STATE OF NEW JERSEY v. TERRENCE BREWER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6280-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE BREWER,

Defendant-Appellant.

________________________________________________________________

December 13, 2013

Submitted November 5, 2012 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 99-07-0665.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

Defendant Terrence Brewer appeals the Law Division order dated September 10, 2010 denying him post-conviction relief (PCR). We affirm.

The charges1 against defendant arose from incidents occurring during the afternoon of July 21, 1998 on Centre Street in Trenton, New Jersey. There was conflicting evidence produced at trial. Ahmad Harris testified that defendant robbed him of cash, a gold chain, and drugs at gunpoint during an attempted drug transaction between Harris and defendant in a driveway off Centre Street. Defendant then fled, followed by Harris, who picked up a bottle while yelling that he had been robbed. During the chase, defendant was riding a bicycle and pointed his handgun at Harris. As Harris reached Broad Street, he saw his friend, Andrew Powell, running from Centre Street toward defendant. When Powell was four to five steps from defendant, defendant shot Powell twice. Harris later identified defendant at police headquarters, as well as the gun defendant used to rob him.

An eyewitness to the shooting, Samuel Johnson, stated he was driving home from work at approximately 4:00 p.m. when he saw two males being chased by a man holding a bottle in his hand at the intersection of Ferry and Broad Streets. Johnson identified defendant, who was pushing a bicycle, as one of the men being chased and Ray Carter as the other. Johnson stated that Harris raised the bottle as if to strike defendant and said to "give it up." Johnson then saw defendant reach into his waistband, pull out a handgun, and point it at Harris, causing Harris to step back. Defendant then continued on the bicycle toward Broad Street.

Johnson decided to follow defendant and saw Harris continue his pursuit of defendant, but at a distance. When defendant reached Broad Street, he dropped the bicycle and began walking toward Market Street. Johnson then saw three males, including Harris, running from Centre Street toward defendant. Johnson heard Harris yell to the other two men, one of whom was Powell, that defendant's gun was a fake. Defendant then pulled the gun from his waistband and shot Powell, who had confronted defendant. Powell was about one to two feet away from defendant when he was shot. Johnson stated that Powell had nothing in his hands at the time. Powell died from gunshot wounds.

Johnson followed defendant and Carter, and saw Carter enter a residence on Clay Street. He had also seen defendant discard clothing while walking toward the Clay Street area. Johnson went back to the scene of the shooting, informed the police about his observations, and led them back to the Clay Street residence. When the police arrived, Carter was on the porch and informed the police that defendant, his brother-in-law, was inside the house. Carter consented to a search of the house. Police found defendant in the attic, breathing heavily and sweating. When taken outside, Johnson identified defendant as the shooter.

Defendant testified to a different version of the incident. Defendant admitted that he went to the Centre Street area with Carter in an attempt to purchase drugs from Harris. Carter waited for him at the corner of Centre and Broad Streets. However, when Harris took him into the driveway, Harris pulled a handgun and demanded money. After dropping the money on the ground to distract Harris, defendant attacked Harris, grabbed the money and gun, and ran from the driveway. As Harris began to scream, defendant saw two males running towards him, so he ran out of the alley towards Ferry Street.

Defendant stated that during the chase, Harris tried to hit him with a bottle and defendant pulled out the gun to make him back off. As defendant continued toward Broad Street, he saw Powell holding Carter up against a wall. Powell then approached defendant, reaching behind his back and pulling out what defendant thought was a gun. Defendant ducked down and shot Powell twice. Defendant denied taking any drugs, money or jewelry from Harris.

The jury credited the State's version of events and convicted defendant of murder, felony murder, robbery, and related weapons offenses.2 On direct appeal, we reversed the murder conviction (count six), remanded for resentencing on robbery (count one), and affirmed the remaining convictions. For resentencing, the trial judge merged count one, robbery, into count seven, felony murder. Defendant was sentenced on felony murder to a life term with thirty-five years parole ineligibility. The court granted the State's motion to dismiss the murder charge. The amended sentence was affirmed on appeal.

In a timely PCR petition, defendant alleged, among other things, ineffective assistance of trial counsel for failing to call Ray Carter as a witness and for failing to cross-examine certain prosecution witnesses in violation of defendant s Sixth Amendment right to confrontation. Because of such alleged errors, defendant requested a new trial or, in the alternative, an evidentiary hearing.

