STATE OF NEW JERSEY v. JERMAINE SMITH

NOT FOR PUBLICATION WITHOUT THE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.

JERMAINE SMITH,

Defendant-Appellant.

_________________________________

December 6, 2013

 

Submitted November 18, 2013 Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3271.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jermaine Smith appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of first-degree carjacking, N.J.S.A. 2C:15-2, and first-degree armed robbery, N.J.S.A. 2C:15-1.1 The court merged the armed robbery conviction with the carjacking conviction, imposing for that crime a term of twenty-eight years with an eighty-five percent parole disqualifier. On appeal, we affirmed the judgment of conviction, State v. Smith, No. A-5972-05 (App. Div. December 18, 2007), and the Supreme Court thereafter denied defendant's petition for certification, State v. Smith, 195 N.J. 419 (2008).

We reiterate the facts set forth in our opinion affirming defendant's conviction:

[O]n May 10, 2005, at about 2:00 a.m., Yang Gui Ren closed his Chinese restaurant in Camden, and as he entered his black 1998 Honda Passport, saw a young African-American male, later identified as defendant, rushing up to the left side of his vehicle. The man had "something black in his hand, . . . like a gun [that was] pointed at [Ren]" and told Ren to exit the vehicle. Ren hid the day's profits, $700, in the car door when defendant broke the car window with the object he was holding and forced Ren to exit the vehicle. Ren "saw the gun . . . . [and t]he man h[e]ld the gun with both of his hands and at that time [Ren] was very scared." Ren asked defendant if he needed money and then he handed defendant his wallet with twelve one-dollar bills and his driver's license identification. Defendant then told Ren to turn around as he drove off with Ren's car. Ren immediately called the police on his cell phone.

 

The encounter with the assailant lasted about five minutes. At the time, the area was illuminated by lighting from Ren's restaurant and a nearby street lamp, which enabled Ren to see defendant's face, as he was only two-and-one-half feet away. No one else was in the vicinity.

Camden Police Officer Daniel Torres responded to Ren's call at about 2:20 a.m. Upon arrival, Torres confronted a "[v]ery nervous and sh[aken] up" Ren, who communicated with "a little bit of English" and used "hand signals" to indicate that the suspect who took his car was a black male, approximately five feet, seven inches tall, and wearing a dark black shirt and dark jeans. Ren gave Torres his 1998 Honda Passport's paperwork, including its make, model, year, color and New Jersey license plate number. Using hand gestures, Ren told Torres that the suspect took his vehicle by use of "some type" of large, black gun. Torres immediately broadcast a description of both the suspect and the stolen vehicle, and Camden Sergeant Anthony Moffa located defendant in the stolen vehicle within fifteen minutes.

From Ren's restaurant, Officer Torres drove Ren approximately five blocks to the suspect's location at Morgan Village Middle School and arrived within minutes as Sergeant Moffa was "pulling . . . [and] handcuffing" defendant out of Ren's stolen vehicle. According to Torres, as they exited the vehicle, Ren pointed towards defendant, indicated "that's the suspect" who stole his car, and without prompting, told Torres, "Yeah, yeah, yeah. Him, him."

 

Ren identified defendant from approximately twenty feet away. The lighting was "clear" and "pretty good," since the school's outside lights were on with spotlights facing towards the school. After the identification, Sergeant Moffa shined a light on defendant and Ren kept nodding his head. After defendant was arrested, a quick pat-down search for weapons uncovered the key to Ren's stolen vehicle in defendant's right-hand pocket. Then, as defendant was escorted to a patrol vehicle, Ren's wallet, including Ren's driver's license identification, fell out of defendant's right pant leg. As defendant was placed into Sergeant Moffa's patrol car, Ren's vehicle became "engulfed in flames."

 

Ren's version of his out-of-court identification differed somewhat from Officer Torres' account in that Ren said he identified defendant at the police station and not in the vicinity of the crime scene. According to Ren, when he arrived at the location where his car was found, he "saw a lot of police officers;" "[t]he police officer said that they already arrest[ed] the [suspect;]" his "car was on fire" at that time;[] and he did not see the suspect who stole his car. Within minutes, firefighters arrived and extinguished the fire. Thereafter, Ren accompanied the officers to the police station where he immediately recognized defendant. According to Ren, he identified defendant as the carjacker without even knowing the man had been arrested for that very offense. At the time, defendant was wearing a dark T-shirt and dark jeans that Ren had earlier described to the police. Ren identified defendant in court as well, adding at time of trial: "I think I recognize him. The time is so long ago." No gun was ever recovered.

 

[State v. Smith, supra, slip op. at 2-5].

 

Defendant filed a timely PCR petition, in which he claimed ineffective assistance of counsel, alleging that counsel fell asleep during the jury charge and failed to pursue defenses of self-induced intoxication, diminished capacity and insanity. Defendant also challenged the court's failure to give a proper cross-racial identification charge and to grant a new trial on his first-degree robbery conviction.

Following argument, the PCR court denied defendant's petition, finding the latter claims regarding the identification charge and new trial motion procedurally barred under Rule 3:22-4, since these issues could have been, but were not, raised below, and the ineffective assistance of counsel claims to be without substantive merit. The court reasoned:

In the present case two of defendant's claims could and should have been raised on direct appeal. Defendant's claim that trial counsel should have moved for a new trial since the first-degree robbery conviction was inconsistent with the acquittals for possession of a rifle or shotgun for an unlawful purpose and unlawful possession of a firearm.

