STATE OF NEW JERSEY v. RICHARD BAILEY

NOT FOR PUBLICATION WITHOUT THE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.

RICHARD BAILEY,

Defendant-Appellant.

November 19, 2013

Submitted September 25, 2013 - Decided

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-08-1175.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal returns following a remand1 for a plenary hearing on defendant Richard Bailey's petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. Bailey now appeals from the September 1, 2011 order of the Law Division denying his claim of ineffective assistance of counsel. We affirm.

I.

We set forth the factual background to defendant's conviction in an earlier opinion:

On June 16, 1998, at approximately 4:00 p.m., a grocery store in New Brunswick was robbed. One of the two employees on duty at the time had been distracted by pursuing a shoplifter who fled the store. Defendant's friend, Maria Riley, then entered the store and ordered some cold cuts. When the second employee, Emiliano Rodriguez, began filling the order, two men wearing ski masks entered the store. One of them, whom Rodriguez recognized as a previous store patron, pointed a gun at Rodriguez and threatened to kill him if he moved. The other man went behind the counter and took approximately $1,200 from the register. The two men and Riley then fled the scene together.

The owner of the store testified that "one of [his] customers brought [him] a picture of [defendant] and told [him] his name." The customer was Bernard Williams, who testified at the hearing on a motion for a new trial. He had called New Brunswick Detective Sam Hillyer and gave him the photograph. Hillyer showed Rodriguez the photograph and he recognized defendant.

At trial, Rodriguez testified and identified defendant as the former patron who had pointed a gun at him. Hillyer also testified, referring to defendant by his street name, "Mookie." He also testified that a confidential informant identified defendant as one of the robbers.

Defendant did not testify, but presented the testimony of three witnesses. Riley testified that she was at the store at the time of the robbery by two armed, masked men, whom she did not know. Defendant, her friend, came in shortly after she did. They were talking casually when the robbery occurred. During the testimony, Riley told the jury that defendant was on parole for a different crime at the time of the robbery and that defendant was in custody at the time of trial.

Arthur Lee Satterwhite testified that he was about to walk into the grocery store when defendant met him at the door and said "I don't think that you want to go in there, Pop." He had no further knowledge of the incident.

Juan Tenreiro, an investigator for defense counsel's firm, testified that he interviewed Rodriguez, who described the man who pointed the gun at him. Rodriguez could not describe the second suspect to Tenreiro. According to Tenreiro, Rodriguez said defendant had "come into the store several times" in the past.

[Id. at 2-4.]

At the conclusion of a four-day trial, the jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1. After the court denied defendant s motion for a new trial, the trial judge sentenced defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) and imposed a thirty-year term of imprisonment with a ten-year parole disqualifier. We affirmed the conviction, but vacated and remanded for re-sentencing. State v. Bailey, A-5116-00 (App. Div. Nov. 21, 2002), certif. denied, 176 N.J. 279 (2003). Upon remand, a different judge imposed the same sentence. We affirmed. State v. Bailey A-6385-02 (App. Div. Mar. 31, 2004), certif. denied, 180 N.J. 458 (2004).

After resentencing, defendant filed a PCR petition, alleging ineffective assistance of trial counsel for "failure to present and pursue expert witnesses in relation to identification, as related to transference and gun-focus." Defendant further faulted trial counsel for failing to call Arnie Glover, his parole officer, as a witness. He alleged that, following the robbery, Glover had shown defendant's picture to an employee of the grocery store who did not identify defendant as the robber. The PCR judge denied the petition and found no basis for an evidentiary hearing.

In 2008, we heard defendant s appeal of his PCR petition, and concluded "there was a prima facie showing that triggered the need for an evidentiary hearing with respect to some of defendant's claims of ineffective assistance, specifically counsel's failure to: (1) call Glover as a witness at trial; (2) explore and, if appropriate, retain an identification expert; and (3) move for disclosure of the confidential informant mentioned by [Detective] Hillyer." State v. Bailey, supra, No. A-6203-05, slip op. at 8. We found "[e]ach contention involved factual issues, outside the record, that warranted further development." Ibid.

Following a two-day evidentiary hearing, Judge Joseph Paone denied defendant's PCR petition and issued an eight-page opinion. During the hearing, Linda Smink, defendant s trial counsel, testified to her trial decisions and strategies which we identified for development on remand.

On appeal, defendant raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Failed To Call Glover To Testify At Trial.

