STATE OF NEW JERSEY v. ROGER EMMONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5808-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER EMMONS,

Defendant-Appellant.

_______________________________________

April 10, 2012

 

Submitted March 6, 2012 Decided

 

Before Judges Yannotti and Guadagno.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-05-0628.

 

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

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. Clark, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Roger Emmons appeals from an order entered by the Law Division on February 4, 2009, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Indictment No. 00-05-0628 with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), third-degree aggravated assault; N.J.S.A. 2C:12-1(b)(2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). He also was charged under Indictment No. 04-02-328 with bail jumping, N.J.S.A. 2C:29-7.

Defendant was tried before a jury on the charges under Indictment No. 00-05-0628. At the trial, evidence was presented, which established that on March 7, 1998, David Agnone (Agnone) was in his home in Bayville, speaking on the telephone with his sister Laurie Passenti (Passenti), when the door bell rang. Agnone put the phone down, opened the door and saw a man who he did not recognize but who was later identified as defendant. He observed a small black truck parked outside. Defendant entered the house and said, "You are in big trouble." He began to swing a four and one-half inch black knife at Agnone. He punched Agnone and then stabbed him in and around the head. Agnone screamed out, telling his sister to call "911" and their father.

A neighbor, Michael O'Neill (O'Neill), reported that, about the time of the attack, he heard a vehicle's tires screech on the street. He went out to his porch and observed a black Ford Ranger parked outside, with someone in the passenger seat. O'Neill also observed a black sedan parked on the street. O'Neill testified that he saw a man walk quickly down Agnone's driveway and enter the Ford Ranger.

Shannon Blanchard (Blanchard) testified that she was living with defendant on March 7, 1998. She said that she drove with defendant in a black Ford Ranger. Defendant told her to follow a black Jetta. They drove to Bayville. The persons in the Jetta pointed to a house, and defendant told her to stop. Defendant got out of the Ranger, approached the house and knocked on the door.

Blanchard saw defendant enter the house. A short time later, defendant exited at a quick pace, entered the Ranger and told Blanchard to drive. Defendant was in possession of a black knife. He told Blanchard he had been in a fight and he used the knife. She noticed blood spots on defendant's pants and shirt. Defendant threw the knife out the window of the truck.

On March 18, 2004, the jury found defendant guilty on all counts. On April 19, 2004, defendant pled guilty to the bail jumping charge in Indictment No. 04-02-328.

Defendant was sentenced on May 14, 2004. On Indictment No. 00-05-0628, the court merged counts two and four with count one for sentencing purposes and imposed ten years of incarceration on count one, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a concurrent eighteen months of incarceration on count three. In addition, on Indictment No. 04-02-0328, the court imposed a four-year term, concurrent to the sentences imposed on Indictment No. 00-05-0628.

II.

Defendant appealed and raised the following arguments:

POINT I. THE TRIAL COURT ERRED IN PERMITTING THE DEFENDANT'S 1 998 AND 1989 CONVICTIONS FROM THE STATE OF OHIO INTO EVIDENCE TO IMPEACH THE DEFENDANT'S CREDIBILITY.

 

POINT II. THE PROSECUTOR'S EXCESSES IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (Not raised below).

 

POINT III. THE DEFENDANT'S CONVICTION FOR BAIL JUMPING MUST BE VACATED BECAUSE THE DEFENDANT DID NOT PROVIDE A FACTUAL BASIS FOR HIS GUILTY PLEA (Not raised below).

 

POINT IV. THE IMPOSITION OF A PRISON TERM ABOVE THE PRESUMPTIVE TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW (Not raised below).

 

POINT V. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

 

We affirmed defendant's convictions and the sentences imposed on Indictment No. 00-05-0628, but reversed the conviction and sentence on the bail jumping charge. State v. Emmons, No. A-0706-04 (App. Div. Dec. 27, 2005) (slip op. at 16-17). Defendant thereafter filed a petition for certification with the Supreme Court. The Court granted defendant's petition, vacated the sentences imposed on Indictment No. 00-05-0628 and remanded the matter for re-sentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Emmons, 186 N.J. 601 (2006). On remand, the trial court imposed the same sentences.

