STATE OF NEW JERSEY v. JOHN C. PETERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2388-08T42388-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN C. PETERS,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 25, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-02-0354.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief; Margaret C. Canning, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John C. Peters appeals from a May 2, 2008 order that denied his petition for post-conviction relief (PCR). On appeal, he raises the following claim:

I. THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, AS THE DEFENDANT PRODUCED A PRIMA FACIE CASE OF INEFFECTIVENESS WHEN DEFENSE COUNSEL OPENED THE DOOR TO N.J.R.E. 404(b) EVIDENCE THAT HAD PREVIOUSLY BEEN RULED INADMISSIBLE AGAINST THE DEFENDANT, AND THEN FAILED TO RAISE THE ISSUE OF HIS OWN ERRORS ON APPEAL.

In particular, defendant asserted in his PCR petition that trial counsel rendered ineffective assistance at trial when, through his cross-examination of a witness, Richard D'Onofrio, trial counsel opened the door to testimony that the trial judge, at a hearing outside the presence of the jury, had ruled inadmissible. The judge had ruled that the State would not be permitted in its case in chief to produce evidence that on prior occasions defendant had sold drugs to co-defendant Thomas DeRosa. We agree with the PCR judge's conclusion that such cross-examination did not constitute ineffective assistance, nor did the same attorney provide ineffective assistance when he failed to raise that issue on appeal. We affirm.

I.

Following a trial by jury, defendant was convicted of second-degree distribution of a controlled dangerous substance (CDS) and related conspiracy charges, for which he was sentenced, as a persistent offender, to a twenty-year term with a ten-year period of parole ineligibility. The State's proofs at trial consisted largely of the testimony of two co-defendants, Richard D'Onofrio and Thomas DeRosa, both of whom entered negotiated pleas of guilty to an amended, and significantly lesser charge, of third-degree conspiracy to distribute CDS.

D'Onofrio owns a retail flower shop in Neptune known as Jersey Shore Florist. DeRosa was a friend of his, and in return for D'Onofrio permitting DeRosa to store his cocaine at D'Onofrio's flower shop, DeRosa supplied D'Onofrio with free cocaine.

According to D'Onofrio, on June 20, 2001, DeRosa entered his store and told him that defendant, whom he referred to as "John," and a man named Barry, would be meeting DeRosa at D'Onofrio's flower shop to bring DeRosa some cocaine. According to D'Onofrio, a little while later, defendant arrived in a tan pickup truck and DeRosa went out to the parking lot to meet him. The two then entered his store. Defendant remained for only a few minutes. After he left, DeRosa handed D'Onofrio a package that looked like a baseball wrapped in electrical tape. D'Onofrio placed it in a file cabinet, with the understanding that DeRosa would retrieve the cocaine at some point in the future, as he had been doing for approximately three years.

Shortly after defendant and DeRosa left the store, a Neptune police detective and several officers, whom D'Onofrio knew, entered his store. After chatting for a few moments, they advised D'Onofrio that they were not there for pleasure, but instead for business. D'Onofrio testified he immediately knew why they were there, and he quickly handed them the package of cocaine.

On cross-examination, D'Onofrio was asked whether Barry had ever in the past delivered cocaine to his store, to which D'Onofrio answered, "[t]o Thomas, yes, uh hum." To address that line of questioning, the prosecutor asked D'Onofrio on redirect examination if, to his knowledge, Barry was the only person who had "deliver[ed] drugs to Thomas DeRosa before." Defendant objected.

At sidebar, the State argued that because the defense had inquired about whether DeRosa had in the past purchased CDS from Barry, thereby implying that it was Barry who had supplied CDS to DeRosa on the day in question, the State should be permitted to, in effect, level the playing field by eliciting testimony from D'Onofrio that in the past defendant had also supplied CDS to DeRosa. The State asserted that by asking D'Onofrio about Barry's drug sales to DeRosa in the past, defendant had opened the door to the very line of testimony that the judge had earlier excluded, namely whether defendant had ever sold CDS to DeRosa in the past. The judge overruled defendant's objection, agreeing with the State that defendant had opened the door. With defendant's objection overruled, D'Onofrio testified that DeRosa confided to him that in the past he had purchased CDS from defendant. The judge gave the jury a proper limiting instruction immediately, and repeated it during the jury charge.

