STATE OF NEW JERSEY v. KELVIN WASHINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3085-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELVIN WASHINGTON,

Defendant-Appellant.

________________________________________________________________

April 26, 2011

Submitted April 5, 2011 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-1997.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kelvin Washington appeals from an August 28, 2009 Law Division order that denied his petition for post-conviction relief (PCR). We reject defendant's contentions that trial counsel rendered ineffective assistance by failing to conduct a reasonable investigation, and failing to offer at trial a photograph of a man named Rasheem to support defendant's mistaken identity defense. We also reject defendant's claim that appellate counsel rendered ineffective assistance by failing to argue on direct appeal that because defendant's conviction was against the weight of the evidence, the trial judge erred by denying defendant's motion for a new trial. We affirm.

I.

On August 10, 2002, an approximately 2:20 a.m., Septin Ayyildiz was working at a gas station in West Long Branch when a gold-colored Mercury Grand Marquis entered the gas station and pulled up near the booth in which Ayyildiz was sitting. The driver, later identified as defendant, asked Ayyildiz for a pack of cigarettes. When Ayyildiz reached for the cigarettes, he felt an object pressed against his abdomen, which he could see was a knife, approximately five to six inches in length.

Ayyildiz complied with defendant's demand to give him the money from the cash register, after which defendant returned to his car and hurriedly fled with his tires screeching. Sergeant Lawrence Mihlon of the West Long Branch Police Department observed defendant's car, but rather than immediately pursue the vehicle, Mihlon stopped to determine whether the gas station attendant had been injured. Mihlon spoke to Ayyildiz, who informed him that he had just been robbed by the driver of the gold car.

After a high-speed chase, which led defendant to the road running parallel to the ocean, defendant crashed the vehicle into some bushes and hid near the jetties. Paper currency was strewn all over. Lying on the ground near where defendant had been hiding, the police later found a six-inch knife matching the description that Ayyildiz had provided. As police approached, defendant ran into the ocean, where he was found by police treading water fifty feet from shore. While defendant was treading water, he was observed removing cash and cigarette packets from his person and "throwing [them] out away from his body." Later that night, Ayyildiz peered at defendant through the door of defendant's hospital room, and identified defendant as his assailant. He also identified the gold vehicle as the car defendant had been driving.

At trial, defendant testified that he did not commit the robbery, explaining that he had loaned his automobile to an acquaintance known to him as "Rasheem," but whose actual name was Dwayne Hoover. According to defendant, while he was waiting on Ocean Boulevard for Rasheem to pick him up, he heard sirens and saw his car crash into some bushes. Believing that he would be charged with driving on a suspended license, defendant hid, but as the police came closer, he ran into the ocean, but was later placed under arrest. He explained Ayyildiz's identification by insisting that Rasheem strongly resembled him, and that Ayyildiz had therefore made a mistake when he identified defendant as his assailant.

The jury returned a verdict finding defendant guilty of first-degree robbery, related weapons offenses, and eluding police. After denying defendant's motion for a new trial, the judge sentenced defendant on February 9, 2005 to an extended term sentence of fifty years imprisonment subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2.

On appeal, defendant argued that the admission in evidence of the "inherently unreliable out-of-court identification obtained pursuant to [the] showup," denied him a fair trial; the judge's refusal to admit evidence of third-party guilt was error; and the sentence imposed was excessive. In a pro se supplemental brief, defendant repeated some of the claims advanced by assigned counsel, but added the claim that the jury instructions were faulty and that the effect of the cumulative errors denied him a fair trial. We rejected each of those claims and affirmed defendant's conviction and sentence. State v. Kelvin Washington, No. A-5669-04 (App. Div. April 16, 2008) (slip op. at 2). The Supreme Court denied defendant's petition for certification. State v. Washington, 196 N.J. 467 (2008).

