STATE OF NEW JERSEY v. STEVEN B. MCNEIL

NOT FOR PUBLICATION WITHOUT THE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.

STEVEN B. MCNEIL,

Defendant-Appellant.

________________________________________________________________

February 14, 2014

Submitted December 17, 2013 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-06-0929.

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

RobertD. Bernardi,Burlington CountyProsecutor, attorneyfor respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steven B. McNeil appeals from the November 29, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.

A Burlington County Grand Jury returned a two-count indictment against defendant for third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a), (count 1), and for second-degree eluding, N.J.S.A. 2C:29-2b, (count 2). After being convicted by a jury of both counts, defendant was sentenced to a ten-year prison sentence with a five-year period of parole ineligibility. We affirmed. State v. McNeil, No. A-3346-05 (App. Div. Dec. 13, 2007), certif. denied, 195 N.J. 422 (2008).

The evidence at trial revealed the following facts. On March 22, 2002, at 10:39 p.m., Burlington City Police Officer Matthew Wiesniewski was patrolling on foot with a police dog when he heard loud music coming from a dark-colored Infiniti with a temporary New Jersey license tag. When Wiesniewski attempted to stop the car, the driver swerved towards him and sped away. The Infiniti would have hit Wiesniewski if he had not jumped out of the way. Officer Jamie Lambing pursued the Infiniti into a cemetery. Both Lambing and Wiesniewski testified that the car had no passengers.

Another officer, Stanley Tarasewicz, saw the Infiniti exit the cemetery and continued pursuit, reaching a top speed of 95 miles per hour. Tarasewicz identified the driver of the car as defendant, a "familiar face" whom he had known in middle school. A third officer gave chase once the car left Burlington and entered Willingboro. Ten minutes later, Willingboro Detective Robert Smith stopped a car matching the description of the Infiniti. The driver, defendant, told the Detective that he had just received the car from a friend. The Infiniti belonged to Beverley Minnie, defendant's girlfriend, who testified that she gave the keys to defendant and saw him give them to his friend Sean. She also testified that she did not hear from defendant or Sean after 7 p.m., more than three hours before the chase began.

Three cameras affixed to police cars involved in the chase recorded the event. One of the videotapes of the chase was not produced at trial because it had been inadvertently destroyed. During cross-examination of Officer Tarasewicz, defense counsel questioned him about the missing videotape from his car's camera. The officer explained that the recorder was operating at the time of the chase, but the tape had been "recycled" because it had not been properly labeled by the police department. The two tapes that were presented at trial revealed no identifying details about the driver of the Infiniti. Tarasewicz testified that the missing videotape was equally unhelpful.

After the jury returned a guilty verdict on both charges, defendant filed a direct appeal. Among others, defendant raised the following issues:

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTIONWAS VIOLATED BY THE LOSS OR DESTRUCTION OF EVIDENCE IN POLICE CUSTODY.

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTIONWAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A "SPOLIATION" INSTRUCTION (NOT RAISED BELOW).

On direct appeal, we observed that all of defendant's arguments lacked sufficient merit for a written opinion and affirmed pursuant to Rule 2:11-3(e)(2). We stated that the State's failure to produce the third videotape was harmless. McNeil, supra, slip op. at 4-7. We noted that there is "no reason to believe that [the missing] police tape would have been any different[]" than the two unhelpful videos submitted into evidence at trial, id. slip op. at 10, and concluded that "[a] reasonable inference cannot be made that [the missing tape] would have presented exculpatory evidence." Id. slip op. at 9-10.

In this PCR appeal, defendant raises the following issue:

POINT I: 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 FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL WHEN COUNSEL PERMITTED THE STATE TO ELICIT INADMISSIBLE AND DAMAGING TESTIMONY FROM A POLICE OFFICER REGARDING THE CONTENTS OF A VIDEOTAPE WHICH HAD BEEN ERASED AND WAS NO LONGER AVAILABLE AT TRIAL, AND BY FAILING TO REQUEST THE COURT ISSUE AN ADVERSE INFERENCE CHARGE ARISING FROM THE DESTRUCTION OF THE VIDEOTAPE.

