STATE OF NEW JERSEY v. TERRENCE JACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0729-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE JACK,

Defendant-Appellant.

February 1, 2013

Submitted January 7, 2013 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0309.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM
 

Defendant Terrance Jack 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 fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Thereafter, in a bifurcated trial, the same jury found him guilty of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).1 On the latter, defendant was sentenced, as a persistent offender, N.J.S.A. 2C:44-3(a), to a discretionary extended term of fifteen years with a seven-and-one-half year period of parole ineligibility. He also received concurrent terms of five years on the weapons offense and eighteen months on the resisting arrest conviction.2

The facts underlying these crimes are taken from our decision affirming defendant's convictions on his direct appeal, State v. Jack, Docket No. A-4527-07 (App. Div. November 19, 2009):3

According to the State's proofs, on December 10, 2006, at around 10:50 p.m., Wend[e]ll Harris drove his daughter's white Mitsubishi Galant to haul garbage to a refuse collection area about three blocks from his Jersey City residence. After placing the garbage in a bin, he turned around and was confronted by a man who stuck a .45 caliber handgun in Harris' chest, demanding that Harris get on his knees. When Harris refused, his assailant ordered him to turn around, which Harris did. Reaching into Harris' pockets, the assailant withdrew a small amount of cash and the keys to the Mitsubishi. After the assailant left the scene in Harris' car, Harris ran back to his home and called the police to report the carjacking.

Two Jersey City plain clothes police detectives arrived at Harris' home within fifteen minutes. Harris recounted the incident, identifying the stolen vehicle as a 1999 Mitsubishi Galant. However, because of poor lighting near the garbage bins, he was only able to give a general description of the assailant as a black male between 5'9" and 6' tall, wearing brown or black sleeves. One of the detectives, Christopher Monahan, immediately broadcast a radio transmission with a description of both the suspect and the vehicle.

About ten minutes later, Monahan received a radio transmission from police headquarters that the department's closed circuit television responsible for monitoring about seventy closed circuit television cameras throughout Jersey City had spotted a white Mitsubishi Galant making a right turn onto Bayview Avenue from Ocean Avenue. Responding to the area, Monahan found the vehicle, and confirmed it was Harris' once he got close enough to read the license plate. Monahan also saw a black male, later identified as defendant, "fitting the description of the person that [they] were looking for . . . standing outside of the car talking to a female." As Monahan and his partner exited their unmarked car, exhibiting police identification in the form of a silver badge, defendant fled the scene on foot, and the officers gave chase. During the foot chase, Monahan saw defendant discard a handgun from his waistband, which was later recovered by the police. The chase continued, and eventually Monahan, with the assistance of three other police officers, subdued defendant in the backyard of a nearby residence, handcuffed, and placed him under arrest.

[Id. at 3, 4.]

At the close of evidence, and after summations and jury instructions, deliberations commenced. A video of jury deliberations showed the jurors watching a police surveillance CCTV video depicting the vehicle in question. The jurors viewed the CCTV video in the open courtroom on a laptop computer placed on the prosecutor's end of the table, with papers sitting on the table towards the middle. The judge stood behind the jurors silently while they watched the video. The jurors used their own magnifying glasses as a means of enhancing the quality of the video. While watching the video, one of the jurors commented to the other jurors, contrary to the court's directive, to "look at this view" and "notice what's here."

Following our affirmance of defendant's convictions and the Supreme Court's denial of his petition for certification, defendant filed a timely PCR petition, in which he claimed he was denied a fair trial and counsel was ineffective for failing to object to improper jury deliberations and so-called "disjointed" trial procedures on the bifurcated charge. As to the former, defendant specifically complained that: (1) jurors were permitted to use their own magnifying glasses while watching the CCTV video; (2) one juror commented while watching the video; (3) the jury watched the video on a laptop computer placed on the prosecution's side of the table, which also contained some of the State's papers; and (4) the judge remained present in the courtroom while the jury watched the video. As to the procedures accompanying the trial on the bifurcated charge, defendant argued: (1) trial counsel was not given the opportunity to present both opening and closing statements; and (2) the single statement trial counsel was allowed to give came only after the trial judge's jury charge on the "certain persons" offense. Defendant also claimed ineffective assistance of appellate counsel.

