STATE OF NEW JERSEY v. NICHOLAS WATSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05646-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS WATSON,

Defendant-Appellant.

_______________________________

December 15, 2014

Submitted October 6, 2014 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-01-0069.

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

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nicholas Watson appeals the trial court's June 26, 2012 order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.

After a jury trial, defendant was convicted in 2008 of four counts of first-degree robbery, plus various weapons crimes and other offenses. He was sentenced to an aggregate custodial term of thirty-nine years, thirty-four years of which are subject to the parole ineligibility prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

The State's proofs against defendant were largely derived from co-defendants who entered into plea bargains and cooperation agreements. They inculpated defendant in participating in the four robberies. According to the co-defendants' testimony, the group drove around late at night in a truck and robbed a series of individuals. During one of the robberies, defendant and another co-defendant shot and killed a gas station attendant, although defendant disputed that he fired the fatal shot. Defendant did not testify at trial or present any witnesses.

In an unpublished opinion, we upheld defendant's conviction on direct appeal, with only a minor modification to clarify the parole ineligibility period corresponding to the sentence. State v. Watson, No. A-3662-08 (App. Div. July 13, 2010). Certification was denied. 205 N.J. 98 (2010).

In his PCR application, defendant contended his trial counsel was ineffective in several respects. Specifically, he contended that his counsel: (1) failed to present alibi witnesses who allegedly would show that he was home asleep when the robberies occurred; (2) pressured him not to testify in his own defense; (3) failed to object to security measures in the courtroom when the three cooperating co-defendants were escorted to the witness stand by sheriff's officers; and (4) failed to conduct an adequate investigation. After hearing oral argument on these contentions, the PCR judge, Hon. Eugene H. Austin,1 dismissed the petition as lacking in merit.

On appeal from Judge Austin's ruling, defendant raises the following points for our consideration

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 CONDUCT AN ADEQUATE INVESTIGATION PRIOR TO TRIAL, INCLUDING INTERVIEWING RELEVANT DEFENSE WITNESSES, WHICH RESULTED IN HIS FAILURE TO PURSUE AN ALIBI DEFENSE AT TRIAL.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE TRIAL COUNSEL PRESSURED HIM NOT TO TESTIFY AT TRIAL, DENYING TO HIM HIS RIGHT TO TESTIFY IN HIS OWN BEHALF.

D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE SECURITY PROTOCOL IMPLEMENTED DURING TRIAL WITH RESPECT TO THE MANNER IN WHICH THE CO-DEFENDANTS TESTIFIED.

E. SINCE THE DEFENDANT CLEARLY PROVIDED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN SEVERAL DIFFERENT RESPECTS, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS.

Applying the governing law to the record, we agree with Judge Austin that these points lack merit. We add only a few comments.

To establish a deprivation of the constitutional right to the effective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). We proceed to apply these well-settled standards to the discrete claims of ineffectiveness that defendant is advancing.

The alibi now claimed by defendant did not surface until three years after the trial. Tellingly, defendant never made any reference to an alibi on the record at trial or at the time of his sentencing. After his direct appeal was exhausted, defendant provided a statement from his aunt contending that he had returned from working at the family restaurant before midnight and went to bed thereafter. Even if she had testified, the aunt very likely would have been viewed by the jurors as a biased witness because of her familial relationship with defendant. Her delay in providing a statement to support the alibi is highly suspect. Moreover, her proposed testimony would not have ruled out defendant's involvement in the robberies because she allegedly heard defendant come home around 11:30 p.m., whereas the robberies took place over two hours later. Applying the "highly deferential" standard of review of a defense attorney's decision as whether to call a witness at trial, see State v. Arthur, 184 N.J. 307, 320-21 (2005), we discern no constitutional violation in counsel's choice to refrain from presenting the aunt's testimony.

Defendant's claim that he was unduly pressured by his attorney not to testify is undermined by his statements on the record to the trial judge confirming that he had voluntarily agreed not to testify and that he understood that he had the right to do so. Defendant's "'[s]olemn declarations in open court carry a strong presumption of verity.'" State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). We also discern no actual prejudice flowing from this decision. Defendant's proposed testimony contending that he was sleeping during the robberies probably would have been given little credence by the jury. We have no reason to presume that defendant's testimony would have overcome the competing testimony of the co-perpetrators substantiating his participation.

Judge Austin also properly rejected defendant's claim that his counsel should have objected to the fact that an officer walked with and sat next to the two co-defendants when they testified. Under the applicable case law, trial courts retain discretion to implement such modest security measures where, as here, testifying witnesses who are otherwise in custody are not dressed in prison garb or handcuffed or shackled. See State v. Artwell, 177 N.J. 526, 538 (2003); State v. Russell, 384 N.J. Super. 586, 588-89 (App. Div. 2006). The trial judge had the discretion to use the escort rather than shackling the co-defendants, as defendant now advocates. Conceivably, the presence of the security escort could have been helpful to the defense, by implicitly suggesting to the jurors that the co-defendants were dangerous criminals who were unworthy of belief. Indeed, the defense argued these State witnesses had participated in the violent spree without him, so defendant realistically cannot show prejudice.

Defendant's overall claim of ineffectiveness is further weakened here by the fact that his trial attorney obtained an acquittal on the most serious count in the indictment for felony murder. In addition, defendant wrote a complimentary letter to his trial attorney after the trial, thanking him for his work on the case and requesting that steps be taken to pursue the appeal.

Given the circumstances and the exceedingly weak claims of ineffectiveness, the trial court was not obligated to conduct an evidentiary hearing here with testimony from the trial attorney. State v. Preciose, 129 N.J. 451, 462 (1992) (instructing that an evidentiary hearing on a PCR petition is not necessary if the defendant fails to present a prima facie basis for relief).

Affirmed.

1 The judge who presided over defendant's trial had retired.