STATE OF NEW JERSEY v. KEITH DRAKE

NOT FOR PUBLICATION WITHOUT THE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.

KEITH DRAKE,

Defendant-Appellant.

__________________________________________________

April 24, 2014

Submitted February 25, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2224.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Keith Drake appeals from the August 31, 2012 Law Division order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm.

On September 20, 2005, an Essex County grand jury indicted defendant on third-degree criminal restraint, N.J.S.A. 2C:13-2; second-degree sexual assault by vaginal penetration, N.J.S.A. 2C:14-2(c)(1); and second-degree sexual assault by cunnilingus, N.J.S.A. 2C:14-2(c)(1). The indictment arose from a March 30, 2005 incident in which defendant, then thirty-five years old, prevented an eighteen-year-old neighbor from leaving his mother's house. Defendant then held the girl down, performed oral sex on her against her protestations, attempted to penetrate her, and ejaculated on her shirt.

After a three day trial in November 2006, the jury found defendant guilty only of second-degree sexual assault by cunnilingus, and acquitted him of the remaining charges. On March 16, 2007, Judge Ned M. Rosenberg sentenced defendant to seventeen years in prison with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Upon his release, defendant faced parole supervision for life, pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23.

On direct appeal, defendant raised several issues regarding the prosecutor's summation, the victim's testimony concerning prior criminal conduct by defendant, improper jury instructions, inadequate proofs, and sentencing improprieties. On October 27, 2008, we affirmed defendant's conviction, but remanded for resentencing. The Supreme Court denied certification on January 22, 2009. State v. Keith Drake, 197 N.J. 477 (2009). Upon remand, Judge Rosenberg resentenced defendant to an identical term.

Defendant filed the instant PCR petition on March 9, 2012.1 Defendant argued that his petition was not procedurally barred and raised the following:

POINT I: THE PETITIONER SEEKS RELIEF FROM THE CONVICTION OF NOVEMBER 28, 2006, ON THE GROUNDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, AT TRIAL AND ON APPEAL, IN VIOLATION OF HIS RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND CORRESPONDING PROVISIONS OF THE NEW JERSEY CONSTITUTION IN THE FOLLOWING SPECIFIC REGARDS.

A. Trial Counsel Failed to Request a Curative Instruction Regarding Incomplete, Confusing Jury Instruction(s), Which Resulted in the Jury Bringing Back an Inconsistent Verdict; Further, he, or they Failed to Move the Court to Set Aside that Verdict as Being Impermissibly Inconsistent.

B. Appellate Counsel in Turn Failed to Raise Before the Appellate Division the Issue of the Impermissibly Inconsistent Verdict that Resulted from the Incomplete, Confusing Instructions.

C. The Said Incompleteness and/or Confusing Nature of the Instructions are Asserted in the Petitioner's Pro Se Brief ("PSB"). Although the Petitioner was Charged with Two Separate Counts of Sexual Assault, the Court in its Jury Instructions did not Charge the Jury Separately Regarding the Two Counts, but in its Instructions Conflated the Two in Such a Way that the Jury was Likely Confused. Additionally, the Petitioner Asserts that the Court Elsewhere in the Jury Instructions Misspoke, Stating . . . : "Keith Drake is Presumed Innocent Unless Each and Every Element of an Offense Charged . . . is Proven Beyond a Reasonable Doubt. And . . . if that is the Case, Keith Drake Must be Found Not Guilty of that Charge."

On May 24, 2012, Judge Rosenberg held oral argument and decided that an evidentiary hearing was warranted. At the evidentiary hearing defendant's trial counsel testified that, at the time of the verdict he declared that he would file a motion "for acquittal" based on an inconsistent verdict. But, upon completion of research, he discovered that an inconsistent verdict would not give rise to a successful motion to set aside the verdict. Consequently, he elected not to file a motion because he believed such a motion would have been frivolous. Trial counsel's co-counsel also testified that a mere inconsistency in defendant's verdict would not be grounds to file a post-trial motion or appeal.

