STATE OF NEW JERSEY v. KEVIN MC CRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5150-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN MC CRAY,

Defendant-Appellant.

______________________________

SubmittedMay 4, 2011 Decided July 12, 2011

 

Before Judges Cuff, Sapp-Peterson and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-12-4087.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

 

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

 

Appellant filed a pro se supplemental brief and a pro se reply brief.1

PER CURIAM

Defendant appeals from the trial court order denying his petition for post-conviction relief (PCR) without first conducting an evidentiary hearing.

On appeal, defendant raises the following points for our consideration:

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 AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST[-]CONVICTION RELIEF.

 

B. SINCE THE DEFENDANT'S ONLY VIABLE DEFENSES TO THE VARIOUS CHARGES REQUIRED HIS TRIAL TESTIMONY AS WELL AS THAT OF ONE OR BOTH CO-DEFENDANTS, HE PRESENTED A PRIMA FACE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT LEAST WARRANTING AN EVIDENTIARY HEARING IN LIGHT OF TRIAL COUNSEL'S FAILURE TO CALL THE DEFENDANT OR EITHER CO-DEFENDANT AS WITNESSES AT TRIAL.

 

POINT II

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

 

In his pro se supplemental brief, defendant raises the following point for our consideration:

POINT [I]

 

PROSECUTORIAL MISCONDUCT, INEFFECTIVE ASSISTANCE OF COUNSEL AND TRIAL JUDGE ERROR VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS WHEN THE PROSECUTOR MADE MISREPRESENTATION OF THE CONTENT OF PLEA ALLOCUTIONS OF CO-DEFENDANT[]S ON THE RECORD TO THE JURORS AT TRIAL CONTRARY TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONST[.,] ART[.] [I], [ ] 10 OF THE [N.J. CONST.] OF 1947. TRIAL COUNSEL'S FAILURE TO CALL THE CO-DEFENDANT[]S KENYA TUCKER AND [O.B.][2] AS DEFENSE WITNESSES DEPRIVED DEFENDANT OF THE DEFENSE OF RECKLESSNESS AS TO THE DEGREE OF CULPABILITY, WHICH WOULD HAVE NEGATED FELONY MURDER AS A MATTER OF LAW AS [O.B.] WAS THE "PRINCIPLE" WHO SHOT THE VICTIM IN THE HOMICIDE. THE DEFENDANT WAS DEPRIVED OF ESSENTIAL FACTS MATERIAL TO HIS DEFE[N]SE WHICH DEPRIVED HIM [OF] A FAIR TRIAL BY AN IMPARTIAL JURY. THE CO-DEFENDANT[]S COULD NOT ASSERT FIFTH AMENDMENT RIGHTS AS THEY WERE ALREADY SENTENCED AND THE COURT ACCEPTED THEIR FACTUAL BASIS PURSUA[N]T TO R[ULE] 3:9-2. THE DEFENDANT WAS LEFT TO A TRIAL INCONSISTENT WITH THE STATUTES SET FORTH BY THE N.J. LEGISLATURE, AS THE ALLEGED CONSPIRACY WAS BASED ON ROBBERY AND DEFENDA[N]T'S TRIAL ATTORNEY WAS INEFFECTIVE FOR NOT FILING AN INTERLOCUTORY APPEAL ON THIS ISSUE. U.S. CONST. AMENDS. [VI], [XIV], ART. [I], [ ] 10 N.J. CONST. (1947). THE TRIAL IN THIS MATTER CONSTITUTES THE DEPRIVATION OF THE RIGHT TO PREPARE A DEFENSE WITH DUE PROCESS OF LAW APPLIED TO THE STATES.

 

In his pro se reply brief, defendant submits the following point for our consideration:

POINT I

 

PROFESSIONAL[] MISCONDUCT BY THE PROSECUTOR VIOLATED DEFENDANT'S FI[F]TH AND FOURTEENTH AMENDMENT RIGHTS AS GUARANTEED HIM BY THE UNITED STATES CONSTITUTION WHEN PROSECUTOR ENGAGED IN CONDUCT THAT WAS PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE BY BREACHING THE CONTINGENCY TERMS SET FORTH IN THE PLEA AGREEMENT.

 

We have considered the points raised in the briefs and supplemental submissions in light of the record and applicable legal principles. Other than defendant's claim that trial counsel was ineffective because he would not permit defendant to testify and failed to call his co-defendants to testify on his behalf, the remaining arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Patricia K. Costello in her cogent and well-reasoned November 23, 2009 written opinion.

I.

Defendant's PCR petition stems from his 1995 conviction for reckless manslaughter, as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-4a; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3a(1) and (2); third-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. At sentencing, the court imposed an aggregate custodial term of life with a thirty-year parole disqualifier.