As to the former, defendant argued that if called as a defense witness, Carter would have corroborated defendant's version of the incident and confirmed that defendant acted in self-defense. Additionally, defendant asserted that Carter's testimony would have contradicted the statement he gave to police on the day of the incident, thereby casting doubt on the veracity of the police. The PCR judge summarized Carter's statement to police as follows:

In the statement he said, "[defendant] said that he was going down the street to get them boys on Centre Street," meaning he was preparing to rob drug dealers. He mentioned that the defendant had a gun and carried a gun in the past. "That's how [defendant] always operated." Carter said he followed [defendant] to the corner of South Broad and Ferry and witnessed the defendant tussling with an individual. Carter said he attempted to avoid confrontation by moving away from that altercation. [Defendant] ran towards Centre and South Broad. At the corner[,] he was confronted by the person he shot. "Just then the guy that got shot reached behind his back with his hand and when he did[,] [defendant] lifted his left hand and shot that boy point blank two times." He reported that [defendant] proceeded back towards Carter's home. When Carter arrived[,] he saw [defendant] lacked a shirt and hat. Carter offered or said that [defendant] told him he "dumped" the firearm. When shown the handgun, [ ] Carter positively identified it and after taking the statement the officer asked, "[Carter], do you know how to read and write the English language? He responded "yes." He signed the statement and acknowledged it was given freely and voluntarily.

In October 1999, defense counsel interviewed Carter, at which time Carter changed his story. The PCR judge summarized Carter's modified statement as follows:

[Carter] said that he ran into defendant as he exited the Mill Hotel and this contradicts the police statement where he explained he saw [defendant] before he headed towards the Spanish guy. He said that he came across [defendant] as he confronted the victim. Carter said that the victim reached behind his back and that the defendant fired on him. Defense counsel asked Carter if he had told the police that the defendant was attempting to "get them boys" and Carter responded, "Yeah, that I -- from going down there to get them guys, man, I was high as hell. I don't even know and when they said them guys, I might have said something about [defendant] going to see the Spanish guys, you know what I mean, and when he said them guys because of one moment they had a Spanish guy with the black guys at the police station, you know." He said that he did not assert that [defendant] was going to rob drug dealers but said that the defendant had dealings with "the Spanish guy." Further[,] Carter said he had -- Carter said he was limited with regard to literacy and that he did not read the statement.

The PCR judge found that by taking Carter's statement, defense counsel was effective "in the Sixth Amendment sense" because [counsel] had "ample information to impeach Carter if he was called as a witness by the State." The judge characterized the decision not to call Carter as a defense strategy and reasoned that the existence of Carter's conflicting statements "does not mean that . . . defense counsel should have called [Carter] to present both [incriminating] and exculpatory evidence against his own client."

With regard to defendant's latter claim, the PCR judge called the attorney's choice to not cross-examine certain prosecution witnesses a "tactical decision." The PCR court denied all of defendant's claims.

This appeal followed, in which defendant contends:

I. [DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIMS THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PRESENT RAY CARTER AS A WITNESS AND FAILING TO CROSS-EXAMINE FIVE KEY WITNESSES.

A. Failure to Present Ray Carter as a Witness.

B. Failure to Cross-Examine Witnesses.

II. ALL CLAIMS IN [DEFENDANT'S] PETITION AND BRIEFS ARE INCORPORATED IN THIS APPEAL.

Defendant raises additional issues pro se:

I. DEFENDANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND IS ENTITLED TO A FULL EVIDENTIARY HEARING.

II. THE COURT LACKED SUBJECT-MATTER JURISDICTION AND PERSONAL JURISDICTION, BECAUSE PROBABLE CAUSE WAS NOT FOUND ON THE COMPLAINT-WARRANT BY ANY JUDICIAL OFFICER, NOR SWORN TO UNDER OATH, RENDERING THE COMPLAINT-WARRANT CDR-2 FORM DEFECTIVE. COUNSEL WAS INEFFECTIVE FOR NOT ADDRESSING THIS ISSUE.

III. THE FAILURE TO COMPLY WITH REQUIREMENT OF RULES 3:3-1(a) (b), R. 3:2-3; R. 3:4-12; R. 3:5-3; R. 3:26-2(c) RENDERS THE CDR[-] 2, IN EVIDENCE NULL AND VOID.

