STATE OF NEW JERSEY v. DAVID CONNOR

NOT FOR PUBLICATION WITHOUT THE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.

DAVID CONNOR,

Defendant-Appellant.

________________________________________________________________

December 22, 2014

Submitted May 14, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-07-2335.

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 (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).

Appellant filed pro se supplemental briefs.

The opinion of the court was delivered by

MAVEN, J.A.D.

Defendant David Connor, appeals from the Law Division's denial of his petition for post-conviction relief ("PCR"). We affirm.

The State's proofs at trial established that defendant shot and killed his co-worker. In our prior opinion, we provided this summary of the evidence presented at trial.

Defendant operated an auto repair establishment. He employed a number of people, including the victim, Benjamin Law. On the morning of August 18, 2006, defendant picked up one of his employees, Philip Leggard (Philip), and proceeded to work. Once there, he called Tareek Gillian, who sold used cars from the fenced-in lot that surrounded defendant's auto shop, and asked Gillian to come to the shop because he had money for him. . . .

Gillian arrived at the shop around noon and saw defendant outside of the shop, seated in a Sebring with a six-pack of Heineken on the passenger seat. Defendant did not appear sober. The two men went inside the office where defendant asked Gillian whether he had heard that Law had been selling drugs. According to Gillian, defendant told him that he was going to "fuck [Law] up." Defendant pulled out two guns: a chrome, .38-caliber Smith & Wesson revolver and black automatic handgun. Believing that defendant was "out of his mind" and intoxicated, as well as being concerned for his own safety, Gillian took the black automatic gun for protection.

Gillian and defendant exited the office and defendant approached Law, who was seated in a chair wiping sweat off of his face. Defendant leaned over him and started cursing at him. He then struck Law with the gun three or four times. Law stood up and pushed defendant back. Gillian testified that he saw defendant shoot Law once in the neck. He then left the shop before Law hit the floor and joined his cousin, [R.K], who was outside. The two men ran to Gillian's vehicle and drove away. Gillian turned over the handgun to his cousin, whom he believed could get rid of the gun easier than he could.

Philip, who witnessed defendant striking Law, heard a shot go off as he was walking out of the shop. When he turned around, he saw Law falling and smoke and a flame coming from defendant's gun. When Philip arrived home, he told his brother, Lamar [Leggard], what happened, but they did not call police. Later that evening, Lamar told his wife [J.L.] what happened.

Defendant went to the Leggard residence following the shooting on August 20 and 21, seeking help, which the Leggards refused to provide. On the second occasion, Lamar noticed that defendant was wearing the same clothing he had been wearing the day before. He testified that although he had "never smelled a dead body . . . that's what [defendant] smelled like, it smelled like a heavy stink." Defendant told him: "I got that shit out of my shop . . . I got it in my trunk." Defendant never explained what he meant by "shit," but admitted to Lamar that the body had stiffened and he had to "break the leg to put it in the trunk and he also showed [Lamar] the blood that was on his shirt." Defendant wanted to leave his vehicle parked on the Leggards' street, but Lamar told him he could not do so. As he left, Lamar noticed that defendant was driving a Cadillac. The next day he and his wife notified police.

. . . . [Defendant's] vehicle was recovered and a search of the trunk revealed blood. A DNA analysis later confirmed that the blood samples taken from defendant's vehicle were consistent with Law's DNA. Police were unable to locate Law.

[State v. Connor, Docket No. A-3346-08 (June 23, 2011) slip op. at 14-16.]

Following his arrest six months later, defendant gave a statement to Detective Christopher Smith, wherein he admitted to shooting Law. According to Detective Smith, defendant said

there was a physical altercation, a fight, that he and Tar[e]ek Gillian had gone and gotten each had gotten some guns, had come back. . . .

Both of them had gone up to Ben and started beating him with the guns, hitting him with the guns[,] and during this physical confrontation, the defendant's gun went off and Benjamin Law fell to the ground.

[Id. at 8.]

A jury convicted defendant of aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree disturbing or desecrating human remains, N.J.S.A. 2C:22-1(a)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing, the trial court denied defendant's motion for a new trial, which was based upon the court's failure to instruct the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957). The court imposed a custodial term of twenty-five years, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge, and a consecutive ten-year custodial term on the desecration of human remains conviction.

We affirmed defendant's convictions in an unpublished opinion. Connor, supra, slip op. at 23. The Supreme Court denied certification. State v. Connor, 208 N.J. 600 (2011).

Defendant filed a timely pro se PCR petition. He asserted that his trial counsel failed to request a change of venue, and the court failed to address his motion for a change of venue. He also asserted counsel failed to request a Clawans charge,1 due to the State's decision not to call Dr. Mambo and Dr. Askin to testify at trial.

