STATE OF NEW JERSEY v. JAMES BLACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6375-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BLACK,

Defendant-Appellant.

___________________________________

May 20, 2011

Submitted November 30, 2010 - Decided

 

Before Judges Carchman, Graves, and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-04-0964.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (George E. McDavid, Designated Counsel, on the brief).

 

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant James Black1 appeals the dismissal of his petition for post-conviction relief (PCR) in which he challenged his conviction for first-degree aggravated sexual assault, first-degree murder, and related charges, as well as the resulting sentence. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Black was charged with the rape at knifepoint of his former girlfriend, Georgia Mills, on January 15, 1995, and her subsequent murder on February 20, 1995. In our opinion affirming Black's conviction, we outlined the underlying facts as follows:

Evidence produced at trial disclosed that defendant and the victim, Georgia Mills, lived together in an apartment in Atlantic City with their daughter until September 1994, when their six-year relationship ended and defendant was ordered by Mills to leave. To prevent defendant's return, Mills took defendant's apartment key, and later changed the apartment's locks. Nonetheless, defendant continued to seek contact with Mills.

 

Shortly before Christmas 1994 defendant, having learned that Mills had not returned to her apartment on the prior night, accosted her at a hair salon and slammed her head against a wall with force sufficient to create a hole. Although the event was not witnessed, persons who came to Mills's aid immediately after the assault found her crying and holding her head and observed the consequent damage to the wall. In trial testimony, defendant denied that the incident arose from jealousy, claimed that he was merely concerned as the result of Mills's absence for her wellbeing, and asserted that he had damaged the wall himself with his fist.

 

On January 15, 1995, defendant returned to Mills's apartment in a jealous rage, cut Mills's clothes off with a knife, and raped her at knifepoint. The rape was witnessed by Mills's sister, Ann Marie, who also lived in the apartment with her two children. Ann Marie called the police. They were met upon their arrival at the apartment by Mills, hysterical, clad only in a torn bra, and exhibiting a large knot on her forehead and a bruise on her left cheek. She stated to the police that she had been beaten by defendant, and she confirmed the rape. Defendant, who had remained seated quietly in a chair in the bedroom, was arrested after a scuffle and, while being escorted from the scene, stated in Jamaican dialect: "I can't believe she's doing this to me, getting me locked up like this. When I get out of here, I'm going to kill her and her sister." He repeated the threat to a witness, Annette Reid, while being escorted through the apartment's lobby, stating in dialect: "See what your friends did to me. I'm going to kill her." Defendant also repeated the death threat to a police officer while being booked. The police later found a knife on the headboard of Mills's bed and discovered that the telephone line in the bedroom had been severed. Following his arrest, defendant gave a signed statement in which he admitted that he had become jealous after observing Mills kiss another man and that he had engaged in an altercation with Mills, cutting off her clothes, but he claimed that intercourse had been consensual.

 

Evidence also disclosed that, after defendant's release from jail, he had gone to Mills's place of employment, Trump Plaza, and had asked for Derrick Alford, the person with whom Mills was having a relationship. A few days later, on the evening of February 20, 1995, Mills was repeatedly shot as she left work. The shooting was witnessed, and defendant was identified as the perpetrator by Trump Plaza employees. In a later phone call to Mills's sister Ann Marie, defendant stated when asked why he had killed Mills: "I love her and if I can't have her, nobody can." At trial, defendant denied that he was Mills's murderer.

 

Defendant fled to Jamaica after learning of Mills's death, but was apprehended on August 24, 2000.

 

[State v. Black, No. A-2798-03 (App. Div. March 13, 2006) (slip op. at 3-6), certif. denied, 186 N.J. 608 (2006).]

 

Following a jury trial, Black was convicted of the following charges: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); tampering with physical evidence, N.J.S.A. 2C:29-3 (count nine); and hindering apprehension, N.J.S.A. 2C:29-3 (count ten).2 Following required mergers, he received consecutive sentences of fifteen years for rape, four years for terroristic threats, four years for unlawful possession of a firearm, and life in prison with thirty years of parole ineligibility for murder.

On appeal, we affirmed the conviction and sentence, and the Supreme Court denied certification. State v. Black, supra, slip op. at 3. Black filed a verified petition for PCR on June 28, 2006. Both he and his assigned counsel subsequently filed supporting briefs. The State opposed the petition. On August 14, 2008, the judge who had tried the case heard argument on the petition, following which he delivered an oral opinion denying relief. This appeal followed entry of the order of dismissal.

II.

