STATE OF NEW JERSEY v. MICHAEL NELSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3078-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL NELSON,

Defendant-Appellant.

__________________________________

March 6, 2012

Submitted February 1, 2012 - Decided

Before Judges Harris and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-09-0952.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Michael Nelson appeals from an August 30, 2010 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A.

Following a jury trial, Nelson was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a). After merger, the trial court imposed an extended term sentence of fifty years with a parole disqualifier of twenty-five years. On direct appeal, we affirmed the convictions, but vacated the sentence and ordered re-sentencing. State v. Nelson, No. A-1729-03 (App. Div. Aug. 12, 2005). The Supreme Court denied certification. State v. Nelson, 185 N.J. 392 (2005).

On July 13, 2007, pursuant to our mandate, Nelson was re-sentenced to a prison term of twenty years with a minimum term of seventeen years. We affirmed the sentence as part of an excessive sentence calendar pursuant to Rule 2:9-11. State v. Nelson, No. A-3819-07 (App. Div. May 28, 2009).

In January 2007, Nelson filed his application for PCR. A non-evidentiary hearing was conducted by Judge Pedro J. Jimenez, Jr. on July 2, 2010. Judge Jimenez reserved decision and later issued a written opinion denying PCR, concluding that Nelson's application did not "establish[] a prima facie case of ineffective assistance of his pre-trial, trial, or appellate counsel." This appeal followed.

B.

On April 30, 2000, the China Moon Chinese restaurant in Trenton was the site of an armed robbery. While being held at gunpoint, the owner of the restaurant handed over approximately $300 to a masked man whose voice she recognized as a frequent customer.

Police officers responded to the scene and interviewed the owner. A physical description of the individual with the gun was obtained and instantly broadcast to police officers in the field. Nelson was observed a few blocks away from the China Moon, and a chase ensued. With the assistance of a canine, Nelson was soon discovered lying on a deck in someone's backyard. When approached by a police officer with the dog, Nelson blurted out, "I give up, don't let the dog bite me," and "you got me, you got me." Lastly, Nelson was reported as saying, "you got me, I know I'm going to go to state prison for this." Less than thirty minutes had elapsed from when the police obtained a description of the robber to when Nelson was arrested.

After helping Nelson to his feet, the arresting officer observed and recovered $299 in cash that had been underneath Nelson's prone body. After receiving Miranda1 warnings, Nelson offered to take the police to where he had discarded the gun. Before he could do that, however, another police officer found the weapon: a sawed-off shotgun.

Nelson's defense at trial, among other things, tried to portray the State's evidence as unworthy of belief. In particular, Nelson challenged the veracity of the canine handler, who was accused of allowing the dog, notwithstanding Nelson's pleas to the contrary, to repeatedly bite him.

II.

On appeal, Nelson presents the following arguments:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM POLICE FABRICATED EVIDENCE WAS VIOLATED.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST THE INTRODUCTION OF UNRELIABLE IDENTIFICATION EVIDENCE WAS VIOLATED.

POINT III: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO CONDUCT A REASONABLE PRETRIAL INVESTIGATION; TRIAL COUNSEL'S FAILURE TO FILE APPROPRIATE PRETRIAL MOTIONS; TRIAL COUNSEL'S FAILURE TO PRESENT DEFENSE WITNESSES; TRIAL COUNSEL'S FAILURE TO CONDUCT A REASONABLE CROSS-EXAMINATION; AND TRIAL COUNSEL'S FAILURE TO REQUEST A JURY INSTRUCTION ON IDENTIFICATION; RESULTED IN A PRIMA FACIE DEFICIENT PERFORMANCE UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST, AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG TO THE TEST.

POINT IV: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT [V]: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO INCORPORATE DEFECTS IN THE ARREST WARRANT IN THE MOTION TO SUPPRESS.

B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO COHERENTLY ARGUE THE DEFENSE OF POLICE FABRICATION.

C. APPELLATE COUNSEL WAS INEFFECTIVE.

D. THE CUMULATIVE EFFECT OF THE DEFICIENCIES OF TRIAL AND APPELLATE COUNSEL VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

E. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PRETRIAL STATUS CONFERENCE.

F. TRIAL COUNSEL'S WAS INEFFECTIVE BECAUSE HE FAILED TO OBJECT TO THE PRESENCE OF UNIFORMED POLICE CADETS IN COURT DURING TRIAL.

G. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO FILE A MOTION TO DISMISS THE INDICTMENT DUE TO DEFECTS IN THE COMPLAINT AND AFFIDAVIT OF PROBABLE CAUSE.

H. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE A SPEEDY TRIAL.

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, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)). This test applies equally to both trial and appellate counsel. State v. Bray, 356 N.J. Super. 485, 498 (App. Div. 2003).

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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)).

Our Supreme Court has observed the following:

The quality of legal representation cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314-15 (2006)).]

Beyond this formidable first hurdle, the Strickland test requires that even if actual ineffectiveness is apparent, "prejudice must be proved; it is not presumed." Bray, supra, 356 N.J. Super. at 498 (quoting Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97)). "[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. Cummings, 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 Nelson'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 twenty-page written opinion. We add the following comments.

Nelson's lengthy catalog of putative deficiencies of his several attorneys does not persuade us either of the need for an evidentiary hearing or that the PCR court failed to address his many contentions. Most of Nelson's criticisms of prior counsel involve the supposed futile or non-existent exploitation of inconsistencies in the testimony of the several State's witnesses who described the aftermath of the robbery and the consequent search, apprehension, and arrest. We are unable to detect a failure of representation by trial counsel regarding the issues of witness impeachment, alleged fabrication of evidence, theoretical police misbehavior, and supposed neglectful trial preparation.

The State's ability to link Nelson to the crimes did not stem from a concocted police misadventure, but rather was the result of a logical presentation to the jury of the skein of events beginning in the rear of the China Moon and ending with Nelson's unprovoked exclamations of guilt in a stranger's backyard. Nelson's attorney repeatedly invited the jury to reject the State's theory of culpability based upon the defense's contentions of police misconduct. The two convictions bespeak the jury's rejection of this theory. An unsuccessful defense does not constitute per se ineffective assistance of counsel. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Moreover, the State's case against Nelson was particularly strong, even though it did not rest upon a visual identification by the victim. Nelson's speculative arguments that absent witnesses who he now claims defense counsel was obliged to obtain would erode the strength of the State's presentation call for nothing more than rank conjecture. We are unable to engage in such imagining, particularly when competent evidence, see Rule 1:6-6, is required to support Nelson's claims of ineffective assistance of counsel. See State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (noting the requirement that a defendant must allege specific facts demonstrating the deficient performance).

Nelson's arguments about the performance of appellate counsel fare no better. He accuses appellate counsel of failing to raise "the issue of identification" on direct appeal, which we understand to mean that such counsel was neglectful for (1) not challenging what is now contended to be an unreliable identification and (2) failing to address the absence of a specific jury instruction requested by trial counsel. We agree with Judge Jimenez that these arguments, if raised on direct appeal, would have been futile in light of the lack of an actual identification having been made a significant issue at trial, and the abundance of other evidence, albeit circumstantial, that linked Nelson to the crimes.

In sum, Nelson has not made a sufficient showing to warrant a plenary hearing or the ultimate relief of PCR. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (noting that plenary hearings for PCR applications are not required where the defendant has not made a prima facie showing of a meritorious claim). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test.

Affirmed.

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