STATE OF NEW JERSEY v. RASHID WALKER

NOT FOR PUBLICATION WITHOUT THE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.

RASHID WALKER,

Defendant-Appellant.

__________________________________

June 23, 2015

Submitted January 5, 2015 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-06-0824.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Rashid Walker appeals from the denial following an evidentiary hearing of his petition for post-conviction relief (PCR) and motion for a new trial. We affirm.

I.

The facts established in defendant's two trials were set out at length in our opinion on direct appeal and in the PCR court's oral decision. We highlight the relevant facts here.

On February 18, 2002, at approximately 10:50 p.m., Javid Patel, a laundromat owner carrying a large amount of money, was fatally shot five times by two .45 caliber handguns while sitting in his car. After the shooting, defendant and his cousin, co-defendant James Walker (James), ran to the apartment of their friend, Sahim Lee. They arrived out of breath, nervous, and upset, and defendant told the occupants not to ask questions about what they had done. At James's request, Lee agreed to store the two .45 caliber handguns belonging to defendant and James. Defendant and James then changed their jackets.

On February 27, 2002, police recovered the two .45 caliber handguns from Lee's closet. Two additional guns were found in the home of the mother of defendant's girlfriend, Shahqueena Wilson. Several persons linked defendant to those guns and to one of the .45 caliber handguns. Defendant and James were subsequently arrested.

Defendant admitted to police the guns in the Wilson home were his, but claimed that James had done the shooting, and that he had not seen James until around midnight. However, defendant wrote a letter telling Wilson to perjure herself and testify to a false alibi for defendant.

James, in his statement to police, asserted that he and Dayron Johnson shot Patel in an attempt to rob him, and that James fled alone to Lee's apartment. James additionally asserted he saw defendant for the first time that night when defendant arrived twenty minutes later.

On June 25, 2002, a Passaic County grand jury indicted defendant, James, and Wilson. The charges against defendant included first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) and N.J.S.A. 2C:2-6 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6 (count four); second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count six); four counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts seven, ten, eleven, and twelve); and two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2(a) (counts eight and nine).

The trial court severed the trials so James could testify on defendant's behalf. James subsequently pled guilty. Nonetheless, during defendant's first trial in 2003, defendant's attorney did not call James to testify.1 The prosecutor read into evidence James's statement to the police. The prosecutor argued James's statement supported the State's case against defendant because James admitted Patel was shot in an attempted robbery, even though James also claimed the other shooter was Johnson. Defendant testified he had nothing to do with Patel's shooting.

The jury found defendant guilty of receiving stolen property in count eight, and weapon offenses in counts two, six, seven, and eleven, but the jury was unable to reach a verdict on the remaining counts. Notes sent to the court from the jury during deliberations indicated one juror refused to properly deliberate, would not consider the evidence, and made tangential and improper racial commentary. The court declared a mistrial on the remaining counts.

In 2004, defendant was retried on the remaining counts where he was represented by a different attorney (trial counsel). Defendant did not testify at the second trial. When the State sought again to introduce James's statement, trial counsel convinced the court to exclude it based on the United States Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The State then attempted to call James as a witness. However, James refused to testify, despite the Attorney General's grant of full immunity, the prosecutor's threat of prosecution for obstruction and contempt, and the trial court's order holding him in contempt and imprisoning him for six months.

The jury found defendant guilty of murder (count one), robbery (count three), felony murder (count four), receiving stolen property (count nine), and unlawful possession of a weapon (count ten). The jury acquitted defendant of possessing the .45 caliber handgun not linked to him (count twelve). After sentencing, defendant pursued a direct appeal. We affirmed his convictions from both trials. State v. Walker, Nos. A-5769-03 and A-5952-04 (App. Div. May 9, 2008). We remanded only for resentencing, which resulted in a sixty-year term of imprisonment with 85% parole ineligibility. The Supreme Court denied defendant's petition for certification. State v. Walker, 196 N.J. 466 (2008).2

Defendant filed a PCR petition and motion for a new trial. Judge Raymond A. Reddin conducted a two-day evidentiary hearing, at which both James and trial counsel testified. Judge Reddin then denied defendant's petition and motion in a comprehensive forty-page oral decision and an order filed December 17, 2012.

