STATE OF NEW JERSEY v. DAVID HOWARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID HOWARD,

Defendant-Appellant.

_______________________________________________________________

November 20, 2013

 

Submitted April 29, 2013 Decided

Before Judges Graves and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment Nos.

03-12-1274 and 03-12-1275.

Joseph E. Krakora, Public Defender, attorney

for appellant (Arthur J. Owens, Designated

Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Travis H. Carter,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

GRAVES, J.A.D.

Defendant David Howard appeals from an April 28, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a trial, a jury convicted defendant of murder for purposefully or knowingly causing the death of Anthony Baker, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of the same handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). In a separate trial before the same jury,1 defendant was convicted of second-degree possession of a handgun by a prohibited person, N.J.S.A. 2C:39-7(b)(1).

At sentencing on March 4, 2005, defendant thanked his attorney "for the hard work that she put in the case." In addition, the trial court described the manner in which the shooting occurred as follows:

Now in this particular case the victim, Anthony Baker, had walked across the street and told the defendant that he had to leave the area. . . . As a result, the defendant Howard did leave the area, but he returned to the area with a gun. After a period of time the defendant Howard walked across the street, and as he walked past Anthony Baker, he said something to the victim.

 

. . . As the victim turned around to talk to him, [defendant] shot him point blank in the chest. This was an execution. Although the victim Anthony Baker may have been involved in some improper behavior with respect to drugs at the time, the defendant executed the victim in cold blood.

 

The court sentenced defendant to a fifty-year prison term with forty-two-and-one-half years of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's other convictions were either merged with count one or the court imposed concurrent sentences.

On direct appeal, defendant presented the following arguments through counsel:

POINT I

 

THE JURY INSTRUCTIONS WERE FATALLY FLAWED IN TWO RESPECTS: (1) FAILING TO CHARGE CAUSATION WHEN THE EVIDENCE INDICATED THAT A RELATIVE OF THE VICTIM, NOT DEFENDANT, MAY HAVE FIRED THE FATAL SHOT, AND (2) FAILING TO INSTRUCT THE JURY ON THE CLEARLY INDICATED LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below.)

 

A. CAUSATION.

 

B. PASSION/PROVOCATION MANSLAUGHTER.

 

POINT II

 

IN DIRECT VIOLATION OF STATE V. ALVAREZ, THE STATE IMPROPERLY REFUSED DEFENDANT'S STIPULATION THAT HE HAD THE REQUISITE PRIOR CONVICTION FOR THE COUNT OF THE INDICTMENT CHARGING CERTAIN PERSONS NOT TO HAVE A WEAPON.

 

POINT III

 

A REMAND FOR MINOR SENTENCING AND MERGER ISSUES SHOULD BE ORDERED.

 

Defendant also raised additional arguments in a pro se supplemental brief:

POINT I

 

INTRODUCTION OF OTHER-CRIMES/ACTS EVIDENCE DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND CONSEQUENTLY REQUIRES REVERSAL OF THE CONVICTION.

 

POINT II

 

DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WHEN HE WAS CALLED BOTH A RACIAL SLUR AND OBSCENITIES REPEATEDLY BY A MEMBER OF THE VICTIM'S FAMILY, WHO MADE VARIOUS OUTBURSTS AND DEMONSTRATED HIGHLY PREJUDICIAL BEHAVIOR WHILE TESTIFYING.

 

POINT III

 

THE LOWER COURT ERRED BY NEGLECTING TO PROPERLY INSTRUCT THE JURY REGARDING MEDIA INFLUENCES AND COMMENTS ABOUT THE CASE FROM NON-JURORS, AND EXTRANEOUS PREJUDICES ARE RECORD SUPPORTED.

 

POINT IV

 

THE CUMULATIVE IMPACT OF THE ISSUES RAISED BY THE APPELLATE ATTORNEY AND RAISED IN THIS SUPPLEMENTAL LETTER BRIEF DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL RIGHTS TO A FAIR TRIAL AND WARRANT REVERSAL.

 

We concluded that defendant received a fair trial and affirmed his convictions, but we remanded minor sentencing issues to the trial court.2 State v. Howard, No. A-2539-05 (App. Div. Aug. 25, 2009), certif. denied, 200 N.J. 548 (2009). In that opinion, we noted that the victim's brother, Joseph Baker, and the victim's cousin, West Johnson, witnessed the shooting, and they both positively identified defendant as the shooter. In addition, their eyewitness testimony was corroborated to some extent by Denise Baker, who witnessed the shooting from inside her residence, and by Ismeel Lewis, who was present prior to the shooting. We further noted that defendant did not testify or call any witnesses on his behalf.

After we affirmed defendant's convictions, he filed a petition for PCR alleging, among other things, that he did not receive a fair trial because his attorney was ineffective. Assigned counsel submitted an initial brief, a supplemental brief, and a reply brief in support of defendant's petition. Following oral argument on April 25, 2011, the PCR court determined that defendant failed to substantiate his claims and his application was denied.

On appeal from the order denying his petition, defendant presents the following arguments through counsel:

POINT I

 

THE [PCR] COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

A. TRIAL COUNSEL'S FAILURE TO REQUEST A WADE[3] HEARING WITH RESPECT TO JOSEPH BAKER'S IDENTIFICATION OF DEFENDANT CONSTITUTED INEFFECTIVENESS OF COUNSEL.

