different.

IV.

Defendant argues that he was victimized by pervasive prosecutorial misconduct, particularly in the instance of failing to provide the defense with the two sentencing letters, one from Brown and the other from Martinez, which allegedly proved that defendant had not possessed the weapon. Moreover, defendant claims that the failure to provide these letters to PCR counsel prior to oral argument on the application in the Law Division demonstrates "that the [S]tate has engaged in misconduct throughout this case."

The Brady2 rule establishes that "'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" State v. Martini, 160 N.J. 248, 268 (1999) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)). Specifically, "[i]n order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material.'" Id. at 268 (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)). None of the three prongs, despite defendant's argument to the contrary, is satisfied in this case.

As the PCR judge properly noted, the Brown letter was only received by the prosecution at sentencing, and the Martinez letter was only supplied to the sentencing judge. The State neither suppressed these materials, nor were its actions in omitting the materials from those provided to PCR counsel willful, as the letters were never included in the State's file to begin with. Moreover, the claims contained in the letters that defendant did not possess the gun on the night in question was not new information, as defendant presented six witnesses at trial who all testified to the same thing. Defendant's claim of prosecutorial misconduct in this case is meritless.

V.

Defendant's last argument on appeal is that the PCR court erred by not granting his request for an evidentiary hearing, which he allegedly needed to establish the ineffective assistance of counsel and prosecutorial misconduct claims he made in his PCR application. We disagree.

We recognize that a claim of ineffective assistance of counsel based on facts outside the record must ordinarily be tested by way of an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002). Nevertheless, it is also clear that in order to qualify for an evidentiary hearing, a defendant must present a prima facie case of remediable ineffectiveness. State v. Marshall, 148 N.J. 89, 158 (1997). Conversely, if defendant's petition fails to demonstrate a prima facie claim for ineffective assistance of counsel, an evidentiary hearing is not required. Cummings, supra, 321 N.J. Super. at 170.

The PCR court determined that since defendant was unable to demonstrate a likelihood of success under the Strickland test for his claim of ineffective assistance of counsel, defendant did not establish a prima facie claim warranting an evidentiary hearing. We agree with that assessment. Additionally, that court properly found defendant did not present a prima facie case demonstrating prosecutorial misconduct, further condemning defendant's quest for an evidentiary hearing.

VI.

In summary, we conclude that the April 30, 2009 order denying post-conviction relief was correctly entered.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).