As part of his cross-examination of D'Onofrio, defendant was able to establish that D'Onofrio never saw defendant hand the package of CDS to DeRosa. Defendant also established that had D'Onofrio not pled guilty and agreed to testify on behalf of the State at trial, D'Onofrio was aware that he would have faced ten years in prison.

For his part, DeRosa testified that he had been friendly with defendant for seven or eight years. He explained that over the course of their friendship, defendant often purchased CDS for him in Manhattan because "he could get [it] cheaper than I was paying around here." According to DeRosa, he gave defendant $1,000 on June 19, 2001 with the understanding that defendant would purchase cocaine for him. DeRosa also testified that Barry was another one of his suppliers, and he had purchased CDS from Barry in the past. He also testified that he had purchased from defendant in the past. Defendant's objection to this latter question was overruled, on grounds that defendant's cross-examination of D'Onofrio had opened the door to this line of questioning by the State.

According to DeRosa, on the day in question, Barry and defendant traveled to Manhattan together and telephoned when they were approximately forty-five minutes away to arrange to meet at D'Onofrio's flower shop. DeRosa maintained that when defendant arrived at D'Onofrio's store, he was driving his truck, but Barry was not with him. According to DeRosa, he and defendant went to the back of D'Onofrio's store, where they opened the package of cocaine. After D'Onofrio and defendant used some of it, the three wrapped it up, after which he and defendant left.

DeRosa also testified that pursuant to a plea agreement with the State, he pled guilty to an amended charge of third-degree conspiracy to distribute CDS, for which he would be sentenced to a term of probation that included 364 days to be served in the county jail. DeRosa explained that his sentencing would not occur until after he completed his testimony at defendant's trial. DeRosa acknowledged that he would have faced "substantial State prison time" had he not entered a negotiated plea of guilty and agreed to testify as a witness for the State.

On cross-examination, DeRosa was also forced to concede that when he gave police a formal statement the day after his arrest, he had not told the truth, because he did not mention Barry's involvement in the events of June 20, 2001. In addition to the testimony of D'Onofrio and DeRosa, the State also presented the testimony of the arresting officers.

Although defendant did not testify, he presented three witnesses. Maurice Grillon testified that he and defendant worked together as electricians, and that on the day in question, he was with defendant when DeRosa asked to borrow defendant's truck. According to Grillon, defendant said "yes." A second witness, Anthony Baczewski, testified that defendant currently worked for him and he frequently lent defendant his electrician's truck for side jobs when business was slow. According to Baczewski, he was certain that on June 20, 2001, defendant was performing electrical work at a private residence. Last, defendant presented the testimony of his girlfriend, Donna Woods, who testified that on the day in question, defendant did not leave their apartment until 3:00 p.m. This testimony was significant because, according to D'Onofrio and DeRosa, defendant arrived at D'Onofrio's flower shop at 1:30 p.m.

In his summation, defense counsel presented a number of arguments. First, he urged the jury to disregard the testimony of D'Onofrio and DeRosa, arguing that each one had received the "deal of a lifetime" and would consequently provide any testimony the State asked of them in order to preserve the benefit of the extremely lenient plea agreement the State had provided. Defense counsel also argued that it was Barry who had provided the CDS to DeRosa that day, not defendant, and pointed to numerous inconsistencies in the testimony of DeRosa and D'Onofrio in support of that argument. As is evident from its verdict, the jury did not accept those arguments.

On appeal, we affirmed defendant's sentence and conviction. State v. Peters, No. A-2328-02 (App. Div. February 20, 2004) (slip op. at 10-13), certif. denied, 180 N.J. 454 (2004). We rejected defendant's argument that the trial judge erred when he permitted the State to introduce the Rule 404(b) evidence that had previously been excluded, namely that defendant had supplied drugs to DeRosa in the past. Id. at 9-13. Quoting from State v. James, 144 N.J. 538, 554 (1996), we observed that the "opening the door" doctrine is a rule of "expanded relevancy" that "'authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to . . . inadmissible evidence . . . when the opposing party has made unfair prejudicial use of related evidence.'" Id. at 10-11. We also noted that the doctrine "'operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage.'" Id. at 10-11.