On March 26, 2007, defendant filed a pro se petition for PCR, in which he alleged he had been denied a fair trial. He also alleged that he had been denied the effective assistance of trial and appellate counsel. The court appointed PCR counsel, who filed a brief in support of the petition.

The PCR court considered the petition on December 5, 2008, and on February 4, 2009, entered its decision on the record, denying PCR. The court entered an order dated February 4, 2009, memorializing its decision. This appeal followed.

Defendant raises the following arguments for our consideration.

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 RELEIF.

 

B. THE TRIAL COURT ERRED BY RULING IT WOULD NOT CONSIDER AN UNDATED, UNSIGNED AND UNCERTIFIED STATEMENT OF TRIAL COUNSEL SUBMITTED BY POST CONVICTION RELIEF COUNSEL IN SUPPORT OF HIS BRIEF ON THE DEFENDANT'S BEHALF.

 

C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT IN A TIMELY FASHION TO THE TRIAL COURT'S EXTENSIVE PREJUDICIALLY DAMAGING QUESTIONING OF DEFENSE WITNESS DONALD COLLINS, AND BY FAILING TO REQUEST A MISTRIAL WHEN THE COURT ELICITED OTHER CRIME TESTIMONY INVOLVING THE DEFENDANT FROM HIM.

 

D. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE TRIAL COURT'S QUESTIONING OF THE EMERGENCY ROOM PHYSICIAN WHO TREATED DAVID AGNONE AT THE HOSPITAL, WHICH RESULTED IN TESTIMONY IMPROPERLY ESTABLISHING THE INFLICTION OF SERIOUS BODILY INJURY UPON HIM.

 

E. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S CHARGE NOT ONLY INSTRUCTING THE JURY REGARDING ATTEMPTING TO CAUSE SERIOUS BODILY INJURY, BUT ALSO CAUSING SERIOUS BODILY INJURY AS ALTERNATIVE THEORIES ARISING OUT OF COUNT I.

 

F. TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THE TRIAL COURT INSTRUCT THE JURY REGARDING THE LESSER INCLUDED OFFENSE OF THIRD DEGREE AGGRAVATED ASSAULT INVOLVING THE INFLICTION OR ATTEMPTED INFLICTION OF SIGNIFICANT BODILY INJURY.

 

G. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST THE TRIAL COURT INSTRUCT THE JURY REGARDING SELF-DEFENSE.

 

H. TRIAL COUNSEL FAILED TO FORMULATE A VIABLE DEFENSE THEORY AT TRIAL, INSURING THE JURY WOULD CONVICT THE DEFENDANT OF ALL CHARGES CONTAINED IN THE INDICTMENT.

 

I. THE DEFENDANT IS ENTITLED TO A NEW TRIAL AS A RESULT OF SEVERAL OF THE ISSUES RAISED IN HIS PETITION FOR POST CONVICTION RELIEF; ALTERNATIVELY, SINCE HE ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE IS AT LEAST ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

 

POINT II:

MANY OF THE CONTENTIONS RAISED BY POST CONVICTION RELIEF COUNSEL WERE NOT PROCEDURALLY BARRED BY RULE 3:22-4 SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL.

 

III.

Defendant argues that the PCR court erred by finding that he failed to establish that he was denied the effective assistance of trial counsel. We disagree.

Defendant's ineffective-assistance-of-counsel claim is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693. A defendant also must show that the counsel's errors prejudiced the defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Our Supreme Court has adopted this standard for evaluating claims of ineffective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987).

In assessing whether a defendant's attorney was deficient, we "must give great deference to counsel's performance and must strongly presume that the attorney's conduct constituted reasonable professional assistance." State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002) (citing Strickland, supra, 466 U.S. at 689, 103 S. Ct. at 2065, 80 L. Ed. 2d at 694). We "'must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Id. at 22 (quoting Strickland, supra, 466 U.S. at 690, 103 S. Ct. at 2066, 80 L. Ed. 2d at 695).