Black raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

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

 

B. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO MOVE TO SUPPRESS IN-AND-OUT-OF COURT IDENTIFICATIONS OF DEFENDANT BOTH BEFORE AND DURING TRIAL.

 

C. DEFENSE COUNSEL FAILED TO PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO OBJECT TO AN ERRONEOUS INSTRUCTION ON THE AGGRAVATED SEXUAL ASSAULT CHARGE.

 

D. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ASSURE THAT THE DEFENDANT WAS AWARE OF ISSUES SURROUNDING HIS RIGHT TO TESTIFY.

 

E. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO USE THE SEXUAL ASSAULT VICTIM'S WITHDRAWAL STATEMENT TO SEVER THE SEXUAL ASSAULT CHARGE FROM THE HOMICIDE CHARGE AND TO INTRODUCE IT AT TRIAL.

 

F. DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II: THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE AS THE DICTATES OF STATE V. NATALE WERE NOT FOLLOWED WHEN THE DEFENDANT WAS SENTENCED.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

 

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .

 

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

 

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court s discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "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 two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, id. at 52, a 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).

A defendant must establish a prima facie claim of ineffective assistance of counsel in order to obtain an evidentiary hearing. Preciose, supra, 129 N.J. at 462. We are satisfied that no evidentiary hearing was required in this case because, for the reasons explained below, we have concluded that Black failed to present a prima facie case of ineffective assistance of counsel.

A.

Black first claims that he received ineffective assistance of counsel because his trial counsel failed to file a motion to suppress the out-of-court identifications, as well as the resulting in-court identifications, made by Joseph Crean, Benton Jefferson and Jackie Nieves. Crean was an electrician at Trump Plaza who witnessed the shooting, and identified Black as the shooter. Jefferson, another Trump Plaza employee, witnessed the shooting and also identified Black as the shooter. Jefferson also testified that Black had come to the Plaza's kitchen area a few days before the shooting and asked for Derrick Alford, who was dating Mills at the time. Nieves heard the shooting, and testified that she had seen Black in the area just prior to hearing the shots.

Black argues that identifications made by Crean, Jefferson, and Nieves, both in and out of court, were subject to suppression under Wade3 principles because, in each case, the police violated the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Guidelines) in connection with their photo array procedures. The Guidelines were promulgated in 2001, and did not govern police conduct at the time of the investigation into Mills' murder almost six years earlier.

Although we question the viability of Black's argument that trial counsel was ineffective for failing to seek retroactive application of the 2001 Guidelines to police procedures that occurred years before their promulgation, we nevertheless review each of Black s arguments.

Section I.A. of the Guidelines states that "the person conducting the photo . . . identification procedure should be someone other than the primary investigator assigned to the case." That section also provides that "[i]n those cases where the primary investigating officer conducts the photo . . . identification procedure, he or she should be careful to avoid inadvertent signaling to the witness of the 'correct' response."

Section I.C. of the Guidelines provides that photo arrays should be conducted sequentially "when possible." Nevertheless, Section II.A. contains guidelines for conducting simultaneous photo arrays, demonstrating that they are not impermissible under the Guidelines.

Section I.D. of the Guidelines provides as follows: "In composing a photo . . . lineup, the person administering the identification procedure should ensure that the lineup is comprised in such a manner that the suspect does not unduly stand out. However, complete uniformity of features is not required."

Section I.B. of the Guidelines provides: "The witness should be instructed prior to the photo . . . identification procedure that the perpetrator may not be among those in the photo . . . lineup and, therefore, they should not feel compelled to make an identification."

Crean identified Black two days after the murder. Black points to the following procedures utilized by the police as violative of the Guidelines: (1) the photo array was shown to Crean by the primary investigating officer;4 (2) Black's photo contained a background different from the other five photos; (3) the photos were displayed all at once rather than sequentially; and (4) the officers told Crean that they believed they knew the identity of the shooter. As to Jefferson, Black claims that procedures utilized were suggestive because the photos were shown by the investigating officer in a non-sequential manner. Black makes essentially the same argument with respect to the photo array shown to Nieves. In addition, Black asserts that the police officer made a suggestive statement when he asked Nieves to "pick out a picture of the man [she] saw."

Even when the Guidelines are applicable, conduct inconsistent with their dictates, such as the involvement of the primary investigating officer, does not necessarily render the photo identification impermissibly suggestive. In State v. Henderson, 397 N.J. Super. 398, 410-16 (App. Div. 2008), remanded for development of record, Docket No. A-8 (Feb. 26, 2009), we suppressed the resulting identification because we determined that the Guidelines were deliberately violated when the primary investigating officer intruded into the process and spoke to the witness, outside the presence of the officer conducting the identification procedure, when the witness was initially unable to make an identification. There was no such conduct in this case.

