STATE OF NEW JERSEY v. CHRISTOPHER BLANK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04717-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER BLANK,

Defendant-Appellant.

________________________________________________________________

November 20, 2014

Submitted November 12, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-01914.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury convicted defendant Christopher Blank of shooting two police officers and shooting at a third in order to avoid arrest, he was sentenced to an aggregate extended term of eighty-five years with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed. State v. Blank, No. A-5815-07 (App. Div. April 13, 2011). Our Supreme Court denied certification. State v. Blank, 208 N.J. 339 (2011). Defendant now appeals from the May 24, 2013 order denying his application for post-conviction relief (PCR) after oral argument, but without an evidentiary hearing. We affirm substantially for the reasons expressed in the oral opinion of Judge Michael A. Donio, who also conducted the trial.

We need not repeat the facts developed at trial, which are set forth at length in our decision on direct appeal. State v. Blank, supra, slip op. at 1-6. Defendant raises the following issues in his PCR appeal

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 DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO UTILIZE PEREMPTORY CHALLENGES TO EXCUSE NUMEROUS JURORS WHO HAD SOME TYPE OF AFFILIATION WITH LAW ENFORCEMENT, DESPITE THE DEFENDANT'S EXPRESS CONCERN OVER HIS FAILURE TO DO SO.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO STIPULATE TO THE EXISTENCE OF SERIOUS BODILY INJURY REGARDING ONE OF THE POLICE OFFICERS WHO HAD BEEN SHOT, RATHER THAN PERMITTING THE STATE TO ELICIT THE EFFECTS OF THE SHOOTING WHICH WAS HIGHLY INFLAMMATORY IN NATURE, AS WELL AS BY FAILING TO REQUEST A MISTRIAL WHEN THE STATE ELICITED TESTIMONY WHICH SERVED TO CONNECT THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT.

POINT II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN OPPORTUNITY TO PRESENT EXPERT TESTIMONY CORROBORATING HIS CONTENTION THAT HE ACTED IN SELF-DEFENSE, WARRANTING A REMAND TO AFFORD THAT OPPORTUNITY TO HIM.

We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a claim, a defendant must satisfy the two-part Strickland test: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[,] and (2) the deficient performance truly prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed 2d at 693; Fritz, supra, 105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).

A demonstration that the error complained of might conceivably have had some effect on the result of the trial is not adequate. State v. Parker, 212 N.J. 269, 279 (2012). "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

There is a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed 2d at 695. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (citations and internal quotation marks omitted).

I

Defendant fails to meet his burden under the Strickland/Fritz test of demonstrating that he was denied effective assistance of counsel at trial because his lawyer failed to exercise additional peremptory challenges to remove all jurors with any connection to law enforcement. Juror selection is a matter of trial strategy. Trial counsel's strategic decisions based on the basis of professional judgment should be given great deference. State v. Petrozelli, supra, 351 N.J. Super. 14, 22 (App. Div. 2002) (citation omitted).

When reviewing jury selection at the PCR hearing, Judge Donio stated

Mr. Blank, and he'll remember, was very involved in jury selection, talking back and forth with [defense counsel]. This was not a jury selection where the defendant sat there and the lawyer sat here and they had no communication, no discussion. Many times . . . they said to me give us a second and they discussed different things back and forth, back and forth, back and forth, and I remembered it.

Judge Donio also said

I believe we did individual voir dire[] and we didn't do it in block in this case because of the police and the publicity and all that. I believe we did individual voir dire questions and everybody submitted additional voir dire questions. We asked open-ended questions and I think that the jurors that came up with their answers, the people that had to be struck for cause were struck, and that after that there was a limited number of challenges, but Mr. Blank was heavily involved in that and didn't insinuate to me in any way, shape, or form that he was dissatisfied with the jury.

The fact that a potential juror has relatives in law enforcement does not automatically require the removal of that juror for cause. State v. Hunt, 115 N.J. 330, 349-50 (1989). Here, similar to the situation in Hunt, all the jurors who defendant now claims should have been stricken were questioned by the trial judge and all were candid about their relationships with law enforcement as well as their ability to impartially determine defendant's guilt or innocence in this matter. See ibid. Defendant's claim that these jurors were biased against him and should have been excused is pure speculation and totally unprovable. Defendant's active participation in jury selection, as observed by Judge Donio, further weakens defendant's argument.

II

Defendant also argues that his attorney was ineffective in not stipulating that the police officer whom defendant shot three times suffered serious bodily injury. Defendant claims that her detailed testimony was more likely to result in a conviction than a stipulation would have been. In fact, defense counsel objected to a portion of the officer's testimony regarding her injuries and was overruled by the judge. Defendant presents no evidence to cause us to believe that the State would have entered into a stipulation regarding the severity of the officer's injuries in lieu of presenting live testimony. The State is entitled to present its evidence as it chooses without regard to defendant's willingness to stipulate to any element of the crimes charged.

III

Defendant argues also that his counsel was ineffective because, although counsel objected, he did not seek a mistrial when an officer testified that he "researched in our computer data base and located a photo of [defendant] since he had been involved in several previous instances." Judge Donio ensured that the jury did not see the photograph. The prosecutor also asked the officer, "Sergeant, police departments have photographs of people for a variety of reasons, isn't that so?" to which the witness responded, "Yes, we do."

Additionally, the jury knew that an arrest warrant had been issued for defendant, because the shooting occurred when the police were attempting to arrest defendant on that warrant.1 Thus, even if some jurors believed the police photograph of defendant was in connection with a criminal matter, the photograph could well have originated in the criminal matter for which the warrant was issued. Also, and perhaps most importantly, when defendant testified, his prior criminal record was revealed.

Judge Donio called defendant's claim of prejudice a "non-issue" and certainly would not have granted a mistrial. In State v. Winter, 96 N.J. 640, 646-47 (1984), the Court stated

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

Asking for a mistrial would have been futile. An attorney's failure to take a futile action is not constitutionally deficient. State v. Love, 233 N.J. Super. 38, 45 (App. Div.), certif. denied, 118 N.J. 188 (1989). For all of these reasons we reject defendant's claim of ineffective assistance of counsel based on trial counsel's failure to seek a mistrial.

IV

Defendant argues that Judge Donio erred when he did not hold an evidentiary hearing concerning defendant's claim that his trial counsel was ineffective for failing to present an expert to corroborate his claim of self-defense. In the Crawley case, the Court stated that "when a police officer is acting in good faith and under color of his authority, a person must obey the officer's order to stop and may not take flight without violating N.J.S.A. 2C:29-1." State v. Crawley, 187 N.J. 440, 451-52 (2006); State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997) (stating that a person is not entitled to resist an arrest, even if it is not a lawful arrest). Self-defense in response to an arrest is thus extremely hard to demonstrate.

Defendant concedes that the expert report proffered to Judge Donio by PCR counsel was not helpful to the defense.2 A PCR judge should only grant 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). To establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington[.]" Id. at 463. A defendant must do more than make "bald assertions" that he was denied effective assistance of counsel; he must allege specific 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). None of defendant's PCR arguments constitute more than "bald assertions." Therefore, Judge Donio did not err when he denied defendant an evidentiary hearing. Defendant failed to "demonstrate a reasonable likelihood that his [] claim, viewing the facts alleged in the light most favorable to [] defendant, [would] ultimately succeed on the merits." R. 3:22-10(b).

Affirmed.

1 Judge Donio cautioned the jury not to consider this warrant when assessing defendant's guilt.

2 In the report the defense expert stated that "[b]ased on the condition of the handcuffs, no determination can be made at what distance the bullet was fired."