STATE OF NEW JERSEY v. MARTIN GOINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2182-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTIN GOINS,

Defendant-Appellant.

 

__________________________________

October 3, 2012

 

Submitted September 10, 2012 - Decided

 

Before Judges Parrillo and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2284.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the briefs).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Martin Goins appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was convicted of two counts of first-degree carjacking, N.J.S.A. 2C:15-2; one count of first-degree robbery, N.J.S.A. 2C:15-1; and one count of second-degree robbery, N.J.S.A. 2C:15-1. His aggregate sentence was life imprisonment plus fifty years.

We affirmed the conviction on appeal, but remanded for resentencing. State v. Goins, A-6163-05T4 (App. Div. May 6, 2008), certif. denied, 196 N.J. 462 (2008). On remand, defendant was resentenced to an aggregate fifty-eight-year term of imprisonment subject to the No Early Release Act's (NERA), N.J.S.A. 2C:43-7.2, eighty-five percent period of parole ineligibility. We affirmed the sentence on appeal, but remanded for the trial court to amend the judgment of conviction to reflect the correct degree on one of the robbery counts, to give institutional credits for the time between the original and remand sentence dates, and to include only a single five-year period of parole supervision. State v. Goins, A-6188-07T4 (App. Div. May 1, 2009).

These are the facts surrounding defendant's conviction. On two separate occasions within a three-week period in late summer, 2004, defendant called for a taxi and upon its arrival, directed the driver to take him to Genesse Avenue in Teaneck. At the destination, and while still in the taxi, defendant, in each instance, placed a sharp object against the cabdriver's throat and demanded all his money and wallet. They complied with defendant's command. In the earlier incident, after the two men exited the vehicle, defendant hit the driver, Shakeel Abassi, in the head very hard with either a "big ring on his finger or . . . a knife." During the assault, defendant took Abassi's cell phone, then drove away in the taxi. In the latter incident, defendant walked the driver, Lester Morrigia, part of the way into a wooded area, keeping the sharp object to his throat. While still in the woods, Morrigia heard the taxi pull away.

Both vehicles were located, the latter only a few blocks away from the scene of the crime, and swept for prints. It was subsequently determined that the fingerprint found on the exterior driver's side window of Abassi's taxi, and the palm print found on the driver's side rear door exterior glass of Morrigia's taxi matched defendant's.

Surveillance cameras at the Radisson Hotel in Englewood, from where defendant had entered the first taxi, had footage of a large black male who resembled the description provided by Abassi, namely a heavyset black man, taller than five feet six inches, wearing a cap, a dark T-shirt with a round collar and half sleeves, and jeans with paint stains. Morrigia described the attacker similarly: "five foot seven, male, black, about 225. Baseball cap. His hair was sticking out. It was gray. He had gray hair." Both men were shown a photo array without defendant's photo. Abassi did not select anyone. Morrigia also failed to make a definitive selection, although he was "80% to 90% sure" that the person in the photograph of Samuel Bostick1 was his attacker. When asked about any differences, Morrigia stated that his attacker had thick gray hair that stuck out from the side of a ball cap and did not have a moustache or beard.

Police then focused their attention on an apartment complex close to where the two taxis had been located, specifically a unit occupied by defendant's friend, Deborah Owens, who was in possession of a vehicle registered to Gregory Robinson. A photo of Robinson was included in an array shown to both victims. While Abassi did not pick anyone, Morrigia indicated Robinson's photo depicted the person who robbed him. Because Morrigia wanted to hear the person speak and see him walk before he made a positive identification with certainty, Detective Andrew McGurr of the Teaneck Police Department contacted Robinson. When contacted, Robinson said he was now living in North Carolina and had not been to New Jersey in years, and that prior to moving, he had dated Owens, who was presently in possession of his car. After this conversation, the police received information that shifted their attention from Robinson to defendant.

Three days after the second taxi incident, on September 12, 2004, Englewood Police were alerted to a suspicious call to a taxi company that did not "sound right." They responded, along with Teaneck Police Officer Gregory Rucker, where they found defendant, a black male, with a full head of noticeably graying hair, sitting on the porch of his mother's residence. Because of his resemblance to the composite of the suspect who carjacked the two taxi drivers, defendant was asked to accompany the officers to police headquarters where he denied any involvement in the two carjackings, but consented to be photographed. Defendant was returned to his mother's residence.

Detective McGurr continued focusing on defendant. Following a conversation with Owens, McGurr and Detective Mark Fisco arranged for a stop of her vehicle while defendant was a passenger. When defendant exited the vehicle, he was wearing a T-shirt with a pattern matching the one displayed in the surveillance video footage.

Defendant agreed to accompany the officers to the Teaneck Police Department, where he was advised of his Miranda2 rights and executed a waiver form. After advising defendant of the investigation, McGurr showed him photographs taken from the surveillance video footage depicting the person wearing the same exact shirt as defendant had on. Defendant denied that the shirts were similar at first, but then shrugged his shoulders, hung his head down and said "what do you need from me?" Detective McGurr requested a formal statement and defendant agreed.

