STATE OF NEW JERSEY v. MATTHEW STREET

NOT FOR PUBLICATION WITHOUT THE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.

MATTHEW STREET,

Defendant-Appellant.

______________________________________

December 17, 2013

 

Submitted October 23, 2013 Decided

 

Before Judges Waugh and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-09-0857.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

 

Jennifer Web-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Matthew Street appeals the Law Division's March 5, 2012 order dismissing his petition for post-conviction relief (PCR) on substantive and procedural grounds. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On August 10, 2002, Street drove with his co-defendant Kyle Smalfus, Street's girlfriend Angela Milcarek, and Smalfus's girlfriend Nicole Rodilosso to Port Elizabeth to go camping. Street was driving a white Lincoln Continental that belonged to his mother. Some of their friends drove to Port Elizabeth in a separate car. Street and others consumed alcohol and drugs on the way to Port Elizabeth and after they arrived.

Later that evening, Street, Smalfus, Milcarek, and Rodilosso decided to drive to Camden to buy drugs. After the car broke down on Route 55 in Vineland, they were able to get it started with the assistance of a passerby and a police officer. However, the car subsequently began to make clinking noises and Street pulled into a parking lot. Street and Smalfus walked across the street to a Wawa parking lot, where they unsuccessfully searched for a car to steal.

Street then went inside the store to buy something to drink. As he came out, a 1993 Toyota Corolla pulled into the parking lot. Street and Smalfus approached the driver, Jesus Reisch, and asked for a light. They then asked him to drive them, along with Milcarek and Rodilosso, two exits down the road. Reisch agreed to do so.

Before getting into Reisch's car, Street and Smalfus had a brief conversation during which they agreed to steal Reisch's car when Street asked Reisch to pull over so he could relieve himself. As they were getting into Reisch's car, Smalfus asked Street for his cigarette lighter. He then sat in the seat behind Reisch. Street sat in the passenger seat. Milcarek and Rodilosso sat in the back seat next to Smalfus.

After they reached Route 55, Street asked Reisch to pull over so he could relieve himself, but Smalfus told him to wait. Smalfus then took a larger lighter from Rodilosso's purse. Street again asked Reisch to pull over, which he did.

Once the car stopped, Street opened the door and yelled at Reisch to get out of the car. Smalfus, who had wrapped his shirt around the large lighter, placed it against Reisch's back and told him to get out of the car, saying "Don't make me do this." After Reisch got out, Street sat in the driver's seat, and Smalfus moved to the passenger seat. They drove away with Rodilosso and Milcarek in the back seat.

Reisch walked home, and his mother called the police. Patrolman Gamaliel Cruz was assigned to respond to the call. After speaking with Reisch, he interviewed two Wawa employees. They gave descriptions of the suspects that matched those Reisch had given him. Cruz found the abandoned white Lincoln in the parking lot across from the Wawa and ascertained that it was owned by Street's mother. He had the car towed to the police station.

After purchasing drugs in Camden, Street dropped Smalfus and Rodilosso in Bellmawr. Street then drove Milcarek to National Park, where they lived. Street left Reisch's car behind a store and hid the keys under a log.

The next day, Street, Milcarek, and two others drove a van and Reisch's car to Philadelphia, where they abandoned the car. After dropping off the other two, Street and Milcarek drove to the parking lot at which they had left his mother's car the night before. When Street discovered the car was no longer there, he reported it to the police.

Patrolman Ronald Garvey, who knew that Street was a suspect in the carjacking the previous night, drove to the parking lot to interview Street. Street explained to Garvey that they were looking for his mother's car. He and Milcarek agreed to accompany Garvey to the police station.

Garvey interviewed Street and Milcarek separately, and heard conflicting accounts of what they had done the previous evening. Garvey then read Street his Miranda1 rights. After Street responded that he wanted an attorney, questioning ceased.

Street subsequently informed Garvey that he wanted to give a statement. He was read his rights again and signed the Miranda form. Street's statement matched the general outline of the events of the night described above, except that Street claimed that he did not plan the carjacking with Smalfus. Instead, he told Garvey that he was relieving himself on the side of Route 55, when he heard Smalfus yelling at Reisch and saw him holding something to the side of Reisch's head. Street also told Garvey that it was Smalfus who disposed of Reisch's car in Philadelphia. However, in a subsequent taped statement, Street admitted that he, rather than Smalfus, had disposed of Reisch's car.