Defendant appealed.3 Defendant's counseled brief argues

DEFENDANT'S MURDER, FELONY MURDER, ROBBERY, RECEIVING STOLEN PROPERTY AND UNLAWFUL POSSESSION OF A WEAPON CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO OFFER A CO-DEFENDANT'S EXCULPATORY STATEMENT IN EVIDENCE AND/OR FOR FAILING TO CALL THE CO-DEFENDANT AS AN EXCULPATORY WITNESS.

Defendant's pro se brief raises the following arguments

PCR COURT ERRED WHEN HE FOUND DIRECT APPEAL COUNSEL WAS NOT INEFFECTIVE WHEN IT FAILED TO ADVANCE THE CLAIM THAT DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE PROSECUTOR INTRODUCED A FINGERPRINT ANALYSIS REPORT THROUGH THE IN-COURT TESTIMONY OF AN ANALYST WHO DID NOT AUTHOR, PERSONALLY PERFORM, OR OBSERVE THE ANALYSIS WHICH IS RECORDED IN THE REPORT CONTRARY TO U.S. CONST. VI AMEND. [AND] ART. I PAR. 10 N.J. CONST.

PCR COURT ERRED WHEN IT FOUND THAT TRIAL COUNSEL WAS NOT INEFFECTIVE WHEN IT FAILED TO REQUEST A CONTINUANCE TO OBTAIN AN INDEPENDENT ANALYSIS OF A PARTIAL LATENT PRINT U.S. CONST. VI AMEND; N.J. CONST. ART.I PAR. 10.

PCR COURT ERRED WHEN IT FOUND DIRECT APPEAL COUNSEL WAS NOT INEFFECTIVE WHEN IT FAILED TO CHALLENGE THE TRIAL COURT'S ABUSE OF DISCRETION WHEN IT BARRED COUNSEL FROM CROSS-EXAMINING DETECTIVE HERSCHEL RAWLS . . . CERNING [sic] DAYRON JOHNSON CONTRARY TO U.S. CONST. VI AMEND; N.J. CONST. ART. I PAR. 10.

PCR ERRED IN REFUSING TO SET ASIDE APPELLANT'S CONVICTIONS ON THE BASIS OF NEWLY DISCOVERED EVIDENCE BASED ON THE AVAILABILITY OF CO-DEFENDANT JAMES WALKER STATE V. RASHID WALKER, App. Div. (A-5769-03T 4 Pg 39).

II.

We must hew to our standard of review. We review a PCR court's conclusions of law de novo. State v. Nash, 212 N.J. 518, 540 41 (2013). However, we defer "to a PCR court's factual findings based on its review of live witness testimony," id. at 540, because of its "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy,'" State v. Nu ez Vald z, 200 N.J. 129, 141 (2009). We do not disturb the PCR court's factual findings unless they are not supported by "sufficient, credible evidence in the record." Ibid. Moreover, "credibility determinations are given greater deference." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied., 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Indeed, we must affirm PCR courts' findings unless "'they are so clearly mistaken "that the interests of justice demand intervention and correction."'" Nu ez Vald z, supra, 200 N.J. at 141.

Based on our standard of review, we affirm substantially for the reasons set forth in Judge Reddin's thoughtful and well-reasoned oral decision on December 17, 2012. We add the following.

A.

To show ineffective assistance of counsel, defendant must meet the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). First, the "defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.'" State v. Gaitan, 209 N.J. 339, 349 50 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005).

Second, "[t]he 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.'" State v. Parker, 212 N.J. 269, 279-80 (2012). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original).

