STATE OF NEW JERSEY v. KAREEM COLEMAN

NOT FOR PUBLICATION WITHOUT THE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.

KAREEM COLEMAN,

Defendant-Appellant.

________________________________

November 19, 2013

Submitted November 12, 2013 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 98-07-3074.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kareem Coleman appeals from the January 24, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

Tried by a jury in 1999, Coleman was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) in connection with the April 15, 1998 shooting death of Terrance Barnes in Newark. On November 1, 1999, after merger, the Law Division sentenced Coleman to thirty years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In affirming the conviction and sentence, we observed the following:

The facts are somewhat complex as there were no actual eyewitnesses to the murder that led to the charges. But there were various witnesses who placed defendant, or someone resembling him, in the area and with a weapon at the time gunshots were heard in the area where the victim's body was found. There was, as well, defendant's rather detailed confession.

[State v. Coleman, No. A-2143-99 (App. Div. Jan. 25, 2002) (slip op. at 2).]

In his direct appeal, Coleman raised the following issues:

POINT I: ERRORS IN THE COURT'S INSTRUCTIONS TO THE JURY DENIED DEFENDANT A FAIR TRIAL.

A. MATERIAL MISSTATEMENTS OF EVIDENCE BY THE COURT HAD THE CLEAR CAPACITY TO MISLEAD THE JURY, REQUIRING REVERSAL OF THIS MATTER.

B. FAILURE TO INCLUDE AN INSTRUCTION ON IDENTIFICATION WHEN COMPLETELY RE-CHARGING THE JURY ON THE ENTIRE INDICTMENT WAS REVERSIBLE ERROR. (Not Raised Below).

POINT II: DEFENDANT'S SENTENCE [IS] MANIFESTLY EXCESSIVE.

We rejected these arguments, and the Supreme Court denied certification. State v. Coleman, 172 N.J. 358 (2002).

According to Coleman's appellate brief in the present matter, Coleman filed a timely initial petition for PCR on August 23, 2002.1 The State does not challenge that filing date, but laments that "[t]he record does not explain the nine-year hiatus between the filing of the petition and the hearing held in 2011." Likewise, we cannot account for the undue delay in the Law Division's disposition of this matter.

Nevertheless, on January 14, 2011, a PCR hearing was conducted by the same judge who oversaw Coleman's Miranda2 motion, Wade3 motion, Franks4 motion, and jury trial more than twelve years earlier. The primary contentions advanced by Coleman and his PCR attorney related to the alleged ineffective assistance of appellate counsel who failed to raise arguments that touched and concerned Coleman's confession, the witness identifications, and issues relating to an arrest warrant. On January 24, 2011, the judge issued a seven-page opinion and order rejecting all of the arguments presented on Coleman's behalf. This appeal followed.

In the present appeal, Coleman offers the following issue for our consideration:

POINT I: AS APPELLATE COUNSEL FAILED TO CHALLENGE THE DENIAL OF THE WADE HEARING, WHICH RESULTED IN THE ISSUANCE OF AN ARREST WARRANT, WHICH LEAD TO PETITIONER MAKING A FORMAL INCULPATORY STATEMENT, IT WAS GROSS INEFFECTIVE ASSISTANCE OF COUNSEL, PARTICULARLY IN THIS CASE WHERE NOT ONE WITNESS MADE A FULL AND/OR TOTAL IDENTIFICATION OF PETITIONER. THIS FAILURE VIOLATED PETITIONER'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

The essence of Coleman's argument is that the cascade of events the preparation and promulgation of a recklessly false affidavit, the issuance of an arrest warrant, the capture of Coleman, and then Coleman's confession that were triggered by several witnesses' incomplete or mistaken identifications would have been obviated had appellate counsel attacked the denial of the Wade and Franks motions.

Said another way, Coleman asserts that the June 1, 1998 arrest warrant that resulted in his seizure was based upon misrepresentations of three witnesses'5 supposed identifications, and, therefore, the witnesses' trial testimony and Coleman's subsequent confession were inadmissible as "fruit of the poisonous tree."

Essex County Prosecutor's Office Investigator Kurt Schwindel's probable cause affidavit for the arrest warrant stated, among other things, the following:

7. Ishmili [sic] Holloway subsequently identified Kareem Coleman, a/k/a "Clash" from a photo array as the individual to whom he was referring on April 15, 1998.

Coleman contends that this statement is intentionally misleading, as it leaves out Holloway's equivocation made at the March 30, 1999 Wade motion that the picture "could be" the individual he saw but he "wasn't a hundred percent sure." Coleman adds that Franks compels the suppression of his confession because of the material misstatements. Our review of the record convinces us that these contentions are unpersuasive.

