STATE OF NEW JERSEY v. MICHAEL RICKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2403-10T3

A-5959-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL RICKS and DARIUS MURPHY,

Defendants-Appellants.

_________________________________

March 25, 2013

 

Submitted March 12, 2013 Decided

 

Before Judges Reisner and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-04-1271.

 

Joseph E. Krakora, Public Defender, attorney for appellants (Michael Confusione, Designated Counsel for Michael Ricks in A-2403-10, on the brief; David A. Gies, Designated Counsel for Darius Murphy in A-5959-10, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief in A-2403-10; Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief in A-5959-10).

 

Michael Ricks, appellant filed a supplemental brief.

 

Darius Murphy, appellant filed a supplemental brief.

PER CURIAM

Defendants Michael Ricks and Darius Murphy appeal from an August 18, 2010 order denying their petitions for post-conviction relief (PCR), based on their claim that one of the jurors at their trial failed to disclose that her sister was a law enforcement officer. Defendant Murphy also appeals from a September 28, 2010 order, denying his PCR petition asserting a claim that his trial attorney rendered ineffective assistance of counsel. We consolidated the appeals for purposes of this opinion, and now affirm both orders.

I

Defendants were tried together for murder and other associated offenses, arising from a failed attempt to rob a drug dealer on the evening of September 7, 1995.1 During the attempted robbery, the victim was shot and killed. On November 21, 1996, both defendants were convicted of felony murder, reckless manslaughter, and robbery. We affirmed their convictions on direct appeal. State v. Ricks, No. A-4116-96 (App. Div. June 15, 1999), certif. denied, 162 N.J. 485 (1999); State v. Murphy, No. A-2262-97 (App. Div. June 15, 1999), certif. denied, 162 N.J. 485 (1999). In 2000, Murphy filed a pro se PCR petition and later filed a pro se motion for a new trial based on newly discovered evidence. After counsel was assigned to represent him, the matter was heard and the motion and petition were denied by order dated August 30, 2004.

In our opinion adjudicating Murphy's appeal from the 2004 order, we affirmed in part and remanded in part. State v. Murphy, A-0708-04 (App. Div. May 22, 2007). We limit our discussion to the two issues we remanded to the PCR court. First, Murphy asserted that, years after his trial was over, he learned that one of the jurors, a woman known as B.D., was related to a law enforcement officer but failed to disclose that fact during voir dire. Second, Murphy contended that he advised his trial counsel, Edward Jerejian, Esq.,2 that there were alibi witnesses who could place Murphy at a location distant from the scene of the crime. Murphy contended that Jerejian declined to present those witnesses at trial because the attorney preferred to rely on a different trial strategy. Murphy contended that, in refusing to present an alibi defense, Jerejian rendered ineffective assistance of counsel. In support of his claim, Murphy presented affidavits from several of the alleged alibi witnesses.

In remanding the case, we held that Murphy was entitled to an evidentiary hearing on the issue of the juror voir dire, and on the issue of ineffective assistance of counsel in allegedly refusing to present an alibi defense. Murphy, supra, slip op. at 15. Because it appeared that the transcript of the day of jury selection on which B.D. was questioned was missing, we ordered that the PCR court attempt to reconstruct the record. Id. at 6.

After we rendered our decision, Ricks filed a motion with the PCR court, seeking to participate in the evidentiary hearing with respect to the juror. The motion was granted without objection, at a hearing on April 18, 2008.

On remand, Judge Michael A. Petrolle, who had not presided over any of the prior proceedings in this case, held two separate testimonial hearings. The first hearing, concerning the juror issue, was held on May 24, 2010 and July 1, 2010. Because the transcript of the relevant day of jury selection was lost, and because the trial judge and attorneys could not reconstruct the record, the judge heard testimony from the juror, B.D., and her sister, W.D.

The May 24, 2010 hearing began with testimony from W.D., who confirmed that she had been an Essex County corrections officer from 1978 to 2006. She also provided the court with her sister B.D.'s home address. According to W.D., her sister told her that she had been called for jury duty and had been selected to serve on a jury. W.D. testified that she had previously worked as a guard at the jail. However, at the time B.D. began her jury service, W.D. held the title of corrections officer but was working as a "social worker" in the jail library. She did not wear a uniform, and her role "was to address the needs of the inmates as they were privileged to come up to the library to inquire about court dates, getting into contact with their Public Defenders, [and] getting certain papers that may have been needed for court signed." W.D. testified that, prior to B.D.'s jury service, she had told B.D. about both of her assignments. In other words, B.D. knew that W.D. was a corrections officer who had at one time worked as a jail guard, but also knew she was acting as a social worker at the time of B.D.'s jury service.