On direct appeal, in an unpublished opinion, we affirmed defendant's convictions and the sentences imposed. State v. McCray, No. A-4899-95 (App. Div. Oct. 15, 1997). The Supreme Court denied defendant's petition for certification. State v. McCray, 152 N.J. 193 (1997). On March 16, 1998, defendant filed a pro se petition for PCR, and counsel was subsequently assigned. In the petition, defendant claimed his trial counsel was ineffective because counsel would not permit him to testify, failed to properly cross-examine the State's witnesses, and failed to call witnesses on his behalf. The PCR judge denied the motion without conducting an evidentiary hearing. On appeal, we affirmed in an unpublished decision, noting that although defendant criticized his PCR counsel, defendant "fails to tell us what he would have said if called to testify." State v. McCray, No. A-6777-00 (App. Div. Jan. 28, 2003) (slip op. at 4). We also observed that defendant "has never identified the witnesses he believes trial counsel should have called or stated what any witness would have said at trial." Ibid. The Supreme Court granted defendant's petition for certification and summarily remanded the matter to the trial court to permit defendant an opportunity to supplement his PCR petition and for the trial court to consider whether defendant is entitled to an evidentiary hearing. State v. McCray, 177 N.J. 218, 1 (2003).

On remand, defendant submitted an affidavit which included the following proposed testimony:

19. I would have testified at the Miranda[3] hearing that the statement allegedly given to the police by myself was not accurate and that I never intended for the crime to happen. I never told [O.B.] anything that led him to believe that he should proceed with this crime which was shameful and needless.

 

20. . . . [W]hen I was at Donna Turner's apartment, I dialed numbers in an attempt to act as if I made telephone calls to order a pizza, when Donna Turner grab[b]ed the telephone from me and called information for[,] as she testified[,] "Domino's Pizza." I was not trying to complete a pizza order, and I wanted to stop the pizza delivery by saying that I could not get through as Donna let me into her apartment . . . and I did not want the delivery made. . . .

 

. . . .

 

22. The reason I went to trial was because I did not enter into a conspiracy with [O.B.] to rob the pizza delivery man.

 

23. I, Kevin McCray[,] would have testified that I did not have any intent for the robbery of the victim in this case[.] I was on my bicycle selling cocaine when the crime took place. I would have testified that I was selling cocaine, which I knew was illegal, but I did not know, think, or contemplate that [O.B.] would kill the victim or even attempt to rob him. I would have testified that the statement(s) taken by the police were inaccurate at the Miranda [h]earing and at trial, had my attorney . . . taken the necessary time to prepare a defense on my behalf.

 

. . . .

 

25. Had my lawyer . . . obtained a copy of the plea and sentencing transcripts of [O.B.] and Kenya Tucker[,] which were available prior to my trial, I would have had both [O.B.] and Tucker testify as defense witnesses . . . as the pleas would have negated felony murder as the culpability of the Principle, [O.B.,] was reduced to "Recklessness."

 

In a written decision, the court found that no evidentiary hearing was warranted and denied defendant's PCR petition. The court initially ruled defendant's petition was procedurally barred but, nonetheless, considered defendant's petition on the merits. In doing so, the court observed:

In his initial petition for post-conviction relief, defendant argued trial counsel was ineffective because he did not call any witnesses on defendant's behalf. The trial judge dismissed the PCR because defendant failed to establish a prima facie case of ineffective assistance of counsel. On appeal, the Appellate Division held that "[t]he [trial] testimony of the co-defendants would not alter the uncontroverted testimony that defendant knew that his co-defendants intended to rob a pizza delivery man, that one of them was armed and that defendant placed the order for a pizza, not once, but twice[,] knowing that his cohorts intended to rob the delivery person." State v. McCray, No A-6777-00[], [(App. Div. Jan. 28, 2003) (slip op. at 5)]. This analysis holds equally true when defendant claims he was denied a fair trial due to his own counsel's decision not to call the co[-]defendants as witnesses. This testimony would have sustained a conviction for felony murder.

 

Defendant has the mistaken belief that because his co[-]defendants pled guilty to lesser offenses as part of their plea[] agreements, he is entitled to a verdict based on their plea[s]. He claims that their pleas lowered his charges. He is simply mistaken in his belief. The factual bases in their pleas adequately provided the elements to their own offenses, as well as implicated him in felony murder. He argues that their testimony could have reduced his level of culpability to recklessness. According to the Model Criminal Jury Charge 2C:11-3(a)(3)(2009), reckless conduct can be the basis of a felony murder conviction[.]

 

. . . .

 

To the extent that defendant's argument can be restated as a complaint about the jury instructions, that issue was already resolved against him in the Appellate Division and cannot be raised again here. State v. McQuaid, 147 N.J. 464, 484 (1997)[;] R. 3:22-5.

 

Under the facts of this case, trial counsel's decision not to call the co-defendants appears not to have been a difficult choice at all. [O.B.] and Tucker would have placed McCray at the scene, implicated him in the planning of the robbery, and had him making the actual telephone call to lure the delivery person to the scene. They would have satisfied the elements of a felony murder charge against defendant. State v. Martin, 119 N.J. 2 (1990).