 

Defendant also claims that the jury charge on cross-racial identification was inadequate to explain the greater likelihood of misidentification.

 

The defendant relies on nothing outside the trial court [record] to support any of these arguments, so there was no need for additional facts to be developed in an evidentiary hearing in order for the claims to be asserted.

 

. . . .

 

Now, I'm going to address the issue with respect to the counsel sleeping. The defendant contends that trial counsel fell asleep during the . . . jury charge, rather, that the jury laughed, and that the assistant prosecutor had to push him in order to wake him.

 

Accordingly, defendant argues that the jury should have been interviewed in order to determine the prejudice. In this Court's opinion this argument is without merit.

 

. . . .

 

Even assuming, however, that counsel did fall asleep during the trial, defendant has not or can show no prejudice. Defendant makes only one claim that the charge was deficient.

 

Defendant contends that the cross-racial identification charge was defective. For the reason explained below, that charge was sufficient and complied with State v. Cromedy, [ 158 N.J. 112], a 1999 New Jersey Supreme Court case.

 

It appears in this Court's opinion that because the charge was proper, the defendant can't show a prejudice inasmuch as the charge itself was proper.

 

. . . .

 

It appears that the cross-racial identification charge was given. The language set forth in the charge says, "Now, any other factors based on evidence or lack of business [sic] in this case which you consider to be relevant to your determination whether the identifications were reliable and the fact that an identifying witness is not of the same race as the perpetrator and/or the defendant, and whether the fact might have had an impact on the adequacy of the witness' original perception and/or the accuracy of the subsequent identification, you considered that an ordinary human experienced people may have greater difficulty in accurately identifying members of a difference race."

 

Now, it appears that that language was used as part of the cross-racial identification charge. In this Court's opinion that language as set forth -- now that language charge satisfies Cromedy.

 

Defendant can point to no deficiencies in the charge and fails to explain how this charge violated the principles of Cromedy, nor does he specify that additional explanation was needed.

 

. . . .

 

Now, I see also that the defendant contends that counsel was ineffective, because he failed to hire a psychiatrist to evaluate the viability of an intoxication defense.

 

. . . .

 

Moreover, the record does not support an intoxication defense. Defendant clearly did not suffer such prostration of faculties such that he could not form intent.

 

. . . .

 

The defendant also argues a diminished capacity. In this Court's opinion the defendant fails to attach any certification or affidavit supporting his claim of mental disease or defect that could have impaired his ability to form the requisite intent. I have no affidavits in support of that claim.

 

Looking to the insanity defense, in the present case the defendant has failed to support his claim with any affidavits or certifications regarding any mental disease or defect or any expert report to support his claim of legal insanity.

 

In this Court's opinion, "This is just a bold assertion, and the defendant's not, in this Court's opinion, entitled to an evidentiary hearing," citing, once again, [State v.] Preciose, [ 129 N.J. 451 (1992)] and [State v.] Cummings, [ 321 N.J. Super. 154, certif. denied, 162 N.J. 199 (1999)].

 

On appeal, defendant raises the following issues:

I. THE DEFENDANT'S RIGHT TO DUE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

 

A. TRIAL COUNSEL FELL ASLEEP DURING JURY INSTRUCTIONS.

 

B. TRIAL COUSNEL FAILED TO PRESENT DEFENSES THAT WERE RATIONALLY SUPPORTED BY THE EVIDENCE AND THAT RAISED A REASONABLE DOUBT ABOUT THE DEFENDANT'S ABILITY TO FORM THE REQUISITE MENTAL STATES.

 

C. TRIAL COUNSEL FAILED TO OBJECT TO THE CROSS-RACIAL IDENTIFICATION INSTRUCTION.

 

D. THE DEFENDANT'S RIGHT TO EFFECTIVE COUNSEL WAS VIOLATED BY THE CUMULATIVE ERRORS.

 

II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE CONVICTION AND THE SENTENCE ON THE CRIME OF ROBBERY WHILE ARMED.

 

III. THE DEFENDANT-PETITIONER INCORPORATES BY REFERENCE THE PRO SE ARGUMENTS ADVANCED IN SUPPORT OF THE PETITION FOR POST-CONVICTION RELIEF.

In addition, defendant pro se raises the following issues:

I. TRIAL COUNSEL'S FAILURE TO REQUEST A DETAIL[ED] AND FOCUS[ED] IDENTIFICATION INSTRUCTION DENIED APPELLANT A FAIR TRIAL AND OF EFFECTIVE ASSISTANCE OF COUNSEL.

 

II. NEW JERSEY COURT RULE 3:22-4 IS RARELY EMPLOYED TO BAR SIGNIFICANT CONSTITUTIONAL ISSUES.

 

III. AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.

We find these contentions to be clearly without merit, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by Judge Freeman in his oral opinion of October 14, 2011.

Affirmed.

 

1 Defendant was acquitted of two weapons offenses, second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a rifle, N.J.S.A. 2C:39-5(c). Pursuant to the State's motion following the jury verdict, the court dismissed the remaining count charging second-degree prohibition of certain persons from having weapons, N.J.S.A. 2C:39-7, which had earlier been bifurcated and scheduled for a trial separate from the other four charges.