The judge conducted the questioning but permitted all counsel to propose follow-up questions, which the judge then directed to W.D. The judge followed the same procedure when B.D. testified at the next hearing day, on July 1, 2010.

Prior to that next hearing date, Murphy, acting pro se, sent the judge a letter asking that the hearing be expanded to address his contention that there may have been a conspiracy between B.D., her sister W.D, and a corrections officer named Curry who testified at the trial. At the July 1 hearing, Murphy's counsel admitted that he had no legally competent evidence to support the request; Judge Petrolle denied the request, holding that it was a "fishing expedition" and was outside the scope of our remand.3

At the July 1 hearing, B.D. testified that during voir dire she and the other jurors were asked questions by the judge. She remembered that, during voir dire, she disclosed that her sister W.D. "was a correctional officer." She did not recall whether anyone asked where her sister worked as a corrections officer. In response to Judge Petrolle's inquiry, none of the attorneys proposed asking B.D. any additional questions. They all agreed that B.D.'s testimony was clear on the critical issue of disclosure. None of the attorneys sought to present additional testimony or other evidence on the issue.

Immediately after the hearing, Judge Petrolle placed an oral opinion on the record, finding as fact that in response to the voir dire conducted during defendants' trial, B.D. disclosed that she had "a sister who was a corrections officer." He therefore denied Ricks' PCR petition, which only raised the juror disclosure issue, and denied Murphy's PCR petition with respect to that issue.

At the next hearing, on September 28, 2010, the judge heard testimony from Murphy and his former trial attorney, concerning Murphy's claims of ineffective assistance of counsel. Murphy testified that during jury selection he told his attorney he wanted him to excuse any juror "with ties to law enforcement." However, his attorney failed to exercise a peremptory challenge with respect to B.D.4

On the issue of the alibi defense, Murphy testified that he discussed the issue with his attorney in "August or September '95." Murphy asserted that when he raised the issue, his attorney "cut [him] off," telling him that defense counsel had agreed among themselves to "go with general denial" as a defense and "we [were] not going to be needing" an alibi defense. His attorney told him that the jury would not believe the State's chief witness, Victor Parker. Based on that advice, Murphy decided not to testify at the trial.

Murphy also testified that, in discussing a possible alibi defense with his attorney, he told the attorney that he did not know the date on which the victim had died. Murphy claimed his attorney never gave him that information. He asserted that it was only through "independent investigation" that he finally "came to find out that it was September 6, that it was the night of the incident." He also testified that, during the trial, he heard testimony that the police came to the murder scene on September 7, "so the night of the incident would have been September 6."5

Murphy identified a letter to his trial attorney, dated November 25, 1996, which was four days after the trial ended. In the letter, Murphy supplied the names and telephone numbers of three people who he claimed could provide an alibi, and asked his attorney to file a motion for a new trial. Murphy testified that it was not until some time after the trial that he found out exactly when the victim had died; he tried to contact his trial attorney to further discuss alibi witnesses, but the attorney would not take his calls. He also identified a series of affidavits, all dated in the year 2000, from purported alibi witnesses.

On cross-examination, defendant testified that he obtained the affidavits after the alibi witnesses contacted him "through family members." Murphy was also confronted with a series of letters he wrote to his attorney before the trial. None of those letters mentioned an alibi defense or possible alibi witnesses. He also admitted that during the course of pre-trial proceedings, the trial judge gave him a copy of the indictment, which listed the date of the murder.

On re-direct examination, Murphy testified that during the trial, after Parker had testified, his attorney visited him in the jail and asked him to testify. According to Murphy, he again raised the issue of alibi witnesses, but his attorney told him that the defense had not filed a notice of alibi. Murphy testified that this was the reason why he waited until after the trial was over to send his attorney the list of alibi witnesses.

