STATE OF NEW JERSEY v. RENALDO CHAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6326-06T46326-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENALDO CHAVIS a/k/a REYNALDO CHAVIS,

RAY CHAVIS, REALDO CHAVIS and TERIQUE

CHAVIS,

Defendant-Appellant. ________________________________________

 

Argued November 17, 2009 - Decided

Before Judges Wefing and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 01-10-4001.

Nancy C. Ferro argued the cause for

appellant (Ferro and Ferro, attorneys;

Ms. Ferro, on the brief).

Barbara A. Rosenkrans, Assistant Prosecutor,

argued the cause for respondent (Paula

T. Dow, Essex County Prosecutor, attorney;

Mr. Rosenkrans, of counsel and on the brief).

PER CURIAM

Defendant Renaldo Chavis appeals from the denial of his petition for post-conviction relief. The judge who presided over defendant's trial and imposed his sentence for manslaughter, aggravated assault and unlawful possession of a handgun was assigned to address his petition. Because a sketch of the scene of a different homicide apparently was appended to a photograph and admitted into evidence over defendant's objection, we conclude that the trial judge erred in dismissing defendant's claim of ineffective assistance of counsel without a hearing. Accordingly, we remand for further proceedings.

During the early morning hours of March 25, 2001, Terrell and Moresse Germany were shot outside a bar in Irvington. Terrell's wound was fatal; Moresse underwent surgery to repair the damage done by the gun shot wound to his chest and survived. Moresse and other witnesses identified defendant as the shooter. Defendant was indicted, tried to a jury and found guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. For each of the second-degree crimes, defendant was sentenced to a term of incarceration for ten years subject to periods of parole ineligibility and supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Those sentences are consecutive to one another and concurrent with the five-year term defendant received for the unlawful possession of a weapon.

The judgment of conviction was entered on January 10, 2003. We affirmed defendant's conviction on direct appeal, and the Supreme Court denied his petition for certification. State v. Chavis, No. A-3194-02 (App. Div. Oct. 15, 2004) (slip op. at 20), certif. denied, 183 N.J. 591 (2005). Defendant filed this petition for post-conviction relief in 2005.

In his petition for post-conviction relief, defendant raised the following issues:

I. Petitioner was denied a fair trial

and effective assistance of counsel due to counsel's failure to assert a Brady [v]iolation, to wit, the State's Suppression of a Witness' Statement.

II. Appellate Counsel's failure to raise on

appeal the erroneous and prejudicial admission of a dying declaration deprived defendant of a fair trial and effective assistance of counsel.

III. Defendant was denied a fair trial and

effective assistance of appellate counsel due to the prejudicial admission of an unrelated homicide sketch and counsel's failure to raise same as error on direct appeal.

IV. Appellate Counsel was ineffective for

failing to challenge defendant's sentence in light of the United State's Supreme Court ruling in Blakely v. Washington.

On April 17, 2006, counsel assigned to represent defendant submitted a supplemental brief raising three additional claims:

I. Mr. Chavis was denied effective

assistance of appellate counsel.

II. The Sentence imposed on Mr. Chavis is

illegal.

III. The Sentence imposed on Mr. Chavis is

manifestly excessive.

The judge addressed defendant's claims in two separate proceedings. On February 26, 2006, the judge determined that defendant's sentence was not illegal, and defendant does not challenge that determination on appeal. His claims of ineffective assistance of trial and appellate counsel were rejected for reasons stated on the record and in a written decision on July 28, 2006.

On appeal defendant argues:

I. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS NOT DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

A. Failure of appellate counsel to raise the issue of excessive sentence.

B. Failure of appellate counsel to raise the Blakely issue on appeal.

C. Failure of appellate counsel to raise the issue of the admission of the unrelated homicide sketch.

II. TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE BY FAILING TO ASSERT A BRADY VIOLATION.

I

Because all of defendant's claims are cast in terms of ineffective assistance of counsel, we begin our discussion of the issues by stating what a defendant must establish to obtain relief on that ground. The defendant must demonstrate (1) deficient performance; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 691, 104 S. Ct. 2052, 2064, 2066, 80 L. Ed. 2d 674, 693, 696 (1984); see State v. Fritz, 105 N.J. 42, 58, 60-61 (1987) (adopting the Strickland standard). The defendant has the burden of proof on both prongs of this two-part test.

