STATE OF NEW JERSEY v. CARNELL GIBBS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2234-07T42231-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARNELL GIBBS,

Defendant-Appellant.

__________________________________

Submitted January 12, 2010 - Decided May 21, 2010

Before Judges Wefing and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 99-03-0460.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated Counsel,

on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm, but for reasons other than those stated by the trial court.

A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(1)(2); attempted murder, N.J.S.A. 2C:5-1; conspiracy, N.J.S.A. 2C:5-2; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court sentenced defendant to an aggregate term of seventy years in prison, fifty years for murder and a consecutive twenty years for attempted murder, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant appealed his convictions and sentence, and we affirmed his convictions. The trial court, however, had attached NERA's parole disqualification provisions to the sentence for murder, as well as to the sentence for attempted murder, and in light of State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000), aff'd. by equally divided Court, 168 N.J. 113 (2001), we remanded the matter to the trial court for re-sentencing. State v. Gibbs, No. A-860-00 (App. Div. May 24, 2002). At that re-sentencing, the trial court again imposed an aggregate sentence of seventy years in prison, fifty years for murder, with a thirty-year period of parole ineligibility, and a consecutive twenty years in prison for attempted murder, subject to NERA. Defendant appealed his sentence as excessive, and his appeal was heard on an Excessive Sentence Oral Argument calendar, Rule 2:9-11; we affirmed his sentence. State v. Gibbs, No. A-0758-02 (App. Div. June 9, 2003). The Supreme Court denied defendant's petition for certification. 174 N.J. 547 (2002).

In our earlier opinion, we summarized the facts underlying defendant's convictions in the following manner:

During the early morning hours of October 22, 1998, in the parking lot of a bar, defendant shot John Byrd and Alex Crawford. Crawford died and Byrd survived. On the evidence presented[,] the jury could have found the following additional facts. Defendant and Byrd had had a contentious relationship for some period of time. Byrd was the bigger man, and on prior occasions had taunted and struck defendant. Byrd had previously pulled a gun on defendant and while defense witnesses testified that Byrd had a gun on October 22, 1998, those witnesses did not report such information to the police and no gun was found on Byrd after defendant shot him. The jury certainly could have concluded that Byrd was unarmed when he was shot.

Earlier in the evening of October 21, Byrd allegedly gave defendant threatening looks and called defendant names when they were both inside the bar. Byrd also boasted that he owned "big dogs and big guns." Defendant left the bar and walked back to his sister's apartment. He retrieved his own dog and a nine millimeter handgun. Defendant's cousin, Thomas Allen, took the gun from defendant before returning to the bar. When the two men returned to the bar's parking area, defendant confronted Byrd and challenged him to a fight. Defendant pulled up his shirt to show Byrd he was unarmed. Byrd testified that he took off his jacket in anticipation of a fight, but the fight was preempted by the shooting. Defendant testified he thought he saw a chrome gun in Byrd's waistband. Allen handed defendant the gun he was holding for defendant, and defendant proceeded to shoot Byrd three times. Byrd fell to the ground and defendant stood over him, firing multiple shots at him. Alex Crawford, essentially an innocent bystander, approached defendant with his hands raised, perhaps in an effort to stop defendant [from] shooting Byrd. Defendant then shot Crawford twice and walked away. Crawford died from his wounds. Byrd was shot so many times that paramedics ran out of dressings for his wounds, but he lived. The evidence was that defendant had fired seventeen shots, the maximum capacity of his nine millimeter handgun.

Defendant filed a timely petition for post-conviction relief, and counsel was assigned to represent defendant, who prepared and submitted a brief on his behalf. After oral argument, the trial court gave a written opinion setting forth its reasons for denying defendant's petition, and this appeal followed. The record does not disclose a reason for the gap of four years between defendant's initial PCR petition and the matter being heard by the trial court.

On appeal, defendant raises the following contentions for our consideration.

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENSE PETITION FOR POST CONVICTION RELIEF OR, IN THE ALTERNATIVE, IN NOT AFFORDING THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL AND APPELLATE LEVELS

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CALL TWO CRUCIAL WITNESSES WHOSE TESTIMONY WOULD HAVE CORROBORATED THE DEFENDANT'S CONTENTION HE ACTED IN SELF DEFENSE WITH RESPECT TO THE SHOOTINGS OF THE TWO VICTIMS

C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE APPELLATE LEVEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE AN ISSUE RELATING TO THE TRIAL COURT'S RULING DENYING THAT PART OF TRIAL COUNSEL'S MOTION FOR NEW TRIAL BASED UPON A DISCOVERY VIOLATION ARISING OUT OF A BALLISTICS REPORT

D. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO REQUEST THAT THE COURT INTERVIEW CERTAIN JURORS PURSUANT TO RULE 1:16-1 AS PART OF HIS MOTION FOR NEW TRIAL, AS WELL AS HIS FAILURE TO CHALLENGE CERTAIN JURORS BASED UPON INFORMATION TOLD TO HIM BY THE DEFENDANT DURING JURY SELECTION, INSTEAD RELYING UPON INVITED ERROR IN THE EVENT OF A CONVICTION

