STATE OF NEW JERSEY v. JAMES COMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1675-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES COMER,

Defendant-Appellant.

_________________________________

October 23, 2012

 

Submitted February 1, 2012 - Decided

 

Before Judges Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0231.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

 

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

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, James Comer, appeals the trial court order denying his motion for post-conviction relief (PCR). Defendant alleges ineffective assistance of counsel on the grounds that his trial counsel did not raise the issue of possible juror impropriety and did not properly inquire or pursue newly discovered evidence with regard to a co-defendant who testified against him during trial. We reverse and remand for an evidentiary hearing on what, if anything, trial counsel knew about the relationship of one of the empanelled jurors to defendant's mother, and the input, if any, her presence on the jury may have had to defendant's right to a fair trial.

A jury convicted defendant of Count 1, second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:11-3; Count 3, first-degree felony murder, N.J.S.A. 2C:11-3a; Counts 7, 10 and 13, first-degree robbery, N.J.S.A. 15-1; Count 16, third-degree theft, N.J.S.A. 2C:20-3a; five third-degree weapons offenses, Counts 5, 8, 11, 14, and 17, N.J.S.A. 2C:39:-5b; and four second-degree weapons offenses, Counts 6, 9, 12, and 15, N.J.S.A. 2C:39-4a. The conviction arose out of a crime spree committed by defendant and his two co-defendants over two consecutive days in April 2000. The convictions were based on the testimony of defendants' accomplice, Dexter Harrison, who was separately indicted and who agreed to testify at defendant's trial; eye-witness identifications from the three surviving robbery victims; and the arrest of the three defendants at the end of the crime spree while they were still together in the vehicle used during the robberies and murder. Also recovered from the vehicle were stolen items and one of the handguns used to commit the crimes.

At sentencing, the court imposed a thirty-year term of imprisonment without parole for felony murder, three consecutive fifteen-year terms with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree armed robbery offenses, and concurrent four-year terms on the weapons offenses. The aggregate sentence imposed was seventy-five years with a sixty-eight-and-one-quarter year parole ineligibility. Defendant timely appealed, claiming: (1) unduly suggestive photo identifications; (2) a mistrial should have been granted as a result of a statement made during the testimony of Harrison; (3) prosecutorial misconduct; (4) reversible error caused by the court's failure to question the jurors about the nature of the problem with a juror who purportedly was not participating in deliberations; (5) error in the manner the court handled jury questions; and (6) imposition of an excessive sentence.

On appeal, we affirmed both the conviction and the sentence imposed. State v. Comer, No. A-6307-03 (App. Div. December 28, 2006). Defendant filed a petition for certification on the issues of unduly suggestive identifications, Harrison's testimony, and the sentence imposed. The Court granted the petition, State v. Comer, 191 N.J. 315 (2007), and consolidated the appeal with the petition for certification filed by his co-defendant Ibn Ali Adams. The Court affirmed defendant's conviction and sentence. State v. Adams, 194 N.J. 186 (2008).

Defendant filed a pro se PCR petition on July 9, 2008, and defense counsel subsequently filed a supplemental formal brief, as well as a supplemental letter brief, in support of this petition. The trial court denied defendant's petition. In a written opinion memorializing the court's decision, the court found: (1) defendant's claims relating to his sentence were previously adjudicated on direct appeal and were barred pursuant to Rule 3:22-5; (2) other claims were procedurally barred under Rule 3:22-4; (3) defendant was not prejudiced by the joint trial with Adams; (4) Harrison's post-conviction affidavit did not exonerate him of the murder; and (5) there was insufficient evidence of juror impropriety. The present appeal followed.

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

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL['S] INEFFECTIVENESS. (PARTIALLY RAISED BELOW).

 

A. TRIAL COUNSEL FAILED TO PURSUE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE TRIED BEFORE AN IMPARTIAL JURY.

 

B. TRIAL COUNSEL FAILED TO PURSUE NEWLY DISCOVERED EVIDENCE, THAT THE STATE'S KEY WITNESS RECANTED HIS EXCULPATORY [SIC] TESTIMONY.

 

Defendant also raises the following points in his pro se supplemental brief:

POIN[T] ONE

TRIAL COUNSEL [WAS] INEFFECTIVE FOR FAILURE TO INQUIRE WITH THE COURT FOR POTENTIAL JURY BIAS AND TAINT.

 

POINT TWO

PCR JUDGE ABUSED HIS DISCRETION WHEN DENIED APPELLANT'S PCR[,] THEREBY[] CREATING A MISCARRIAGE OF JUSTICE.

 

POINT THREE

PCR COUNSEL INADVERT[E]NTLY USED THE WRONG AFFIDAVIT OF DEXTER HARRISON TO ESTABLISH A MOTION FOR NEWLY DISCOVERED EVIDENCE.