The PCR judge, who was also the judge who presided over defendant's trial, denied relief, concluding that defendant did not establish a prima facie case of ineffective assistance on the part of either trial or appellate counsel, and therefore was not entitled to an evidentiary hearing on the matter. The judge reasoned thus:

Next, [defendant] argues that he was denied a fair trial because the trial Court allowed the jury to view part of the evidence with a magnifying glass and in the presence of the Judge. The record shows that trial counsel and the Court discussed this issue at length and the Court ruled that the use of the magnifying glass was proper. Trial Court allowed the jury to view the evidence on a smaller screen with a magnifying glass because the Court was having trouble with the big screen. There has been no evidence presented to indicate how the use of the magnifying glass may have tainted jury deliberations.

As to the presence of the judge, the Court did not add anything during the video playback or comment on the video in anyway. I was extremely cautious while my clerk played the tape as to not ascertain what the jury was thinking. The reason I did not send the computer into the jury room was the jury would have had a difficult time operating the computer.

In finding the procedure used in the bifurcation did not deprive defendant of a fair trial, the PCR judge reasoned that

after the jury reached its verdict, the Court brought the jurors back for the presentation of [the] certain persons not to have [weapons] charge. This was done to avoid jury [prejudice] arising from evidence that the defendant is a convicted felon. Thereafter, the trial Court allowed the attorneys to discuss the issues with the jurors. . . . At that time[,] both the prosecutor and defense counsel presented a combined opening and closing statement as to the certain persons charge. [Thus,] the bifurcated [manner] in which the Court addressed the certain persons charge was proper and did not deny the Petitioner his right to an impartial jury.

As to all the issues raised by defendant, the PCR judge also concluded that

[defendant] has not shown that there is a reasonable probability that[,] but for the counsel's unprofessional error, the results of the proceeding would have been different. [Defendant] offered no evidence to suggest in any way that if trial counsel objected to jury's deliberations, the outcome would have been different. Likewise, had appellate counsel raised these issues on appeal, the record would support [that defendant] received a fair trial and the verdict was supported by the evidence.

On appeal, defendant raises the same issues as below:

I. [DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE

A. Trial counsel was ineffective in failing to argue that defendant was denied a fair trial as a result of improper jury deliberations

B. Trial counsel was ineffective in failing to argue that defendant was denied a fair trial as to the bifurcated "certain persons" charge

C. Defendant was denied the effective assistance of appellate counsel

We find these issues to be without merit, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by Judge Theemling in his oral opinion of November 15, 2010. We add only the following comments.

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, e.g., Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58-61 (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). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Here, trial counsel did object to the jurors' use of a magnifying glass and stated her grounds at some length before reiterating her objection:

Judge, I would also . . . place on the record my argument that [the jury] should also be instructed that if anyone has brought [a magnifying glass] with them[,] that they are not allowed to use it and my reason, Judge, is that the jury is not permitted to conduct their own investigation. They must take the evidence in the condition in which it's given to them. If either counsel wished to enhance it in any fashion, they could have done so. They could have introduced the magnifying glass. They could have had the pictures blown up. They could have had the pictures enhanced. That was not done. As such, the jury is not allowed to do it on their own.

Thus, defendant has not satisfied the first prong of the Strickland test. Simply alleging, as defendant does here, that counsel did not object strenuously enough does not demonstrate deficient performance.

