STATE OF NEW JERSEY v. JIMMY MCDOUGAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3958-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMY MCDOUGAL,1

Defendant-Appellant.

________________________________________________________________

July 8, 2011

Submitted April 12, 2011 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-04-1554.

Yvonne Smith Segars, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to an aggregate term of life imprisonment with a thirty-year period of parole ineligibility on October 3, 1990.

We reversed defendant's conviction in an unpublished opinion, State v. McDougald, No. A-1421-90 (App. Div. Mar. 5, 1992). The facts relating to the underlying offense are set forth in our opinion and need not be repeated here. Defendant was convicted of the same charges in a second trial and the same sentence was imposed. We affirmed his convictions and sentence in an unpublished opinion, State v. McDougal, No. A-2627-92 (App. Div. Oct. 13, 1994). The Supreme Court denied his petition for certification, 142 N.J. 448 (1995).

Defendant filed a pro se PCR petition on or about September 27, 1996, in which he argued he was denied the effective assistance of counsel and that the State failed to provide defendant with information regarding a possible alibi.

An amended petition was submitted on behalf of defendant in February 1997. In this amended petition, defendant additionally claimed that counsel was ineffective for failing to develop certain evidence, failing to subpoena a certain witness, and failing to cross-examine certain witnesses effectively. Defendant also raised several issues regarding the admission and exclusion of evidence.

The PCR court denied defendant's petition by order dated July 20, 1998, accompanied by an extensive written opinion setting forth its reasons. Defendant appealed the denial, raising new claims of ineffective assistance of trial counsel, as well as claims of ineffective assistance of counsel and denial of his due process rights at the PCR hearing. We remanded the matter in an unpublished opinion, State v. McDougle, No. A-457-98 (App. Div. Mar. 21, 2000). The trial court held another evidentiary hearing at which defendant testified and denied defendant s PCR petition by order dated August 21, 2008. Defendant now appeals from that denial and presents the following issues for our consideration.

POINT I

THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

A. TRIAL, APPELLATE AND POST-CONVICTION RELIEF COUNSELS RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO CHALLENGE THE TRIAL COURT'S ERRONEOUS OMISSION OF CRITICAL JURY INSTRUCTIONS

1. THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE A PRIOR INCONSISTENT STATEMENT CHARGE BECAUSE TRIAL COUNSEL RELIED ON MAURICE ANDREWS' PRIOR INCONSISTENT STATEMENT AS SUBSTANTIVE EVIDENCE

2. THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE AN IDENTIFICATION CHARGE BECAUSE IDENTIFICATION WAS A KEY ISSUE IN THE CASE

3. THE TRIAL COURT'S ABBREVIATED JURY DELIBERATIONS CHARGE CLEARLY HAD THE CAPACITY TO PRODUCE AN UNJUST RESULT (NOT RAISED BELOW)

4. CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL

B. TRIAL COUNSEL'S PURSUIT OF A TWO-CAR THEORY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW)

1. THERE WAS NO SUBSTANTIVE EVIDENCE THAT SUPPORTED A TWO-CAR THEORY

2. MR WILLIAMS' TESTIMONY WAS REQUIRED TO ESTABLISH THE TWO-CAR THEORY

After carefully reviewing the record and briefs, we are satisfied that none of these arguments has sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

As a preliminary matter, we note that the arguments raised in Point I regarding the trial court's failure to give certain jury instructions and trial and appellate counsel's failure to challenge such failures were not presented to the PCR court. This court does not entertain arguments raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also State v. Summers, 176 N.J. 306, 316 (2003).

Defendant also makes several arguments regarding the "two-car theory." First, he states his counsel was ineffective in failing to seek a prior inconsistent charge when a witness described a car leaving the murder scene as an Audi in the second trial after describing it as a Hyundai in the first trial. Second, he states there was no substantive evidence to support the "two-car theory." And finally, he argues his counsel was ineffective in failing to call Roy Williams as a witness because his testimony was necessary for the "two-car theory."

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

Defendant's counsel testified at the evidentiary hearing and gave a reasonable explanation for the choices made in pursuing the defense. He described the testimony at trial, his development of the two-car theory, and his evaluation at the time that there was a significant likelihood of success. Trial counsel also explained in detail his reasons for not calling Williams. Williams did not testify at the first trial. He was susceptible to impeachment as a friend of defendant's and because he had never come forward to report to the police that he had exculpatory information, i.e., that he observed the responsible parties leave the scene in a hatchback. Trial counsel was concerned that Williams would fare poorly on cross-examination and that his testimony could actually hurt defendant's chances at acquittal.

"In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Catagna, 376 N.J. Super. 323, 360 (App. Div.), certif. granted, 185 N.J. 35 (2005) (citing Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991)). Counsel is ineffective only in those "'rare instances' [that] trial mistakes [are] of such magnitude 'as to thwart the fundamental guarantee of [a] fair trial.'" Ibid. (quoting State v. Dennis, 43 N.J. 418, 428 (l964)). We are satisfied that trial counsel's decisions regarding the two-car theory and declining to call Roy Williams as a witness rested upon reasonable strategic considerations and do not provide a basis for post-conviction relief.

We are therefore satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test.

1 There is some inconsistency in the record as to defendant's last name. In his pro se petition, defendant identifies himself as Jimmy McDougle. In two prior opinions of this court he is identified as "McDougald" and as "McDougle." We have elected to use the spelling consistent with the name as it appears on his Judgments of Conviction.