STATE OF NEW JERSEY v. CHRISTOPHER CLEMONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0731-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER CLEMONS,

Defendant-Appellant.

___________________________________

October 28, 2011

Submitted February 2, 2011 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

97-03-0211.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor,

attorney for respondent (Marc A. Festa, Senior

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Christopher Clemons appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.

Defendant was tried before a jury and convicted of first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). After merging various counts, the court sentenced defendant to an aggregate term of thirty years, with fifteen years of parole ineligibility.

We affirmed the convictions and sentences on direct appeal, State v. Clemmons, No. A-5983-02 (App. Div. May 17, 2004),1 and the Supreme Court denied certification, 182 N.J. 148 (2004).

Defendant filed this PCR petition2 alleging ineffective assistance of trial counsel based on (1) a denial of his right of confrontation stemming from defense counsel's failure to object to the State's decision to proceed without the testimony of the victim, who testified before the grand jury; (2) trial counsel's decision to permit a recorded statement of a witness in lieu of live testimony before the jury; and (3) trial counsel's decision to permit a police officer to testify about statements made by the victim's brother identifying defendant as the shooter. Defendant also argued appellate counsel was ineffective in failing to raise these issues on direct appeal.

The court heard the petition on May 9, 2008. After considering the arguments of counsel, the court denied the relief requested without an evidentiary hearing. The court explained its reasoning in a letter-opinion dated May 12, 2008. After setting forth the appropriate standard of review, the court rejected defendant's right of confrontation argument, noting that the State was not obligated to call the victim of the shooting in order to meet its burden of proof.

The court also rejected defendant's claim that he was denied his right to cross-examine Timothy Platt when the court permitted the jury to hear a prerecorded statement given by Platt in lieu of his live testimony. The court found that defendant "personally agreed to this procedure" because defense counsel noted that "the tape recording was exculpatory and important to [defendant's] defense." The PCR judge emphasized that

[t]he statement contained inculpatory and exculpatory material. Mr. Platt stated that on November 3, 1996, defendant gave him a bag containing a 45 caliber handgun, 22 caliber handgun and bullets. [Platt] indicated that on the following day he heard that defendant shot a person with one of the guns he was holding. Mr. Platt also stated he was later arrested and while in jail wrote a letter to another inmate indicating he killed a person with a 45 caliber gun. He denied ever killing anyone later on in the statement and stated that he wrote the letter to show he was a "big guy" because other inmates had gun related charges.

The PCR judge also characterized the State's case against defendant as "very powerful," and viewed defense counsel's decision to permit the recorded statement as reasonable trial strategy. The judge thus concluded that defendant had not shown any deficiency in trial counsel's performance.

Finally, the court addressed a statement made by the victim's brother to a police officer immediately after the shooting, identifying defendant as the shooter. The PCR court found the statement admissible as an excited utterance.3 The court rejected defendant's argument based on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because:

The statement of [the victim's brother] was not given in response to formal police questioning. It was given to assist the police in the apprehension of the shooter. His brother was the victim and it was made while he observed him lying on a sidewalk near a pool of blood with a hole in his head. It was a startling event. [The victim's brother] identified the shooter under the stress of the excitement. The statement was non-testimonial and did not violate defendant's Sixth Amendment right of confrontation.

Based on these findings and analysis, the PCR court also rejected defendant's claims of ineffective assistance of appellate counsel.

Defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION.

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 AT TRIAL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ELICITATION OF CLEARLY INADMISSIBLE AND PREJUDICIAL HEARSAY TESTIMONY UNDER THE GUISE THAT IT CONSTITUTED AN EXCITED UTTERANCE.

POINT II

THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION ON APPEAL BY VIRTUE OF APPELLATE COUNSEL'S FAILURE TO RAISE A BONA FIDE ISSUE FACTUALLY AND LEGALLY SUPPORTED BY THE TRIAL RECORD.

We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52-53 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "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.

Although Rule 3:22-1 does not require evidentiary hearings to be held on PCR petitions, Rule 3:22-10 confers upon the PCR court the discretion to conduct such hearings. With these principles in mind, we reject defendant's arguments and affirm substantially for the reasons expressed by the PCR judge in his letter-opinion dated May 12, 2008.

We differ with the PCR court's analysis only in one respect. The victim's brother's statements were not admissible as an excited utterance under N.J.R.E. 803(c)(2) because he did not actually witness defendant shoot his brother. The admission of the statement as an exception to the hearsay rule is predicated on its reliability, because the circumstances surrounding the declarant do not favor fabrication. This necessary predicate is missing here, because the victim's brother's statement is based on an undisclosed source.

This error does not require reversal, however. The record shows trial counsel's decision not to aggressively challenge the admission of this statement was not based on his failure to appreciate the legal issue. Instead, the record shows this was a calculated move by trial counsel to strategically reveal this evidentiary deficiency through his cross-examination of the police officer, thus undermining the witness's credibility as a whole. Matters falling under the purview of "trial strategy" do not support a claim of ineffective assistance of counsel. Fritz, supra, 105 N.J. at 54. Any prejudice caused by the admission of this statement in violation of Crawford is rendered harmless by the State's strong evidence attesting to defendant's guilt beyond a reasonable doubt.

A

1 Defendant's last name is spelled Clemons; however, the judgment of conviction and subsequent decisions spell defendant's last name Clemmons.

2 Although defendant initially filed the petition pro se, the court thereafter assigned counsel to represent him. This attorney also argued before the trial court on defendant's behalf.

3 N.J.R.E. 803(c)(2) defines "excited utterance" as 1) "[a] statement relating to a startling event or condition"; 2) "made while the declarant was under the stress of excitement caused by the event or condition"; and 3) "without opportunity to deliberate or fabricate."