STATE OF NEW JERSEY v. SHIRLEY LANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0500-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHIRLEY LANE,

Defendant-Appellant.

________________________________

February 4, 2013

Submitted January 24, 2013 - Decided

Before Judges Grall, Koblitz and Accurso.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 06-04-0863.

Joseph E. Krakora, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County

Prosecutor, attorney for respondent (Jack

J. Lipari, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

A jury found defendant Shirley Lane guilty of second-degree robbery, N.J.S.A. 2C:15-1, and the judge sentenced her to an eight-year term of imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Subsequently, her conviction and sentence were affirmed on appeal and her petition for certification was denied. State v. Lane, No. A-3370-07 (App. Div. Feb. 25), certif. denied, 199 N.J. 541 (2009). Defendant now appeals the denial of her petition for post-conviction relief.

The robbery occurred in the women's restroom of a casino transportation center in Atlantic City. Cecilia Smith left her friend James Rose to use the restroom, and he waited for her outside. Smith did not see anyone when she entered the restroom, but as she left her stall she saw defendant. Defendant attacked Smith from behind, pushed her head down and into the sink, punched her in the face, took two chains from her neck and attempted to take a ring off her finger. Smith fled the restroom.

Smith pointed defendant out to a security guard, who detained defendant until the police arrived. Defendant had two broken necklaces and a barrette, which Smith identified as hers, and Smith had a thin linear red mark on her neck.

Defendant's version of her encounter with Smith was quite different. She claimed that she saw Smith and Rose fighting outside the restroom before entering the restroom. Smith came into the restroom after defendant. She was crying and told defendant that Rose had taken her money and that she had no way to get home. Consequently, defendant agreed to give Smith twenty dollars for her necklace. According to defendant, she found the barrette on the restroom floor.

On direct appeal, defendant argued:

I. [DEFENDANT] WAS DEPRIVED OF HER RIGHT

TO A FAIR TRIAL BY THE PROSECUTOR'S HIGHLY IMPROPER SUMMATION, IN WHICH SHE VOUCHED FOR SMITH'S CREDIBILITY AND CONTRASTED HER WITH [DEFENDANT], WHO, ACCORDING TO THE PROSECUTOR, HAD A "REASON TO LIE." (Not Raised Below).

II. BECAUSE THE STATE'S EVIDENCE WAS

INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT ROBBED THE COMPLAINANT, THE CONVICTION MUST BE VACATED AND A JUDGMENT OF ACQUITTAL ENTERED. ALTERNATIVELY, THIS COURT SHOULD SET ASIDE THE JURY'S GUILTY VERDICT AS BEING AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below).

A. The Judge Committed Plain Error in Not Acquitting [Defendant] of Robbery Sua Sponte.

B. The Trial Judge Should have Set Aside the Jury's Guilty Verdict as Against the Weight of the Evidence.

III. IN IMPOSING AN EIGHT-YEAR TERM OF

IMPRISONMENT, WITH 85% PAROLE INELIGIBILITY, THE COURT CREATED A MANIFEST INJUSTICE. THE SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.

Following her appeal, defendant moved for post-conviction relief asserting multiple errors by her trial and appellate counsel, all of which the trial court rejected. On appeal for the denial of her petition, she complains of two errors made by her trial counsel that deprived her of effective assistance of counsel. Specifically, she contends:

I. THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTION THAT SHE 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 RELIEF.
 

B. THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST A MISTRIAL ARISING FROM THE ELICITATION OF UNEXPECTED N.J.R.E. 404(b)-TYPE TESTIMONY INVOLVING THE DEFENDANT, INSTEAD REQUESTING THE COURT ISSUE A CURATIVE INSTRUCTION.

C. TRIAL COUNSEL PROVIDED INEFFECTIVE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS CROSS-EXAMINATION OF A STATE'S WITNESS WHICH ELICITED PREJUDICIAL AND DAMAGING TESTIMONY REGARDING HIS CLIENT IN SEVERAL DIFFERENT RESPECTS.

D. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

In order to obtain relief based upon ineffective assistance of counsel, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). The trial court did not err in concluding that defendant failed to make a prima facie showing of entitlement to relief under that standard.

Defendant's claims of deficient performance rest on a single response given by a State's witness on cross-examination and her trial counsel's response. She argues that her counsel improperly elicited prejudicial testimony from a witness for the State, the casino's supervisor of security, and then failed to request a mistrial.

First, defense counsel did not elicit the testimony defendant finds objectionable. Defense counsel asked the supervisor if he had placed defendant's name on the list of persons barred from the casino after this incident. In responding, the supervisor went beyond the scope of the question and testified that defendant's name was on the list prior to this incident. Surprised by that answer, defense counsel acted to cure the prejudice by promptly objecting.

Defendant places great emphasis on the fact that defense counsel's question had no apparent purpose.1 Defense counsel's summation suggests his purpose. The physical evidence the red mark on Smith's neck consistent with a necklace being ripped off and defendant's possession of broken necklaces was persuasive. Confronted with that evidence, the theory of the defense was that the police rushed to judgment relying on the investigation done by the casino's security officers. A demonstration of bias on the part of the security officers arguably would have given additional exculpatory weight to that theory. In any event, whether or not the attorney anticipated a helpful response, the answer was unresponsive, not elicited.

Even if we were to conclude that reasonably competent counsel would not have posed the question, defense counsel promptly acted to cure the resulting prejudice. As noted above, it is not enough to show that counsel made a mistake, defendant had to show a reasonable probability that the result of the proceeding would have been different if counsel had not asked the question.

Defendant cannot make that showing because of the curative instruction that the court gave in response to defense counsel's objection. The court immediately directed the jurors to disregard the testimony. The trial court told the jurors that there was no evidence of the fact that the supervisor asserted and that they could not consider the testimony for "any reason whatsoever." The trial court further explained: "You must act as if it was never heard. That means you must disregard it, it must not be part of your deliberations, either in your own internal thinking or in the deliberations that you share with your fellow jurors." In the absence of evidence suggesting otherwise, it is assumed that jurors follow clear instructions from the trial court. State v. Burns, 192 N.J. 312, 334-35 (2007); State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).

We also reject defendant's claim based on her trial counsel's failure to request a mistrial. In light of the trial court's clear curative instruction, counsel's decision to refrain from requesting a mistrial is neither less than reasonably competent nor capable of producing prejudice.

A trial court should not grant a mistrial unless it is necessary "to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). In determining whether a mistrial is appropriate, a court considers whether the prejudice may be eradicated by an adequate curative instruction. State v. Winter, 96 N.J. 640, 646-47 (1984); State v. Witte, 13 N.J. 598, 611 (1953). A mistrial is warranted when the harm is "plainly ineradicable by an instruction to the jury." Witte, supra, 13 N.J. at 611.

In this case, the supervisor's impermissible response to defense counsel's question was nothing more than a passing reference to defendant being placed on the casino's list of persons barred from its premises. That uninvited response did not include any explanation of the conduct that qualifies a person for the list, and there was no testimony suggesting that eligibility was dependent upon criminal conduct. In short, while the supervisor's testimony suggested some untoward conduct, any prejudice from the vague and fleeting reference was barely perceptible and far from the "ineradicable" prejudice warranting a mistrial.

Trial counsel is not deemed to act outside the wide range of professional competence for failing to raise an objection that is without legal basis. State v. Harris, 181 N.J. 391, 497 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). On the same reasoning, counsel who does not make a futile request for unavailable relief cannot be deemed deficient. In the circumstances of this case, where the curative instruction was adequate to eradicate the prejudice, there was no basis for a mistrial. Accordingly, defendant cannot show either deficient performance or prejudice based on her trial counsel's failure to pursue that relief.

Affirmed.

1 The judge who heard oral argument on this petition as well as the prosecutor were under the mistaken impression that the prosecutor asked the question that yielded the unresponsive answer. The judge concluded, as we do, that any prejudice from the response was cured by defense counsel's prompt objection and the trial court's curative instruction.