The State presented testimony from Edward Jerejian, defendant's former trial counsel. At the time he was assigned to represent Murphy, in 1995, Jerejian was a certified criminal trial attorney with extensive experience trying homicide cases. According to Jerejian, he developed a good rapport with Murphy and spoke to him often prior to the trial. Jerejian explained in detail the litigation strategy that he and counsel for the co-defendants developed. That strategy was to discredit Parker, the State's chief witness. Jerejian testified that Murphy agreed with that strategy, and was "adamant" about pursuing a joint defense with his co-defendants. According to Jerejian, Murphy "never" told him that he had an alibi for the night of the shooting. Jerejian also confirmed that Murphy had a copy of the indictment and had a good grasp of the issues in the case. Jerejian recalled specifically discussing with Murphy the possibility of testifying at trial, but Murphy did not want to testify. According to Jerejian, Murphy never provided the names of any alibi witnesses before or during the trial. In discussions with Jerejian, Murphy "could never pinpoint exactly where" he was at the time of the shooting. According to Jerejian, in his discussions with defendant, there was never any doubt or confusion about the date and time of the shooting.

Addressing the juror B.D., Jerejian did not remember her voir dire. He testified that he would not have automatically excused a juror based solely on that juror having a relative in law enforcement. Instead, based on his extensive experience picking juries, he would evaluate whether that individual juror would be "a good juror." However, Jerejian testified that if his client had adamantly indicated that he wanted a juror to be excused, he would have exercised a peremptory challenge to excuse that juror.

In an oral opinion placed on the record on September 28, immediately after the hearing, Judge Petrolle found defendant to be a completely incredible witness. He specifically discounted defendant's testimony that he was confused about the date and time of the shooting, and he did not credit defendant's explanation for his late presentation of alleged alibi witnesses. Rather, the judge found that defendant agreed to the strategy of a joint defense in which counsel would focus on discrediting Parker's testimony. He found that defendant never discussed an alibi defense with his attorney before the trial, and that defendant made a voluntary and knowing decision not to testify at his trial.

The judge inferred that the alibi witness affidavits were suspect, because the explanations for their late presentation were unbelievable. However, he also reasoned that the credibility of the affidavits was not the issue before the court on remand. Rather, the issue was whether Jerejian rendered ineffective assistance of counsel. On that point, Judge Petrolle found that Jerejian complied "completely" with his professional obligations as Murphy's defense counsel. He specifically found that Jerejian had no obligation to "make up" an alibi defense, when defendant had not provided him with any information to support such a defense.

Further addressing B.D., Judge Petrolle found it incredible that defendant remembered that juror, as he claimed. He found "no basis" to conclude that there was any ineffective assistance of counsel in allowing B.D. to remain on the jury and found "no basis whatsoever for believing the testimony that the defendant wanted the juror excluded."

II

On this appeal, Ricks presents the following argument:

The Court should reverse the denial of post-conviction relief for defendant below because the fairness of the deliberating jury panel at defendant's trial was compromised.

 

Having reviewed the record, we find that Ricks' appellate contentions are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We reach the same conclusion with respect to Ricks' pro se supplemental brief, which presents no specific point headings. We add the following comments.

On this appeal, we are bound by Judge Petrolle's factual findings, so long as they are supported by sufficient credible evidence. See State v. Locurto, 157 N.J. 463, 470 (1999). Judge Petrolle heard B.D. testify and believed her testimony that she had disclosed the fact that her sister was a corrections officer. We find no basis to disturb his decision. See id. at 474. On this appeal, as in his original motion to participate in the remand hearing, Ricks makes no proffer that he has any personal recollection of B.D.'s voir dire during his trial. Nor does he point to any other legally competent evidence that his counsel might have presented at the remand hearing.

Ricks asserts, in vague and general terms, that Judge Petrolle should have done something more to reconstruct the record. We find no merit in that contention. It is clear that the court and counsel made exhaustive but unsuccessful efforts to reconstruct the record. We find no error in the procedure Judge Petrolle followed, in taking the testimony of B.D. and her sister. We note that during the September 10 hearing, Judge Petrolle even went beyond what our remand required, and allowed Jerejian to be questioned about B.D. That questioning produced no evidence helpful to the defense.

Accordingly, we affirm the August 18, 2010 order denying Rick's application for post-conviction relief.

III

In his appeal defendant Murphy raises the following points for our consideration:

POINT I

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE, WITHOUT EXPLANATION, HE EXCUSED ALL BUT ONE OF A GROUP OF SIMILARLY SITUATED VENIREPERSONS THE DEFENDANT ASKED HIM TO REMOVE.