Defendant admitted to both carjackings. His account coincided with Abassi's except that defendant denied physically assaulting his victim. Defendant also recounted the second incident. When asked if he still had the baseball cap and jeans worn in the video, defendant said he had thrown the jeans out. Skeptical, McGurr asked whether he kept any belongings at Owens' apartment, to which he replied yes, in a duffle bag in her car. When retrieved, the detectives found the jeans and baseball cap in the duffle bag.

Defendant filed his PCR petition on September 29, 2008, which the Law Division judge denied on August 12, 2010. On appeal, defendant, through counsel, raises the following issues for our consideration:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

A. Trial counsel was ineffective since [s]he failed to object to inadmissible hearsay elicited by the prosecutor from Detective McGurr.

B. Trial counsel was ineffective since she failed to request a charge on joyriding as a lesser-included offense to carjacking.

 

C. Trial counsel was ineffective since she failed to argue at the Wade hearing that the police violated section IA of the Attorney General's guidelines.

 

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

 

A. Appellate counsel was ineffective in failing to challenge the trial court's refusal to charge theft as a lesser-included offense to robbery.

 

B. Appellate counsel was ineffective in failing to challenge the trial counsel's refusal to charge theft as a lesser-included offense to carjacking.

 

C. Appellate counsel was ineffective in failing to challenge the admission of Detective McGurr's hearsay testimony as plain error on appeal.

 

D. Appellate counsel was ineffective in failing to challenge as plain error the trial court's failure to charge joyriding as a lesser-included offense to carjacking.

 

E. Appellate counsel was ineffective since he failed to argue on appeal that the police violated section IA of the Attorney General's guidelines.

 

III. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

 

IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

 

V. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Appellant pro se raises these additional issues:

I. TRIAL COURT ERRED IN DENYING PETITIONER A FULL EVIDENTIARY HEARING

 

A. Petitioner made a prima facie showing of the alleged forged signatures of the arrest warrants.

 

B. The PCR Court did not place on the record a conclusion of law and fact in deny[ing] petitioner a full hearing.

 

C. PCR Counsel was ineffective for failing to investigate and present any witnesses.

 

We find no merit to any of these issues.

It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The right to effective assistance of counsel applies as well to the appellate process. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987). However, appellate counsel does not have to advance every argument defendant urges, even if not frivolous, Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983), and, more importantly, the failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel. State v. Worlock, 117 N.J. 596, 625 (1990).

An evidentiary hearing is only required if the "defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland, supra. "[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. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

So measured, we find defendant has failed to establish a prima facie case to satisfy either the performance or prejudice prong of the Strickland/Fritz test. First, with respect to defendant's ineffective assistance claim based on counsel's failure to object to Detective McGurr's testimony about Robinson being absent from New Jersey and about obtaining information from another investigator, the PCR judge concluded that they were not hearsay and

even if it were there was such overwhelming comprehensive testimony as to guilt it doesn t even enter the issues, the arena. Defendant was arrested wearing the same clothes he was wearing in the hotel security. His fingerprints were found in the vehicles. . . . McGurr's testimony described the steps that were taken in his investigation. It is not in any way, shape or form hearsay and does not even come close to satisfying the second element of Strickland v. Washington that even if there was ineffective[ness] would it affect the ultimate outcome of the trial.

We agree.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the mattered asserted." N.J.R.E. 801(c). By relating what Robinson said about his absence from New Jersey and further that the witness received information that led him to revisit defendant, Detective McGurr was simply addressing the progress of the investigation, contextualizing the photo array in which Morrigia chose Robinson, and explaining the shift in focus from Robinson to defendant. As the Court in State v. Bankston, 63 N.J. 263 (1973), stated:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so upon information received. Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.

 

[Id. at 268-69 (internal quotation marks and citations omitted).]

 

Here, Detective McGurr provided no details of the information obtained from Investigator Tully3, much less anything specific from either Robinson or Tully implicating defendant in the carjackings. On the contrary, Detective McGurr properly limited his testimony to generalized references. And unlike State v. Frisby, 174 N.J. 583 (2002), where the Court held as hearsay an absent witness's statement substantiating the father's claim he was not with the baby because it directly implicated the mother as the only other possible suspect, id. at 592-93, here the elimination of Robinson as a suspect in no way directly implicated defendant. In any event, as noted, Robinson's out-of-court statement was not admitted to prove his absence from New Jersey, but to explain the progress of the investigation.

Even if the challenged statements may be considered hearsay, their admission in evidence was harmless and thus counsel's failure to object resulted in no prejudice to defendant. As noted by the PCR judge, the evidence of defendant's guilt was overwhelming including his confession, his fingerprints found on both taxis, his identification by both victims and his clothing.

