STATE OF NEW JERSEY v. JAMES T. COOKS

NOT FOR PUBLICATION WITHOUT THE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.

JAMES T. COOKS,

Defendant-Appellant.

_____________________________________

November 7, 2013

Submitted September 23, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-01-0296.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant James T. Cooks appeals from the denial of his petition for post-conviction relief (PCR). He claims that the PCR judge failed to afford an opportunity to call a witness at the PCR hearing. We affirm.

I.

Defendant's convictions arose out of the killing of James Biddle, Jr. in the City of Camden on February 26, 2002. Defendant and co-defendant William D. Reese were charged with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2), second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, second-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4a, third-degree unlawful possession of handguns, N.J.S.A. 2C:39-5b, and second-degree persons not permitted to have firearms, N.J.S.A. 2C:39-7b. Defendant and Reese were tried separately.

At defendant's trial, the State presented testimony from two eyewitnesses, Marisol Cortez and Randall Williams. Cortez testified that she saw Biddle, who was known as "Duck," approach Williams, who was selling drugs. Biddle robbed Williams of several bags of heroin, and sold the heroin. Cortez warned Biddle that there would be "some problems" because Williams would summon the owners of the drugs. About twenty minutes later, Cortez saw defendant and Reese approach wearing hoods. They hurried toward Biddle, whipped out their guns, surrounded Biddle, and each shot him several times from at least three feet away. Cortez was certain that Biddle never pulled out a gun. Biddle was later taken to a hospital, where he died as a result of the gunshot wounds.

Williams testified that he had been selling drugs when Biddle approached him, pulled out a gun, and said that he should leave the corner and stop selling drugs or he would be "deal[t] with." Biddle then took money and heroin from Williams. Williams then called defendant, because Williams was selling drugs for defendant and Reese. Williams informed defendant of what had occurred, and defendant said he and Reese would be right there to "deal with it." About twenty minutes later, Williams saw defendant and Reese approach with guns drawn, defendant holding his big revolver and Reese holding an automatic handgun. They boxed in Biddle and shot him from three feet away. Williams said that Biddle "didn't have [any] time to pull out a gun."

At trial, the prosecution introduced defendant's taped statement to police the day after the killing, in which defendant admitted shooting Biddle with a .357 revolver, and discarding the revolver in a vacant garage. From the garage, police recovered the .357 magnum revolver containing six empty shell casings. At trial, the medical examiner testified that Biddle was killed by five bullets, fired from no closer than two or three feet. The medical examiner recovered two bullets from Biddle's body, one bullet entering from the front and one from the back. The ballistics expert testified that the bullet entering from the front came from the .357 revolver, and the bullet entering from the back was from another gun.

Defendant did not testify at trial. Instead, trial counsel crafted a defense based upon defendant's taped statement, which stated as follows: He was told that there was a man (Biddle) outside with a gun who had been paid to kill him by "Tito" and "Joe." Defendant went outside. Biddle approached defendant and "pulled out a big revolver" and was trying to pull out an automatic handgun with his other hand. Defendant grabbed Biddle's wrist and the revolver. They struggled, and defendant turned the barrel away from him and the revolver went off more than once. Defendant did not mean to shoot or kill Biddle, but defendant was in fear for his life. Biddle fell back and started pulling out the automatic, trying to shoot at defendant. Defendant ran with the revolver in his hand. Tito approached and started shooting at defendant. Defendant fled and threw away the revolver.

In his opening statement to the jury, trial counsel argued that "James Biddle is dead because he brought a gun," walked up to defendant and tried to kill him. In his summation, trial counsel urged the jury to believe defendant's statement that Biddle "was there with a gun to kill" defendant by approaching and "drawing the gun on him." In both opening and summation, counsel argued that defendant took the revolver and fired in self-defense, and that Tito was shooting at defendant from behind Biddle, which explained the bullet from a different gun which entered Biddle from the back.

After hearing counsel's arguments based on defendant's statement, the jury acquitted defendant of murder and conspiracy to murder. The jury convicted him of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and the charged offenses of possession of a weapon for unlawful purposes, and unlawful possession of a handgun. Defendant then pled guilty to being a person not permitted to have a firearm. The trial judge sentenced defendant to a total of thirty-two years in prison, imposed fines and penalties, and forfeited the seized firearm.