On May 29, 2009, defendant filed the PCR petition that is the subject of this appeal. At a hearing on August 28, 2009, PCR counsel argued that defendant received ineffective assistance of counsel, due to trial counsel's: 1) failure to present to the jury a photograph of Dwayne Hoover/"Rasheem," the man defendant claimed committed the robbery; and 2) failure to obtain fingerprint evidence from defendant's vehicle that would have demonstrated that Rasheem's fingerprints were in the car. PCR counsel also argued that appellate counsel rendered ineffective assistance by failing to argue on appeal that the trial judge erred when she denied defendant's motion for a new trial. In a pro se supplemental brief, defendant additionally maintained that trial counsel rendered ineffective assistance because he failed to object to the State's bad faith in returning the Grand Marquis to the automobile dealership, thereby preventing defendant from conducting a forensic examination of the vehicle or its contents.1

At the conclusion of the hearing, Judge Ronald Reisner rejected each of the claims. First, the judge addressed defendant's claim that trial counsel rendered ineffective assistance because he failed to present the photograph of Rasheem to the jury. The judge observed that it would be "merely speculation" to conclude that the photograph "would have been persuasive to the jury" because the jury "could have also found there were significant differences[.]" The judge concluded that under such circumstances, trial counsel's decision to refrain from submitting the photograph to the jury did not constitute ineffective assistance.

Next, the judge addressed defendant's contention that trial counsel rendered ineffective assistance by failing to insist that the interior of the car be analyzed to establish that Rasheem's fingerprints were present. The judge concluded that such omission did not constitute ineffective assistance because even if Rasheem's fingerprints had been found, "[it] would not have changed the outcome of the trial" because there was no way to know "when those fingerprints were placed inside the car." The judge reasoned that Rasheem was defendant's friend "and therefore the fact that Rasheem at some point during the course of their friendship was in the car" would have been insufficient to establish the inference that it was Rasheem who had committed the robbery on the night in question.

The judge also noted that an investigation of the car might have revealed that Rasheem's fingerprints were not in the car, which would have "obstruct[ed] any defense that defendant was not the driver," thereby creating the risk that the jury would have immediately rejected the defense of misidentification. The judge also observed that trial counsel's strategy of not requesting that the car be analyzed for fingerprints enabled trial counsel to credibly argue to the jury that the only reason police did not present any fingerprint evidence from the car was because "the West Long Branch police had already made up their mind who the perpetrator of this crime was." Thus, counsel's failure to present evidence of the fingerprints to the jury supported counsel's argument that the police investigation of the robbery had been cursory and inadequate. As this was a reasonable defense strategy, the judge rejected defendant's claim that trial counsel's failure to obtain a fingerprint analysis from the car constituted ineffective assistance.

Turning to defendant's claim that appellate counsel rendered ineffective assistance, the judge concluded that even if appellate counsel had argued on appeal that the trial judge erred when she denied defendant's motion for a new trial, such claim would not have been successful in light of the strength of the State's case. Consequently, appellate counsel's performance was not deficient because the claim could not have succeeded even if it had been raised. Having concluded that defendant had not established a prima facie case of ineffective assistance of counsel, the judge held that an evidentiary hearing was not required. He signed a confirming order on August 28, 2009 denying defendant's PCR petition.

On appeal, defendant raises the following claims through assigned counsel:

I. THE COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PCR PETITION.

II. PETITIONER WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. Requirement of Counsel to Make Reasonable Investigations.

B. Failure to Proffer "Rasheem's" Photograph at Trial.

C. Failure Adequately to Consult With Petitioner and Resolve Conflicts.

D. Petitioner was Denied His Right to the Effectiveness of Appellate Counsel.

E. Prejudice.

Defendant raises the following claims in a pro se supplemental brief:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART I, PAR 10.

A. Defendant Received Ineffective Assistance of Trial Counsel, When his Attorney Failed to Introduce into Evidence a Photograph of "Dwayne C. Hoover," a/k/a "Rasheem" to Show to the Jury the Numerous Physical Similarities that Existed Between the Two Men.

B. Defendant Received Ineffective Assistance of Trial Counsel, When his Attorney Failed to Fully Investigate the Evidence of the Car that was Recovered at the Scene.

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate 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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Fritz, supra, 105 N.J. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

In Point I, defendant maintains that the trial court committed reversible error when it refused to grant him an evidentiary hearing on his claims of ineffective assistance of counsel. He maintains that rather than draw his conclusions from the record that would have been established at an evidentiary hearing, the judge wrongly based his conclusions on his own assessment of the trial evidence and an evaluation of the strength of the State's case. Instead of separately addressing the contentions defendant advances in Point I, we will analyze Point I in conjunction with the separate substantive claims that defendant advances in Point II of assigned counsel's brief, to which we now turn.