 

B. TRIAL COUNSEL WAS INEFFECTIVE IN ELICITING THE FACT THAT DEFENDANT WAS INVOLVED IN NARCOTICS TRAFFICKING.

 

C. TRIAL COUNSEL'S FAILURE TO MOVE FOR A MISTRIAL AFTER WEST JOHNSON'S EXPLOSIVE OUTBURSTS IN THE COURT ROOM CONSTITUTED INEFFECTIVENESS OF COUNSEL.

 

POINT II

 

THE [PCR] COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

 

POINT III

 

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR [PCR]. (Not Raised Below.)

 

Additionally, defendant argues in a pro se supplemental brief that he is entitled to either a new trial or a new PCR hearing because PCR counsel was ineffective.

Based on our examination of the record, we conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following comments.

Pursuant to the Sixth Amendment of the United States Constitution, a person accused of a crime is guaranteed the effective assistance of legal counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland. "First, the defendant must show that counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must show that the deficient performance prejudiced the defense." Ibid. This requires the defendant to show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, paragraph 10 of the New Jersey Constitution).

Trial courts should ordinarily grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim and the facts supporting the claim are outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, a defendant must show a reasonable likelihood of succeeding under the Strickland/Fritz two-part test. Id. at 463. 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); see also State v. Marshall, 148 N.J. 89, 158 ("The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief."), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Defendant's claim that his attorney was ineffective for failing to request a Wade hearing to challenge Joseph Baker's out-of-court identification of defendant is not supported by the record. A pretrial identification is admissible at trial unless the identification procedure was impermissibly suggestive, and the objectionable procedure created a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1998)4 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

"[T]here is no automatic entitlement to an evidentiary hearing [to contest] an out-of-court identification." State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). "A threshold showing of some evidence of impermissive suggestiveness is required." Ibid. In this case, the PCR court found defendant was not entitled to an evidentiary hearing, because there was no evidence to support his claim that the photo array viewed by Joseph Baker was impermissibly suggestive. Based on our review of the record, we agree that Joseph Baker's out-of-court identification of defendant was not impermissibly suggestive and there was no likelihood of misidentification. Therefore, defense counsel was not deficient for failing to request a Wade hearing.

Defendant also argues his attorney was ineffective for eliciting testimony from West Johnson that defendant was engaged in drug trafficking. This argument is based on the following questions by defense counsel and responses by Johnson:

Q. And you were telling Kwan he had to leave?

 

A. Uh-huh. I'm just telling him in front of my aunt's house is non-negotiable. My aunt don't like people hustling in front of her house. So could you, please, show her some respect and don't sell drugs in front of her house.

 

Q. That is what you told Kwan?

 

A. That is what I told Kwan.

 

Thus, Johnson's testimony regarding the sale of drugs was not prompted by defense counsel, and the testimony did not imply that defendant was selling drugs. Moreover, in her summation, defense counsel used the testimony to suggest that Johnson was a drug dealer, who was protecting his turf. Under these circumstances, we agree with the PCR judge that defense counsel was not ineffective.

We also reject defendant's claim that he was prejudiced by his attorney's failure to request a mistrial after Johnson's "violent and racist outburst at the beginning of his testimony." As evidenced by the trial court's comments to Johnson out of the presence of the jury, his immature statements undermined his credibility. In addition, the court provided the jury with an appropriate curative instruction, and defense counsel argued in her summation that Johnson's demeanor negatively impacted the State's case:

Now, West Johnson. West Johnson is a tortured soul, and he came here and testified before you, you saw him, and all he wanted you to know, all he could even get out, for the most part, was that, "This man killed my cousin. This man killed my cousin. This man killed my cousin. This man killed my cousin." He must have said it 20 or 30 times. He couldn't even answer a question from the prosecutor about anything else. It was as if, if he said it enough he may convince you, or himself, that that's the way it really was.

 

Thus, the PCR court properly determined that defense counsel was not ineffective for failing to request a mistrial.

We also reject defendant's new argument regarding the alleged ineffectiveness of PCR counsel. The record confirms that PCR counsel's representation of defendant fully conformed with the requirements of State v. Rue, 175 N.J. 1, 13-19 (2002) and State v. Webster, 187 N.J. 254, 257-58 (2006).

Finally, the court did not abuse its discretion in denying defendant's petition without an evidentiary hearing, because defendant failed to establish a prima facie claim of ineffective assistance of counsel under the Strickland/Fritz test. As this court has recognized, the Sixth Amendment does not require "an attorney to be 'effective' in terms of crafting a defense when none actually exists." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000).

Affirmed.

1 When a defendant is charged with both unlawful possession of a handgun and possession of a handgun by a prohibited person, the "two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former." State v. Ragland, 105 N.J. 189, 193 (1986).

2 We have not been provided with a copy of the amended judgment of conviction.

3 United States v. Wade, 388 U.S 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

4 In State v. Henderson, 208 N.J. 208, 288 (2011), the Court revised the guidelines for evaluating out-of-court identification procedures. However, those guidelines do not apply here because defendant was tried before Henderson and the decision is not retroactive. Id. at 302.