Counsel's performance is measured against an objective standard of reasonable competence, Fritz, supra, 105 N.J. at 60-61, and with the understanding that there is a "wide range of professionally competent assistance" and "countless ways to provide effective assistance in any given case," Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 2588-89, 91 L. Ed. 2d 305, 326 (1986) (internal quotations and citation omitted). Indeed, there is a presumption that counsel's performance was "adequate" and rendered consistent with "reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990). Performance is not deemed deficient unless the attorney's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693.

Prejudice to the defense is assessed in light of the likely impact of counsel's errors. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. Thus, the defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Kimmelman, supra, 477 U.S. at 375, 106 S. Ct. at 2582-83, 91 L. Ed. 2d at 319. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Savage, supra, 120 N.J. at 614 (internal quotations and citation omitted). Where errors of appellate counsel are at issue, the question is whether there is a reasonable probability that defendant would have prevailed on appeal but for the error. Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756, 780 (2000); State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

A

We first apply Strickland's two-prong standard to defendant's objections to his appellate counsel's failure to challenge his sentence. The trial judge denied relief on the ground that defendant did not establish prejudice. For the reasons stated below, we accept that determination.

Defendant received the maximum sentences available for the second-degree crimes of reckless manslaughter and aggravated assault ten-year terms consecutive to one another and subject to NERA. N.J.S.A. 2C:11-4b(1), c; N.J.S.A. 2C:12-1b(1); N.J.S.A. 2C:43-6a(2); N.J.S.A. 2C:43-7.2. He also received a concurrent maximum term of five years for the third-degree crime of possession of a handgun without a permit. N.J.S.A. 2C:39-5b (subsequently amended by L. 2007, c. 284, 1 to elevate the crime to one of the second degree with respect to most handguns); N.J.S.A. 2C:43-6a(3).

On appeal, defendant's attorney did not present any argument relevant to his sentence. Defendant contends, and we agree, that he made a prima facie showing of deficient performance by appellate counsel failure to argue that the judge impermissibly relied on aggravating factors duplicative of elements of manslaughter and aggravated assault.

Manslaughter is defined to require proof that the defendant recklessly caused the death of the victim. N.J.S.A. 2C:11-4b(1). The form of aggravated assault that the jurors found defendant committed requires proof that the defendant caused "serious bodily injury . . . purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly." N.J.S.A. 2C:12-1b(1). "Serious bodily injury" is defined as "injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.

Defendant was sentenced on January 10, 2003. By that date, decisions binding the trial judge's exercise of discretion unmistakably established the impropriety of considering an element of a crime as an aggravating factor relevant to the sentence for that crime. See, e.g., State v. Jarbath, 114 N.J. 394, 404 (1989) (death of a victim on sentence for manslaughter); State v. Scher, 278 N.J. Super. 249, 273-74 (App. Div. 1994) (serious bodily injury on sentence for second-degree aggravated assault because it is a necessary element of proving that offense), certif. denied, 140 N.J. 276 (1995); cf. State v. Kromphold, 162 N.J. 345, 353, 357 (2000) (directing "a pragmatic assessment of the totality of harm . . . to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants.").

Nonetheless, at the time of sentencing the judge found aggravating factor one "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner . . . ." N.J.S.A. 2C:44-1a(1). To support that finding, the judge relied on defendant's "cavalier attitude towards the lives and health of two contributing members of our society . . . not to mention the lives, health and safety of the balance of the community." Cf. State v. O'Donnell, 117 N.J. 210, 217-19 (1989) (discussing appropriate application of this aggravating factor).

The judge also found aggravating factor two. N.J.S.A. 2C:44-1a(2) provides an aggravating factor based upon

[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.

In finding that factor, the judge relied on elements of manslaughter and aggravated assault. He explained:

Terrell is no longer in pain, but he's not . . . because he died, and he died because you killed him.