 

Additionally, prior adjudication on the merits generally constitutes a procedural bar to reassertion of the same grounds as a basis for post-conviction relief. R. 3:22-5; see State v. McQuaid, 147 N.J. 464 (1997). The Appellate Division has thoroughly analyzed the state's failure to call the co[-]defendants and its analysis governs the defense attorney['s] decision as well. This point does not warrant an evidentiary hearing. Accordingly, this argument is denied.

 

II.

 

A claim of ineffective assistance of counsel requires a defendant to show (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in NewJersey). The deficiency in trial counsel's performance must demonstrate: (1) "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and (2) "the deficient performance prejudiced the defense" to the extent that defendant was deprived of a fair trial with a reliable result. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see Fritz, supra, 105 N.J. at 52. Thus, "[a] reviewing court first must determine whether counsel's performance 'fell below an objective standard of reasonableness,' Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and second, whether 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." State v. Chew, 179 N.J. 186, 203 (2004).

Further, "[i]n assessing the reasonableness of counsel's assistance, a reviewing court must assess the performance of counsel with a heavy measure of deference to counsel's judgments." Id. at 205 (internal quotation omitted). Moreover, "we must give substantial deference to the trial judge's findings of fact" regarding a claim of ineffective assistance when such findings are supported by the record. State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

Rule 3:22-10 provides:

(b) A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.

 

(c) Any factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing.

 

(d) The scope of an evidentiary hearing shall be limited to the issue of whether the defendant was improperly convicted.

 

(e) A court shall not grant an evidentiary hearing:

 

(1) if an evidentiary hearing will not aid the court's analysis of the defendant's entitlement to post-conviction relief;

 

(2) if the defendant's allegations are too vague, conclusory or speculative; or

 

(3) for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated reasonable likelihood of success as required by R. 3:22-10(b).

 

[(Emphasis added).]

 

As the record here demonstrates, at co-defendant Tucker's plea allocution, he testified that defendant was present on the night in question, knew of the plan to rob the delivery man, and facilitated calling the delivery man. At co-defendant O.B.'s plea allocution, he testified that defendant agreed to help rob the delivery man and knew that a gun would be used. Thus, neither co-defendant's testimony would have mitigated defendant's culpability but would instead have bolstered the State's case against defendant.

As Judge Costello found, the factual bases for the guilty pleas entered by his co-defendants not only established the elements of the offenses for which they pled guilty, but also implicated defendant in the felony murder. Moreover, had defendant testified as he proposed in his supplemental affidavit submitted in support of his PCR petition, it is unlikely his proposed testimony could have mitigated the contradictory effect of his confession as proffered by Detective Aaron Evans and the corroborative evidence that placed him at the scene with knowledge of and participation in the planned robbery.

Moreover, defendant's proposed testimony fails to terminate "his complicity under circumstances manifesting a complete and voluntary renunciation" pursuant to N.J.S.A. 2C:2-6e(3). His proposed testimony also fails to establish that he "abandoned his effort to commit the crime or otherwise prevented its commission" pursuant to N.J.S.A. 2C:5-1d. His proposed testimony establishes that renunciation was not complete. "[M]ere abandonment is insufficient to accomplish avoidance of the offense[.]" See N.J.S.A. 2C:5-1d. Renunciation requires that a "defendant must have taken further and affirmative steps that prevented the commission thereof." Ibid. Merely testifying that he pretended to call in the order and lacked intent to follow through with the robbery falls short of taking affirmative steps to prevent commission of the crime. Grecco v. O'Lone, 661 F. Supp. 408, 413 (D.N.J. 1987) ("[T]his affirmative defense requires more than mere abandonment of criminal purpose. It is necessary that the conspirator inform the authorities of the conspiracy and thwart the furtherance of the conspiracy.").

Likewise, reading defendant's confession into the record during Detective Evans' testimony established that defendant knowingly directed the delivery man to the robbers. Defendant's proposed testimony fails to refute that fact and defendant fails to offer additional corroborative evidence to establish a valid renunciation defense.

Based on the record, a reasonable attorney would have advised that it was in defendant's best interest not to testify, given the corroborative evidence against him, including his police confession. Strategic choices "should not be second-guessed when viewed through the lens of twenty-twenty hindsight or the results of the case, or there will never be finality to litigation." Cooper, supra, 410 N.J. Super. at 76. Strategic choices pass constitutional muster where, although "beneficial mitigating evidence" is precluded, the strategic choice prevented admission of "rebuttal evidence . . . potentially more harmful than the evidence that defense counsel chose to forego." Ibid.; State v. Milne, 178 N.J. 486, 495 (2004) (finding a defendant's PCR petition lacked merit where "forgoing the diminished-capacity defense was a 'calculated, strategic decision' because the defense 'had too many holes in it.'").

Finally, inasmuch as Judge Costello addressed the merits of defendant's claim, we need not determine whether the court erred in concluding that defendant's claims were procedurally barred pursuant to Rule 3:22-5.

Affirmed.

1 On April 20, 2011, defendant filed a motion for leave to file a pro se reply brief and to file the reply brief as within time. We have granted both motions.

2 Because co-defendant was a minor, we use his initials.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).