POINT II

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE UNREASONABLY DECIDED TO NOT LEARN THE WHEREABOUTS OF THE DEFENDANT ON THE NIGHT OF THE CRIME, RELYING INSTEAD ON A DEFENSE STRATEGY THAT THE CREDIBILITY OF THE STATE'S CHIEF WITNESS COULD BE IMPEACHED.

 

POINT III

THE PCR COURT ERRED WHERE IT DID NOT PERMIT THE DEFENDANT'S PCR ATTORNEY TO PRESENT THE TESTIMONY OF THE ALIBI WITNESSES.

POINT IV

THE DEFENDANT INCORPORATES IN THIS APPEAL ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF.

 

In a supplemental pro se brief, he raises these additional arguments:

 

POINT I

THE PCR COURT ERRED WHEN IT FAILED TO ADHERE TO THE APPELLATE DIVISION'S ORDER AND CONDUCT THE HEARING AS ORDERED BY THE APPELLATE COURTS.

 

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.

 

POINT III

 

THE PCR COURT ERRED WHEN IT DENIED DEFENDANT THE RIGHT TO BE PRESENT DURING THE VOIR DIRE OF JUROR B.D. AND HER SISTER.

 

Having reviewed the record, we find that these arguments are all without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We add the following comments.

As previously discussed, we find no basis to second-guess Judge Petrolle's factual finding that B.D. disclosed her sister's employment as a corrections officer. The judge found Jerejian's testimony entirely credible, and found Murphy's testimony completely unbelievable. In light of those credibility determinations, there is no basis to find that Jerejian rendered ineffective assistance of counsel in deciding not to use a peremptory challenge to remove B.D. as a juror.6

Murphy challenges Judge Petrolle's determination that Jerejian did not render ineffective assistance in failing to present an alibi defense. We cannot agree. Murphy gave a preposterous explanation for his delay in naming alibi witnesses, and Jerejian credibly testified that Murphy did not tell him he had an alibi or ask him to present that defense at the trial. We find no basis to disturb Judge Petrolle's credibility determinations or his factual findings. See Locurto, supra, 157 N.J. at 474. In light of those findings, we affirm his determination that Jerejian did not provide ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

We also find no error in Judge Petrolle's denial of the late request from Murphy's counsel to present testimony from the alibi witnesses, apparently to bolster Murphy's explanation as to why he delayed submitting their certifications. The merits of the alleged alibi defense was not within the scope of our remand, which was limited to the issue of ineffective assistance of counsel. However, we agree with Judge Petrolle that the certifications themselves were suspect. They were dated several years after the trial, with no sensible explanation for the delay from either Murphy or the deponents.

Finally, although the severance issue was not part of the remand, Judge Petrolle took testimony from Jerejian as to why he did not file a severance motion. Jerejian credibly explained that Murphy did not want him to file such a motion, preferring instead to stand trial with his co-defendants.7

Accordingly, we affirm the orders dated August 18, 2010 and September 28, 2010, denying Murphy's PCR petition.

Affirmed.

 

1 Two other co-defendants were also tried with Ricks and Murphy, but they are not involved in this appeal.

2 By the time we rendered our opinion remanding the case to the PCR court, Jerejian had been appointed a Superior Court judge.

3 At the beginning of the July 1 hearing, Judge Petrolle noted for the record that counsel for Ricks and Murphy had waived their clients' appearances at that day's hearing. He noted that Ricks later submitted a pro se letter seeking permission to be present, but the request was denied as untimely.

4 Murphy's counsel attempted to ask Murphy about the voir dire of B.D., but the judge precluded that testimony, reminding counsel that the court had already heard and decided the issue with respect to B.D.'s disclosure. The judge noted that Murphy had not sought to testify at the hearing concerning B.D.'s voir dire.

5 During the hearing, the defense introduced a series of discovery documents the State had provided in pre-trial discovery, apparently to support Murphy's claim that the dates in those documents confused him as to the precise date of the murder.

6 While Jerejian did not remember B.D., a reasonable trial counsel might have concluded that, because her sister was assigned as a social worker helping inmates, the usual reasons to exclude relatives of corrections officers might not apply to B.D.

7 In considering this appeal, we have granted Murphy's motion M-2458-12 to "correct the record." The motion papers are essentially a supplemental brief addressing the time that the shooting occurred. We find the arguments therein without sufficient merit to warrant further discussion here. See R. 2:11-3(e)(2). We have denied Murphy's motion M-3459-12 "to file a pro se motion for amendment."