Moresse Germany, on a physical or emotional or mental level, will be in pain for the rest of his life. It is only by virtue of the beneficence of a greater power and the talents and skills of the medical profession that Moresse is not with his brother now. The gravity and seriousness of that harm to Moresse Germany cannot be minimized.

In light of the findings upon which the judge relied to support aggravating factors one and two, reasonably competent appellate counsel would have contended that the judge impermissibly relied on elements of the crime. The arguments involve a straightforward application of well-settled law, and there is no apparent strategic justification for appellate counsel's foregoing the claim; it is one that can be stated briefly and without detracting from or conflicting with issues appellate counsel raised to overturn defendant's convictions.

In contrast, defendant failed to make a prima facie showing of ineffective assistance of appellate counsel by failing to argue that the judge overlooked mitigating factors supported by the record. At the time of sentencing, the judge rejected all mitigating factors urged by defense counsel. He explained why he did not find that the victims' conduct established the first three grounds for mitigation urged by defense counsel provocation, substantial grounds tending to excuse or justify the conduct, and actions by the victim inducing or facilitating the commission of the crime. N.J.S.A. 2C:44-1b(3)-(5). While the judge did not expressly reject defense counsel's claim that mitigating factor eleven applied because of the hardship defendant's wife and children would endure without the support he provided, the judge noted that defendant was an employed husband and a father of two. A reasonably competent attorney could conclude a challenge based upon the trial judge's assessment of these mitigating factors would not likely succeed. See State v. Bieniek, 200 N.J. 601, 607-12 (2010).

In any event, although defendant established a prima facie case of deficient performance based upon the judge's reliance on impermissible aggravating factors, he cannot establish that he was prejudiced by counsel's error. Appellate courts generally remand for reconsideration of the sentence when the trial judge has relied on impermissible or unsupported aggravating factors or overlooked mitigating factors supported by the evidence. Id. at 608; State v. Roth, 95 N.J. 334, 369 (1984); cf. State v. Jabbour, 118 N.J. 1, 6 (1990) (noting that appellate courts "may review and modify sentences only when the trial court's determination was clearly mistaken" and reversing this court's decision (internal quotations and citation omitted)); Roth, supra, 95 N.J. at 364 (noting that modification is appropriate only when the sentence is shocking to the judicial conscience). We have no doubt that an appellate panel considering this claim would have taken that course.

Because defendant's sentences would have been remanded, not modified on appeal, defendant must establish the prejudice prong of Strickland by showing a reasonable probability that the judge would have reduced his sentence on remand. He cannot.

In ruling on defendant's petition for post-conviction relief, the trial judge assumed that this court would have remanded with direction for him to reconsider defendant's sentences disregarding aggravating factors one and two and reassessing the mitigating factors. The judge undertook that inquiry and concluded that he would not have altered the sentence on remand. He wrote:

Regardless, had this issue been raised upon direct appeal and the Appellate Division found that aggravating factors (1) and/or (2) were impermissibly considered the likely remedy would have been for the Appellate Division to remand the matter for re-sentencing ordering a re-evaluation of the defendant's sentence without reference to the harm caused the victim as an aggravating factor. See e.g., State v. Abrams, 256 N.J. Super. 390, 404 (1992). Upon a re-sentencing, the remaining aggravating factors for which there was abundant evidential support, (3), (6) and (9), would leave this court convinced that the maximum ten-year consecutive sentences on the Reckless Manslaughter and Aggravated Assault counts were appropriate. As was pointed out by the Appellate Division in State v. Scher, "the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3), and the need for specific and general deterrence, N.J.S.A. 2C:44-1a(9), demands paramountcy over all other considerations." 278 N.J. Super. 249 at 273 (App. Div. 1994). Given the Petitioner's extensive prior record, this Court finds that these aggravating factors in and of themselves justified the Petitioner's sentence even without consideration of the other aggravating factors.

The judge also addressed mitigating factor eleven.