In Point II.A, defendant maintains that trial counsel failed to conduct a reasonable investigation because he did not arrange for the testing of the defendant's car for fingerprints and did not engage an expert to testify that the victim's conduct and demeanor in the hours immediately following the robbery were inconsistent with the behavior to be expected of a person who claimed to have been accosted at knifepoint. As to trial counsel's failure to obtain a fingerprint analysis of defendant's car, we concur in Judge Reisner's determination that because defendant and Rasheem were friends, even if Rasheem's fingerprints had been found in defendant's car, such a finding would have been of little help to defendant because the fingerprints could have been from an earlier occasion when Rasheem was riding in the car. Thus, because the outcome of the fingerprint analysis, even if favorable, would have been of limited benefit to defendant at trial, we cannot fault trial counsel for failing to pursue that issue, and conclude that the failure to obtain a fingerprint analysis of the car does not constitute ineffective assistance of counsel. State v. Martini, 160 N.J. 248, 266 (1999) (holding that counsel's decision to limit an investigation will not be deemed deficient when it "is supported by 'reasonable professional judgments'"), cert. denied, 543 U.S. 805, 125 S. Ct. 237, 160 L. Ed. 2d 5 (2004).

We turn now to defendant's claim that trial counsel rendered ineffective assistance because he failed to obtain a psychological expert to render an opinion on Ayyildiz's conduct in the hours immediately after the robbery. As we observed in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), a defendant must do more than make "bald assertions" about what a reasonable investigation would have yielded. To succeed on such a claim, a defendant must also present a certification or affidavit from the witness explaining the testimony the witness would have provided had he or she been called to testify at trial. Ibid. Defendant has not done so. Therefore, as required by Cummings, we reject defendant's claim that trial counsel rendered ineffective assistance by failing to secure expert opinion concerning Ayyildiz's conduct and demeanor. We therefore reject defendant's claim in Point II.A that trial counsel rendered ineffective assistance by failing to conduct a reasonable investigation.

We turn to defendant's claim in Point II.B that trial counsel rendered ineffective assistance by failing to proffer Rasheem's photograph at trial. Because of the varied circumstances trial counsel may face, and the wide variety of options available to trial counsel, there is "a strong presumption" that trial counsel's performance, and strategic decisions, were objectively reasonable. Strickland, supra, 466 U.S. at 689, 184 S. Ct. at 2065, 80 L. Ed. 2d at 694. Strategic choices are afforded great deference and will not warrant reversal of a conviction "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Dennis, 43 N.J. 418, 428 (1964). In fact, a "defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound . . . strategy." State v. Sheika, 337 N.J. Super. 228, 241 (App. Div,), certif. denied, 169 N.J. 609 (2001) (internal quotations and citation omitted). Moreover, "[m]erely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

Applying the deferential standard set forth in Strickland and Bey, we are satisfied that Judge Reisner was correct when he rejected defendant's claim concerning trial counsel's failure to proffer a photograph of Rasheem. As the State argues, and as Judge Reisner found, introducing the photograph would unquestionably have been a risky strategy. The mugshot photographs of defendant and Rasheem contained in defendant's appendix are photocopies, and likely are not as vivid a depiction of each man's appearance as the original photographs would have been. Nonetheless, it is evident that although there is some resemblance between the two men, the similarity is far from overwhelming. Moreover, defendant conceded during his trial testimony that Rasheem is "bigger than me[,] . . . somewhere around six one." Defendant stated that he himself was only 5'7" tall. Thus, in light of the height difference and the fact that the photographs of the two men reveal only a general resemblance, rather than a striking similarity, trial counsel's decision not to present the photograph of Rasheem as evidence at trial strikes us as a reasonable and sound trial strategy, and not the substandard representation that defendant claims.

Moreover, trial counsel demonstrated to the jury through defendant's testimony the similar appearances of defendant and Rasheem, and he attacked the identification of defendant by Ayyildiz through cross-examination.2 Through this trial strategy, trial counsel adequately presented the misidentification defense to the jury. Such strategy, which included not proffering the photograph of Rasheem, does not constitute ineffective assistance, because it is highly unlikely that the photograph would have substantiated defendant's claim that it was Rasheem, not he, who had robbed Ayyildiz.

As Judge Reisner reasoned, rather than substantiating defendant's testimony, the jury could also have used the photograph to find that Rasheem did not bear a strong resemblance to defendant, thus calling into question, as the State argues, "all of defendant's testimony and negating the misidentification defense." As we have noted, merely because the strategy of not introducing the photo might have been an unsuccessful strategy does not mean that counsel's performance was ineffective. Sheika, supra, 337 N.J. Super. at 241.