Furthermore, to show that counsel's performance prejudiced his defense, a defendant must show "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 103 S. Ct. at 2068, 80 L. Ed. 2d at 698). In this context, "'reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 103 S. Ct. at 2068, 80 L. Ed. 2d at 698).

A. Trial Judge's Questioning of Donald Collins

Defendant claims that his trial attorney erred by failing to make timely objections to the trial judge's questioning of witness Donald Collins (Collins), and by failing to seek a mistrial. We do not agree.

Collins is defendant's friend and he was outside Agnone's home at the time of the attack. Collins testified that, on the date of the incident, he and his girlfriend Karen Coogan (Coogan) were in the black Jetta, and defendant and Blanchard were following them. Collins stated that they drove to Bayville, and defendant entered the Agnone residence. After defendant exited the house, he told Collins that he had "just had a fight." Collins said he did not know whether defendant had a knife.

On cross-examination, Collins said that Coogan had pointed defendant to Agnone's house. Thereafter, the trial judge questioned Collins. The judge asked Collins to explain why defendant went to Agnone's residence if defendant had never met him before, as indicated in previous testimony.

According to defendant, the investigative file reveals that, before the incident at Agnone's house, Blanchard and Coogan went to see Coogan's cousin, William Swanson (Swanson), who was confined in a wheelchair. Swanson told them that Agnone had attacked him, kicked him and stolen his wallet because he believed Swanson owed him money. Blanchard and Coogan related this information to Collins and defendant, and the foursome decided to go to Agnone's residence so that defendant could "talk" to Agnone about the incident involving Swanson.

Defendant alleges that his trial attorney erred by failing to make timely objections to the judge's questioning of Collins. The record shows, however, that trial counsel objected to the questioning, arguing that the judge was venturing into character evidence. The judge ceased his questioning of Collins at this point.

Before the jury was excused for a break, the judge instructed the jury that

when questions are asked by the Court of a witness it is for the sole purpose of eliciting information for your benefit. And you are not to draw any inference from the fact that the Court asked any such questions.

Questions asked by the Court are not to be taken as any indication of any belief or opinion on the Court's part as to how the case should be decided. I remind you that the law does not permit the Court to have such an opinion. And I remind you that you, the jury, are the sole judges of the facts.

 

After the jury left the courtroom, defendant's attorney objected to the questions the judge asked Collins, as well as the manner in which the judge had asked them.

Defendant maintains that counsel's objections were "far too late since the damage had already been done." He asserts that his counsel should have sought a mistrial. The PCR court rejected these arguments. The court determined that the trial judge had acted properly in questioning Collins.

"[T]rial judges possess broad discretion to intervene in a criminal trial where necessary." State v. O'Brien, 200 N.J. 520, 534 (2009) (citing State v. Ray, 43 N.J. 18, 25 (1964)). A trial judge may "step in" when testimony requires clarification. Ibid. (citing State v. Riley, 28 N.J. 188, 200-04 (1958), certif. denied, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed 2d 832 (1959)). However, the trial judge may "not telegraph to the jury any partiality to a given party's side." Ibid. (citing State v. Taffaro, 195 N.J. 442, 451 (2008)).

Here, the PCR court noted that the jury had been presented with evidence that defendant had never spoken with Agnone before he went to his house. The jury also had been presented with conflicting evidence as to whether defendant and anyone exchanged words before the physical altercation, or whether the violence began immediately after defendant entered the house. The court stated that it "would be reasonable for any observer to question why the defendant had even gone to the victim's house." The court therefore concluded it was reasonable for the trial judge to elicit testimony that would aid the jury decide what had occurred or, at the very least, provide some context for the incident.

The record supports the court's determination. As we have pointed out, defendant's attorney objected to the judge's questions. Even if we assume that counsel erred by failing to seek a mistrial, defendant was not prejudiced by the error because the judge did not abuse his discretion by questioning Collins about the circumstances under which defendant went to Agnone's home. The judge's questions were a proper effort to clarify the evidence. Moreover, the judge made clear he was not partial to either side and the jury had the responsibility to decide the factual issues in the case.