The Court was aware that Mr. Chavis supported his wife and two children, who resided with him, but was clearly not persuaded that the Petitioner's incarceration would entail an excessive hardship to them in light of the crimes committed.

In light of the judge's statement of findings and reasons on his self-directed remand, we cannot conclude that the defendant was prejudiced by appellate counsel's performance. On the self-directed remand, the judge disregarded aggravating factors one and two and concluded that his prior findings with respect to aggravating factors three, six and nine warranted the same sentence in the absence of any mitigating factors.

The standards that govern this court's review of sentences require us to accept factual findings supported by the record and to refrain from substituting our judgment for that of the trial judge with respect to an assessment of the weight of the pertinent sentencing factors or the duration of a sentence within the permissible range. Bieniek, supra, 200 N.J. at 608; State v. O'Donnell, 117 N.J. 210, 215 (1989).

The judge's findings on aggravating factors three, six and nine at the time of sentencing are supported by the record. Respectively, those factors account for the risk that defendant will commit another crime, the extent of defendant's criminal record and the seriousness of the offenses, and the need for deterring defendant and others from violating the law. N.J.S.A. 2C:44-1a(3), (6), (9).

Defendant's history of prior involvement with the criminal and juvenile justice systems support those aggravating factors. As an adult, defendant had been sentenced to probation for two prior convictions for indictable crimes possession of a controlled dangerous substance and possession of a handgun. The second crime was committed while defendant was serving a sentence of probation for the first, and the crimes at issue here were committed while defendant was still on probation. In addition, defendant had a juvenile record that included adjudications for violent acts aggravated assault and a weapons offense arising from an incident in which defendant shot the victim. As a consequence of that adjudication, defendant had been confined in Jamesburg. The judge considered defendant's criminal record as an adult with respect to aggravating factor three, and deemed defendant's juvenile record, lost opportunities for rehabilitation and the circumstances under which the crimes were committed as relevant to the risk of recidivism and defendant's need for deterrence.

Given those findings and our standard of review, there is no basis for this court to disturb the sentences for manslaughter and aggravated assault. Thus, defendant cannot demonstrate prejudice attributable to his appellate counsel's failure to challenge the double-counting.

Defendant also contends that his appellate counsel's failure to object to the imposition of consecutive sentences was deficient. Defendant's consecutive sentences were for two violent crimes resulting in the death of one victim and serious bodily injury to another. His claim that his attorney should have objected to consecutive sentences on appeal warrants no discussion beyond citation to State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. deined, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) and State v. Molina, 168 N.J. 436, 441-42 (2001). R. 2:11-3(e)(2).

B

Defendant further asserts that his appellate counsel was ineffective for failing to present an argument that would have placed his claim in the pipeline along with those of other defendants entitled to retroactive application of the new rule of law established in State v. Natale, 184 N.J. 458, 493-94 (2005). The relief afforded to those defendants is as follows:

[A] new sentencing hearing . . . based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term [abrogated by the Court's decision] in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely[] grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

Due to the manner in which the trial judge addressed this claim of ineffective assistance, defendant was afforded that relief as well. The judge found: "[R]e-sentencing [pursuant to Natale and without reference to the former presumptive sentence] would not have resulted in any substantive change to the Petitioner's sentence." From our review of the transcript of the initial sentencing proceeding, the record supports the judge's assessment. There is no indication that the trial judge gave any consideration to the presumptive sentences when he sentenced defendant in the first instance. Accordingly, defendant cannot establish prejudice within the meaning of Strickland.

C

Defendant's final objection to his appellate counsel's performance is based on a failure to challenge the admission of an exhibit that was not relevant to this case. State's exhibit 47A is the exhibit in question. Moresse authenticated the photograph as accurately depicting the crime scene the area in front of the bar where he and his brother were shot. S-47A was mounted on backing that bore a sketch of an unrelated homicide scene. Defendant's trial attorney objected to display of the photograph and its admission into evidence on the ground that the sketch was unrelated to this case and he did not know what it depicted. The trial judge did not respond to that objection.