At the PCR hearing, the judge, who had also presided over defendant's trial and sentencing, permitted defense counsel to orally supplement the petition. Counsel added claims of ineffective assistance of counsel for failing to request the Hampton charge;2 failing to file a motion to replace a sleeping juror; and failing to effectively cross-examine co-defendant Tareek Gillian.

The PCR court considered counsels' oral argument and subsequently issued its oral opinion and an order denying defendant's petition on substantive grounds. The judge determined an evidentiary hearing was not warranted and rejected each of defendant's contentions under Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

On appeal, defendant raises the following argument

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO PURSUE THE CLAIM OF A SLEEPING JUROR.

In a supplemental pro se brief, defendant raises these additional points

POINT ONE: THE PCR COURT ERRED BY DENYING APPELLANT'S CLAIM THAT HE WAS DENIED HIS [SIXTH] AMENDMENT RIGHT TO A FAIR TRIAL, DUE TO ONE OF THE JUROR'S SLEEPING DURING THE HEARING OF TESTIMONY.

SUB A: Ineffective Assistance of Trial Counsel For Failing to Request Voir Dire of Juror #4 Concerning His Sleeping During Testimony.

POINT TWO: THE PCR COURT ERRED WHEN DENYING APPELLANT'S CONSTITUTIONAL CLAIM OF BEING DENIED HIS [SIXTH] AMENDMENT TO CONFRONT DR. MAMBO AND DR. ASKIN.

SUB A: Appellant Received Ineffective Assistance of Trial Counsel Due to Counsel's Failure to Object to Dr. Perez['s] Hearsay Testimony.

In defendant's pro se reply brief, he raises an additional argument

POINT ONE: DEFENDANT'S CLAIM IS NOT BARRED DUE [TO] INEFFECTIVE ASSISTANCE OF PCR COUNSEL.

We begin with a review of the well-settled principles that guide our analysis. To prove ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987) (adopting the Strickland standard in New Jersey). The test requires defendant to demonstrate "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid.

We reject defendant's argument that he was denied the effective assistance of appellate and PCR counsel. Raised for the first time on PCR, defendant claims relief is warranted due to appellate and PCR counsel's failure to raise and properly "develop" the sleeping juror issue respectively. Though the issue is procedurally barred pursuant to Rule 3:22-4, because the PCR court considered this issue, we will address it as well.

On the first day of trial, the State presented the testimony of two eye witnesses, the Leggard brothers, and a co-defendant, Gillian. At the end of the day, juror number three addressed the court at side bar and claimed that juror number four slept during the testimony that morning. Neither the judge nor defense counsel had noticed the juror sleeping or snoring. The judge stated to the juror, "Thank you. We'll address that. Thank you. I appreciate that." Defendant argued the sleeping juror could have missed some of the testimony given by these witnesses. The PCR judge concluded counsel's representation was not deficient by not pursing the matter with the trial judge.

We have previously held that a court should take corrective action when counsel brings to its attention the fact of a sleeping juror. See State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986) (holding court should have done "something more" than dismiss, without any explanation, defense counsel's claim that a juror was sleeping). In State v. Reevey, we determined that the judge should have questioned the juror to determine if the juror had in fact been sleeping or if the juror's ability to render a fair decision had been impaired. 159 N.J. Super. 130, 134 (App. Div.) certif. denied, 79 N.J. 471 (1978). Ultimately, a trial judge has the discretion to remove a sleeping juror and to substitute an alternate pursuant to Rule 1:8-2(d).

Here, no further reference to this juror sleeping appears in the record. The judge did not explore whether the juror was actually asleep and if he or she missed any of the testimony. In light of that, defense counsel had an obligation to defendant to address the issue with the court. However, the record reveals counsel neither objected to the court's handling of the matter nor suggested a voir dire examination of the alleged sleeping juror. Nor did counsel request to replace the juror with an alternate. We find that counsel's conduct was deficient and fell below professional standard. Thus, defendant satisfied the first prong of the Strickland/Fritz test. See Strickland, supra, 466 U.S. at 687; Fritz, supra, 105 N.J. at 52.

We turn to second prong of the Strickland test, whether defendant has demonstrated "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The PCR judge found that the evidence of guilt was overwhelming, stating

In addition to defendant's alleged oral statement . . . the evidence against [defendant] consisted of the sworn written statement of Philip Leggard; the sworn tape[-]recorded statement of Tareek Gilliam, in which []Gilliam admits to being at the scene; the testimony of two eyewitnesses implicating defendant as the person who shot and killed the victim; evidence of the victim's blood was located in [defendant's] car, in his trunk, and at the defendant's auto repair shop, corroborated by DNA; the testimony of Lamar Leggard that defendant told him that he dumped the victim's body and had to snap the victim's legs to fit the parts into the trunk of his car . . . that was corroborated by the autopsy. Who else would know but the perpetrator, that the victim's body . . . or that the victim's body had to be snapped to fit the corpse in the trunk?

