STATE OF NEW JERSEY v. JAMES JACKSON

NOT FOR PUBLICATION WITHOUT THE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.

JAMES JACKSON, a/k/a TYREE L.

JACKSON, a/k/a MANNY JACKSON,

a/k/a JAMES L. JACKSON, a/k/a

JAMES H. JACKSON, a/k/a

DAMIEN PEOPLE, a/k/a DAMIEN PEOPLES,

Defendant-Appellant.

________________________________________

December 15, 2014

Submitted September 23, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment

Nos. 03-04-1524 and 05-01-0085.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant James Jackson appeals from the dismissal of his petition for post-conviction relief. Because the trial judge properly found the evidence inadequate to sustain defendant's burden on the application, we affirm.

Defendant was indicted for murder, N.J.S.A. 2C:11-3(a)(1) or (2); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); hindering his own apprehension, N.J.S.A. 2C:29-3 (b)(1); endangering an injured victim, N.J.S.A. 2C:12-1.2; and certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Just before jury selection, trial counsel advised the court that defendant wished to waive a jury against counsel's advice. After a searching colloquy, the court granted defendant's motion to waive his right to a jury trial.

Judge Brownconducted a three-day bench trial, following which he found defendant guilty of all charges, recounting the testimony and memorializing his findings in a twenty-page written opinion. The judge sentenced defendant to a fifty-year term of imprisonment for murder, subject to the periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a consecutive five-year term,without eligibility for parole, for certainpersons not to have weapons and concurrent sentences for the other offenses.

Defendant appealed his convictions raising the single issue that the court erred in granting his motion to waive his right to a jury trial. We rejected that argument in a published opinion. State v. Jackson, 404 N.J. Super. 483 (App. Div.), certif. denied, 199 N.J. 129 (2009).

Defendant filed a timely first petition for post-conviction relief claiming that his trial counsel had been ineffective in asserting that his statement to the police was not voluntarily given. He presented a certification from his trial counsel in which counsel averred that he did not call defendant as a witness at the Miranda1 hearing

because both the defendant and [he] agreed that we did not want him to be subject to cross-examination at the . . . hearing as we believed the Motion would be denied, and the best issue at that hearing was the long delay between the time of the defendant's arrest and his questioning where the arrest was done without legal process.

Defendant, in his petition, requested an evidentiary hearing "[w]ith respect to the issues of what trial counsel did to represent the defendant . . . so that [defendant] may testify regarding his claims and trial counsel may testify regarding his position." In a brief filed by appointed counsel, defendant argued that his trial and appellate counsel were ineffective because they failed to argue that defendant's statement was improperly obtained and that evidence of defendant carrying a gun days before the murder should have been barred pursuant to N.J.R.E. 404(b), failed to object to the substitution of a judge at the Miranda hearing, failed to argue that the State violated the rules of discovery by failing to memorialize a dying declaration of the victim, failed to argue that the court erred in failing to consider aggravated manslaughter or manslaughter as lesser included offenses of murder, that appellate counsel was ineffective for failing to argue that the trial court improperly admitted the statement of the victim as a dying declaration in violation of Crawford v. Washington2 and that these cumulative errors mandated vacation of his convictions and a new trial. Defendant filed his own supplemental brief in support of his petition, as well as a reply brief.

Without hearing argument by assigned counsel, Judge Brown issued a comprehensive written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). After thoroughly recounting the facts adduced at trial and the relevant procedural history, the judge found defendant's claims of ineffective assistance based on his statement to the police, the victim's dying declaration and the N.J.R.E. 404(b) ruling regarding defendant having been seen with a gun a few days before the murder, all procedurally barred as all had been the subject of pre-trial hearings in which each issue was resolved adversely to him. R. 3:22-5; State v. Marshall, 148 N.J. 89, 144 (1997). The judge found defendant's claim that his trial counsel was ineffective for failing to argue that the judge should have considered lesser included offenses to murder likewise barred because the judge considered them in analyzing and rejecting defendant's claim of imperfect self-defense. The judge further found that defendant's claims regarding admission of his statement, the dying declaration, the N.J.R.E. 404(b) evidence, the failure to consider lesser included offenses and the length of his sentence could all have been raised on direct appeal.

Although rejecting the claims as procedurally barred, the judge considered each on the merits, including the additional claims raised in defendant's supplemental submissions, under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The judge concluded that in no instance could defendant present a prima facie case that his counsel's performance had been deficient or demonstrate a reasonable probability that but for counsel's alleged errors the result would have been different. Accordingly, the judge dismissed the petition without a hearing.

On appeal, defendant presents the following arguments

POINT I

THE COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT HEARING ORAL ARGUMENT WAS REVERSIBLE ERROR AND CONTRARY TO THE HOLDING OF STATE V. PARKER.

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING BECAUSE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

DEFENDANT IS ENTITLED TO POST-CONVICTION RELIEF, AND HIS CONVICTIONS SHOULD BE REVERSED, BECAUSE THE TRIAL COURT FAILED TO CONSIDER THE LESSER-INCLUDED OFFENSES OF MURDER [OR] AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER, AS REQUIRED BY STATE V. JENKINS.

POINT IV

DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED BECAUSE ENFORCEMENT OF THE BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE AND THE CLAIMS ARE BASED ON CONSTITUTIONAL INFRINGEMENTS.