Defendant argues his trial counsel was ineffective for not calling James as a witness, and for successfully objecting on the basis of Crawford to the prosecutor's attempt to admit James's statement. As our Supreme Court has emphasized

Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.

[Arthur, supra, 184 N.J. at 320-21.]

Accordingly, "a court's review of such a decision should be 'highly deferential.'" Id. at 321.

At the PCR hearing, trial counsel explained that she chose not to utilize James or his statement because he provided a detailed account of the robbery, which would defeat trial counsel's strategy to move to dismiss the robbery count, and the dependent felony murder count, for lack of evidence. Trial counsel also testified that she interviewed James and found that he "was not likeable," and that his statement "was ridiculous on so many things that were easily disprovable by the [S]tate." Such strategic choices, made after a thorough investigation, "are virtually unchallengeable." State v. Marshall, 123 N.J. 1, 165 (1991) (internal quotation marks omitted), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Green, 274 N.J. Super. 15, 32 (App. Div.), certif. denied, 137 N.J. 312 (1994). In addition, the trial court and PCR court observed James under questioning and found he likely would not have fared well under cross-examination and would have harmed defendant's case.

Indeed, defendant agreed on the record with trial counsel's strategic decisions not to call James or admit his statement. Moreover, trial counsel's "perception of the probable impact of [James's] testimony on the trial was obviously shared by the prosecutor," who tried to call James as a witness and to introduce James's statement. Arthur, supra, 184 N.J. at 322.

In any event, James testified at the PCR hearing that "under no circumstances [would he have] answer[ed] any questions" at trial. He refused to testify even when given immunity, and when he was held in contempt because he had his own appeal pending. For all these reasons, trial counsel was not ineffective in her strategic decision not to call James or allow the State to introduce his statement.

Defendant contends that his trial counsel should have requested an adjournment until the completion of James's appeal in order to obtain James's testimony. However, Judge Reddin found trial counsel's decision not to call James to be a reasonable professional judgment, and therefore her decision not to request an adjournment was similarly reasonable. In any event, James's appeal did not end until almost three years after the second trial, and there is no reason to believe an adjournment of that length would have been granted. See State v. Walker, 189 N.J. 427 (2007).

B.

Defendant argues the trial court improperly denied his motion for a new trial on the basis of newly-discovered evidence, namely James's proposed testimony.

Evidence is newly discovered and sufficient to warrant the grant of a new trial when it is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted."

[Nash, supra, 212 N.J. at 549.]

However, James's proposed testimony essentially repeated his pretrial statement to police, and thus his exculpatory information was not discovered after trial or undiscoverable beforehand.

Moreover, defendant's trial had been severed to allow James to testify, and James had been immunized to remove any risk of self-incrimination and to make James available to testify. Cf. State v. Robinson, 253 N.J. Super. 346, 359-66 (App. Div.), certif. denied, 130 N.J. 6 (1992). Thus, we question whether James's testimony is properly regarded as newly-discovered, particularly as the trial court found that, in refusing to testify, James was acting in concert with defendant.

In any event, defendant failed to show James's testimony probably would have changed the jury's verdict. Nash, supra, 212 N.J. at 549. "[A] mere exculpatory statement of a co-defendant cannot by itself give rise to a new trial if that statement is clearly false or merely designed to give an accomplice a second chance for acquittal." Robinson, supra, 253 N.J. Super. at 366-67. Moreover, James "as a sentenced [exculpatory witness], had nothing to lose by exonerating [defendant] and his testimony is therefore inherently suspect." Id. at 367 (internal quotation marks omitted). As in Robinson, James's "story was clearly manufactured and did not have the minimum ring of truth sufficient to have the credibility issue presented to the jury." Ibid. Accordingly, "we cannot conclude that the trial judge erred in denying the motion for a new trial." Ibid. (upholding the rejection of a newly-discovered evidence motion based on a co-defendant's proposed testimony that the defendant was not involved in the robbery).