The testimony and photographs established that the victim feeling the defendant lead Detective Christopher Smith to the body of the victim in Jersey City under a pile of garbage. The testimony of Gina Hart, the forensic anthropologist who was present at the autopsy, testified that she examined the victim's skull, and she entered evidence of blunt force trauma.

I feel that the overwhelming evidence of guilt negates any possible claim of ineffective assistance of counsel even if the first prong of the Strickland test is proven[.] [] State vs Guzman, 313 N.J. Super. 363 [(App. Div.)] 1998.

Given the evidence, even if the juror missed the testimony of Gillian or the Leggards, the testimony and evidence produced by Det. Smith and Dr. Hart, as well as defendant's statement, independently represented overwhelming evidence of defendant's guilt. We concluded that defendant has not demonstrated there was a reasonable probability that the outcome of the trial would have been any different if trial counsel had not performed deficiently.

We reject defendant's argument that he was denied the effective assistance of appellate and PCR counsel for failing to raise or develop this issue. Simply put, appellate counsel is under no obligation to raise a meritless issue, State v. Rue, 175 N.J. 1, 15 (2002); and no showing has been made that PCR counsel did not render reasonable assistance. Strickland, supra, 466 U.S. at 688; see State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (explaining that proof requires sufficient facts that "demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999).

Next, defendant argues that trial counsel was ineffective for his failure to object to the admission of the autopsy findings of the non-testifying medical examiner, Dr. Nobby Mambo, and forensic dentist, Dr. Haskell Askins, through the testimony of Dr. Lyla Perez. He asserts that counsel's inaction deprived him of his right to confront the witnesses, as guaranteed by the Federal and State Constitutions.

The trial record reveals that trial counsel did not object to Dr. Mambo's absence. Rather, Dr. Perez, the forensic pathologist in charge of the Northern Regional Medical Examiner's Office, and Dr. Mambo's supervisor testified as an expert in the field of forensic pathology. Though she did not conduct the September 2006 autopsy of Law's body, Dr. Perez testified that she reviewed Dr. Mambo's report, and the photographs taken during the autopsy. Due to the decomposition of the victim's body, Dr. Gina Hart, the State's forensic anthropologist, prepared a report that Dr. Perez also reviewed. Defense counsel argued successfully to restrict Dr. Perez's testimony to the "four-corners" of Dr. Mambo's report, disallowing any independent opinion. Dr. Perez reached the same conclusion as Dr. Mambo that the victim's cause of death was blunt force injury and a gunshot wound. Counsel did not object to the admission of the autopsy report.

Defendant contends he was deprived the opportunity to cross-examine the author of the report on certain "discrepancies" in the autopsy report. Though defendant does not dispute that the victim was shot or that the projectile was retrieved from the body, he challenges the location of the entry point. In testifying on the findings of the report, Dr. Perez was not permitted to offer an independent opinion that may have addressed defendant's concerns.

When a defendant asserts his attorney inadequately represented his case, he must support his claim with "affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343, 353 (2013) (citing Cummings, supra, 321 N.J. Super. at 170). Here, defendant does nothing more than make "bald assertions," Cummings, supra, 321 N.J. Super. at 170, that Dr. Mambo's presence at trial was crucial to explain "discrepancies" in the autopsy report. Defendant did not provide any certifications to support an alternate conclusion on the cause of death. In light of the overwhelming evidence of guilt, even if defense counsel had raised a timely objection to Dr. Mambo's absence, and the State compelled Dr. Mambo to testify, the outcome of the trial would not have changed.

Moreover, "[t]he doctrine of invited error does not permit a defendant to pursue a strategy of allowing a substitute witness to testify and then when the strategy does not work out as planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89 (2014) (citing State v. A.R. 213 N.J. 542, 561 (2014) ("[T]rial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. . . ." (citations and internal quotation marks omitted)). On this record, the trial court could not have perceived that defense counsel was committing an error "clearly capable of producing an unjust result" by declining to object to the testimony of Dr. Perez. See R. 1:7-5. Rather, the record strongly demonstrates trial counsel strategically conceded to her testimony, stipulated to the admission of the autopsy report, and restricted her from offering an independent opinion.

We discern no reason for Judge Cassini to have conducted an evidentiary hearing, given the patent lack of merit to defendant's contentions. State v. Preciose, 129 N.J. 451, 462 (1992). Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see Ibid.

We have considered the balance of defendant's issues in light of the record, the applicable law, as well as the arguments of counsel and defendant pro se, and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 State v. Clawans, 38 N.J. 162 (1962).

2 State v. Hampton, 61 N.J. 250 (1972).