STATE OF NEW JERSEY v. TURI REDDICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4566-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TURI REDDICK,

Defendant-Appellant.

_______________________________

Submitted February 14, 2012 Decided March 22, 2012

Before Judges Parrillo and Hoffman.

On appeal from Superior Court of New Jersey, Law

Division, Union County, Indictment No. 02-05-0632.

Joseph E. Krakora, Public Defender, attorney for

appellant (Alan I. Smith, Designated Counsel, on

the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Michelle J. Ghali, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Turi Reddick appeals from the Law Division's denial of his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of first-degree reckless manslaughter, N.J.S.A. 2C:11-4b, as a lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); second-degree possession of a weapon, a shotgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon, a shotgun, without a permit, N.J.S.A. 2C:58-3, N.J.S.A. 2C:39-5c(1) (count five). For sentencing purposes, the trial judge merged counts one, two, and four into count three, and on that count imposed a thirty-five year prison term with a thirty-year period of parole disqualification. On count five, the court imposed a consecutive five-year term.

On direct appeal, we vacated the sentence on count five, remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and otherwise affirmed the judgment of conviction. State v. Reddick, A-4073-03 (App. Div. November 2, 2006). On remand, the trial court reimposed a consecutive five-year term on count five. The Supreme Court denied defendant's petition for certification. State v. Reddick, 191 N.J. 317 (2007).

The underlying criminal episode arises out of a botched robbery of a home in Roselle. The victim grabbed the barrel of the shotgun that defendant had stuck between the door and door jam to stop the victim from closing the door. A struggle ensued after the victim grabbed the barrel and refused to let go of the gun. According to defendant's own statement:

The plan was to go to the house, not [to] hurt anybody[.] [B]ut they wanted money out of the situation[,] and he said there was a lot of money there. I don't know if it was anything personal[,] but [Burns] said there was a lot of money there, over 13 g's easy.

. . . .

. . . [O]nly the son and sometimes the mother be there and they leave the front door wide open[.] [T]hey never lock it.

Defendant claims the gun went off as he was pulling the gun away from the victim in an effort to retreat. In a statement to police, defendant said he wanted the victim to let go of the gun, "[c]ause I realized I was dead wrong and I was gonna run but I didn't want to leave the gun."

Defendant filed a timely PCR petition in which he alleged, among other things, that the trial court improperly failed to include a renunciation and causation charge. The PCR court rejected this claim on both procedural and substantive grounds. As to the former, the judge found that defendant's claim was previously adjudicated and rejected on his motion for a new trial, Rule 3:22-5, and also could have been, but was not raised on direct appeal, Rule 3:22-4. Finding no substantive merit to this claim as well, the PCR judge concluded:

In the present matter, it is clear that defendant did not attempt to abandon his efforts to commit the crime or "otherwise prevent its commission" as per N.J.S.A. 2C:5-1(d). If petitioner did actually want to abandon the crime, it occurred only after circumstances became apparent that were not apparent at the inception of his course of conduct, that is, the door was locked, Michael Dixon was not home, and Mary Lou Nolan grabbed the firearm. Furthermore, these circumstances made more difficult the accomplishment of the criminal purpose, to take money from Michael Dixon. Therefore, as Judge Barisonek noted, this charge was not viable, and counsel can not be found objectively deficient, as per Strickland-Cronic for not requesting it. Even if counsel had requested it, based on the aforementioned analysis, it is clear that the outcome of the trial would not have been altered. Therefore, the second prong of Strickland-Cronic has not been satisfied.

The majority of defendant's other PCR claims centered on allegations of ineffective assistance of counsel, chief among which was that counsel failed to investigate and call witnesses concerning the circumstances of defendant's arrest and resultant confession. In this regard, defendant produced certifications from his mother, girlfriend and himself to the effect that when defendant was taken into custody, he was not informed that he was under arrest. The PCR court rejected this claim as well, reasoning:

Both certifications are dated June 25, 2009, more than seven years after the relevant events took place. Why were these certifications not submitted earlier? Why did [defendant's] girlfriend and mother suddenly realize that [defendant] was never told that he was under arrest? Furthermore, as it took seven years for these revelations to occur, it is unclear what a more thorough investigation by counsel would have uncovered or what calling both women as witnesses either at the Miranda1 motion or at trial would have accomplished. [Defendant] is also closely related to both these witnesses; therefore there is also a motive to fabricate. Lastly, there is no evidence that [defendant's] attorney never investigated or interviewed [defendant's] mother and girlfriend.

While [defendant] claims that he told his attorney that he wanted his mother and girlfriend to testify, the record is completely devoid of any indication that this actually occurred. [Defendant] expects this court to rely solely on his word; however, this court can not do that, especially where there is evidence to contradict his word. For instance, this court reviewed the testimony of Sergeant Carl Riley who indicated that he informed [defendant] that he was under arrest. Furthermore, the court also has [defendant's] own words where he acknowledged that he was under arrest before he gave an inculpating statement.

Therefore, this court can not find that [defendant's] counsel was objectively deficient for not calling [defendant'] mother and girlfriend to testify during the Miranda Hearing. This court will give deference to the judgment of counsel as per Strickland, supra.

Even if [defendant's] attorney had called [defendant's] mother and girlfriend there is no indication that the result would have been any different. . . .

. . . As noted, supra, according to Sergeant Riley, defendant's parents, his girlfriend, and defendant were informed that defendant was going to be "under arrest and charged with participating in a murder." Furthermore, defendant acknowledged that he was under arrest for the murder of Mary Lou Nolan while talking to police. However, even if defendant's mother and girlfriend were to testify the court would most likely view their testimony with skepticism based on the foregoing, Therefore, [defendant] has not satisfied the second prong of the Strickland-Cronic test as he has not demonstrated how he was prejudiced by his attorney's actions.

[(Footnote added) (internal citations omitted).]

On appeal from the denial of his PCR petition, defendant raises the following issues:

I. THE COURT MISAPPLIED THE PROCEDURAL BARS OF RULE 3:22-4 AND RULE 3:22-5 IN DENYING POST-CONVICTION RELIEF.

II. SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

III. THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMEMT TO THE UNITED STATES CONSTITUTION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

(A)

THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF.

(B)

THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.

(C)

THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BECAUSE IT FAILED TO INSTRUCT THE JURY ON CAUSATION.

(D)

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLANT COUNSEL.

(E)

THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We, therefore, affirm substantially for the reasons stated by Judge Mega in his comprehensive written opinion of April 14, 2010.

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