Defendant's appellate counsel testified that he did not appeal the inconsistent verdict issue because the law in New Jersey was settled "that inconsistent verdicts are entirely proper" except in specified situations not applicable in defendant's case. The only appealable question, according to appellate counsel, was whether there was sufficient evidence to support the count on which defendant was convicted, which was raised and rejected on appeal.

On August 31, 2012, Judge Rosenberg issued a written opinion denying the PCR petition. The judge determined that "the jury instructions rendered at trial were consistent with the Model Jury Charges and were adequate instructions on the law." Additionally, the judge found that "the trial defense attorney made the strategic and calculated decision not to object" and "appellate counsel made the informed decision to limit his appeal of the jury instruction to the specific issues he believed were possibly reversible error." He noted that on appeal the jury instructions were determined to be proper, which supported the judge's conclusion that counsels' decisions did not fall outside the range of professional competence.

Judge Rosenberg also observed that the allegedly inconsistent verdict was entirely permissible. Furthermore, the judge found that defendant had not demonstrated any prejudice resulting from the failure to file a post-trial motion based on the verdict. Therefore, the judge denied defendant's PCR petition. This appeal followed.

On appeal, defendant raises the following for our consideration:

POINT I: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE OF TRIAL AND APPELLATE COUNSELS' INEFFECTIVE ASSISTANCE FOR FAILING TO PURSUE THE TRIAL COURT'S ERRONEOUS JURY INSTRUCTIONS WHICH RESULTED IN [AN] INCONSISTENT VERDICT[].

Defendant's pro se supplemental brief raises the following additional points:

POINT I: THE DEFENDANT'S CONVICTION OF SEXUAL ASSAULT MUST BE REVERSED BECAUSE THE TRIAL DEFENSE AND THE APPELLATE COUNSELS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHICH IS GUARANTEED BY THE SIXTH AMENDMENT. BY COUNSELS' FAILURE TO RAISE THE ISSUE OF THE IMPERMISSIBLE INCONSISTENCY OF THE JURY'S VERDICT; THE JURY'S INSTRUCTIONS; AND BECAUSE THE DEFENDANT WAS PREJUDICED TO A FAIR TRIAL. THE APPELLATE COURT SHOULD GRANT A REVERSAL OR AT LEAST AN ACQUITTAL.

A. The Trial Court Erred by Not Instructing the Jury on the Subject of "One Defendant, Multiple Counts." In Addition, the Trial Defense and Appellate Counsels Failed to Object to or Pursue [Any] Issues. By Counsels' Failure [Defendant was Prejudiced] to a Fair Trial.

B. The Trial Court Erred by Not Instructing the Jury on the Subject of (N.J.S.A. 2C:14-2(c)(1), Sexual Assault) "Defendant is Charged in Count 3 of the Indictment with Sexual Assault."

C. The Trial Court Erred by Not Instructing the Jury Properly to the Model Jury Charge for N.J.S.A. 2C:14-2(c)(1), Sexual Assault (Force/Coercion). The Trial Court Merged Count 2) and Count 3) Together, which Caused the Defendant to Have an Inconsistent Verdict.

D. The Trial Defense and Appellate Counsels Failed to Object or Raise an Issue About the Trial Court Not Instructing the Jury to Count 3) Elements for N.J.S.A. 2C:14-2(c)(1), Sexual Assault (Force/Coercion) (Revised 1/24/2005). The Trial Court's Erroneous Jury Instructions Prejudiced the Defendant to a Fair Trial and Not to Have a Fair Trial and Caused the Defendant to Have an Inconsistent Verdict. See The Defendant's "Y" Theory Diagram. Warranting an Acquittal or at Least a New Trial.

E. The Trial Court Erred by Not Choosing the Appropriate Act for N.J.S.A. 2C:14-2(c)(1), Sexual Assault (Force/Coercion) for Count 3) When Instructing the Jury. By the Trial Defense and Appellate Counsels Not Objecting or [Pursuing] Issues Concerning the Jury Charges Prejudiced the Defendant to a Fair Trial and Caused the Defendant to Have an Inconsistent Verdict.