B. Trial Judge's Questioning of Emergency Room Physician

Next, defendant contends that his attorney erred by failing to object to the court's questioning of witness Dr. Stephen Germond (Germond). Again, we disagree.

Dr. Germond treated Agnone in the emergency room after the attack. He testified that Agnone had two linear lacerations that required eight stitches beneath Agnone's eye and three staples in his head. He did not note in his chart that Agnone suffered any permanent damage.

After cross-examination and re-direct examination, the trial judge questioned Dr. Germond. The judge provided Dr. Germond with the legal definition of serious bodily injury, and asked if the injuries he treated met that definition.1 Dr. Germond replied that they did not. The following colloquy ensued:

Q. So the injuries that you examined . . . don't fit that legal definition, in your medical opinion -

 

A. No.

 

Q. - of serious bodily injury, is that correct, sir?

 

A. Correct.

 

Q. Okay. The injuries that you treated, did they leave permanent scarring?

 

A. Yes.

 

Q. And is permanent scarring referred to sometimes in the medical profession as permanent disfigurement?

 

A. Yes.

 

The judge informed the jury that it should not draw any inference from the fact that he had questioned the witness.

Defendant argues that trial counsel was deficient because he failed to object to the trial judge's questioning of Germond. Defendant maintains that the judge erred by eliciting testimony that he caused Agnone "serious bodily injury" because he had only been charged with attempting to cause such injury. He also contends that expert testimony was not required for the jury to decide whether Agnone suffered "serious bodily injury."

In addition, defendant contends that Dr. Germond lacked the ability to say whether he had attempted to cause "serious bodily injury" because he never saw Agnone after he treated him in the emergency room. Defendant maintains that it was therefore impossible for Dr. Germond to determine whether Agnone had sustained any permanent scarring or disfigurement as a result of this incident.

The PCR court rejected these arguments. The court noted that the trial judge had provided the jury with the legal definition of "serious bodily injury." The court stated:

Such questioning was within the authority of the trial court, at the trial court's discretion. The legal definition was later explained to the jury during final instructions. The jury charge on each count repeatedly highlighted that the jury, and that the jury alone, was to make the final decision as to which elements were present.

 

As the defendant was charged with an attempt to cause serious bodily injury, it was clearly not an abuse of the trial court's discretion to direct such a question to the physician who treated the victim in the emergency room.

 

Regarding the alleged error of the testimony concerning the nature of the victim's injury, Dr. Germond was the victim's treating physician. Dr. Germond stated that the wounds . . . were linear lacerations, the type that are caused by a knife, or something that is brought straight across. He testified that this type of laceration differs from a stellate laceration which is rugged and usually the result of blunt trauma. On cross-examination by trial counsel, the doctor acknowledged that it could have been caused by any sharp object, including possibly a ring.

 

Dr. Germond was clearly qualified to offer the opinion expressed based on his qualifications and his examination and treatment of the victim in the emergency room. Consequently, trial counsel was not ineffective for failing to object to the expert's qualifications or his testimony, or for any failure to voir dire this witness.

 

In any event, [defendant] has failed to show how such an objection or voir dire would have resulted in a different conclusion. As indicated, Dr. Germond had the proper . . . qualification to testify and offer an opinion. Trial counsel was neither deficient for failing to further question the [witness] nor did his actions result in any . . . undue prejudice to the defendant.

 

We are satisfied that the PCR court correctly determined that defendant was not denied the effective assistance of counsel by the manner in which his attorney responded to the judge's questioning of Dr. Germond. Expert testimony was appropriate on these issues because it assisted the jury in understanding the evidence and material issues of fact. N.J.R.E. 702. Moreover, the judge's questioning was an appropriate effort to clarify Dr. Germond's testimony.

In addition, it was not improper to have the doctor address the question of whether Argone sustained "serious bodily injury," even though defendant was only charged with attempting to cause such injury. Furthermore, Dr. Germond was qualified to state whether, as a general matter, the medical profession considers permanent scarring to be a permanent disfigurement.

C. Jury Instructions

Defendant also argues that he was denied the effective assistance of counsel because his attorney did not object to the jury instructions. We do not agree.

