STATE OF NEW JERSEY v. KEVIN E. BROWN

 
(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NOT FOR PUBLICATION WITHOUT THE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-5279-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN E. BROWN,

Defendant-Appellant.

________________________________________________________________

October 18, 2010

 

Submitted September 21, 2010 - Decided

 

Before Judges Wefing and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-07-1482.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, 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.

I.

A jury convicted Brown of second degree robbery, N.J.S.A. 2C:15-1a(1). The court granted the state's somewhat delayed extended term motion and sentenced defendant to a fifteen-year term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentence and we affirmed. State v. Brown, No. A-3854-04T4 (App. Div. Oct. 24, 2006). The Supreme Court denied defendant's petition for certification. 189 N.J. 647 (2007). Defendant filed a timely PCR. Defendant now appeals from the trial court's order denying his petition without an evidentiary hearing.

Defendant was convicted of trying to pick David Smith's pocket while Smith was gambling at the Sands Casino in Atlantic City. When Smith felt defendant's hand in his pocket near his money clip, Smith confronted defendant and called security. Defendant jumped up and twisted the arm of Dorothy Fazeli, Smith's female companion. A Sands security supervisor spotted defendant before defendant ran out of the Sands. Defendant was apprehended at the Claridge Hotel, escaped again, and was finally arrested back at the Sands, where he had left his jacket. Defendant told the police that he did not take anything and had been assaulted by Fazeli. Neither victim lost any money or other possessions. Fazeli's hurt arm was treated at the scene. Casino security did not preserve the security videotape of the incident scene, as they could not identify individuals or make out what happened. Defendant did not testify.

On appeal, defendant raises the following arguments:

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

A. Trial counsel failed to investigate or consult with an expert concerning the destruction of the surveillance tape.

 

B. Trial counsel failed to request alternate relief to remedy the Brady violation.

 

C. Trial counsel failed to protect defendant's interests during jury selection.

 

D. Trial counsel failed to give an effective closing argument.

 

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

 

III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED DUE TO CUMULATIVE ERRORS RENDERING THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE.

 

IV. THE SENTENCE WAS EXCESSIVE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

V. THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE SUMMATION, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

 

VI. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

 

VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

 

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

The law which must govern our analysis of defendant's claims of ineffective assistance of counsel is well recognized. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (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. Ibid. 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. den., 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 (1991).

"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. " State v. Castagna, 187 N.J. 293, 315 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Additionally, a defendant's dissatisfaction with his or her counsel's exercise of judgment is not sufficient to overturn a conviction based on a claim of ineffectiveness. Id. at 314.

II.

In Point I, defendant claims that trial counsel was ineffective for failing to consult and retain an expert on video enhancement and as a result, he is entitled to post-conviction relief. Defendant asserts that expert testimony on whether the surveillance tape could have been enhanced was critical because it would have assisted the jury in understanding the evidence.

Prior to trial, defendant moved to dismiss the indictment due to a Brady violation. See Brady v. Maryland, 373 U.S. 83, 93 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). To establish a Brady violation, a defendant must show that, irrespective of good or bad faith, the prosecution suppressed material evidence that is favorable to the defense. State v. Martini, 160 N.J. 248, 268-69 (1999). Defendant alleged that the casino's video surveillance was wrongfully discarded because it precluded the defense from seeing "important evidence of the alleged crime actually occurring." On direct appeal we found this argument unpersuasive in part because "the poor quality of the tape rendered it immaterial to the defense." State v. Brown, supra, (slip op. at 7).

Defendant alleged in his PCR petition that trial counsel was ineffective in preparing for the motion because he did not investigate as to whether the State had the ability to enhance the videotape. At the pre-trial Brady hearing, however, trial counsel not only questioned two Sands security officials about their involvement with the review and disposal of the tape, but also whether they could have enhanced the tape if the footage had not been recorded over. They testified that the Sands did not have the capability to enhance the tape at the time of the incident although it might exist elsewhere.

Consistent with the broad discretion given to counsel under the Strickland/Fritz test, counsel's decision not to call an expert witness is also generally given great deference. A conviction will not be reversed based on potential testimony of unidentified witnesses. See Fritz, supra, 105 N.J. at 64. "The case law makes clear that such purely speculative deficiencies in representation are insufficient to justify reversal." Id. at 64. Additionally, counsel's performance will not be deficient if decisions to "limit investigations [are] supported by 'reasonable professional judgments.'" State v. Martini, 160 N.J. 248, 266 (1999).

Defendant also claims that trial counsel was ineffective for failing to request: (1)"a limitation on the State's comments to the jury concerning destruction of the video tape," and (2) an instruction to the jury asking them to "draw a negative inference from the State's destruction of evidence." In asserting these claims defendant relies on State v. Clawans, 38 N.J. 162 (1962),which permits a negative inference to be drawn from the non-production of a witness within the party's control when the witness's testimony would have exposed facts in issue and would have been superior to evidence used by the party.

