STATE OF NEW JERSEY v. BRANDON STOKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6267-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON STOKES,

Defendant-Appellant.

_________________________________

February 21, 2013

 

Submitted February 4, 2013 - Decided

Before Judges Parrillo and Fasciale.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Indictment

No. 06-06-1927.

Joseph E. Krakora, Public Defender, attorney

for appellant (Lee March Grayson, Designated

Counsel, on the brief).

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

PER CURIAM

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

Defendant was convicted by a jury of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). At sentencing, the trial judge merged counts one into count two and count five into counts two and three and imposed the following sentence: a twelve-year term of imprisonment on count two with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent twelve-year term of imprisonment on count three with NERA parole ineligibility; and a concurrent five-year term of imprisonment on count four. The judge also imposed the appropriate assessments and penalty.

We recount the relevant facts of these crimes as stated in our opinion, State v. Stokes, No. A-6640-06 (App. Div. 2009), affirming defendant's convictions.1

On February 13, 2006, defendant, Tyquan Wellington (Wellington), Marcus Boone (Boone) and Ibn Baker (Baker) were all at Wellington's cousin's home in Elizabeth, drinking alcohol. At the time, defendant was twenty-one years old, Boone was twenty-three and Wellington and Baker were sixteen.

 

After several hours, defendant, Wellington, Boone and Baker left the house. Traveling in Boone's car, they made several stops, eventually stopping at another house in Elizabeth. Wellington testified at trial that defendant exited the car, went into the house and returned with a silver, .380 caliber handgun, which he gave to Baker. Wellington also saw defendant put a black gun in his left pocket.

 

Wellington also testified that defendant said to the group that he knew of people in the area of 18th Avenue in Newark that had money, and suggested that they rob somebody. As Boone drove down 18th Avenue, the group saw two men walking in the same direction as the car, who defendant chose to rob. Defendant told Boone to pull over, and he and Baker exited the car with their guns; however, the two males were armed, and a shoot-out occurred. Baker was shot and seriously wounded. Defendant escaped harm. He pulled Baker into the car, but no one called for help. Instead, the group drove to University Hospital in Newark. As they approached the hospital, defendant and Boone instructed the group that they were "going to say we didn't know [Baker] so we could go home that night." After carrying Baker into the hospital, the trio told the hospital staff that they found him on the side of the road and were just helping him. Baker died from his gunshot wounds.

 

Detective Michael Chirico of the Newark Police Department Homicide Unit was dispatched to the scene of the shooting, where he learned that three witnesses claimed to have found Baker and took him to the hospital. Chirico went to the hospital and interviewed defendant, Boone, and Wellington. All three informed the detective that they were driving around when they heard gunshots, that they saw an individual lying in the street, who they brought to the hospital, and that they did not know the individual. However, after speaking with the young men for approximately fifteen minutes, Chirico heard someone in the waiting room say that they were Baker's friends. The trio were then transported to police headquarters. During the drive, defendant instructed Wellington and Boone two or three times to "stick to the story."

 

At police headquarters, Wellington was separated from the others and interviewed in his parents' presence. During the interview, Wellington admitted that the group had attempted to rob the two men, and that they had a gun. After receiving his Miranda [v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966)] rights, Wellington gave a recorded statement; however he did not mention the attempted robberies; but said that Baker had a gun when he exited Boone's car and was shot.

 

After receiving his Miranda rights, Boone gave a recorded statement confessing to the attempted robberies and inculpating defendant. After receiving and waiving his Miranda rights, and after signing a Miranda form, defendant gave a recorded statement confessing to the attempted robberies.

 

Defendant testified at trial and gave a very different version of what happened. He said that the group went to 18th Avenue to buy marijuana, and that the two men walking down the street said they would sell it to them. Baker exited the car to purchase the drugs. Defendant was exiting the car when he heard gun shots. He dove to the ground until the shooting stopped, at which point he saw Baker laying on the ground. He helped Baker into the car, and the group drove to the hospital. At the hospital, Boone told the police that they did not know Baker.

 

Defendant also testified that the police forced him, Boone, and Wellington to submit to a gunpowder residue test, which had negative results. Defendant also claimed that he never received any Miranda rights before the police began questioning him, and that Chirico accused him of lying, slapped him in the face, and advised him that Boone gave a taped statement admitting the attempted robberies and inculpating defendant. Defendant further claimed that Chirico slapped him again when defendant said that Boone was lying.2 At this point, defendant admitted the attempted robberies because he was scared and wanted the detective to stop slapping him.

 

[Id. at 3-7.]