Defendant contends that, because he had only been charged with attempting to cause "serious bodily harm," the charge should not have included instructions on causing "serious bodily harm." Defendant additionally argues that his attorney erred by failing to seek a charge on the lesser offense of third-degree aggravated assault for causing or attempting to cause "significant bodily injury." In addition, defendant contends that his attorney was deficient because he did not seek a charge on self-defense.

In our view, the PCR court correctly determined that counsel did not err by failing to object to the charge on aggravated assault. The charge on aggravated assault properly included a discussion on causing "serious bodily injury." As the State points out, the jury would not be able to determine whether defendant had attempted to cause "serious bodily injury" without an understanding of the elements of aggravated assault involving the actual infliction of such injury.

In addition, the PCR court correctly concluded that counsel was not deficient because he did not seek an instruction on third-degree aggravated assault involving "significant bodily injury." If a defendant seeks a charge on a lesser-included offense, the charge should only be given if there is a rational basis in the evidence for the instruction. State v. Crisantos, 102 N.J. 265, 277 (1986).

The term "significant bodily injury" is defined in N.J.S.A. 2C:11-1(d) to mean "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." Although Agnone testified that he suffered "superficial memory loss" for a period of time after the assault, there was no competent medical evidence to support the theory that Agnone suffered a temporary loss of the function of a bodily member or organ, or temporarily lost one of his five senses.

The PCR court also correctly determined that counsel did not err because he did not seek an instruction on self-defense. The court noted that the evidence did not provide a rational basis for such a charge. N.J.S.A. 2C:3-4 states that self-defense is established by proof that the defendant reasonably believed the use of force is immediately necessary to protect himself against "the use of unlawful force" by another person.

The court pointed out that there was no evidence in this case that Agnone physically threatened defendant through words or actions. At trial, defendant testified that when Agnone came to the door, Agnone assumed a "smart" or "cocky" demeanor. Defendant said that Agnone took a step towards him and seemed "crazy." These actions fall short of the kind of threatening behavior required to justify a charge on self-defense.

Defendant further argues that his attorney erred by failing to present additional testimony to corroborate his self-defense argument. He says that his attorney should have presented evidence showing that Agnone had recently engaged in assaultive behavior against Swanson. However, as we have explained, there was no evidence that Agnone said anything to defendant or took any action suggesting that he was about to engage in an assaultive behavior. Evidence that Argone previously engaged in assaultive conduct was not a sufficient basis for a self-defense charge.

We note that even if counsel erred by failing to object to the charges, defendant has not shown that he was prejudiced thereby. Defendant has not established that there is a reasonable probability there would have been a different result here if counsel had handled the matter as defendant suggests. The evidence clearly supported the jury's finding that defendant committed an aggravated assault involving an attempt to cause "serious bodily injury." In addition, the evidence did not support a claim of self-defense.

D. Defense Strategy

Defendant additionally argues that his attorney was deficient because he did not have a "clear trial strategy." Defendant contends that his attorney initially "seemed to focus" on Agnone's identification of him but subsequently "appeared to attack" the severity of the charges. Defendant claims that this lack of a "clear" strategy was due to inadequate trial preparation.

The PCR court correctly found no merit in this claim. The court pointed out that there are numerous strategies that an attorney could employ when defending a criminal case. The court noted that one strategy is to challenge each element of the charged offense and highlight the existence of reasonable doubt. The court also noted that another strategy is to challenge the identification testimony and the credibility of all the State's witnesses.

The court concluded that defendant had not shown that the strategy employed here was deficient. We agree. Defendant has not established that his attorney's handling of the case was "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 103 S. Ct. at 2066, 80 L. Ed. 2d at 695. Moreover, defendant has not shown that the result would have been different if counsel had chosen a different strategy.

E. Evidentiary hearing

Defendant further contends that the PCR court erred by failing to afford him an evidentiary hearing on his petition. Again, we disagree. An evidentiary hearing was not required here because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

We have considered defendant's other arguments and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

 

1The term "serious bodily injury" is defined in N.J.S.A. 2C:11-1(b) as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]"