A criminal defendant's right to effective assistance of counsel is protected by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In State v. Fritz, the New Jersey Supreme Court adopted the two-prong test articulated by the United States Supreme Court in Strickland v. Washington. State v. Fritz, 105 N.J. 42 (1987). Under the Strickland/Fritz test, "First, the defendant must show 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." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To satisfy the second prong of the test a defendant is required to "show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). To evaluate whether assistance was reasonably effective the court should take into consideration the "prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

A reviewing court will evaluate the trial strategy selected by counsel with great deference. "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

In evaluating a PCR petition presenting a claim of ineffective assistance of counsel, a trial court should grant an evidentiary hearing if defendant established a prima facie case based on facts outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). "As in a summary judgment motion, the motion judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)(citing Preciose, supra, 129 N.J. at 462-63). A prima facie showing requires a defendant to show a reasonable likelihood of success under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463. Petitioner must also present evidence demonstrating counsel's performance was deficient and but for such deficiency, it is reasonably probable that the result of the proceeding would have been different. State v. Russo, 333 N.J. Super. 119, 139 (App. Div. 2000) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698, State v. Fisher, 156 N.J. 494, 500 (1998); Fritz, supra, 105 N.J. at 52); Cummings, supra, 321 N.J. Super. at 170.

Defendant contends his trial counsel was ineffective for failing to call Nakia Allen and Omar Davis as witnesses at his trial, who could both have testified that Byrd was armed at the time of the shooting. Such testimony would have bolstered defendant's claim that he acted in self-defense. Terry Gibbs, defendant's sister, provided a certification in support of defendant's PCR petition stating that Nakia Allen told her that he arrived at Wash's Inn just after the shooting, removed a gun from Byrd's person when he was lying on the ground, and threw it away. Terry Gibbs also claimed that Nakia told her that he was willing to testify at Gibbs' trial. Terry Gibbs stated that she notified defendant and his attorney of these facts.

Nakia Allen, who is John Byrd's cousin, also provided a certification in support of Gibbs's PCR petition, describing the events on the night of the shooting. Allen explained he arrived at Wash's Inn just after Byrd was shot and that he proceeded to Byrd's body at which point he noticed Byrd was carrying a "chrome gun in his waistline." Allen then certified he instructed the crowd to stall the police, took the gun from Byrd's waistline, left the scene and threw the gun in the ocean. Allen also certified that he told Terry Gibbs of these events two weeks after the shooting and told her to "get Carnell's trial attorney to contact [him] because [he] was willing to testify at Carnell's trial about all that [he] had done on the night of the shooting at Wash's Inn." Terry Gibbs stated in her certification in support of post conviction relief that she shared these facts with defendant and his attorney.

Omar Davis also provided an undated certification, stating that while at Wash's Inn on the night of the shooting, he "saw an individual approach Alex Crawford while he was on the ground and remove the gun from his hand. This individual then left in a truck."

The trial court rejected defendant's claim that his attorney had been ineffective for failing to call Nakia Allen and Omar Davis as witnesses at his trial. Although we do not fully subscribe to the reasons stated by the trial court, we concur in its ultimate conclusion.

The trial court appeared to attribute lesser significance to the certifications of Allen and Davis because they were executed in 2003. We are uncertain as to why the trial court found that date material; the certifications were clearly executed in conjunction with defendant's PCR petition, which was initially filed in 2003. Nor do we think that their proposed testimony, particularly that of Allen, could fairly be characterized as cumulative. Allen, who is Byrd's cousin, certified that he himself had removed a gun from Byrd as Byrd lay wounded in the street.

Even if that testimony had been received, however, it would not establish that defendant acted in self-defense when he shot Crawford. Defendant, who testified at trial, never said that he feared Crawford had a gun. He admitted on cross-examination that he never saw Crawford with a gun and that Crawford had never given defendant a reason to fear him. Defendant was not justified in using deadly force against Crawford "unless [he] reasonably believe[d] that such force [was] necessary to protect himself against death or serious bodily harm[.]" N.J.S.A. 2C:3-4b(2). Further, deadly force is not justified if the actor "knows that he can avoid the necessity of using such force with complete safety by retreating . . . ." N.J.S.A. 2C:3-4b(2)(b).

Nor would that proposed testimony further defendant's claim of self-defense with respect to Byrd. We cannot help but note, for example, that it was not disputed at trial that defendant, after initially firing his gun at Byrd, approached Byrd as he lay helplessly on the ground and fired several more bullets into him. Defendant could not have had a reasonable belief at that juncture that it was necessary for him to continue to shoot the gravely wounded Byrd.

We turn now to defendant's second claim of ineffective assistance of counsel, this time directed toward the attorney who represented defendant in connection with his direct appeal to this court. Following the shooting, seventeen shell casings and seven bullets or bullet fragments were recovered from the scene and were delivered to the ballistics laboratory maintained by the State Police for examination. Lieutenant Gerald Burkhardt supervised this ballistics unit and conducted the examination. He prepared a report summarizing the results of his examination, and he testified at defendant's trial.