 

With the exception of defendant's claim of juror impropriety, which we conclude warrants an evidentiary hearing, the remaining arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In State v. Preciose, 129 N.J. 451 (1992), the Court discussed the circumstances that require an evidentiary hearing to address a defendant's claim of ineffective assistance of counsel. The Court explained that where a claim of ineffective assistance of counsel involves matters outside of the record, which may best be explained through the testimony of trial counsel, an evidentiary hearing should ordinarily be conducted. Id. at 462. The rationale underlying the need for an evidentiary hearing is that a claim of ineffective assistance is generally not susceptible to resolution on direct appeal. Rather, a "'defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice.'" Ibid. (quoting State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)). The Court concluded that "evidentiary hearings to resolve ineffective-assistance-of-counsel claims [are required] if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid.

We accord great deference to the conduct of trial counsel because a defendant is not entitled to the best attorney but only that trial counsel not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). A defendant must therefore

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. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

 

[State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).]

 

When evaluating whether a defendant has presented a prima facie case, the PCR judge "should view the facts in the light most favorable to a defendant." Ibid. If, under this inquiry, the PCR judge determines that defendant would be entitled to relief, then the defendant is entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997).

Here, PCR counsel retained an investigator, Francis Reilly, to investigate defendant's mother, Sharon Comer's, acquaintance with E.C., a juror on defendant's case.1 Reilly prepared a report dated December 12, 2008, which was included in counsel's supplemental letter brief in support of defendant's PCR petition, and which report stated Reilly investigated the matter through a telephone interview with Sharon. The report noted Sharon informed Reilly that she and [E.C.] were co-workers, and "according to [Sharon], she had discussed details of her son's arrest with [E.C.] prior to [E.C.] being empaneled on the jury." E.C. left her employment at K-Mart about a year prior to defendant's trial. Reilly further reported, "[Sharon] can't remember if she brought this to the attention of her son's trial attorney."

Defense counsel's supplemental letter brief in support of defendant's PCR petition included an affidavit from Sharon dated March 11, 2009, which was three months after Reilly authored his investigation report. This affidavit states that Sharon and E.C. worked together at K-Mart, where Sharon was a unit pricing manager and E.C. worked in receiving. Sharon certified she "vented to a few of [her] co-workers before [defendant's] trial started" and before E.C. was chosen as a juror. She also stated, "[t]here were never any pleasantries between [E.C.] and [her]." Sharon certified that upon E.C. noticing her in the courthouse during trial, E.C. approached her, explaining she informed one of the sheriff's officers of their acquaintance, and he "told her it was O-K as long as she [didn't] discuss the case with me." Sharon further certified she brought this to her son's attorney's attention, and he stated "he would take care of it," but the next day defendant was found guilty. Sharon concluded her certification by stating that she felt her son was not given a fair trial "because of the fact [E.C.] knew [her] and should have been removed from this case[,] especially since [E.C.] was not fond of [her]." In light of these circumstances, defendant urges he was entitled to an evidentiary hearing to "inquire of the impropriety of the [s]heriff['s] [o]fficer and the juror . . . ."

The PCR judge, who had also been the trial judge, rejected this argument, concluding there was nothing on the record to indicate any impropriety. The judge emphasized the inconsistencies between Sharon's certification, wherein she stated she spoke to her son's attorney about the matter, and the investigation report, in which she purportedly told Reilly she could not remember whether she brought the issue to the attorney's attention. The judge additionally pointed out that E.C. never alerted the court that she was acquainted with defendant's mother. He further noted it was unlikely that defense counsel, as "an experienced criminal defense attorney[,]" would have failed to present this information to the court.

Defendant claims the trial judge erred in failing to view his proffered evidence on the issue of juror impropriety in the light most favorable to him. We agree.

The PCR judge's reasoning reflects his credibility assessment without first conducting a hearing, contrary to the requirement that the evidence, at that stage, be viewed in the light most favorable to the defendant. Cummings, supra, 321 N.J. Super. at 170. Defendant was entitled to a fair trial, not a perfect trial. State v. R.B., 183 N.J. 308, 333-34 (2005) (quoting Lutwak v. U.S., 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 594 (1953)); accord, State v. Marshall, 123 N.J. 1, 169-70, cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 201, 694 (1993). However, essential to a fair trial is an impartial jury. State v. Papasavvas, 163 N.J. 565, 584 (2000). If defendant's mother alerted trial counsel to E.C.'s presence on the jury and their prior relationship, including the fact that E.C. may have been privy to discussions defendant's mother had with her co-workers about defendant's pending charges, and trial counsel failed to bring this information to the court's attention, such conduct may reflect trial counsel's ineffectiveness under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the Strickland standards under New Jersey jurisprudence). The fact that at the time Sharon met with Investigator Reilly, she could not recall whether she alerted trial counsel about her encounter with E.C., and later recalled that she did, may ultimately affect the weight the court accords her testimony, but should not have resulted in the denial of PCR without first conducting an evidentiary hearing to explore juror impropriety and what, if anything, defense counsel knew about this claim, and the impact, if any, E.C.'s presence on the jury may have had upon defendant's right to a fair trial.

R

eversed and remanded for an evidentiary hearing consistent with this opinion.

1 Because defendant and his mother share the same last name, we refer to her as Sharon. In doing so, we intend no disrespect.