We reasoned that when defendant "offered evidence of prior drug transactions, previously deemed inadmissible following the N.J.R.E. 404(b) hearing," and did so "in an attempt to show that Barry was the sole supplier of drugs," the State was properly permitted to establish that DeRosa had indicated to D'Onofrio in the past that he, DeRosa, had purchased drugs from both Barry and defendant. Id. at 12. We held that such testimony was proper "[t]o prevent defendant from gaining an unfair advantage and [to] ameliorate the prejudice introduced by defendant." Ibid.

In his PCR petition, defendant argued that trial counsel rendered ineffective assistance because he opened the door to the evidence that the trial judge had previously excluded at defendant's request. In a written opinion, Judge DeStefano, who was also the trial judge, rejected defendant's claim of ineffective assistance of trial counsel. First, the judge observed that an attorney's representation of a defendant at trial is presumed to fall within accepted professional standards, and the burden is placed upon a defendant to prove otherwise. He noted that when trial counsel adopts a particular strategy, a defendant has the burden of establishing that counsel's performance did not constitute sound trial strategy. The judge reasoned that even "high-risk strategies do not necessarily amount to ineffective assistance of counsel" merely because such a strategy is unsuccessful.

Second, the judge reasoned that it was "unclear what viable alternate theory trial counsel could have proposed instead of pointing the finger at Barry." The judge noted that trial counsel stated on the record, "Judge, I can't go anywhere [without] asking him if Barry brought drugs to the store before." The judge concluded that such comment by trial counsel revealed that trial counsel's opening-the-door strategy was intentional and was not an inadvertent error; however, the judge held, even an "improvident strategy does not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice," which the judge concluded it was not.

Third, Judge DeStefano concluded that, after a thorough review of the trial record, "it cannot be said that counsel's overall performance or preparation was deficient whatsoever." For those reasons, the judge rejected defendant's claim that counsel rendered ineffective assistance at trial.

Judge DeStefano likewise rejected defendant's claim that appellate counsel was ineffective for failing to argue on direct appeal his own ineffectiveness at trial. The judge concluded that because the representation provided at trial was not ineffective, appellate counsel could not be deemed ineffective for failing to present the opening-the-door argument on direct appeal.

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Complaints based merely on matters of trial strategy are not sufficient to demonstrate ineffective assistance of trial counsel. State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963). If trial counsel thoroughly investigates the law and the facts, and considers all possible options, his or her trial strategy is virtually unassailable. State v. Savage, 120 N.J. 594, 617 (1990). However, "strategy decisions made after less than complete investigation are subject to closer scrutiny." Id. at 617-18.

In determining whether counsel pursued a reasonable strategy, we remain cognizant that adequate assistance of counsel should be measured by a standard of "reasonable competence," Fritz, supra, 105 N.J. at 60-61, and a court should not evaluate counsel's decisions under the distorting effects of hindsight. State v. Marshall, 148 N.J. 89, 157 (1997), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Indeed, when arguing that counsel's performance was ineffective, a defendant must overcome a "strong presumption" that counsel used reasonable professional judgment and sound trial strategy. State v. Allegro, 193 N.J. 352, 366 (2008); State v. Castagna, 187 N.J. 293, 314 (2006).

Mere strategic miscalculations or trial mistakes are insufficient to warrant reversal. Allegro, supra, 193 N.J. at 366. As the Court observed in Allegro, even if, with the benefit of hindsight, a strategic decision is found to be a mistake, such mistaken strategy is not sufficient to warrant reversal except in "rare instances." Id. at 367. The Court held:

[A]n 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. The 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. 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 guarantee of a fair trial.

[Ibid. (quoting Castagna, supra, 187 N.J. at 314-15).]