On direct appeal, we affirmed defendant's convictions, but vacated his sentence because of the intervening change in law in State v. Natale, 184 N.J. 458 (2005). State v. Cooks, No. A-5921-04 (App. Div. Mar. 14, 2007) (slip op. at 13-14). The Supreme Court denied certification. State v. Cooks, 192 N.J. 71 (2007). Applying Natale, the trial judge resentenced defendant to the same sentence. We affirmed. State v. Cooks, No. A-1688-07 (App. Div. Apr. 1, 2009). The Supreme Court again denied certification. State v. Cooks, 200 N.J. 548 (2009).

II.

Defendant filed a pro se PCR petition, later adopted by appointed PCR counsel. Defendant asserted that trial counsel was ineffective in numerous ways, including by failing to subpoena fourteen witnesses, one of whom was Roger Ballard.1 Defendant claimed Ballard and the other witnesses would testify that Biddle was armed with a gun trying to take defendant's life, and that defendant and Biddle were fighting over the gun.

In fact, trial counsel did subpoena Ballard, who never claimed to see Biddle armed with a gun or defendant and Biddle fighting over a gun. Ballard gave three statements. First, defendant's trial counsel had an investigator get a statement from Ballard in jail. Ballard said he saw defendant make "his way to the corner of the street where he had words with another male [Biddle] from the neighborhood by the nickname of 'Duck.'" Ballard said defendant "and Duck threw some punches," and Ballard "heard some glass breaking as the scuffling continued between [defendant] and Duck." Ballard heard shots and saw about six flashes of light.

Ballard next gave a statement by videoconference from a youth correction facility to Investigator Harry Reubel for Reese. Ballard said that Biddle approached defendant, they argued, and then started fighting. Ballard, who was walking away from the fight, heard shots behind him. Thus, he "did not see who fired the shots." Ballard did see that Reese "did not fire the shots," and that Reese ran away when the shots were fired.

Finally, defendant's trial counsel had Investigator Reubel re-interview Ballard shortly before defendant's trial. Ballard said his story has not changed, and he did not want to give any more information. A note on this third statement says "subpoenaed." In fact, trial counsel had a trial subpoena served on Ballard, but later the subpoena was marked "cancelled."

The trial judge granted an evidentiary hearing on defendant's PCR petition on February 4, 2011. At the hearing, defendant testified that he advised trial counsel of Ballard and certain other witnesses, some of which were interviewed, but none were called. On cross-examination, defendant admitted that trial counsel had explained why he was not calling certain witnesses, and that defendant had written trial counsel a letter stating that he really appreciated what trial counsel had done for him.2

After defendant finished testifying, the judge asked PCR counsel how he had met his threshold under State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).3 PCR counsel argued that he could meet his burden using Ballard's statements. PCR counsel emphasized that Ballard's statement that "there was a fight" was "different" from Cortez's testimony that defendant and Reese approached with guns drawn to shoot Biddle. Counsel argued that the "information as it's proffered [in the report] could have directly refuted the State's main witness."

In the PCR judge's oral decision, he addressed and described Ballard's statements. The judge pointed out that Ballard "was not a witness to who shot who in this matter," because he "saw the defendant fighting, heard shots, but he didn't see who fired the shots." The judge concluded that trial counsel employed a reasonable strategy of self-defense based on defendant's taped statement, that the testimony of Ballard and the other alleged witnesses would not have advanced that defense, and that counsel had made a tactical choice not to call Ballard and the other witnesses. Finding that trial counsel provided highly competent representation, the judge denied the PCR petition.

Defendant now appeals, claiming that:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING THE DEFENSE THE OPPORTUNITY TO PRESENT A POTENTIALLY CRUCIAL WITNESS WHO WOULD HAVE SUPPORTED THE DEFENDANT'S CONTENTION HE HAD ACTED IN SELF DEFENSE.

In fact, defendant claims that the PCR judge made two erroneous rulings. We address each in turn.