Equally meritless is defendant's claim of prejudice from the placement of the laptop used to replay the CCTV video on the prosecution's side of the table, surrounded by some of the State's papers. As depicted in the courtroom video, the jurors stood at the far end of the table where the judge's law clerk played the video, with the judge behind them, while the papers were more towards the middle of the table. The jurors can be seen intently watching the laptop screen, and there is no indication that they could have even seen what was on the papers from where they were standing, or how any information otherwise visible on the papers may have affected their deliberations.

Nor has it been shown how the presence of the judge in the open courtroom while the jury viewed the CCTV video could possibly have prejudiced defendant. On this score, the judge

explained that there would be difficulties with the jurors operating and having control over the computer in the jury room. He also explained that he remained in the courtroom behind the jury to insulate the jurors from any undue influence while they watched the video. Moreover, the judge gave the jurors explicit instructions that while they watched the video, they were not to discuss or verbally react to what they were seeing other than to request that the court pause or rewind the video. Under the circumstances, we discern no deficiency in trial counsel's failure to object to the judge's presence, see, e.g., State v. Miller, 205 N.J. 109, 122-23 (2011); State v. Burr, 195 N.J. 119, 133-35 (2008); State v. Michaels, 264 N.J. Super. 579, 643 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994), or, for that matter, any prejudice to defendant arising therefrom.

Moreover, the fact that a lone juror made a singular comment while watching the CCTV video does not render counsel ineffective for failing to object thereto. In the courtroom video, the juror can be heard to say:

I want you to back up for a second and I'm going to point something out with my finger. Alright, look at this view, OK? Notice what's here. Notice what's parked there.

While the juror's comment may have violated the judge's instruction to not say anything beyond requesting that the CCTV video be started, stopped, paused, or played back again, it was clearly harmless. The juror did nothing more than point out the vehicle depicted in the video and there is no indication that the remark factored into the jury's ultimate deliberations. Nor did the juror's comment evoke a response from any other juror. Therefore, even if counsel was mistaken in not objecting, there is no likelihood that this lone comment produced a different trial outcome than if no such comment had been made.

We similarly reject defendant's final argument that counsel was ineffective on the bifurcated "certain persons" charge for failing to timely object to the judge (1) only allowing counsel for each side to present one combined opening and closing statement; and (2) charging the jury on the "certain persons not to have weapons" offense before either side delivered their statements. While trial counsel waited until after the judge charged the jury on the "certain persons" offense to request that each side be allowed to present opening and closing arguments, defendant does not demonstrate any resultant prejudice or denial of a fair trial. There is no support in the record for defendant's blanket assertion that by the time each side's combined arguments were made, the jury had already "heard the elements and formed its decision." Indeed, defendant does not contend that the court's jury charge was improper in any respect. In fact, the judge appropriately instructed the jury to completely disregard its prior verdict and freshly consider all previously admitted evidence on whether defendant possessed a weapon. Thus, there is no reason to surmise that the effectiveness of trial counsel's subsequent argument was diminished because the jury had already been correctly instructed on the elements of the "certain persons" offense. As to whether counsel should have been permitted to deliver separate opening and closing arguments, defense counsel, as noted, did object to the judge's procedure that allowed each side to make only one statement. In any event, since no witnesses were heard and no new evidence presented, the omission was harmless and did not negatively affect the fairness of the procedure. There is no reasonable likelihood that the outcome would have been any different if trial counsel had voiced her objection earlier and the court had allowed her to make an argument prior to the jury charge.

Lastly, our rejection of defendant's claims of ineffective assistance of trial counsel compels the same conclusion with respect to defendant's identical claim of ineffective assistance of appellate counsel. State v. Morrison, supra, 215 N.J. Super. at 545-46.

1 Defendant was acquitted of first-degree carjacking, N.J.S.A. 2C:15-2; armed robbery, N.J.S.A. 2C:15-1; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

2 Defendant's aggregate fifteen-year term with a seven-and-one-half year parole bar was made to run consecutive to an unrelated sentence defendant was then serving.

3 Defendant's subsequent petition for certification was denied by the Supreme Court. State v. Jack, 201 N.J. 274 (2010).