Moreover, even if we were to assume that trial counsel's performance was deficient because he did not proffer the photograph, thereby satisfying the first Strickland prong, we conclude that any such failure did not prejudice defendant, and therefore the second Strickland prong is not satisfied. In particular, in light of the six-inch difference in the height of the two men, and the lack of a strong resemblance in the photographs, we deem it highly unlikely that the jury would have accepted the misidentification defense even if the photograph had been presented. We therefore reject the claim defendant advances in Point II.B.

In Point II.C, defendant contends that trial counsel rendered ineffective assistance by failing to adequately consult with him to resolve conflicts. In support of that contention, he argues that trial counsel "did not adequately consult with him regarding the pretrial lineup issue3 and the use of the photograph of Rasheem." We decline to address the first of those two claims as defendant failed to present the lineup issue in the Law Division. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (observing that an appellate court will decline to consider an issue not raised in the trial court when the opportunity to do so existed). As to the latter, there is no support in the record for defendant's claim that trial counsel did not consult with him concerning the photograph. The mere assertion of lack of consultation in the brief filed by assigned counsel is insufficient to establish a prima facie case on this subject. We therefore reject the claims defendant advances in Point II.C.

In Point II.D, defendant complains that appellate counsel was ineffective because she failed to raise on appeal any error concerning the judge's denial of defendant's motion for a new trial. The same legal standard applies to claims of ineffective assistance of trial counsel as applies to claims of ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987). As such, defendant bears the burden of demonstrating that appellate counsel's performance was prejudicially deficient. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

We agree with the State that defendant's claims regarding appellate counsel's performance must fail. Unlike PCR counsel, appellate counsel does not have a duty to raise every conceivable issue on appeal. Morrison, supra, 215 N.J. Super. at 549. As such, the failure to renew on appeal the argument that the verdict was against the weight of the evidence was not deficient representation unless the argument was likely to have succeeded. Id. at 546. Without providing any legal argument, defendant simply asserts in a conclusory fashion that the "[f]ailure to raise the issue precluded the Appellate Division from reversing petitioner's conviction on these grounds," and had the issue been raised, he "could have been granted a new trial."

We have been presented with no reason, much less a meritorious reason, to conclude that a claim concerning the denial of the new trial motion would have been successful on appeal. As Judge Uhrmacher commented when she denied defendant's motion for a new trial, the issues raised by defendant in support of his motion went to "the weight not the admissibility of evidence" and the credibility issues were obviously resolved by the jury in favor of the State. Under such circumstances, the trial judge's denial of defendant's motion for a new trial was proper. See State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975) (holding that a motion for a new trial must be denied if the State's evidence "giving the State the benefit of all its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt"). Because the new trial claim would not have been successful on appeal, appellate counsel did not render ineffective assistance by failing to raise it. We thus reject the claim defendant presents in Point II.D. Because none of defendant's claims individually, or in combination, established a prima facie case of ineffective assistance of trial or appellate counsel, the judge did not err in refusing to grant defendant an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). We thus reject the claim defendant presents in Point I.

III.

We turn next to the claims defendant advances in his pro se brief, many of which duplicate the arguments already raised by assigned counsel. Consequently, we decline to consider defendant's pro se arguments concerning trial counsel's failure to proffer the photograph of Rasheem and his failure to process defendant's car for fingerprints.

The only issue raised in defendant's pro se brief that has not been advanced by assigned counsel is defendant's claim that trial counsel rendered ineffective assistance because he failed to present evidence of third-party guilt, namely, failed to present evidence that Rasheem was the perpetrator of the crime. Defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, trial counsel's cross-examination and closing argument thoroughly pursued that issue. We thus reject all of the claims defendant advances in his pro se brief.

1 We are unable to determine from the record why the vehicle was returned to the automobile dealership.

2 On cross-examination, Ayyildiz acknowledged that he could not remember whether his assailant was wearing glasses. He also conceded that he spoke to Detective Habermann at the police station and en route from the police station to the hospital prior to observing defendant in the hospital bed and identifying defendant as his assailant.

3 Defendant apparently moved in the Law Division for an order requiring the State to conduct a lineup, but then apparently withdrew that request.