IV. THE COUNSEL'S FAILURE TO CROSS-EXAMINE PROSECUTION WITNESSES DENIED DEFENDANT A FAIR TRIAL IN VIOLATION OF NEW JERSEY CONSTITUTION, ART. I, PAR. 10.

We find no merit to defendant's contentions, pursuant to Rule2:11-3(e)(2), and, therefore, affirm substantially for the reasons stated by the Honorable Edward M. Neafsey, J.S.C. in his comprehensive August 31, 2010 oral decision. We offer the following brief comments.

In order for defendant to obtain collateral relief based on ineffective assistance grounds, he is obliged to show not only that 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, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey).

"[T]he right of an accused to present witnesses in his own defense 'is a fundamental element of due process of law.'" State v. Garcia, 195 N.J. 192, 202 (2008)(quoting Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798, 810 (1988)). Under the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution, a defendant is guaranteed "nothing less than 'a meaningful opportunity to present a complete defense.'" Id.at 201-02 (quoting State v. Garron, 177 N.J. 147, 168 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)).

A defendant's right, however, is subject to the legitimate interests of the court, including its role as "gatekeeper for the admission or exclusion of evidence." State v. Rosales, 202 N.J. 549, 561-62 (2010); see also Garcia, supra, 195 N.J. at 202-03 (citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)). "[A] defendant does not have a right to call a witness who will offer irrelevant [or inadmissible] testimony." Id.at 203 (citing Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 644 (1986)).

Evidence is relevant if it has "a tendency . . . to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The inquiry "focuses upon the logical connection between the proffered evidence and a fact in issue." Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (citations omitted) (internal quotation marks omitted).

Here, defendant pursued a trial strategy in which he claimed self-defense. Defense counsel artfully developed an opening statement, the cross-examination of relevant prosecution witnesses, defendant s own testimony, and an appropriate summation, all in an attempt to persuade the jurors that defendant was justified in shooting Powell. Carter s statement simply would not have been relevant or helpful to defendant s self-defense claim. Rather, as the PCR judge found, calling Carter "would have only served to bolster the State s theory of the case against the defendant . . . [as] Carter s statement directly implicates the defendant . . . ."

With regard to the defense counsel's alleged failure to cross-examine certain police officers, the PCR judge scrupulously analyzed the testimony, and determined that trial counsel made a tactical decision to only cross-examine those officers who responded to the scene of the shooting and who searched the area for evidence. The court reasoned that counsel did so "in an attempt to attack the credibility of Harris by pointing out that no officers found gold chains, drugs or currency." The judge found that the testimony of the other five officers was either not relevant to defendant's self-defense theory or related to matters that defendant conceded were true.

After a careful review of the record, we agree with Judge Neafsey that defendant failed to make a prima facie showing of ineffective assistance of counsel under Strickland sufficient to warrant a new trial or, alternatively, an evidentiary hearing.

Defendant's remaining arguments lack sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

1 A Mercer County Grand Jury returned Indictment Number 99-07-0655, charging defendant with first-degree robbery, pursuant to N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, pursuant to N.J.S.A. 2C:12-1b(4) (counts two and eight); second-degree possession of a weapon for an unlawful purpose, pursuant to N.J.S.A. 2C:39-4a (count three); third-degree unlawful possession of a weapon without a permit, pursuant to N.J.S.A. 2C:39-5b (count four); third-degree theft by unlawful taking, pursuant to N.J.S.A. 2C:20-3a (count five); first-degree murder, pursuant to N.J.S.A. 2C:11-3a(1) (count six); first-degree felony murder, pursuant to N.J.S.A. 2C:11-3a(3) (count seven); and fourth-degree tampering with physical evidence, pursuant to N.J.S.A. 2C:28-6a(1) (count nine).

2 After merging counts two and three into count one; and counts seven and eight into count six, the trial judge imposed a life sentence with a sixty-three and three-quarter-year period of parole ineligibility on count one, pursuant to the Graves Act and No Early Release Act; a concurrent five-year term with a two and one-half-year period of parole ineligibility on count four; and a concurrent eighteen-month-term of imprisonment with a nine-month-period of parole ineligibility on count nine. He was acquitted of count five. The judge also imposed $3,866 in restitution, a total $250 VCCB fine, $300 SNSF assessment, and a $120 LEOTF penalty.