Here, the videotape was destroyed by the casino because casino security deemed it useless. Neither the state nor defense had control of the videotape and neither had the opportunity to further analyze the videotape. The state called eyewitnesses who identified defendant as the perpetrator. Defendant told the police that he was the victim of an assault by one of the victims. The jury performed its duty in resolving this disparate testimony. Trial counsel was not deficient in failing to request these instructions.

Defendant also contends that trial counsel did not adequately protect his interests during jury selection because he "failed to ask that anything nearing adequate voir dire be conducted." Defendant raised the issue of whether there was an adequate voir dire on direct appeal and we found no reversible error occurred during jury selection. State v. Brown, supra, (slip op. at 8).

All criminal defendants have a due process right to be tried by a fair and impartial jury. State v. Williams (II), 113 N.J. 393, 409 (1988). An adequate voir dire is essential to insure the impartiality of a jury. Id. at 409-10. Further, trial courts have broad discretion in determining whether a voir dire sufficiently protects a defendant. Id. at 410.

Here, trial counsel moved to exclude all casino workers or their family members from the jury. The trial court denied counsel's motion but agreed to voir dire the jurors to determine whether they could be impartial given that the crime allegedly occurred in a casino. While trial counsel did not object to the voir dire questions or ask the judge to make further inquiry as to the jurors or their family members, he participated in jury selection and excluded nine jurors, including some casino employees and their immediate family members. The trial court observed that trial counsel conferred with defendant during jury selection whenever he challenged a juror.

Although defendant did not exhaust his peremptory challenges, on direct appeal we found that the trial court did not err by allowing casino employees and their family members to remain in the jury pool. State v. Williams (II), 113 N.J. 393, 464-66 (1988) (finding reversible error when defendant exhausted all peremptory challenges and an inadequate voir dire was conducted); State v. Bey (II), 112 N.J. 123, 151-54 (1988); State v. Singletary, 80 N.J. 55, 62-65 (1979). Trial counsel adequately protected defendant's rights by initially seeking to exclude casino workers and their families from the jury. Other than the fact that the incident occurred in a casino, there is no other evidence to persuade us that casino employees or their family members would be biased against defendant.

With regard to defendant's complaint that trial counsel gave an ineffective summation, as the trial court noted, trial counsel's closing tied together the inconsistencies in the testimony he deemed significant. Defendant did not testify at trial. Trial counsel's summation asserted that no crime occurred and did not focus on whether defendant was the individual who committed the crime. In making this argument, counsel discussed defendant's return to the crime scene to retrieve his jacket, defendant's statements made after the incident professing his innocence and alleging that he was assaulted by one of the victims, and the fact that initially the victims did not wish to press charges against the defendant. The summation was appropriate and professional.

III.

Defendant claims in Point II that appellate counsel was ineffective due to a failure "to raise meritorious issues on direct appeal." Defendant claims that appellate counsel should have (1) requested alternate relief to remedy the Brady violation and (2) challenged the two-day lateness in filing the motion for an extended term. Criminal defendants have a Sixth Amendment right to counsel for their first appeal as a matter of right. Douglas v. California, 372 U.S. 353, 356, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811, 814 (1963). As a result, a defendant may bring an ineffective assistance of counsel claim as to his appellate counsel. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 811, 828 (1985).

Appellate counsel, however, is not required to present all non-frivolous claims. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3309, 3312, 77 L. Ed 2d 987, 993 (1983). The appellate attorney may use professional judgment in deciding whether or not to bring meritorious claims suggested by the client. Jones, supra, 463 U.S. at 754, 103 S. Ct. at 3312, 77 L. Ed. 2d at 995. Further, appellate counsel need not raise claims that are "legally unworthy of pursuit." State v. Webster, 187 N.J. 254, 257 (2006). The standard of review for assessing ineffective assistance of appellate counsel is the Strickland/Fritz standard discussed above. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987), certif. denied, 107 N.J. 642 (1987).

Appellate counsel's failure to request alternate relief when the Brady motion was denied does not amount to ineffective assistance of counsel for the reasons stated above.

Appellate counsel's decision not to challenge the late filing of the motion for an extended term was justified because counsel knew that the prosecutor's daughter was hospitalized and that her office burned down immediately before the filing deadline. The circumstances causing the delay were clearly excusable. Additionally, defendant has failed to show how this delay hampered his ability to respond to the motion.

IV.

Defendant's claims, in Points IV and V, of excessive sentence and prosecutorial misconduct were adjudicated on the merits on direct appeal and thus are precluded in this PCR petition. R. 3:22-5.

Defendant also raises issues of cumulative errors, Point III, additional errors, Point VI, and that his claims are not barred by R. 3:22-5. These arguments lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3e(1)(E).

V.

Defendant raises in Point VIII that the trial court erred in denying him an evidentiary hearing. R. 3:22-1 does not require an evidentiary hearing in every PCR proceeding, but rather grants trial courts discretion as to whether or not one should be held. "Trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. In determining whether defendant has established a prima facie case, the court should construe the facts in the light most favorable to the defendant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

Here, defendant did not present a prima facie case regarding any of his ineffective assistance claims for the reasons stated above. Accordingly, the trial court did not err by dismissing defendant's PCR petition without conducting an evidentiary hearing.

Affirmed.