 

Defendant filed a timely PCR petition in which he alleged ineffective assistance of counsel based on his trial attorney's failure to: (1) meet with him and provide him discovery; (2) adequately explain the purpose of a Miranda hearing, or that defendant had a right to testify there; (3) investigate potential witnesses, hospital staff, or surveillance videos that may have described his condition in the hospital; (4) look into a list of alibi witnesses that defendant provided him; (5) inform the sentencing court that defendant's only prior conviction was pending appellate review; and (6) file an appeal. Following argument, the PCR judge denied defendant's petition. Noting that the essence of defendant's ineffective assistance claim was his counsel's failure to focus on the issue of whether defendant was handcuffed at the hospital and thus illegally detained, rendering his subsequent confession tainted and inadmissible, the judge concluded:

[Defendant's] attorney raised the issue of handcuffing not only at the Miranda hearing, but also again during trial. Although his attorney did not, apparently, discuss the issue of handcuffs to the extent that the defendant would have liked, it may be presumed that his attorney's decisions were strategic ones.

 

[T]he defendant has [also] not established that actual prejudice resulted from his attorney's conduct in this regard. The defendant has admitted that his testimony would have been the same as that of his

codefendant, Marcus Boone . . . . Additionally, the defendant later testified at trial as to all of the circumstances surrounding his alleged handcuffing at the hospital. In short, the court heard Mr. Boone's testimony and ruled on the admissibility of the defendant's statement. The court subsequently heard additional argument, as well as the defendant's testimony, and did not change its ruling. The defendant has therefore not likely affirmatively shown that the outcome would have been different, had the defendant testified at the Miranda hearing.

 

The PCR court similarly rejected defendant's ineffective assistance claim based on counsel's alleged failure to investigate alibi witnesses. The judge specifically found:

[I]t appears that, in fact, it was simply one alibi witness, and the defendant merely provided defense counsel with her name and telephone number. The witness' proffered testimony would reveal that [defendant] was on his way to her home at the time of the robbery. The counsel presented this information to the State and to the court, and [defendant's] contentions regarding his attorney's failure to explore this matter appear to be unfounded.

 

[Moreover], the defendant makes no attempt at showing that had these alleged alibi witnesses been called to testify, the outcome of the trial would have been different.

 

Lastly, the court also rejected defendant's ineffective assistance claim based on counsel's failure to inform the sentencing court that defendant's only prior conviction was then pending appeal. The PCR judge reasoned:

At sentencing, the defendant's attorney strongly argued for the court to consider mitigating factor number seven, a lack of prior convictions. He stated that the defendant had a prior conviction for theft, however minimized its significance by showing that it was amended to a lesser charge, and gave rise to a sentence of one year of probation. He also argued that the defendant was very cooperative with the terms of his probation. Defense counsel further argued for the court to consider mitigating factors eight (that conduct arose from circumstances unlikely to recur[])[,] nine (the character and attitude of the defendant[])[,] and eleven (that imprisonment would be an excessive hardship). The defendant's attorney vigorously argued for the court to apply these mitigating factors and requested a sentence of ten years.

 

. . . .

 

[I]t does not seem possible that the court may have reached a different sentencing decision, had it been shown that the defendant's prior conviction was pending appeal. . . .

 

. . . .

 

Additionally, . . . the court . . . imposed a sentence much closer to the lower sentence requested by defense counsel, than to the higher sentence requested by the State. . . .

On appeal, defendant raises the following issues:

I. BECAUSE TRIAL COUNSEL DID NOT ADEQUATELY EXPLAIN THE PURPOSE OF A MIRANDA HEARING OR THE RIGHT TO TESTIFY AT THE PROCEEDING, THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

 

II. BECAUSE TRIAL COUNSEL DID NOT CONDUCT A PROPER INVESTIGATION OR SEEK OUT WITNESSES AT THE HOSPITAL WHO MAY HAVE SEEN THE EVENTS OR OBTAIN THE HOSPITAL SURVEILLANCE RECORDINGS, ALL OF WHICH WAS NECESSARY TO REFUTE THE ALLEGATIONS THAT STATEMENTS MADE BY THE DEFENDANT AND OTHERS WERE UNCOERCED, THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

III. BECAUSE TRIAL COUNSEL FAILED TO INFORM THE SENTENCING COURT THAT THE DEFENDANT'S ONLY CONVICTION WAS PENDING APPELLATE REVIEW, THE SENTENCE IMPOSED WAS ILLEGAL AND SHOULD BE VACATED. (Partially Raised Below).

 

IV. BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

 

V. REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SENTENCING HEARING AND INEFFECTIVENESS OF APPOINTED TRIAL, APPELLATE AND PCR COUNSEL.

 

W

e find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Cassini in his thorough written decision of December 15, 2010. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Affirmed.

1 Defendant's petition for certification was subsequently denied by the Supreme Court. State v. Stokes, 201 N.J. 441 (2010).

2 Apropos to issues raised below, defendant also testified at trial, as did his co-defendant Boone, that Boone, Wellington and he were all handcuffed to chairs while at University Hospital, and were unable to leave.