In September 2002, Street and Smalfus were indicted for first-degree carjacking, contrary to N.J.S.A. 2C:15-2(a) (count one), and third-degree theft, contrary to N.J.S.A. 2C:20-3 (count two).2 In February 2003, Smalfus pled guilty to first-degree carjacking.

After Smalfus pled guilty, Street contacted Smalfus and encouraged him to accept a deal to testify against him, but to lie once he took the stand by taking full responsibility for the carjacking. Street contacted Smalfus a second time, again encouraging Smalfus to lie, and promising him $2000 to do so. Smalfus declined both times.

Street's trial took place over two days in June 2003. He was found guilty of first-degree carjacking. On August 25, 2003, the trial judge sentenced Street to incarceration for fourteen years, subject to the No Early Release Act.

Street appealed. His private appellate counsel never filed a brief, causing his appeal to be dismissed for lack of prosecution in July 2005. It was reinstated in 2009. We affirmed in an unpublished opinion. State v. Street, No. A-3393-03 (App. Div. Dec. 23, 2009). The Supreme Court denied certification. State v. Street, 201 N.J. 498 (2010).

In November 2008, Street filed a pro se PCR petition. After his appeal was reinstated, the PCR petition was dismissed without prejudice pending disposition of the direct appeal.

Street's PCR petition was reinstated in July 2010. Following oral argument in March 2012, the petition was dismissed. The PCR judge found that it was time-barred and that there had been no ineffective assistance of counsel. This appeal followed.

II.

Street raises the following issues on appeal.

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.

 

A. FACTUAL BACKGROUND.

 

B. RULE 3:22-12 DID NOT OPERATE TO PRECLUDE THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.

 

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST THE TRIAL COURT ISSUE AN APPROPRIATE LIMITING INSTRUCTION TO THE JURY PURSUANT TO N.J.R.E. 404(b) FOLLOWING THE STATE'S ELICITATION OF TESTIMONY ADMITTED AS DEMONSTRATING A CONSCIOUSNESS OF GUILT ON THE DEFENDANT'S BEHALF.

 

C. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF HIS FAILURE TO REQUEST A MISTRIAL FOLLOWING THE STATE'S ELICITATION OF TESTIMONY FROM THE VICTIM REGARDING HIS OPINION OF THE DEFENDANT'S DEGREE OF CRIMINAL CULPABILITY.

A.

We begin our analysis with Street's argument concerning the timeliness of his PCR petition. He contends that the PCR judge erred in finding that his petition was time-barred pursuant to Rule 3:22-12(a)(1), which requires a defendant to file his first PCR petition within five years of the entry of the judgment of conviction. Street argues that the judge should have extended the time because of the problems with his direct appeal.

The version of Rule 3:22-12(a)(1) in effect in 2008, when Street initially filed his petition, required a defendant to demonstrate excusable neglect to permit filing beyond the five-year time limit. Pressler, Current N.J. Court Rules, R. 3:22-12(a) (2010). The rule was amended, effective February 2010, to require that a defendant also demonstrate that a "fundamental injustice" would occur if the time to file were not extended.

As noted, the earlier version of the rule was in effect when Street filed his petition in October 2008, but the current version was in place when the petition was reinstated and denied. "[A] procedural rule 'is in general to be deemed applicable to actions pending on its effective date.'" State v. Reevey, 417 N.J. Super. 134, 148 n.2 (App. Div. 2010) (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973)), certif. denied, 206 N.J. 64 (2011); see also Romagnola v. Gillespie, Inc., 194 N.J. 596, 603 (2008). Nevertheless, the rules "shall be construed to secure a just determination." R. 1:1-2. We conclude, as a matter of fairness, that the timeliness of Street's petition should be determined as of the date it was initially filed, rather than the date it was reinstated.

In determining that Street's petition was time-barred, the PCR judge found that Street did not demonstrate excusable neglect because he did "not allege facts explaining why his petition was filed out of time." The judge also found that "enforcing the time bar [would] not result in a fundamental injustice, because [Street]'s ineffective assistance of counsel claim would likely not be successful."