We turn now to a determination of whether this case presents the "rare instance[]" where the exercise of trial strategy "thwart[ed] the fundamental guarantee of a fair trial." Ibid. In undertaking that analysis, we remain mindful that the purported error must not be viewed in isolation, but must instead be evaluated in the context of the entire trial. Ibid. According to the testimony of both DeRosa and D'Onofrio, on the day in question, defendant arrived at D'Onofrio's store and delivered CDS to DeRosa. D'Onofrio acknowledged that he had not actually seen defendant hand the CDS to DeRosa, and was aware only that DeRosa handed the cocaine to him, D'Onofrio. DeRosa's testimony, however, was more pointed and more incriminating. DeRosa testified that defendant arrived in his truck, bringing the cocaine with him, after which the three "went into the back of [D'Onofrio's] store, and opened the package." After "[D'Onofrio] and [defendant] did some cocaine, . . . we wrapped it back up, and . . . [defendant] left." DeRosa's testimony, if believed by the jury, was clearly sufficient, standing alone, to result in a guilty verdict. Under such circumstances, it was not an unreasonable strategic decision for trial counsel to attempt to establish that Barry had also been DeRosa's supplier in the past, thereby implying that DeRosa was merely attempting to wrongly shift the blame for his purchase of CDS on the day in question from Barry to defendant. By doing so, DeRosa would be able to please the State and guarantee that his own highly favorable plea agreement would remain intact.

We recognize that once counsel pursued that line of questioning, he opened the door to the State's redirect examination of D'Onofrio, during which D'Onofrio testified that in the past defendant had also supplied CDS to DeRosa, and thus DeRosa's past purchases of CDS did not come solely from Barry. We cannot say that the judgment trial counsel made was an unreasonable one. Faced with the unequivocal, and highly damaging, testimony from DeRosa, it was not unreasonable for trial counsel to introduce evidence of past drug dealing by Barry in an attempt to raise a reasonable doubt about who supplied the CDS to DeRosa on the day in question. Thus, this strategic calculation, though unsuccessful, does not strike us as an unreasonable judgment on the part of trial counsel.

Moreover, as Allegro requires, we must evaluate the strategic decision that opened the door in light of all the other aspects of defense counsel's performance. Ibid. Doing so strengthens our conclusion that counsel's overall performance was far from deficient. In particular, as we have noted, defense counsel established that: portions of both DeRosa's and D'Onofrio's trial testimony was inconsistent with statements each had earlier given to police; D'Onofrio had not actually seen defendant transfer the CDS to DeRosa; and both D'Onofrio and DeRosa had an enormous incentive to be untruthful by virtue of the favorable plea agreements each had obtained, which required them to testify against defendant, and which counsel skillfully described in his summation as "the deal of a lifetime." Moreover, defense counsel presented three witnesses whose testimony, if believed, could have raised a reasonable doubt about defendant's guilt.

Specifically, if the jury had believed Grillon, defendant was not driving the truck that day at all. Moreover, if the jury had believed Baczewski, defendant was performing electrical work at a private residence on the day in question and therefore was not likely to have even been at D'Onfrio's store. And if the jury believed Woods's testimony, defendant had not left their apartment until 3:00 p.m., and therefore could not have been at D'Onofrio's flower store at 1:30 p.m. as the State alleged.

Thus, not only did defense counsel expose D'Onfrio's and DeRosa's inconsistencies and incentive to fabricate, but he also presented an affirmative case on behalf of his client. Defense counsel provided a vigorous defense, even though it was obviously unsuccessful. Thus, even if we were to characterize the opening-the-door strategy as a "strategic miscalculation[]," ibid., viewed in the context of the entire trial, it was not "of such magnitude as to thwart the fundamental guarantee of a fair trial." Ibid. We are satisfied that defendant, through counsel's effort, received a fair trial, and that counsel functioned as the counsel guaranteed by the Sixth Amendment. We thus reject the claim defendant advanced in Point I that he was entitled to an evidentiary hearing on his claim that trial counsel rendered ineffective assistance at trial.

III.

In Point I, defendant also argues that trial counsel rendered ineffective assistance when he failed to raise the issue of his own errors on appeal. Because we do not view counsel's trial performance as ineffective, counsel had no duty to raise that issue on appeal. The failure to raise a legal argument later rejected as meritless does not constitute ineffective assistance of counsel. State v. Worlock, 117 N.J. 596, 625 (1990). See also State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion"). We thus reject defendant's contention that counsel provided ineffective assistance on appeal.

Affirmed.

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A-2388-08T4

February 11, 2010