II.

The standard for determining whether a defense attorney's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).6 To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland framework. Under Strickland's first prong, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The right to effective assistance of counsel, as set forth in Strickland, applies to appellate counsel. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987); see also State v. Guzman, 313 N.J. Super. 363, 374 (App. Div.), certif. denied, 156 N.J. 424 (1998). "[D]efendant must show not only that his attorney's representation fell below an objective standard, but also that he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different." Morrison, supra, 215 N.J. Super. at 546. Coleman has not shown that if appellate counsel had raised the Wade and Franks issues, the arguments would have been successful.

The PCR judge, who had conducted the Wade and Franks hearings in 1999, determined (in 1999) that the evidence showed the probable cause affidavit for the arrest warrant to be proper. The judge considered the witnesses' conflicting accounts, particularly focusing on Holloway and Schwindel, and determined the following:

I have a credibility issue as to Investigator Schwindel as to both witnesses. As to Holloway, when I compare the credibility of Holloway and Schwindel, although I found Holloway to be the most credible lay witness in this matter, I find Schwindel's credibility to be greater of that than Holloway, and I think Holloway identified the defendant's photo from the photo array such as that looks like the guy in words which would lead you to believe that there was an identification of the defendant.

. . . .

So, when you look at him signing the picture, the words used, and impression he gave, I believe, they identified the defendant; and I believe, Schwindel appropriately put down the proper words in the affidavit. Any possible inaccuracy between the information contained in Schwindel's affidavit, and identification made by Holloway, does not even rise to the level of inaccuracies in the affidavit in
Lowry [7][sic] and Goldberg[8] which inaccuracies did not invalid[ate] the warrants.

. . . .

Schwindel could have included more information or qualified his statement. He didn't exaggerate any information in the affidavit. He stated Holloway subsequently identified the defendant. The [c]ourt finds Detective Schwindel was truthful and accurate in the affidavit, and Detective Schwindel could certainly state Holloway identified the defendant based upon Holloway's testimony, and the fact that Holloway actually signed the photograph.

The judge found that any possible misstatements were mistakes or miscommunication, and not "deliberate falsehood[s] or reckless disregard of the truth."

We give great deference to the factual and credibility findings of a trial judge when supported by the adequate, substantial, and credible evidence in the record. State v. Johnson, 42 N.J. 146, 161 (1964); State v. Locurto, 157 N.J. 463, 474 (1999). Here, there was sufficient evidence for the judge's credibility findings, as well as for his ultimate finding that Coleman did not meet the requisite burden of proof under Franks to invalidate the arrest warrant. Moreover, even if we were to ignore the trial judge's findings, the record does not substantiate the defense contention that Schwindel's affidavit was either perjurious or made with reckless disregard for the truth as to the material facts.

Even if Schwindel was mistaken in his understanding of Holloway's identification of Coleman, a good faith mistake is insufficient to strike down the warrant. Franks, supra, 438 U.S. at 171, 90 S. Ct. at 2684, 57 L. Ed. 2d at 682; State v. Marshall, 148 N.J. 89, 193, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Howery, supra, 80 N.J. at 566-68.

If Coleman's appellate counsel had raised the issues now presented to us, they would have utterly failed. The PCR record plainly demonstrates that sponsoring these guaranteed losing arguments would have diluted whatever persuasion remained in the other, albeit weak, arguments presented on direct appeal. We observe nothing deficient in appellate counsel's omission of the contentions that Coleman belatedly advances in the present PCR appeal. Because Coleman is unable to satisfy both the performance and prejudice prongs of the Strickland/Fritz paradigm, he is not entitled to PCR.

1 We note that the pro se petition was acknowledged by a notary on August 23, 2002, but the appellate record does not contain any document that clearly depicts when it was filed with the Law Division.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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

4 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

5 Ismill Holloway, Vernice McCullough, and Delroy Jackson.

6 The Strickland/Fritz paradigm remains in full force and effect. See Burt v. Titlow, ___ U.S. ___, ___ S. Ct. ____, ___ L. Ed.2d ___ (2013) (slip op. at 1, 5-6, 9); State v. Miller, ___ N.J. ___ (2013)(slip op. at 18-20).

7 State v. Howery, 80 N.J. 563, 567 (1979), cert. denied, sub nom. Howery v. N.J., 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979) (adopting the Franks standard for analyzing claims of misrepresentation in affidavits utilized to obtain warrants).

8 State v. Goldberg, 214 N.J. Super. 401, 404 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987) (holding that if a probable cause affidavit is based partly on true, and partly on untrue, statements, the warrant will not be invalidated unless the true statements are insufficient to support a finding of probable cause).