Demonstrating excusable neglect requires "more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). We have been "reluctant to extend the time for the filing of the petition" for PCR based on a pro se defendant's "unfamiliarity with the five-year rule." State v. Dillard, 208 N.J. Super. 722, 728 (App. Div.), certif. denied, 105 N.J. 527 (1986). Nor is a lack of legal sophistication by a defendant a satisfactory explanation. State v. Murray, 162 N.J. 240, 246 (2000).

On appeal, Street has alleged excusable neglect based upon the fact that his first appellate attorney mislead him with regard to the status of his direct appeal.3 In November 2007, the attorney told Street that he had not filed the necessary brief for his direct appeal, which had resulted in the dismissal of his appeal in July 2005. At that time, Street still had eight months to file his first PCR petition. The petition was filed three months late. As noted by the PCR judge, Street has not explained that delay.

In deciding whether to allow a late filing, courts consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice.'" State v. Afanador, 151 N.J. 41, 52 (1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (citing Mitchell, supra, 126 N.J. at 580).

Because of the relatively short period between the date on which the petition should have been filed and the actual filing date, we address the merits of Street's claims of ineffective assistance of counsel to ascertain whether there would be an injustice were they to be treated as time-barred.

B.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 579.

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, 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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

i.

Street first argues that he received constitutionally ineffective representation because his trial counsel failed to request a limiting instruction after Smalfus testified that Street tried to influence his testimony, which would be a violation of N.J.S.A. 2C:29-1(b).4

Defense counsel objected to the admission of Smalfus's testimony on grounds of relevance, that it was more prejudicial than probative, and that the State's proffer of the testimony was untimely. The trial judge overruled the objection, finding that the testimony was relevant because it demonstrated a consciousness of guilt,5 that any prejudice did not outweigh its probative value, and that there was no misconduct by the State in giving late notice of its intention to offer the testimony.

At the charge conference the same day, the trial judge raised the question of whether there should be a limiting instruction regarding Smalfus's testimony. N.J.R.E. 105 (emphasis added), provides as follows:

When evidence is admitted as to one party or for one purpose but is not admissible as to another party or for another purpose, the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly, but may permit a party to waive a limiting instruction.

 

On the following day, the judge summarized the results of an "informal charge conference" conducted in chambers that morning. There was no mention of a limiting instruction directed to Smalfus's testimony. No such instruction was given, and defense counsel did not object to that omission.

Street argues that the PCR judge should have held a hearing to determine whether trial counsel did not request the instruction as a matter of trial strategy or because he was negligent. The PCR judge concluded, without a hearing, that trial counsel's failure to seek a limiting instruction "was merely trial strategy" and that there did not exist "any evidence it impacted negatively on the decision, one way or the other." Although there may have been strategic reasons for not requesting the limiting instruction,6 we will nevertheless assume for the purposes of our analysis only that the first Strickland prong has been satisfied.

The second prong requires Street to show that, but for his trial counsel's deficient performance, there is a "reasonable probability" that the "result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Such a probability must "undermine confidence in the outcome." Ibid. Having reviewed the record of the trial, we find no basis to conclude that there is a reasonable probability that a limiting instruction would have brought about a different result. There was very strong evidence of guilt before the jury from the testimony of Reisch, Smalfus, Milcarek, and Rodilosso.

Consequently, we hold that Street failed to make a prima facie showing of ineffective assistance of counsel with respect to trial counsel's failure to request a limiting instruction.

ii.

Street also contends that his trial counsel was ineffective because he failed to request a mistrial after the State elicited opinion testimony from Reisch regarding Street's degree of culpability relative to Smalfus.

The following exchanges took place during the State's direct examination of Reisch:

[Prosecutor:] Okay. And were you afraid at this point?

 

[Reisch:] Yes.

 

[Prosecutor:] Were you as equally afraid of the man in the back as you were the man who was --

 

[Defense Counsel:] That's leading, Judge.

 

[The Court:] Rephrase your question, Prosecutor.

 

[Prosecutor:] Were you afraid of both men?

 

[Defense Counsel:] That's still leading, Judge.

 

[The Court:] I'm going to overrule the objection.

 

. . . .

 

[Prosecutor:] Other than -- from what was taking place, did you feel that both men knew what was going to happen to you?

 

[Reisch:] Yes.

 

[Prosecutor:] Did you feel that both men were acting --

 

[Defense Counsel:] I'll renew my objection.

