STATE OF NEW JERSEY v. STANLEY CARTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1023-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY CARTER,

Defendant-Appellant.

________________________________________

March 26, 2012

Submitted March 14, 2012 - Decided

Before Judges Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0229.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Matthew Regulski, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stanley Carter appeals from a May 3, 2010 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A.

Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of murder, N.J.S.A. 2C:11-3(a)(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). At sentencing, the trial court merged the unlawful purpose conviction into the aggravated manslaughter conviction and sentenced defendant to twenty-five years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. It also imposed a consecutive five-year term for unlawful possession of a handgun. On direct appeal, we affirmed the convictions, but vacated the sentence and ordered re-sentencing. State v. Carter, No. A-4674-03 (App. Div. Apr. 3, 2006). The Supreme Court denied certification. State v. Carter, 187 N.J. 492 (2006).

On September 29, 2006, pursuant to our mandate, defendant was re-sentenced to a prison term of twenty years, subject to NERA, on the aggravated manslaughter conviction. He was again sentenced to a consecutive five-year term for the handgun possession charge.

On December 8, 2006, defendant filed his application for PCR. After oral argument, Judge Pedro J. Jimenez, Jr. issued a written opinion denying PCR, concluding that defendant's application did not establish a prima facie case of ineffective assistance of counsel. This appeal followed.

B.

We set forth the underlying facts in our opinion on direct appeal. At approximately 11:00 p.m. on May 7, 2002, Richard Vaught was shot to death in Trenton, New Jersey. (slip op. at 3). An off-duty Trenton detective, Edgar Rios, was working nearby as a security guard when he heard three gunshots. Ibid. He was familiar with an individual named Sharon Kasey and noticed her walking in the vicinity after the shooting. Ibid. Later, when he was called in to participate in the investigation, Rios located Kasey to learn if she had seen anything. Ibid. Based upon his conversation with Kasey, Rios sought and eventually located defendant. (slip op. at 4).

Defendant was placed under arrest on an outstanding warrant for an unrelated matter and taken to the police station for questioning. Ibid. Rios advised defendant of his Miranda rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Ibid. Defendant decided to give a statement. Ibid. In his statement, defendant said that he was in a van with four other individuals: Maurice Norwood, Taareef Robinson, Shirell Smith and Kasey. Smith and Kasey were in the van because they were in the process of buying drugs from him and Norwood. (slip op. at 3). Defendant said that Norwood was the driver of the vehicle and that Norwood shot Vaught, as he walked by the van, in retaliation for an earlier incident where Vaught robbed Norwood. (slip op. at 4). Defendant told Rios that he could not have been the shooter because he was involved with selling drugs to Smith and Kasey in the back of the van at the time of the shooting. (slip op. at 3).

At trial, however, Smith testified that while the van was parked, defendant spotted Vaught crossing the street. According to Smith, defendant called Vaught's name, pulled a gun out from under his shirt and fired three shots from the van window. Vaught was struck and fell to the ground. According to Smith, defendant announced, "I got him." Vaught died two days later. Norwood and Kasey testified and confirmed Smith's account of the shooting.

II.

On appeal, defendant presents 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 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. THE DEFENDANT FAILED TO RECEIVE ADQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S INABILITY TO PRESENT NESSHEA WILLIS AS A WITNESS WHO COULD POTENTIALLY HAVE EXCULPATED THE DEFENDANT.

C. THE DEFENDANT WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS A RESULT OF COUNSEL'S REQUEST [THAT] THE COURT INSTRUCT THE JURY REGARDING SELF-DEFENSE DESPITE THE FACT HE MAINTAINED DURING HIS OPENING AND CLOSING STATEMENTS THAT MAURICE NORWOOD RATHER THAN HIS CLIENT SHOT THE VICTIM

To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).

Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and "sound trial strategy" in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] 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." State v. Cummins, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

After reviewing the record in light of the Strickland paradigm, we conclude that defendant's arguments are all without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Jimenez in his comprehensive fifteen-page written opinion. We add the following comments.

Defendant alleged that his trial counsel was ineffective for failing to secure the testimony of Nesshea Willis. At a pre-trial conference, counsel made a proffer that Willis was a potential witness, who lived one block from the scene of the shooting. On the night in question, Willis claimed to have heard gunshots and to have seen a vehicle speeding away. She alleged that the driver was attempting to discard what appeared to be a handgun. However, she had not seen the shooting and could not be sure what she had seen being dropped from the car or even if the car was the same model as that involved in the crime.

Trial counsel's investigator made seven attempts to both interview and subpoena Willis. However, she was never found at her home and she never responded to the messages left there to contact the defense. Nevertheless, defendant contends that his attorney was ineffective because he did not do enough to secure Willis' participation at trial.

We agree with Judge Jimenez' observation that rather than proving trial counsel to be ineffective, the record suggests that the efforts of trial counsel went far beyond that required of him. This is not a case where an attorney waited until the last moment to attempt to locate a witness. Trial counsel actively sought to subpoena Willis for the trial. Judge Jimenez properly concluded that the mere inability to secure her attendance, after numerous efforts were made to do so, did not constitute ineffective assistance of counsel.

Judge Jimenez also properly rejected defendant's argument that his counsel was ineffective because he successfully persuaded the trial court to charge the jury on self-defense. Defendant complains that, in the defense's opening statement, his attorney took the position that defendant was not the shooter and that he repeated this argument in his closing. Yet, his attorney still wanted the self-defense charge. Defendant asserts that presenting the jury with two conflicting defenses was "confusing."

During the course of the trial, however, there was testimony that Vaught had his hand by his waist just before the shooting occurred. This raised the possibility that Vaught was reaching for a weapon. Therefore, self-defense became a viable alternate theory and trial counsel properly asked for this defense to be charged to the jury. This tactical decision by counsel was not ineffective under the Strickland test. Moreover, defendant was found not guilty of the murder charge. As Judge Jimenez found, this indicates that trial counsel's overall trial strategy was not ineffective.

Finally, defendant argues that Judge Jimenez erred by denying his request for an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).