Defendant presents the following arguments in his pro se supplemental brief

POINT I

BECAUSE THE PCR HEARING JUDGE WAS ALSO THE JUDGE WHO PRESIDED OVER DEFENDANT'S BENCH TRIAL MEANS IT WAS A CONFLICT OF INTEREST FOR THE JUDGE WHO PRESIDED OVER THE BENCH TRIAL TO ALSO PRESIDE OVER THE PCR PROCEEDINGS SINCE DEFENDANT'S PCR INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS ALSO RAISED QUESTIONS ABOUT ERROR MADE BY THE BENCH TRIAL JUDGE.

POINT II

THE PCR COURT COMMITTED ERROR IN RULING DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS REGARDING THE DYING DECLARATION AND MIRANDA VIOLATIONS ARE BARRED BECAUSE THE TRIAL COURT FOUND THAT EVIDENCE TO BE ADMISSIBLE.

POINT III

THE PCR COURT COMMITTED ERROR IN RULING DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARE PROCEDURALLY BARRED BECAUSE THE CLAIMS SHOULD HAVE BEEN RAISED ON DIRECT APPEAL. DEFENDANT BELIEVES SAID CLAIMS NEEDED TO BE RAISED VIA A PCR HEARING BECAUSE THE FACTS WHICH ATTRIBUTED TO COUNSEL'S DECISION LAID OUTSIDE THE RECORD.

POINT IV

THE PCR COURT COMMITTED ERROR BY RULING DEFENDANT DID NOT ESTABLISH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENDANT ASSERTED HE RECEIVED INEFFECTIVE ASSISTANCE COUNSEL AT THE MIRANDA HEARING WHEN COUNSEL FAILED TO ARGUE DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE BECAUSE SAID STATEMENT WAS OBTAINED ILLEGALLY WHEN DETECTIVES DID NOT HONOR DEFENDANT'S REQUEST FOR COUNSEL.

POINT V

THE PCR COURT COMMITTED ERROR WHEN IT RULED DEFENDANT DID NOT ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING INTRDUCTION OF THE DYING DECLARATION.

POINT VI

THE PCR COURT MADE AN ERROR WHEN IT STATED DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD TO COUNSEL'S FAILURE TO ARGUE FOR A FINDING OF GUILT ON MANSLAUGHTER OR AGGRAVATED MANSLAUGHTER BECAUSE [THE STATE'S] EXPERT WITNESS TESTIFIED DEFENDANT SHOT THE VICTIM [IN] THE LEAST VITAL AREA.

POINT VII

THE PCR COURT COMMITTED ERROR WHEN SAID COURT RULED DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENDANT'S CLAIM THAT COUNSEL FAILED TO ARGUE FOR THE TRIAL COURT TO CONVICT HIM OF MANSLAUGHTER OR AGGRAVATED MANSLAUGHTER DUE TO THE VICTIM RECEIVING INADEQUATE MEDICAL TREATMENT.

POINT VIII

THE PCR COURT COMMITTED ERROR WHEN SAID COURT RULED DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD[] TO COUNSEL'S FAILURE TO ARGUE THE COURT HAD A CONFLICT OF INTEREST.

POINT IX

THE PCR COURT COMMITTED ERROR IN RULING THAT DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD[] TO COUNSEL'S INTRODUCTION OF A NON-TESTIFYING OFFICER'S REPORT, WHICH WAS USED TO CORROBORATE ANOTHER OFFICER'S CREDIBILITY.

POINT X

THE PCR COURT COMMITTED ERROR IN RULING DEFENDANT DID NOT ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WITH REGARDS TO COUNSEL'S FAILURE TO ARGUE PETITIONER WAS SENTENCED TO AN EXCESSIVE SENTENCE.

POINT XI

THE PCR COURT COMMITTED ERROR IN RULING THAT DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD TO THE UNCONSTITUTIONALITY OF N.J.S.A. 2C:11-3(a),(1) & (2).

POINT XII

THE PCR COURT VIA ITS DECISION STATED, WHEN IT PRESIDED OVER DEFENDANT'S BENCH TRIAL IT DID NOT CONSIDER DEFENDANT'S STATEMENT IN ITS DECISION TO FIND DEFENDANT GUILTY. THIS MEANS WHEN THE BENCH COURT STATED IN ITS FINDING THAT PRIOR TO TRIAL "ON DECEMBER 7, 2003 DEFENDANT ADMITTED SHOOTING..." THE VICTIM, THE COURT RELIED ON EVIDENCE THAT HAD NOT BEEN SUBMITTED INTO EVIDENCE.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in

Judge Brown's November 29, 2011 cogent and comprehensive written opinion. We add only the following regarding the judge's failure to entertain oral argument on the application.

Recently, in State v. Parker, 212 N.J. 269, 282-83 (2012), the Supreme Court noted the "strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief" and required that a judge eschewing oral argument "provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." The trial judge considered and rejected defendant's petition almost a year before the Court decided Parker. Although the presumption in favor of oral argument was not new, see State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001), a statement of reasons for dispensing with it had not been previously required.

Judge Brown was unusually familiar with this case. Not only had he presided over defendant's trial, but the case was tried to the bench, and the judge had written a twenty-page opinion detailing the evidence and his findings. Although defendant raised a number of different claims, none had merit and some were frivolous.3 Under these circumstances, we fail to see how the purposes underlying post-conviction review would have been furthered by oral argument and find no abuse of discretion in the court dispensing with it here.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

3 For example, defendant raised several different claims relating to his statement having been obtained in violation of Miranda. Defendant's statement, however, was never admitted at trial. Defendant testified in his own behalf and admitted shooting the victim, although he claimed he did so in self-defense.