 

The manner in which the questions are asked is still leading him to give certain answers instead of breaking it down.

 

[The Court:] Well, I haven't heard the question. I haven't heard the next question.

 

Before you answer the next question, I want you to restate your next question.

 

[Prosecutor:] Restate my next one?

 

[The Court:] Well, you started to state part of it.

 

[Prosecutor:] Okay.

 

[The Court:] Finish it.

 

[Prosecutor:] Did you feel that both men were equally involved in the carjacking?

 

[Reisch:] Yes.

 

[Defense Counsel:] And that one calls for a conclusion, actually, beyond [l]eading.

 

[The Court:] You're right, and I'm going to strike the question and answer.[7] It does call for his conclusion, and ladies and gentlemen, witnesses can testify to facts. I'm going to ask the jury to disregard the question and the answer and I'll tell you that from time to time during the course of the trial.

 

And I know it's hard to unring a bell once you've heard it, but you can't consider it in your deliberations if I tell you this.

 

During the final jury charge, the trial judge instructed the jury to disregard any question and answer that he had stricken from the record:

Any testimony that I may have had occasion to strike is not evidence and shall not enter into your final deliberations. You may recall I did strike a question and answer at least on one occasion during the course of the trial. It must be disregarded by you. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations.

 

Street contends that his trial counsel was constitutionally ineffective because he failed to move for a mistrial after the judge sustained his objection. "A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice." State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010) (citing State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 205 N.J. 78 (2011). Whether a case warrants a mistrial "depends on the specific facts of the case." State v. Allah, 170 N.J. 269, 280 (2002). If there exists "an appropriate alternative course of action," the trial judge should decline to find the need for a mistrial. Id. at 281.

We find no merit in Street's contention that his trial attorney should have moved for a mistrial. Although the question was improper and the witness should not have answered it when he had reason to know there would be an objection, the trial judge took prompt and appropriate corrective action by sustaining the objection and immediately instructing the jury to disregard both the question and answer. That instruction was repeated as part of the final charge. While the trial judge acknowledged that it is difficult to "unring" a bell, "[w]e credit juries for following instructions carefully and applying the facts, as found, to the law, as instructed." State v. Wilder, 193 N.J. 398, 415 (2008).

Even if we were to view trial counsel's failure to seek a mistrial as negligent, which we do not, there is no reason to conclude that the extraordinary, and in our view unwarranted, remedy of a mistrial would have been granted. As a result, there is no "reasonable probability" that the "result of the proceeding would have been different" had the motion been made. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Consequently, we find that Street has failed to make a prima facie showing of ineffective assistance of counsel with respect to his trial counsel's failure to move for a mistrial.

III.

Because Street failed to make out a prima facie case of ineffective assistance of counsel with respect to either of his claims, there was no need for an evidentiary hearing. Preciose, supra, 129 N.J. at 462. We affirm the order on appeal because the PCR petition was untimely and the points raised in the petition have no merit.

Affirmed.

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

2 The State dismissed count two before the trial.

3 We are cognizant that there were serious problems related to the representation afforded Street by that attorney, who was the subject of a public reprimand. In re Crisonino, 201 N.J. 415 (2010).

4 N.J.R.E. 404(b) generally prohibits the use of prior convictions or bad acts to prove a propensity to commit a crime, but allows it "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."

5 Evidence of "threats made by a defendant to induce a witness not to testify is admissible because it illuminates the declarant's consciousness of guilt." State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.), certif. denied, 135 N.J. 468 (1994).

6 See State v. Johnson, 287 N.J. Super. 247, 262 (App. Div. 1996), certif. denied, 213 N.J. 388, cert. denied, 571 U.S. __, __ S. Ct. __, 187 L. Ed. 2d 374 (2013); State v. Krivacska, 341 N.J. Super. 1, 43-44 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

7 Lay opinion testimony may not be admitted on a matter "as to which the jury is as competent" as the witness "to form a conclusion." Brindley v. Firemen's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955) (citing Priest v. Poleshuck, 15 N.J. 557, 562, 563 (1954)). In addition, a lay witness is not permitted to opine concerning the guilt or innocence of a defendant. State v. Frisby, 174 N.J. 583, 594 (2002) (quoting State v. Hightower, 120 N.J. 378, 426-28 (1990)).