III.

Defendant first claims the PCR judge mistakenly believed that Ballard's version of events was irrelevant because Ballard did not see who fired the shots. Based on Ballard's statements, defendant argues that Ballard's testimony at trial "would have tended to establish a reasonable doubt in the State's case."

Defendant contends he thus met the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009). To establish the first prong, "a defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.'" State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted). "'Second, the defendant must show that the deficient performance prejudiced the defense.'" Taccetta, supra, 200 N.J. at 193 (citation omitted). To satisfy that second prong, a defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 367 (2008) (citations omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (citation omitted).

Defendant notes that Ballard's statements would have "corroborated the defendant's statement to police, and contradicted the testimony of" the State's eyewitnesses, Cortez and Williams, because Ballard said defendant and Biddle engaged in a physical altercation. More fundamentally, however, Ballard would have contradicted both defendant's statement to police and the defense that led to defendant's acquittal of murder and conspiracy to commit murder.

As set forth above, that defense was based on defendant's taped statement that Biddle approached with his gun drawn to kill defendant. As trial counsel emphasized, Biddle's drawing of the "big revolver" was why defendant allegedly acted in self-defense, how he was able to seize the gun, what caused him to shoot Biddle, and why defendant had, and later discarded, the .357 revolver. According to Ballard's statements, however, Ballard did not see Biddle with a gun. Indeed, Ballard stated that Biddle "threw some punches," suggesting he had no gun in his hands and was solely using his fists. Further, Ballard in one statement said that defendant approached Biddle, which corroborated the State's witnesses, and contradicted defendant's statement. Thus, introducing Ballard's testimony would have undermined trial counsel's effort to paint Biddle as the aggressor, and contradicted defendant's explanation of how he ended up getting the revolver and shooting Biddle.

Trial counsel, who investigated, obtained at least two statements from Ballard, and then subpoenaed him, had an obvious strategic reason to decide not to call Ballard.4 "In matters of trial strategy, we accord great deference to the decisions of counsel . . . ." State v. Biegenwald, 126 N.J. 1, 56 (1991). "Which witnesses to cross-examine and the nature of the questions asked fall within this broad zone of attorney discretion." State v. Hightower, 120 N.J. 378, 432 (1990). Such "[d]ecisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds . . . ." State v. Cooper, 410 N.J. Super. 43, 57-58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). Defendant cannot overcome the presumption that trial counsel's decision falls within the wide range of reasonable professional assistance.

Furthermore, Ballard's statements fail to show a reasonable probability that, with his testimony, the result of the trial would have been different. As set forth above, his version of the beginning of the encounter between defendant and Biddle was contrary to both the testimony of the State's eyewitnesses and defendant's taped statement. Further, Ballard made inconsistent statements regarding who approached whom. Even if the jury nonetheless credited Ballard's version of the beginning that defendant and Biddle argued and got into a fistfight Ballard had no light to shed on the fatal ending. As the PCR judge found, Ballard "did not see who fired the shots." Ballard could not know who brought, pulled, or shot a gun. Because Ballard could not speak to the central issue in the trial, defendant cannot meet the exacting standard of prejudice.

IV.

Defendant next claims that the PCR judge denied the petition without affording the defense an opportunity to call Ballard as a witness. To the contrary, the PCR judge gave defendant that opportunity by granting an evidentiary hearing. It was PCR counsel who decided not to put Ballard on the stand subject to cross-examination. Instead, PCR counsel chose to argue that Ballard's statements were sufficient to meet his evidentiary burden.

At the commencement of the evidentiary hearing, PCR counsel affirmed he was "ready to proceed," but said he just "need[ed] to put a couple things on the record," including:

Mr. [Ballard] was properly subpoenaed. He was not in custody until apparently about a week ago. I was advised of this when the investigator located him at the Camden County facility just a matter of a few days ago. I immediately notified the Court when I found out, to have him produced for this hearing. I found out this morning, he was assigned an attorney from the Public Defender's Office within the last couple days, who's Mr. Harris.