Finally, trial counsel's decision not to introduce James's testimony or statement was "the type of strategic decision that should not be second guessed." State v. Drisco, 355 N.J. Super. 283, 290-91 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003). It therefore cannot be the basis for a motion claiming newly-discovered evidence because "[a] defendant is not entitled to benefit from a strategic decision to withhold evidence." State v. Ways, 180 N.J. 171, 192 (2004) (citing Drisco, supra, 355 N.J. Super. at 290-91).

C.

Defendant argues pro se that his trial counsel was ineffective for not requesting a continuance to obtain an independent analysis of a partial latent fingerprint. The State's expert testified at trial that the fingerprint was insufficiently detailed to have evidentiary value.

Under the deficient performance prong of our ineffectiveness standard, there is a "'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy.'" State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). Defendant cannot overcome the presumption that trial counsel had a strategic reason not to request a continuance. There was an obvious risk that an independent analysis of the fingerprint could have inculpated defendant. Rather than seek a potentially incriminatory fingerprint analysis, trial counsel methodically questioned the expert witness, eliciting testimony that defendant's fingerprints were not found on any evidence related to the crime. Trial counsel did not employ unreasonable judgment when she chose not to object to favorable evidence.

D.

Defendant argues pro se that appellate counsel on direct appeal was ineffective for not raising the claim that his right to confrontation under Crawford was violated when the trial court allowed the State's expert to present hearsay testimony about fingerprint analysis by a fellow officer. We analyze this ineffective assistance claim under the deficient performance prong of the Strickland-Fritz standard. State v. Williams, 219 N.J. 89, 99-100 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). "The right of confrontation, like other constitutional rights, may be waived by the accused." Id. at 98. An effective attorney will sometimes "refrain from objecting to hearsay that may inure to the advantage of the defendant." Id. at 99.

As discussed above, trial counsel elicited favorable evidence from the State's fingerprint expert as a part of sound trial strategy. An objection excluding his testimony based on the Confrontation Clause was contrary to that strategy, and an appeal asserting plain error was unlikely to succeed. Thus, appellate counsel was not ineffective for not raising the Confrontation Clause on appeal. Appellate counsel is not ineffective for failing to raise every issue imaginable. State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

E.

Defendant's pro se brief further asserts that appellate counsel was ineffective for not arguing that the trial court abused its discretion when it barred cross-examination of a detective regarding the arrest of Johnson. A trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion." State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks omitted). "An abuse of discretion only arises on demonstration of 'manifest error or injustice,'" such as when "the trial judge's 'decision [was] made without a rational explanation.'" State v. Belliard, 415 N.J. Super. 51, 87 (App. Div. 2010) (alteration in original), certif. denied, 205 N.J. 81 (2011).

Here, the trial court sustained defendant's objection to James's out-of-court statement under Crawford. The court then ruled that the detective could not be cross-examined about the investigation and arrest of Johnson because James's statement was the sole basis for the detective's investigation, and therefore testimony about the investigation would be "entirely inappropriate" and "misleading." This is a rational explanation for excluding the evidence.

The PCR court noted that appellate counsel raised many points on appeal, and found "[a]ll the valid and proper issues were raised," and "appellate [counsel] left no stone unturned." We agree. "[D]efendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue that defendant requests on appeal." Gaither, supra, 396 N.J. Super at 515-16. Therefore appellate counsel was not ineffective for not raising these issues.

Affirmed.

1 Defendant does not allege his attorney in his first trial was ineffective.

2 We later upheld the resentencing. State v. Walker, No. A-788-08 (App. Div. Mar. 11, 2010).

3 It appears that defendant's appeal from the denial of his PCR petition may be outside the forty-five day period of Rule 2:4-1(a). Although defendant's pro se notice of appeal from prison was dated within the forty-five days, it was not filed until February 8, 2013. Given defendant's incarceration and the State's failure to object, we do not dismiss on these grounds. See Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385, 101 L. Ed. 2d 245, 255 (1988).