Although the police acknowledged that the background of Black's photo was "a little different" from the others in the array because there were "some darker lines" in the background, Officer Roff testified that the police reproduced the photo in black and white so that it would look similar to the other photos. There is nothing in the record to contradict that testimony. Complete uniformity is not required, nor is it always practical. The differing background described in Black's photo would not provide a sufficient basis to warrant a finding that the array was impermissibly suggestive.

Black fails to explain how the simultaneous, as opposed to sequential, display of the photos prejudiced the result in this case. Although sequential display is now the required procedure, it was not in 1996, and we see nothing inherently suggestive about the simultaneous displays in this case.

Black also relies on the statement to Crean that "we think we have him" at the time of the photo array, as well as the failure to instruct Nieves that a photo of the man she saw may not have been included in the array when she was asked to "pick out" the man she saw prior to the shooting. He asserts that those procedures also violated the Guidelines and warrant suppression of the identifications.

In determining whether a photo array and the accompanying display procedures are impermissibly suggestive, the Supreme Court has held that

"[i]mpermissive suggestibility is to be determined by the totality of the circumstances of the identification. It is to be stressed that the determination can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist."

 

[State v. Madison, 109 N.J. 223, 234 (1988) (emphasis added) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)).]

 

In the present pre-Guidelines case, the statement by police to Crean that they believed they had the suspect and the request that Nieves "pick out" the man she saw do not "forcefully" demonstrate that the identification was "imposed" on Crean or Nieves. Id. at 234.

At a Wade hearing, the motion judge would have had to determine whether the identification procedures were "impermissibly suggestive" and, if they were, whether the identifications were "nevertheless reliable" under the "totality of the circumstances." State v. Herrera, 187 N.J. 493, 503-04 (2006). Our review of the record in this case, including the trial testimony with respect to the identifications, leads us to conclude that Black would not have been able to prevail at a Wade hearing. That, together with the fact that the Guidelines were not applicable at the time of the underlying investigation, leads us to the further conclusion that Black has not satisfied either prong of the Strickland test on this issue.

B.

Black next argues that defense counsel was ineffective because he failed to object to the trial judge's instruction to the jury that the State was required to prove that he acted "purposely" in order to find him guilty of aggravated sexual assault.

In his ruling on the PCR petition, the trial judge concluded that "purposely" is a higher standard that includes "knowingly," the requisite element for aggravated sexual assault. See Model Jury Charge (Criminal), "Aggravated Sexual Assault" (2005). We agree.

In State v. Rhett, 127 N.J. 3 (1991), we discussed "the narrow distinction . . . between acting purposely and knowingly," as follows:

Knowledge that the requisite external circumstances exists is a common element in both conceptions. But action is not purposive with respect to the nature or the result of the actor's conduct unless it was his conscious object to perform an action of that nature or to cause such a result.

 

[Id. at 6-7 (citation omitted).]

 

Acting "knowingly" is "less than purposeful conduct." Id. at 7.

Therefore, the trial judge imposed a greater burden on the State by charging "purposely." Thus, although the charge may have been incorrect, the error benefited Black and disadvantaged the State. Consequently, Black has failed to demonstrate either prong of the Strickland test on this issue.

C.

Black next argues that his trial counsel was ineffective because he failed to advise him with respect to the risks associated with testifying. The judge rejected this argument, noting that Black offered no sworn statement alleging that he and his attorney did not discuss the issue prior to his testimony.

"[T]he decision to testify is a strategical choice." State v. Savage, 120 N.J. 594, 629 (1990) (citing State v. Bogus, 223 N.J. Super. 409, 423-24 (App. Div.), certif. denied, 111 N.J. 567 (1988)). "It is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages and disadvantages of doing so or of not doing so." Bogus, supra, 223 N.J. Super. at 423. Counsel's failure to do so "will give rise to a claim of ineffectiveness of counsel." Savage, supra, 120 N.J. at 631.

The trial transcript reveals that, prior to the close of the State's case, Black's trial counsel had conferred with him about testifying. At the end of the day on June 23, 2003, the State informed the trial judge that it had one more witness, who would not be available until the following morning. Defense counsel stated on the record that he had "talked to [his] client as to whether or not he is going to testify." Black testified the following day after the State had presented its last witness and rested.