I reached out to him. I was unable to find him [here] at court or the office today to discuss that. And, frankly, given the fact that Mr. [Ballard] at the moment is currently represented, I don't feel it would [be] appropriate for me to call him as a witness or discuss the matter with him without the consent of Mr. Harris.

THE COURT: Okay.

[PCR COUNSEL]: So until I have that opportunity, I don't believe it would be appropriate for me to call him as a witness.

Outside that, Your Honor, [defendant] is present, is prepared to present testimony in regards to his petition, and I'm ready to present arguments outside of Mr. [Ballard].

As set forth above, after presenting defendant's testimony, PCR counsel was asked whether he had met the Cummings threshold. Counsel replied "[a]bsolutely, Your Honor," because the report of Ballard's interview was "before the Court."

When PCR counsel, in describing Ballard's statements, said that Ballard presented "different testimony," the PCR judge noted that Ballard had not testified. Counsel replied that Ballard's information in the report was "sufficient to at least have the opportunity for Mr. [Ballard] to testify." The judge responded that "[t]oday is the day for the testimony." Counsel agreed, "[t]oday's the day," but cited "circumstances outside my control and my client's control." After the judge noted that defendant had rested and the evidentiary hearing was over, counsel replied that the judge "understands my position with Mr. [Ballard]." The judge understood, and ruled on the argument that counsel had made based on Ballard's statements.

Defendant now argues that "[i]n essence, by indicating that he believed Roger Ballard's testimony was essential to his client's position, [PCR] counsel was requesting the court delay any final ruling on the merits of the petition until he had an opportunity to present Ballard's testimony" and "was requesting a continuance in order to do so." In fact, the exchanges related above show PCR counsel never requested a continuance, and instead chose to base his position on Ballard's statements.

Even if PCR counsel had requested a continuance, "[a] motion for an adjournment implicates a trial court's authority to control its own calendar and is reviewed under a deferential standard." State v. Miller, __ N.J. __ (Oct. 2, 2013) (slip op. at 30). "'[B]road discretion must be granted trial courts on matters of continuances.'" Ibid. (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 1616, 75 L. Ed. 2d 610, 620 (1983)). "New Jersey long has embraced the notion that '[a] motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury.'" State v. Hayes, 205 N.J. 522, 537 (2011) (quoting State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926) (citations omitted)). We must hew to that standard of review.

We find no such abuse of discretion here. First, as the PCR judge noted, Ballard was "available today" in the county jail adjacent to the courthouse. PCR counsel was not precluded from calling Ballard after his arrest on unrelated charges, because Ballard was not represented "in the matter" involving Biddle's death. See RPC 4.2 & official comment ("In the criminal context, the rule ordinarily applies only after adversarial proceedings have begun by arrest, complaint, or indictment on the charges that are the subject of the communication."); State v. Bisaccia, 319 N.J. Super. 1, 22-23 (App. Div. 1999) (same). Furthermore, the PCR hearing already had been continued one or two times at PCR counsel's request, and once more at the State's request.

Second, defendant has not shown that he suffered manifest wrong or injury. The judge addressed Ballard's version on the merits based on his statements, even though they were not in the form of testimony or certification. See R. 3:22-10(c). Moreover, as discussed above, Ballard's version would have contradicted defendant's taped statement and undermined his defense, and offered no reasonable probability of a different outcome. See State v. Garcia, 195 N.J. 192, 207 (2008) (ruling that refusal to adjourn trial to obtain a jailed witness may be harmless "if the court determines that [his] testimony would not have advanced any viable defense").

Affirmed.

1 Ballard's name is also in the record as Boward or Bollar.

2 Defendant's view seems to have changed after Reese was acquitted in a trial at which defendant and Roger Ballard testified. The PCR judge did not find defendant to be a credible witness.

3 Cummings holds that "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Id. at 170.

4 Trial counsel submitted a certification in the PCR proceeding stating that "the strategic decision was made to go with self-defense based upon the defendant's statement to police," that Ballard and other witnesses were interviewed but not called "because they would not add to the case, could not be located or did not fit with the strategy." He added that the strategy and the decisions whether to call witnesses were discussed with defendant.