F. The Trial Defense and Appellate Counsels Failed to Object or Raise an Issue Concerning the Trial Court's Not Instructing the Jury to the Appropriate Definition for N.J.S.A. 2C:14-2(c)(1), Sexual Assault (Force/Coercion) (Revised 1/24/2005) for Count 3). By the Trial Court Not Instructing the Jury to Count 3) Definitions Caused the Defendant to Have an Inconsistent Verdict and Prejudiced the Defendant to a Fair Trial.

G. There was Confusing Jury Instructions Regarding Burden of Proof. The Trial Defense and Appellate Counsels Failed to Object or Raise an Issue When the Trial Court Gave an Erroneous and Frivolous Jury Instructions by Misleading the Jury to "Proof Beyond a Reasonable Doubt." The Trial Court's Jury Instructions Prejudiced the Defendant to a Fair Trial and Caused the Defendant to [Receive] an Inconsistent Verdict. Warranting an Acquittal or at Least a New Trial.

H. At the Conclusion of Defendant's Trial, Defense Counsel Failed to File the Appropriate Motions for Inconsistent Verdict After Stating to the Court [He Would] Do[] So, Ma[king] Defense Counsel[] Ineffective.

I. The Trial Defense or Appellate Counsels Failed to Object or File Motions Concerning Subsections A Through H of Point I of this Supplemental Brief, Which Caused an Inconsistent Verdict. Warranting the Defendant an Acquittal in the Charge or at Least a New Trial.

J. The Trial Defense and Appellate Counsels Failed to Object or File a Motion for Mistrial or Pursue Issues During Summation [of] the Prosecutor [who] Made Comments and/or Remarks that Individually and Cumulatively Deprived the Defendant of a Fair Trial by the Extent of their Egregious Nature and Contents Which Served to Prejudice the Defendant.

POINT II: THE TRIAL COURT'S JURY INSTRUCTIONS WERE INCOMPLETE AND MISLEADING WHICH PREJUDICED THE DEFENDANT AND CAUSED THE DEFENDANT AN UNFAIR TRIAL. WARRANTING AN ACQUITTAL OR AT LEAST A NEW TRIAL.

We begin with a review of the well-established legal principles that guide our analysis. Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992).

Ineffective-assistance-of-counsel claims must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of a deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

In considering the first prong, we give great deference to counsel's professional performance, and do not evaluate the decisions made utilizing hindsight, but rather in light of counsel's state of mind at the time. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002). "Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.' In contrast, strategic choices made after a limited investigation are assessed for reasonableness, with great deference given to counsel's professional judgments." Id. at 22 (alterations in original) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

A petitioner must establish the right to relief by a preponderance of the evidence, Preciose, supra, 129 N.J. at 459, and "must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, "bald assertions" of ineffective assistance are not enough. Ibid. The court must view the facts alleged in the light most favorable to the petitioner. Ibid.

Having considered defendant's arguments in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Rosenberg's opinion of August 31, 2012. We add only the following brief discussion.

A court's jury charge should be read as a whole to determine its overall effect and whether there was any error. State v. Torres, 183 N.J. 554, 564 (2005). Having reviewed the totality of Judge Rosenberg's jury instruction, we discern no error. Indeed, inconsistent verdicts have been widely accepted in our system and are not subject to correction by the court. State v. Maloney, 216 N.J. 91, 109 (2013); State v. Banko, 182 N.J. 44, 53 (2004). As such, defendant's argument that the allegedly inconsistent verdict2 is somehow evidence of a greater error is unpersuasive.

As we discern no underlying error, we conclude that defendant's trial and appellate counsel were not ineffective. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel."); State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) ("[A]s there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied the effective assistance of counsel."), certif. denied, 197 N.J. 477 (2009). We decline to second guess their strategic decisions. See Petrozelli, supra, 351 N.J. Super. at 22.

Affirmed.

1 Defendant's initial pro se petition, filed June 19, 2009, was dismissed pending defendant's appeal of his resentencing.

2 We are not convinced that defendant's verdict was inconsistent as the two sexual assault charges, while legally identical, required different types of sexual assaults with different factual underpinnings.