At the close of Moresse's testimony, defense counsel renewed the objection. He argued: "The back of S 47 has a [h]omicide sketch with another body from another case and I asked that it be removed, Judge. I asked [the prosecutor to do] that when I first saw it. [She] did nothing with it and she paraded this before the jury." The court responded, "It's in evidence." The prosecutor explained that she had tried to "rip it out when [defense counsel] pointed it out, it's not coming off properly." The court noted, "It's in evidence and with that we will say good night and see you in the morning."

Before the exhibits were provided to the jury for use during deliberations, defense counsel and the State acknowledged that the exhibits were "correct." But there was no discussion as to whether the sketch from another homicide had been removed. As the judge had not directed the prosecutor to remove the sketch, defense counsel's admission that the exhibits were "correct" is not informative. Admission with the sketch appended would have been "correct" in the sense that it would have been in conformity with the judge's prior ruling.

In addressing this claim on defendant's petition for post-conviction relief, the trial court ruled:

There has been no showing that the unrelated homicide sketch was ever viewed by the jury. The State contends, and Petitioner does not dispute, that the State avoided any inadvertent viewing by the jury of the back of the foam board during the trial and that the unrelated homicide sketch was removed from the back of the foam board prior to the evidence being submitted to the jury. Thus, the Petitioner has not made a prima facie showing that the sketch was inflammatory or unduly prejudiced the Petitioner.

Furthermore, even were the Court to grant that the presence of the homicide sketch was problematic and that Appellate Counsel was deficient for failing to raise this issue on appeal, the Petitioner has not shown that but for this error the result of the proceedings would have been different.

On appeal, the State again claims: "The prosecutor ultimately cleared the sketch on the back of the board so that it was never seen by the jury." The only support for that critical factual claim given by the prosecutor on this appeal is a citation to the passage in the judge's decision set forth above. There is nothing in the record on appeal that supports the judge's finding.

It may well be that the assistant prosecutor assigned to try this case understood her obligation to present only admissible evidence and effectively removed the sketch before the photograph was submitted to the jury. But nothing in this record gives rise to that inference. The last reference to the sketch in the trial record is the judge's rejection of defense counsel's objection. Without evidence outside the trial record, such as a certification from one or both of the trial attorneys attesting to the removal or the production of the photograph submitted to the jury, the judge's factual finding has no support.

There is no question that admission of a wholly irrelevant sketch of an unrelated homicide scene raises a serious question about the validity of defendant's conviction. While the admission of evidence is within the discretion of the trial court, that discretion does not extend to the admission of evidence that is not relevant, at least not without any direction to the jurors explaining its lack of relevance and plainly directing the jurors to disregard it. N.J.R.E. 401; N.J.R.E. 402; State v. Thompson, 59 N.J. 396, 420 (1971). Reversal is warranted when an evidentiary ruling is the product of a "palpable abuse" of the trial judge's discretion that is capable of producing an unjust result. Thompson, supra, 59 N.J. at 420.

In this case, the abuse of discretion is palpable. So is the clear capacity for prejudice inherent in the fact the jurors were apparently left to speculate about the relevance and significance of a sketch from an unrelated homicide case.

We have no question that defendant presented a prima facie case of deficient performance by appellate attorney for failure to raise an issue of this magnitude and resulting prejudice. Accordingly, we must remand to permit the trial judge to develop a record and make findings of fact supported by competent evidence before resolving this claim. The judge's decision suggests that he believed that defendant was required to establish prejudice by showing that the jurors viewed the sketch during deliberations. We disagree.

Defendant also argues that his trial counsel was ineffective for failure to raise a claim that the State suppressed evidence that could have been useful to the defense in impeaching Moresse's testimony at trial. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The trial judge rejected that claim for post-conviction relief on the ground that defendant failed to show that Moresse made statements in writing that would have been useful to the defense. There is nothing in the record that would permit us to disturb that determination.