The PCR judge, Judge Jeanne Covert, issued a comprehensive written opinion that analyzed each of defendant's PCR points substantively, despite the judge's conclusion that they were procedurally barred because the issues had been adjudicated on direct appeal. Judge Covert explained that an instruction to the jury regarding the missing tape would "have perpetrated a fiction that the videotape was in fact exculpatory." She stated that "any motion that trial counsel would have brought regarding the videotape would have been denied" because there was "no evidence of bad faith." She explained that "the evidence was stacked so heavily against the defendant that the failure of trial counsel to object to Ptl. Tarasewicz's testimony regarding the contents of the destroyed tape had no effect on the outcome whatsoever."

The standard of review of a denial of a PCR is whether the judge's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Echols, 199 N.J. 344, 357 (2009). In reviewing a denial of an ineffective assistance of counsel argument, we are "highly deferential" with an eye to "avoid viewing [trial counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted).

The State argues that the PCR judge correctly noted that defendant's argument regarding the videotape is procedurally barred pursuant to Rules 3:22-4 and 3:22-5. In her extensive written opinion, Judge Covert noted that "defendant's claims could have been, and in some cases were, raised on direct appeal and thus they are procedurally barred." The admissibility of the police officer's testimony regarding the content of the missing videotape was certainly reviewable on direct appeal though not raised by defendant. We held that the State's loss of the third videotape was not in bad faith and that its destruction was ultimately harmless because there is "no reason to believe that this third police tape would have been any different" than the other two recordings submitted at trial. McNeil, supra, slip op. at 10.

Defendant does not state with any specificity what jury charge defense counsel should have requested. He argues to us that trial counsel's failure to "seek an appropriate adverse inference charge" was ineffective assistance of counsel. Defendant argued to the PCR judge that counsel was ineffective for not requesting a spoliation charge regarding the lost videotape.

In civil cases, a spoliation charge is given to permit the jury to "presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her." Rosenbilt v. Zimmerman, 166 N.J. 391, 401-02 (2001). This charge is used only when the spoliation is intentional. Id. at 411.

In State v. Nash, 212 N.J. 518, 546 (2013), our Supreme Court explained that a "petitioner is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal, R. 3:22-4(a), or that has been previously litigated, R. 3:22-5." If a petitioner at PCR had ample opportunity to raise a claim in the prior proceeding, then that claim is barred from being heard at PCR. R. 3:22-4(a).

We rejected defendant's claim that the trial judge erred by failing to sua sponte charge the jury with a "spoliation" charge. Defendant appears to repeat this argument, changing the nomenclature from "spoliation" to "adverse inference." Because we held on direct appeal that the failure to charge spoliation was not error of any kind, we may not consider whether counsel was constitutionally ineffective for failing to request the charge. R. 3:22-5. This is particularly true because even absent a request, the court has an independent obligation to fashion an appropriate jury charge when the "record clearly indicates the need or clearly warrants the unrequested jury instruction." State v. Rivera, 205 N.J. 472, 489 (2011).

The claim of ineffective assistance of trial counsel would fail even if not procedurally barred. A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. 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, 57-58 (1987) (adopting the two part Strickland test in New Jersey).

A PCR judge may hold an evidentiary hearing to determine whether counsel was ineffective. R. 3:22-10. However, the judge should only hold an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima facie case, the defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463.

Defense counsel told the jury that the missing videotape was damaging to the State's case. During opening statements, counsel told the jury that the prosecutor had failed to mention that he only had two of three videotapes. Counsel told the jury that the missing video was damaging to the State here just as the missing tapes were damaging to Nixon in Watergate. As the PCR judge noted, counsel also engaged in "exhaustive cross-examination" of the officers regarding the reasons for the missing tape and its contents. During summation, counsel again noted the missing tape, stating, "Is there something damaging on tape 2? That's what you have to decide."

Defendant cannot show that trial counsel's performance was deficient.

Affirmed.