Lieutenant Burkhardt noted in his report that of the 17 shell casings, 16 were 9 mm Luger caliber discharged shells and one was a 9 mm Luger caliber Winchester discharged shell. The latter was identified in his report as specimen # 6, the remaining shells as specimens #1,2 and 7 through 20. He concluded his report with the following language: "Compared the seventeen shells marked #1, #2 and #7 thru #20 against each other with positive results. The seventeen shells marked #1, #2 and #7 thru #20 were discharged in the same firearm."

At trial, Lieutenant Burkhardt testified that specimen #6, the Winchester shell, was also discharged in the same firearm. Defendant's attorney protested, noting that Lieutenant Burkhardt had not included specimen #6 in his report's concluding remarks. Burkhardt said the omission was a typographical error on his part and that his original laboratory notes included specimen #6 in his examination and conclusions. After defendant was convicted, his attorney moved for a new trial, arguing that he should have been supplied Burkhardt's laboratory notes in advance of trial. The trial court denied the motion, and his appellate attorney did not raise the issue on appeal. Defendant now complains that this omission on the part of his appellate attorney constituted ineffective assistance. The trial court rejected this argument as do we.

We note initially that a defendant does not have a constitutional right to have all possible claims raised by appellate counsel. Jones v. Barnes, 463 U.S. 745, 750-51, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983). "For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy . . . . Nothing in the Constitution or our interpretation of that document requires such a standard." Id. at 754, 103 S. Ct. at 3314, 77 L. Ed. 2d at 995. See State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

We agree with the trial court that there was no discovery violation, and thus defendant cannot establish a prima facie case that his appellate attorney was ineffective for failing to present that argument in the direct appeal. Rule 3:13-3 does not require that an expert witness for the prosecution supply to defendant's attorney the expert's notes which are not in the possession of the prosecutor. Pressler, Current N.J. Court Rules, comment 3.2.9 on R. 3:13-3 (2010). State v. Lozada, 257 N.J. Super. 260, 275 (App. Div. 1992) (noting "the breadth of discovery . . . does not include the expert's personal notes which are not in the prosecutor's file").

Further, we are unable to ascribe the weight to Burkhardt's typographical error that defendant does on appeal. We note, for instance, that the prosecutor stated in his opening remarks that the seventeen casings had been sent to the State Police for analysis and that all of the casings came from the same gun. Defendant was thus put on notice at the outset of the trial what testimony to anticipate. Moreover, Burkhardt's report, in addition to specifying the specimen numbers, stated that seventeen shells were all discharged from the same weapon. The number seventeen could only be reached if specimen #6 were included in that total.

We turn now to defendant's final argument with respect to his claim of ineffective assistance of counsel, which relates to the process of jury selection. As part of defendant's motion for a new trial, defendant submitted certifications from several friends and family members that questioned the impartiality of two members of the jury panel. In arguing the new trial motion, defense counsel told the trial court that he had not been aware of these contentions until after the trial had concluded. The trial court denied defendant's new trial motion and in doing so noted that defense counsel had not sought to have these panel members interviewed with respect to these allegations.

Several years later, in conjunction with defendant's PCR petition, the trial court had a certification from defendant's mother and sister that they had both told defendant's trial attorney that they recognized two members of the jury panel and that defendant had told them he had informed his trial counsel of this, and the attorney had responded that this "might work in our favor." Defendant also submitted a certification that he had told his trial attorney that he had difficulties in the past with these two potential jurors but that the attorney did not pursue the matter and "explained that if the trial is lost, an issue will exist for appeal."

Under either scenario, we are satisfied defendant failed to establish a prima facie case of ineffective assistance of counsel warranting a plenary hearing. If the statements of defense counsel at the new trial motion are accurate, to the effect that he was not informed of the allegations with respect to these jurors until after the trial had concluded, he could not be deemed ineffective for letting them remain on the panel. If the statements in the certifications of defendant and his sister are accurate, that they discussed with defendant's trial attorney during the trial the question of these jurors participating, and he responded either that it could work to defendant's advantage or could provide an issue on appeal, defendant's attorney made a strategic choice of how to proceed. If defendant thought he was obtaining a jury tilted to the side of the defense, rather than an impartial jury, he should not be heard to complain now if that choice did not work out as he had hoped. If, on the other hand, he thought his attorney was placing in his pocket an issue to be presented on appeal, we decline to reward such a strategy, with its obvious potential to undermine the integrity of the judicial proceedings.

Finally, we see no basis to conclude that defendant's trial attorney was ineffective for not filing a motion seeking to have these particular jurors interviewed with respect to their knowledge of defendant. Each had specifically denied such knowledge during the voir dire. The material contained with the certifications was far too vague to support a finding that it was reasonably probable that the trial court would have acceded to such a motion if one had been filed. Defendant thus fails to satisfy the Strickland/Fritz standards for ineffective assistance.

The order under review is affirmed.

 

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