Defendant next contends that counsel was ineffective for failing to argue at the Wade4 hearing that police violated section 1A of the Attorney General Guidelines, which states that "the person conducting the photo or live lineup identification procedure should be someone other than the primary investigator assigned to the case." Office of the Attorney Gen., N.J. Dep't of Law & Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures 1 (2001) (Attorney General Guidelines or Guidelines). The Guidelines continue, however, that

"[t]he Attorney General recognizes that in many departments, depending upon the size and other assignments of personnel, this may be impossible in a given case. In those cases where the primary investigating officer conducts the photo or live lineup identification procedure, he or she should be careful to avoid inadvertent signaling to the witness of the 'correct' response."

 

[Ibid.]

In this case, Detective McGurr, who was the principal investigator, did not conduct the photo line-up in which Morrigia eventually chose defendant's photo. Rather, it was Detective Michael Richter who, up until then, had not been involved in the investigation. Although he may have known defendant was a suspect, there is no evidence that Richter consciously or inadvertently signaled to defendant's photo during the line-up or otherwise indicated either verbally or through body language that Morrigia should select defendant. On the contrary, the evidence reveals Detective Richter followed the Guidelines by reading the rules of the photo array and exhibiting the photos to Morrigia one at a time. After Morrigia asked to view them again, Richter shuffled the photos and then showed them one by one to Morrigia. During the second showing, Morrigia picked defendant's picture. We discern no violation of the Guidelines and therefore counsel's failure to object on this ground at the Wade hearing was neither deficient nor prejudicial.5

Defendant's remaining claims of ineffective assistance of counsel concern the jury charge. He contends trial counsel failed to request a jury charge on the lesser offense of joyriding, N.J.S.A. 2C:20-10b,6 and appellate counsel failed to challenge the trial court's refusal to charge theft as a lesser-included offense to robbery/carjacking. Neither charge was warranted on the proofs and therefore neither counsel was deficient in not voicing a challenge.

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). Moreover, a trial judge is required to instruct the jury on a lesser-included offense if "the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994).

Here, the PCR judge found that "[c]learly the facts in this case as to each of these individuals who were brought to the end of a dead-end street were instructive of carjacking not clearly a joyriding offense." Furthermore,

None of the evidence in this case points to a theft conviction. Defendant's statements regarding both incidents indicated he used physical force against both cab drivers. Because of this, the record of the trial court gives no rational basis for including theft in the charge.

 

Even if it were included I find that it's unlikely that the outcome would have been different . . . .

 

The record clearly supported the robbery. I find the defendant was not prejudiced as a result.

 

We agree.

Both robbery, N.J.S.A. 2C: 15-1a(1), and carjacking, N.J.S.A. 2C:15-2a(1), require either bodily injury or force upon another as an element of the offense. Indisputably, force was used in both incidents in this matter. Indeed, defendant himself admitted: "I grabbed [Abassi] with one of my hands around his neck and asked him to give me the money." And as to Morrigia, defendant confessed "when I got down to Genesee Avenue, I put my hands around the man, around his neck and his shoulder, and asked him to give me the money . . . I asked him . . . to get out of the car. . . . I immediately got back in his car . . . [and] drove his car two blocks." Given defendant's own admissions and the testimony of both victims, there is simply no rational basis supporting a finding of the lesser offenses of joyriding or theft. Consequently, trial counsel was not deficient for failing to request a joyriding charge, and appellate counsel was not deficient for failing to challenge the judge's refusal to give a theft charge.

In addition to the ineffective assistance of counsel claim, defendant also raises the following issues: 1) that Detective McGurr's testimony that there were no arrest warrants or complaints against defendant at the time he executed the Miranda waiver form was unduly prejudicial and confused the jury; 2) that he was deprived of his right to confront his accusers including Detective Michael Faldy; 3) that the State used forged documents when prosecuting his case; 4) that appellate counsel was ineffective for failing to appeal the denial of the motion to suppress his confession due to the fact the vehicle stop was illegal because Owens conspired with the police; 5) that PCR counsel was ineffective for failing to investigate and present any witnesses, and 6) that the PCR court did not place on the record conclusions of law and fact in denying an evidentiary hearing. We are satisfied that none of these issues is of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Moreover, the first three enumerated issues are procedurally barred as either having been raised and rejected on direct appeal, Rule 3:22-5, or capable of having been, but not, raised in a prior proceeding. R. 3:22-4.

A

ffirmed.

1 Bostick came to police headquarters at the request of Teaneck police and provided prints. His prints were compared to the prints found on the taxis but did not match. Bostick was also eliminated as a suspect because he did not have an unusual walk like the man in the video.

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

3 When defense counsel objected at trial to the State's line of questioning as "leading," the prosecutor explained that she was asking the question in this manner to avoid Detective McGurr revealing that a confidential informant told Investigator Tully that defendant admitted to having robbed the cab driver.

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

5 A violation of the Guidelines does not automatically require the exclusion of the eyewitness identification, State v. Henderson, 208 N.J. 208, 292-93 (2011).

6 "A person commits a crime of the fourth-degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A. 2C:20-10b.