In order to establish his claim based upon the State's alleged suppression of evidence, a defendant must establish that the prosecution withheld favorable evidence material to guilt or punishment. Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. The State's obligation to provide exculpatory evidence includes a duty to surrender evidence that could be used to impeach the State's witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985); see State v. Knight, 145 N.J. 233, 245-46 (1996) (discussing both types of evidence). When such evidence is withheld, a defendant is entitled to relief "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" State v. Marshall, 148 N.J. 89, 156 (1997) (quoting Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494 (plurality opinion of Blackmun, J.) and citing id. at 685, 105 S. Ct. at 3385, 87 L. Ed. 2d at 496 (White, J., concurring)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Defendant's claim that the State had evidence that it suppressed in violation of the foregoing principles is based on Moresse's testimony at trial. Moresse testified that during the first few days of his hospitalization he was not able to speak. He said that during that time, Detective Darryl Holmes came to see him and that he communicated with the Detective by writing. According to Detective Holmes, he did not speak with defendant on March 25, the day of the shooting. Detective Holmes had prepared a report giving a chronological account of the steps he took to investigate these crimes; the defense had that report. Despite vigorous cross-examination of Detective Holmes about his action on the day of and during the days following the shootings, he was never asked whether he spoke with defendant on March 26. Moresse and Detective Holmes both testified that Moresse was able to speak on March 27, the day on which he viewed the photo array. When Detective Holmes showed defendant the array, he selected a photograph depicting defendant and identified him as the man who shot him and his brother. On cross-examination, however, Moresse, who acknowledged that he had surgery after he was admitted to the hospital, said he could not recall who visited him on the 26th and 27th and that when Detective Holmes showed him the array he "was writing what [he] had to say on a piece of paper."

At the post-conviction relief hearing, the trial court ruled:

The Petitioner has not made a prima facie showing that any such [written] statement as he describes ever existed or that it contained any exculpatory or contradictory material. There is no evidence in the record to suggest that any such statement exists; therefore, the Petitioner's claim in this regard must fail as counsel cannot be deemed ineffective for failing to argue a point that is wholly unsupported.

We agree with the trial court's assessment of the quality of the evidence supporting defendant's claim of deficient performance premised on a Brady violation overlooked by trial counsel. The testimony upon which defendant relies gives rise to a reasonable inference that Moresse's recollection of the events that transpired during his hospitalization was faulty a fact that defense counsel made perfectly clear during his cross-examination. That said, we cannot conclude that trial counsel's performance fell below the level of reasonable competence because he did not urge the court to take action to compel the State to produce writings prepared by Moresse and suppressed by Detective Holmes. There is nothing that suggests that trial counsel did anything other than "thoroughly investigate[] law and facts" and consider the "possible options" in addressing Moresee's self-contradictory testimony on this point. Savage, supra, 120 N.J. at 617. The trial judge properly rejected this claim.

Affirmed in part; reversed in part, and remanded for further proceedings in conformity with this opinion.

 

Although the parties have not provided us with all of the materials submitted to the trial judge on the petition for post-conviction relief, the arguments they present on appeal are based solely upon the trial record and the brief submitted by defense counsel on direct appeal. Thus, we address the claims before us on the assumption that neither the State nor defendant relied on factual information outside the trial record other than the brief filed on defendant's behalf on direct appeal.

The trial evidence establishing the events preceding and during the shootings are detailed in this court's opinion on direct appeal. State v. Chavis, No. A-3194-02 (App. Div. Oct. 15, 2004) (slip op. at 3-8), certif. denied, 183 N.J. 591 (2005).

Defendant takes issue with the trial judge's ruling on his petition, but he does not contend the judge misstated the issues he addressed or failed to address any issue. Thus, we accept the trial judge's account.

We recognize that the judge also attempted to justify his reliance on N.J.S.A. 2C:44-1a(1)-(2). We find that his effort fell wide of the mark. The judge should not construe this decision as one approving the analysis he set forth on those points. We decline to set forth reasons for our disapproval at length because our decision rests on an alternative ground that the aggravating factors stated in N.J.S.A. 2C:44-1a(3),(6) and (9) are sufficient to warrant imposition of the maximum terms imposed.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Neither the State nor defense counsel has provided the photograph to this court. The description set forth above is taken from the transcript of the trial.

(continued)

(continued)

17

A-6326-06T4

June 28, 2010