B. Trial Counsel Failed To Consult And Retain An Identification Expert.

C. Trial Counsel Failed To File A Motion For Disclosure Of The Confidential Informant's Identity.

D. Trial Counsel Failed To Argue That Glover Had An Independent Obligation To Turn Over His Notes To Counsel.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

Based upon our review of the record and applicable law, we are satisfied that defendant's contentions lack merit. The testimony elicited at the plenary hearing failed to show the performance of defendant's attorney was deficient or resulted in prejudice. We affirm substantially for the reasons expressed in Judge Paone's cogent written opinion.

II.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the so-called Strickland/Fritz2 test. State v. Preciose, 129 N.J. 451, 463 (1992). Under this two-part test, a defendant must first establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Secondly, a defendant must 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.

We generally defer to a trial judge's factual findings resulting from a plenary hearing when they are based on "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see also State v. Locurto, 157 N.J. 463, 470-71 (1999) (recognizing the limited role of an appellate court in reviewing findings of fact and credibility determinations of a trial judge). When addressing issues of credibility, we recognize that a trial judge has the unique "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). For mixed questions of law and fact, we will uphold "the supported factual findings of the trial court, but review de novo the . . . application of any legal rules to such factual findings." Harris, supra, 181 N.J. at 416 (citation omitted). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 162).

At the evidentiary hearing, Smink testified that she had subpoenaed Glover for trial, but when she spoke with him outside the courtroom during trial, he said he could not recall anything about his investigation. The judge found that "Smink was aware of Glover's investigation and made appropriate inquiries [of] him, but based upon his responses, decided that his testimony would not be helpful[.]" She testified that she learned only after the trial that Glover made notes of his investigation, which she would have used to refresh his recollection if she had been aware of them. Her post-verdict motion for a new trial based on newly discovered evidence was denied.

The record supports Judge Paone's finding that Smink made a deliberate decision not to call Glover as a witness after she spoke to him and made a reasonable assessment that his testimony would not prove helpful. Defendant failed to sustain his burden of proving Smink's decision was objectively unreasonable.

Regarding the issue of an identification expert, Smink testified her trial theory was that the victim misidentified defendant. Smink did not recall why she did not engage an identification expert; however, she stated that such testimony "could always enhance the defense." Despite this acknowledgement, Judge Paone found that defendant's claim that Smink was ineffective for failing to retain an identification expert

was never developed at the evidentiary hearing . . . [T]he availability of such a witness was never explored. Nor was any proffer made as to the anticipated testimony of such a witness. In light of the dearth of any evidence regarding this issue, this Court is unable to find that Bailey has demonstrated that counsel's representation fell below an objective standard of reasonableness in not exploring and retaining an identification expert.

Moreover, the record contains adequate credible evidence confirming defendant's identity. We note that the victim identified defendant and said "he was familiar with [him] before the robbery, having seen him and his girlfriend shopping in the store on a number of occasions." Further, a defense witness, Satterwhite, testified that he was about to walk into the grocery store when defendant met him at the door and told him not to come in. Another defense witness, Riley, placed defendant at the scene of the robbery. The record simply does not support defendant's claim that Smink's failure to retain an identification expert was objectively unreasonable.

As to her decision not to move to disclose the alleged confidential informant s identity at trial, Smink testified that she knew from a pretrial Wade3 hearing that Detective Hillyer had misspoken. At the pre-trial hearing, Detective Hillyer testified that a customer, not a confidential informant, had shown the victim a photograph of defendant. Smink saw no reason to move for disclosure of the informant's identification because, as Judge Paone stated, Hillyer's characterization of this person "did not undermine the defense theory that the police conducted an inadequate investigation that led to [defendant's] arrest." Moreover, as the judge concluded,

knowledge of the identity of the person who showed the victim Bailey's photograph would not have changed the outcome of the trial in view of the victim's testimony that he was familiar with Bailey before the robbery, having seen him and his girlfriend shopping in the store on a number of occasions.

The record supports the court's conclusion that "Smink's decision not to move for disclosure was not unreasonable under the circumstances."

We are also satisfied that defendant failed to demonstrate a reasonable probability that, but for counsel's alleged errors, the result would have been different. Nothing in the record from the trial or the PCR hearing undermines confidence in the jury's determination.

In his fourth sub-point under Point I, and in Points II and III, defendant attempts to raise additional points that should have been raised on a direct appeal or before the PCR court. We "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); State v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an issue raised for the first time on appeal absent an exception). We discern no basis to address matters beyond the scope of the remand.

1 See State v. Bailey, No. A-6203-05 (App. Div. July 16, 2008).

2 Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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