"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Here, Black has offered only unsworn and general assertions that his trial counsel failed to advise him properly regarding his right to testify and the inherent risks of doing so. He has not denied that they discussed the issue, nor has he articulated any deficiencies with respect to the advice given. Without a factually supported and articulated explanation of the nature of the alleged ineffectiveness, a defendant cannot establish a prima facie claim under Strickland. Id. at 170-71.

D.

Black further asserts that defense counsel was ineffective because he failed to make use of Mills' handwritten statement that she did not wish to pursue her complaint with respect to the aggravated sexual assault. He argues that his trial counsel should have used that document in support of a motion to sever the aggravated sexual assault charge because the statement would have barred evidence of the sexual assault at the murder trial under N.J.R.E. 404(b).

Initially, we note that Black ignores two important facts. First, Mills' statement does not say that the rape did not occur, but merely that she did not want to pursue the charges. Second, the decision of whether to pursue prosecution of a first-degree crime is made by the State and not the victim. Here, the rape was witnessed by Mills' sister, its aftermath was witnessed by the police, and Mills confirmed to the investigating officers that there had been a rape. In addition, when he was arrested at the scene, Black threatened to kill Mills and her sister in the officers' presence. Consequently, there was little chance that the charges would have been dropped by the Prosecutor.

"[T]he basic issue to consider in deciding whether to sever counts from one another is whether evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charge." State v. Keys, 331 N.J. Super. 480, 491 (Law. Div. 1998), aff'd, 331 N.J. Super. 429 (App. Div.), certif. denied, 165 N.J. 607 (2000).

"Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charges.' State v. Pitts, 116 N.J. 580, 601-02 [(1989)]. If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.' State v. Coruzzi, 189 N.J. Super. 273 [(App. Div.), certif. denied, 94 N.J. 531 (1983)]."

 

[Keys, supra, 331 N.J. Super. at 489 (quoting State v. Chenique-Puey, 145 N.J. 334, 341 (1996)).]

 

As noted by the trial judge in denying PCR, we held on the direct appeal that evidence of the prior sexual assault was admissible under N.J.R.E. 404(b). State v. Black, supra, slip op. at 6-10. We see no reason to believe that the trial judge would have made a different decision had the statement been relied upon, nor do we believe that the result of the direct appeal would have been different.

Use of the statement in an attempt to impeach the State's trial witnesses, as suggested by Black, would have been a highly risky endeavor, inasmuch as the document could have been used by the State to support its assertion that Mills was afraid of Black and was intimidated into giving the statement because of his threat to kill her. In light of the strong presumption that counsel was acting effectively, an attorney's strategy at trial is not generally second-guessed. See State v. Gary, 229 N.J. Super. 102, 115-16 (App. Div. 1988).

Black has failed to articulate a prima facie case as to either prong of Strickland with respect to the suggested use of Mills' written statement.

E.

Finally, Black's claim that he received an illegal sentence does not warrant an extended discussion. We considered the sentence on direct appeal, and affirmed it as to the issues raised at that time. State v. Black, supra, slip op. at 12-15. Black now contends that there was a violation of the Supreme Court's holding in State v. Natale, 184 N.J. 458, 466 (2005), which held that a trial judge cannot sentence a defendant to a term of incarceration above the presumptive sentence based upon factors not encompassed by the jury's verdict, other than prior criminal record. Because Black's direct appeal was pending at the time Natale was decided, he is entitled to raise the issue.

Natale does not apply to a sentence imposed for murder because N.J.S.A. 2C:11-3(b)(1) does not provide a presumptive term for murder. State v. Abdullah, 184 N.J. 497, 507 (2005). With respect to the other terms imposed, Black concedes that none of them were above the then-presumptive sentence. The fact that the judge considered aggravating and mitigating factors does not render the sentence illegal under Natale, because he never went above the then-presumptive sentences. Consequently, the issue raised under Natale is without merit.

Affirmed.

 

1 Black testified that his correct name is Wilfred Black, but that he used James Black because his grandfather was also named Wilfred Black. The Judgment of Conviction has James Black, and the presentence report lists "Wilfredo Black" as an alias.

2 Prior to the trial, the judge severed an eighth count, fourth-degree criminal contempt, N.J.S.A. 2C:29-9(a), which was eventually dismissed.

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

4 We view the facts "in the light most favorable to [the] defendant," Preciose, supra, 129 N.J. at 462-63, and assume that these witnesses were shown the photo arrays by "the primary investigating officer," although it is not clear from the record which police officer was primary.